SZQFR v Minister for Immigration & Anor
[2011] FMCA 785
•11 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 785 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer failed to consider a claim made by the applicant. PRACTICE & PROCEDURE – Independent merits review scheme for offshore entry persons – judicial review – applicability of limitation period under the Migration Act 1958. |
| Migration Act 1958, ss.5, 13, 14, 36, 46A, 195A, 474, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Alami v Minister for Immigration & Citizenship [2011] FMCA 623 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 |
| Applicant: | SZQFR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 968 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 August 2011 |
| Date of Last Submission: | 24 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Smith |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time to bring these proceedings be dismissed.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 968 of 2011
| SZQFR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 1 February 2010. On 3 April 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). On 7 May 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 9 March 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He has sought a declaration that the recommendation is affected by legal error and an injunction restraining the Minister from relying upon it.
The evidence makes it clear that the applicant did not have a visa to enter Australia. Section 5(1) of the Migration Act 1958 (“Act”) provides that Christmas Island is an “excised offshore place”. Consequently, and pursuant to ss.13 and 14 of the Act, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out at pages 3-10 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 4 March 2010:
a)he was born in a village in the Jaghori district of Ghazni province in Afghanistan;
b)his father was a member of a local Hazara group. He fought during the war, against whom the applicant did not know, and later went missing;
c)in 1997, when the situation in Afghanistan deteriorated and after his father went missing, he and his family moved to Pakistan. He was about ten years old at the time;
d)the situation in Pakistan also deteriorated when the “Baluchi people” started killing Hazaras and Shias, although nothing specific happened to him;
e)in 2005 he went to the United Kingdom where he unsuccessfully sought refugee status. He was deported to Afghanistan in 2009 but left immediately for Pakistan; and
f)he cannot go back to Afghanistan because of the war. He fears that he will be killed by Pashtuns and the Taliban because of his Hazara ethnicity.
RSA application
The applicant provided a written statement dated 3 April 2010 in support of his application for an RSA and was also interviewed on 6 April 2010. He made the following additional claims:
a)the Hazara group of which his father was a member was a local informal group created to protect people;
b)at the time of his departure from Afghanistan in 1997 the Taliban had increased their harassment of Hazaras in his village;
c)his father was working on the family farm when he and many others were taken away by the Taliban. His father has not been seen since;
d)during his time in England he gained I.T. skills and learnt some English;
e)when he was deported to Afghanistan he feared that he would be harmed by the Taliban and therefore he arranged to return to Pakistan illegally; and
f)if he returns to Afghanistan the Taliban will kill him because he is a young Hazara. He fears serious harm because of his ethnicity and religion.
Proceedings before the first independent merits reviewer
The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. There was a previous recommendation made on 29 September 2010.
In submissions to the first independent merits reviewer dated 20 July 2010 the applicant claimed, amongst other things, that he feared persecution in Afghanistan on the following grounds:
a)his actual and/or imputed political opinion, i.e. that he is opposed to Taliban rule and is supportive of the government and coalition forces; and
b)his membership of a particular social group, being:
i)actual and/or perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs in Afghanistan;
ii)returnees from a western country; and
iii)failed asylum seekers returning from a western country.
In his interview before the first independent merits reviewer, the applicant also claimed that he faced persecution in Afghanistan because he was returnee who had changed after spending time in the West.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 21 January 2011.
At the interview the applicant claimed that it would be difficult for him to return to his village because, having lived overseas for so many years, he would not be accepted and might even be regarded as a spy. He would also have trouble re-adjusting to life in Afghanistan.
It was submitted by the applicant’s migration agent that the applicant would be targeted in Afghanistan because his father “had been against the Taliban”. It was also submitted that the applicant would be at risk if he expressed his adverse opinions of the Taliban or engaged in efforts to recover his father’s property.
The applicant’s migration agent provided post-interview submissions to the Reviewer on 23 February 2011. Those submissions did not address the applicant’s specific circumstances but, rather, were concerned with the general situation of Hazaras in Afghanistan.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer identified the applicant’s “essential claim” to be:
… that the claimant would face persecution as an Hazara and a Shia because Hazaras and Shias are generally persecuted by the Taliban.
