SZQGT v Minister for Immigration and Anor (No.2)
[2013] FCCA 1320
•17 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQGT v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2013] FCCA 1320 |
| Catchwords: PRACTICE & PROCEDURE – Proceeding remitted by the Federal Court of Australia for the making of final orders following successful appeal on a discrete issue. |
| Legislation: Migration Act 1958, s.477 |
| Cases cited: SZQGT v Minister for Immigration & Citizenship [2011] FMCA 744 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119 |
| Applicant: | SZQGT |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1089 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 September 2013 |
| Date of Last Submission: | 2 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S.E.J. Prince |
| Solicitors for the Applicant: | SBA Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1089 of 2011
| SZQGT |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who seeks to be recognised as 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”). The facts of the applicant’s case are set out in the first judgment of this Court concerning him: SZQGT v Minister for Immigration & Citizenship [2011] FMCA 744 (“primary decision”). Nevertheless, it is useful at this point to repeat from that judgment that:
On 17 August 2010 an officer in 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 16 February 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. (at [1])
In the primary decision the applicant’s application to this Court was dismissed on the bases that it had been brought outside the time limit prescribed by s.477 of the Migration Act 1958 (“Act”) and that it was not in the interests of the administration of justice to extend the time within which it could be brought. The basis on which it was found that an extension of time under s.477 of the Act was not in the interests of the administration of justice was that the applicant had not demonstrated error on the part of the second respondent (“Reviewer”) or that his substantive claims had reasonable prospects of success.
The applicant appealed that decision to the Federal Court where it was held that s.477 of the Act had no application to this case and that I had erred by dismissing the applicant’s application by reference to its provisions: SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 (“appeal decision”). The matter was consequently remitted to this Court for determination having regard to the reasons in the appeal decision.
The remittal requires the Court to determine the proceeding on a final basis and by reference to the applicant’s substantive allegations, rather than on an interlocutory basis as had been the case when it was dismissed for being out of time. The issue is therefore whether the applicant has demonstrated that the independent merits review of his request to be recognised as a person to whom Australia has protection obligations under the Convention was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
Nature of remitted proceeding
Upon remittal, questions arose concerning the nature of the remitted proceeding, what issues could be raised upon remittal and whether I should disqualify myself from hearing the proceeding further. The same issues were raised by three other applicants whose matters had been similarly remitted as a result of the appeal decision. Following argument I concluded that subject to any re-opening of the applicants’ cases, there was no need or reason to reconsider them and no call to permit amendments, further hearings or further submissions in relation to them. I found that the question which the Federal Court remitted to this Court in each of the four cases could, and absent a re-opening should, be determined in accordance with the findings made in the primary decision applicable to each of those applicants: SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 at [29].
The applicant in this proceeding has not sought subsequently to re-open his case although he did seek unsuccessfully to amend his application for a second time: SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119.
Consideration
In his amended application to this Court the applicant alleged:
1.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Migration Act 1958 (Cth) (“the Act”).
2.The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
3.The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
4.The second respondent’s recommendation was not made in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection in the Jaghori region.
5.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.
6.The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
The relevant findings made in the primary decision in this proceeding were that:
Relevant test misunderstood
…
Contrary to the applicant’s submissions, the Reviewer did not approach his consideration of the applicant’s claims by reference to some form of surrogate state protection provided by non-state actors. Rather, he concluded that the dominant position of the Hazara faction in the Hazarajat was such that the applicant did not have a real chance of persecution by the Taliban were he to return to his home area. The faction’s activities were such that the Reviewer concluded that the applicant had no need for state protection. As Sundberg J said in Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7]:
…the Tribunal’s initial task was to determine whether or not the applicant had a well-founded fear of persecution for a Convention reason. If such a fear existed, it was then required to decide whether the applicant’s state of nationality was or was not able to offer protection to him. On the first part of its task, after assessing the material before it, the Tribunal found that Freetown and its environs were secure, that the applicant would be able to live there safely, and that he did not have a well-founded fear of persecution “at least for the reasonably foreseeable future”. The political composition of those who are keeping the peace and making an area secure is not relevant to the assessment of whether an applicant has a well-founded fear.
…
Failure to take relevant consideration into account
…
The level of protection which the Afghan state might afford the applicant were he to return to his home area was an issue which would only arise for consideration were the Reviewer satisfied that the applicant had a well-founded fear of persecution for a Convention reason such that state protection was necessary. As, in the circumstances, the Reviewer concluded that the applicant did not have such a fear, the need to consider state protection did not arise.
Irrelevant consideration taken into account
…
It is a misconstruction of the Reviewer’s reasons to say that they were concerned with the protection offered by the Hizb-I Wahdat Khalili/Nasr faction. As observed above, the Reviewer based his relevant finding on his conclusion that the dominance of the Hazara faction was such that the influence of the Taliban was excluded in the applicant’s home area. In this regard, although in para.99 of his reasons the Reviewer talked of “the protection afforded by the Hazara faction which is strong across the Hazarajat including the Jaghori area”, properly understood, that is not a reference to something like state protection afforded to a person fearing persecution. Rather, it is a reference to the generalised state of security, at least as far as Taliban intrusion was concerned, which the Hazara faction afforded in the areas of its hegemony.
…
Finding made without evidence
…
The applicant submitted that there was no evidence to support the Reviewer’s finding that he, the applicant, would be afforded adequate protection in the Jaghori region and no evidence on which to base his finding that the state of Afghanistan afforded him adequate protection. However, as already observed, the issue was not whether the Afghan state could or would provide the applicant with protection but whether the applicant needed such protection because he had a well-founded fear of persecution for a Convention reason. As the Reviewer concluded that the applicant did not have such a fear he was not required to, and did not, find that the Afghan state could provide him with protection.
…
Relevant test misunderstood
…
The submission that the Reviewer was required to consider whether the applicant’s unwillingness to return to the Jaghori district was objectively reasonable is misconceived because it is founded on considerations relating to whether a person fearing persecution in one part of their country of nationality might reasonably relocate to another part of that country where they would not be subject to such a fear. Such considerations are not relevant in circumstances where the issue is whether the applicant has a well-founded fear of persecution for a Convention reason in his home area. The issue before the Reviewer was not whether it was reasonable and practicable for the applicant to relocate to his home area but whether, were he to do so, he