However, the Reviewer did not accept that the applicant’s identity as a Hazara Shia would, of itself, cause him to fall within the definition of a refugee under the Convention because he was not satisfied that Hazara Shias were specifically targeted by the Taliban on a systematic and discriminatory basis or that they were generally persecuted in Afghanistan. The Reviewer noted the following matters in this connection:
a)according to information from the Department of Foreign Affairs and Trade, there was no evidence of a campaign by the insurgency to target Hazaras;
b)authoritative independent country reports from Amnesty International, the United Nations High Commission for Refugees and the United States Department of State all failed to specifically identify Hazaras and Shias in Afghanistan as groups which were generally subject to persecution for reasons of their ethnicity and religion. The Reviewer found that it was highly implausible that all three bodies, approaching their task from varying perspectives and utilising a range of sources, should all fail to note such persecution if it were as generally pervasive as claimed; and
c)a report that one or more Hazaras has been killed did not of itself and without more lead to an automatic inference that those individuals were killed for a Convention reason, let alone that Hazaras generally were persecuted. It was clear that while individual Hazaras may have been targeted as part of the general insurgency, non-Hazaras and non-Shias in Afghanistan were also victims of the Taliban’s attacks on communications and facilities.
The Reviewer accepted that the applicant’s father was a member of a local informal Hazara group and was killed or taken away by the Taliban in 1997. It also accepted that in Afghan culture a person could be targeted because of a parent’s actual or imputed opinions or actions. However, the Reviewer did not accept that the applicant would be targeted because of his father’s perceived failure to support the Taliban because the evidence did not suggest that the Taliban or Pashtuns have any ongoing presence in the area of the Jaghori district where the applicant’s village was situated. It was also particularly unlikely given the young age at which the applicant left and the length of time which had since passed.
The applicant also claimed that he held opinions against the Taliban which, if expressed, would put him at risk. However, the Reviewer did not accept that the expression of such opinions in Jaghori would, in the normal course of events, attract or give rise to particular adverse attention or persecution.
The Reviewer found that the applicant did not face a real chance of persecution as a member of a particular social group, noting that:
a)no evidence was advanced which suggested that the applicant would be regarded as a sympathiser or supporter of the coalition forces or foreign workers in Afghanistan, particularly given that the coalition forces and those associated with them were not present in Afghanistan at the time he left as a child in 1997;
b)the difficulties of re-adjusting to life in Afghanistan after a lengthy absence did not of themselves amount to persecution for a Convention reason;
c)the claim that returnees are persecuted because they are failed asylum seekers was unsupported by authoritative independent evidence; and
d)while there were reports that persons who returned to Afghanistan and were westernised in habits after a long residence in western society may for that reason attract adverse attention, no specific evidence was advanced that the applicant himself had become westernised in any significant aspect.
Finally, in relation to the applicant’s claim that the recovery of his father’s land might put him at risk, the Reviewer found that such fear was not Convention-related.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings. Section 477 of the Act relevantly provides:
477 Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Reviewer’s recommendation, together with its supporting reasons, was dated both 1 March 2011 and 9 March 2011 and the letter conveying it to the applicant was dated 11 March 2011. Assuming that the proper date of the Reviewer’s recommendation was 9 March 2011, and assuming that it amounts to a migration decision as understood by s.5(1) of the Act, the applicant had until 13 April 2011 to file the application commencing these proceedings. However, the application was not filed until 12 May 2011 and, ostensibly, was out of time.
The applicant submitted that it was unnecessary for him to seek an extension of time because the migration decision he was concerned with had not yet been made, being a
future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person, following the making of a recommendation by an Independent Merits Reviewer
as indicated in the original application and in the subsequent amended application filed on 19 July 2011. The Minister’s position was that the recommendation was conduct preparatory to the making of a decision, presumably a reference to s.474(3)(h) of the Act which provides:
(3)A reference in this section to a decision includes a reference to the following:
…
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;…
The parties’ submissions on this issue indicate a fundamental disagreement as to the identity of the migration decision which attracts the Court’s jurisdiction. Ostensibly, identification of the relevant migration decision would also determine whether the time limit prescribed by s.477 would apply to the application presently before the Court. The parties did not explore the complexities of this issue but agreed that the merits of the substantive application for judicial review would be a significant factor in the determination of this matter. After judgment was reserved in this matter judgment was delivered in Alami v Minister for Immigration & Citizenship [2011] FMCA 623 where Smith FM held that independent merits reviewers’ reports and recommendations were privative clause decisions under s.474 of the Act and were thus migration decisions as defined by s.5(1) of the Act with the result that s.477 applied to them. With respect I do not believe that the decision of Smith FM in that case was plainly wrong. In such circumstances, I should follow it. Consequently, I find that the applicant requires an extension of time in order that these proceedings can be competent.
In this case I am of the view that the considerations relevant to take into account when determining whether it is in the interests of the administration of justice that time be extended are whether the applicant has a satisfactory explanation for the delay, whether the Minister has been prejudiced by the delay and whether the substantive proceedings have reasonable prospects of success. However, as, for the reasons which follow, I am not of the view that the claim for substantive relief has reasonable prospects of success, it is not necessary to deal with the other considerations identified.
Substantive application
The grounds of the substantive application were pleaded in the amended application as follows:
1.That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
2.The Independent Merits Reviewer denied the applicant procedural fairness by not considering the claim that the Applicant feared harm for reason of being:
a) a young Hazara; or
b) a young man.
3. The Independent Merits Reviewer made an error of law by failing to consider the claim that the Applicant feared harm for reason of being:
a) a young Hazara; or
b) a young man.
Applicant’s submissions
The applicant referred to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 where, by reference to Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088, it was stated that when a person such as the Reviewer fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness (at 17 [55]).
He went on to refer to the holding in NABE that a person in the Reviewer’s position has an obligation to afford procedural fairness not only in relation to expressly articulated claims but also in relation to unarticulated claims not expressly advanced if they are apparent on the face of the material before the Tribunal:
The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it. (at 20 [61])
The applicant also referred to Plaintiff M61 at 150 [90] where it was held that failure to address one of the claimed bases of that plaintiff’s fear of persecution meant that the Minister was not informed about a matter which bore on the question which he had asked be considered, whether Australia owed the plaintiff protection obligations, with the result that there had been a denial of procedural fairness.
The applicant submitted that one of the claims he made from the outset was that he feared harm because he was “a young Hazara”. He pointed to the fact that this claim was first made in his statement of 3 April 2010 submitted in support of his RSA and had been included in the assessor’s summary of his claims. He pointed to the assessor’s conclusions where that claim was dealt with in the following terms:
… The representative also mentioned that the claimant is a young man, and young men are particularly targeted by the Taliban.
I have considered the above information and I acknowledge that the Taliban have been known to target young men. …
The applicant submitted that at his interview before the assessor it was clearly articulated that young men were particularly targeted by the Taliban and so this was a claim which was before the Reviewer. In his summary of the applicant’s claims the Reviewer referred to the relevant claim in the following terms:
He believes that if he returns to Afghanistan the Taliban will kill him because he is a young Hazara; he fears serious harm because of his ethnicity and religion.
The applicant submitted that the Reviewer appeared to accept that he was both young and Hazara but made no findings on the aspect of his claim which concerned his youth. He said that all of the Reviewer’s findings concerning the general situation in Afghanistan dealt only with Hazaras in general.
The applicant submitted that his claim to fear persecution because he was a young Hazara was one which was apparent on the face of the material before the Reviewer and was thus something which the Reviewer had to consider, particularly as the Reviewer had to conduct a review of the RSA on the basis of all the materials before him. In this regard, he submitted that the Reviewer implicitly acknowledged that the claims before him included those which the applicant had made to the Minister’s department because he specifically referred in his reasons to having the department’s file relating to the applicant before him and to the applicant having presented claims to the department at interview.
The applicant submitted that he satisfied the NABE criteria in that his claim was articulated, and also arose on the material, such that the Reviewer did not have to inquire or engage in constructive or creative activity to be aware of it. He submitted that the fact that claims made to the assessor were not later articulated in submissions made to the Reviewer did not matter as they had not been expressly abandoned.
Minister’s submissions
The Minister submitted that although the applicant had claimed in his initial application for refugee status to fear harm as “a young Hazara” his detailed submissions before the first and second reviewers did not suggest that his age was significant to his claim to fear harm as a Hazara or that he was claiming persecution as a member of a social group of “young Hazaras”, as opposed to a claim based on his Hazara ethnicity. He submitted that on no view could there be said to have been “a substantial, clearly articulated argument relying upon established facts”, as referred to in Dranichnikov and NABE, that the applicant claimed to fear harm as “a young Hazara” rather than as a “Hazara” so as to require such a claim to be addressed separately by the Reviewer.
In particular, the Minister submitted that the applicant had been represented before both reviewers and that detailed submissions had been made on his behalf on both occasions. The Minister agreed that the Reviewer was required to consider all previous submissions but these did not express his claim based on being a young Hazara to be anything different from a claim to being a Hazara and young.
He submitted that, before the Reviewer, no attempt was made on behalf of the applicant to argue that youth put him in a position different from other Hazaras, his claim being that all Hazaras had reason to be fearful and because he was Hazara he had such a fear.
The Minister submitted that a claim must be articulated in such a way that it is understood to be a claim but the applicant had not done this and there was nothing to indicate that his youth put him in a position different to that of other Hazaras. It was submitted that although the applicant had hinted at such a claim at the outset, it was not persisted with before the Reviewer and because there was no articulation before the Reviewer of a distinct claim to fear harm based on his youth and because the claim which was clearly articulated, namely that being Hazara, comprised a claim to be a young Hazara, it could not be said that the applicant had, in fact, articulated a claim based on his youth.
The Minister finally submitted that, in any event, any such claim was subsumed by findings of greater generality reached by the Reviewer.
Consideration
The resolution of this matter turns on whether the applicant can be understood to have made a separate claim to fear persecution by reason of his youth, either in conjunction with or in addition to his ethnicity.
In his statement dated 3 April 2010 in support of his RSA, after setting out some of his personal history, the applicant said:
What I fear may happen to me if I return to that country and why
17.I believe if I return to Afghanistan or Pakistan, I would face a real chance of serious harm for reasons of my ethnicity and religion.
Who I think may harm/mistreat me in that country and why
18.I believe if I return to either country the Taliban would harm me because I am a young Hazara.
The assessor’s Refugee Status Assessment Record refers to the fact that on 6 April 2010 she interviewed the applicant. In this regard, the assessor stated:
The claimant’s representative spoke on his behalf. He stated that the claimant left Afghanistan as a child, after his father was taken, presumed killed. This occurred in the village where the applicant was born and grew up. He stated that, as the claimant is an IT (Information Technology) person who has had access to the internet and can see the current situation in Afghanistan, the whole idea of returning inspired such fear that he did not even remain there when deported, but immediately made arrangements to depart. The representative also mentioned that the claimant is a young man, and young men are particularly targeted by the Taliban.
I have considered the above information and I acknowledge that the Taliban have been known to target young men. However, the claimant’s family home is located in Jaghori district within walking distance of Sang-e-Masha, in the Hazarajat, which is an area of Afghanistan considered to be relatively safe. Country information indicates that there are currently about 250,000 inhabitants in Jaghori, which is almost entirely inhabited by Hazaras, with about 10 percent of the population estimated to be returnees.
Based on the claimant’s responses at interview, I find that his claims represent a generalised fear about the situation in Afghanistan based on general information acquired regarding events in that country. However, I do not find that this in itself gives rise to a well founded fear of persecution. I accept that the claimant may fear for his safety due to the general situation in Afghanistan. However, what is happening in Afghanistan is a generalised phenomenon which affects many citizens and residents of that country. According to an expert in refugee law, person [sic] affected by generalised phenomena are not entitled to protection on that basis alone. …
… Relevant to this, I acknowledge the claimant’s claims of lack of security in Afghanistan. However, I am unable to accept that the claimant will be singled out and/or targeted in this respect due to his ethnicity and/or religion but that this phenomenon affects all the local population. (reference omitted)
The applicant’s request for an independent merits review was supported by a written submission prepared by his advisers and dated 20 July 2010. In that submission to the first independent merits reviewer, the applicant’s advisers submitted that the applicant was a refugee and a person owed protection obligations “for the reasons set out below”. After recounting aspects of the applicant’s personal history the advisers stated:
7.He fears persecution on account of his actual/imputed political opinion of being opposed to Taliban rule and supportive of the government in Afghanistan and the coalition forces.
8.His membership of a particular social group namely,
a. actual/perceived sympathizers or supporters of the coalition forces or foreign workers/NGO’s in Afghanistan; and/or
b. returnees from a Western country;
c. failed asylum seekers returning from a Western country.
9.Furthermore, and although it is not necessary, the Applicant has experienced past persecution and other serious violations of his human rights on account of a Convention reason/s. This also constitutes persecution. This has taken the form of his father being killed by the Taliban, discriminated for being a member of a minority, having restrictions imposed on his freedom of movement and his family fearing harm to the point where they fled their country to live as illegals in Pakistan. He is unable to participate equally in the political, economic and civil life of Afghanistan for a Convention reason/s.
In that submission, the applicant’s advisers summarised the assessor’s decision. They stated that the assessor had found that the harm feared by the applicant was because of his Hazara ethnicity and his Shia religion and, relevantly, that he could return to his home area in Afghanistan because it was relatively secure. In particular, no reference was made to the claim, quoted above at [40], that the applicant was a young man and that the Taliban targeted young men.
Nor was any reference made to the issue of the applicant’s age in the part of the submission which was addressed to the assessor’s conclusions. In particular, no reference was made to the fact that the assessor’s reasons and conclusions subsumed the reference to the applicant’s youth into the claims he made based on ethnicity and on religion. Instead, the applicant’s core claim was expressed to be that he was a Hazara, with reference also being made to a further claim based on his potential status as a returned failed asylum seeker. The applicant’s advisers submitted that the assessor’s decision deserved to be overturned because, amongst other things, she had failed to properly consider whether the applicant was at risk of persecution because of his membership of “a particular social group/s”. No reference was made in connection with this submission concerning particular social groups to the applicant being a young man and at risk of being targeted by the Taliban for that reason.
In addition to the submission that the assessor had failed to consider the applicant’s individual claims properly, it was submitted that those claims ought also to have been considered cumulatively and that the assessor had failed to do this. Relevantly, that assertion was expressed in the following terms:
The Delegate considered the facts and claims of the Applicant in isolation. It did not consider whether, in the entirety of the circumstances, the Applicant would face a real chance of serious harm if he returned to Afghanistan.
This required [scil: the assessor] to consider whether the Applicant would face real harm because of a combination of circumstances, including:- his Hazara ethnicity, his Shi’a religion, his actual/perceived support for the Afghan Government and coalition forces, his claim for asylum, his return from a Western country such as Australia.
Again, no mention was made of the applicant being a young man or of being at risk on that account.
The remainder of the advisers’ submissions to the Reviewer focused on the applicant’s Hazara ethnicity and to the situation of Hazaras in Afghanistan. No mention was made of the applicant’s age.
The first independent merits reviewer interviewed the applicant on 20 August 2010. The Reviewer noted in para.34 of his reasons that there had been no subsequent suggestion that the first independent merits reviewer’s summary of that interview was inaccurate. The summary of that interview makes no reference to a claim based on the applicant’s age. Similarly, neither the applicant nor his advisers made any reference to his age when interviewed by the Reviewer on 21 January 2011. Nor in subsequent written submissions was an argument advanced which referred to the applicant’s age.
When viewed as a whole, I conclude that the applicant’s claim as articulated to the Reviewer was based on his ethnicity, his religion, his perceived political views and possible perceptions of him were he to return to Afghanistan after a period abroad. Although the applicant’s adviser did initially raise with the assessor the question of the applicant’s youth and the Reviewer must be considered to have been aware that it had been advanced at that stage, it is apparent that to the extent that this was an integer of the applicant’s claims at the RSA stage, it was not subsequently so on review.
At all times the applicant was professionally represented and the fact that his youth was not raised at the review stage was not a case of an unrepresented applicant inadequately articulating his or her claims.
It should be understood to represent a decision concerning what the applicant’s claims were and what claims were being pursued. In those circumstances, the omission from the further evidence and submissions on review of any reference to the applicant’s youth as an integer of his claims had the effect of abandoning it as an aspect of those claims. Consequently, the assertion that the applicant was at risk of harm from the Taliban because of his youth could not be said to have been, at the review stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov or a claim which emerged clearly from the materials, in the sense discussed in NABE.
As a result, the Reviewer was not required to consider it and no error on the Reviewer’s part has been demonstrated on that account.
Conclusion
As the applicant has failed to make out his allegation that the Reviewer failed to consider an aspect of his claims, and thus that his substantive application has reasonable prospects of success, I conclude that it is not in the interests of the administration of justice that time be extended for the bringing of these proceedings.
Consequently, the application for an extension of time, and the application as a whole, will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 11 October 2011
CORRECTIONS
Paragraph 24 line 8 – delete “I was not referred to” insert “After judgment was reserved in this matter judgment was delivered”.
Paragraph 24 line 14 – delete “In the absence of any submissions to the effect” insert “With respect I do not believe”.
Paragraph 24 line 15 – delete “with in any event and with respect I do not believe it to be” insert “In such circumstances,”.
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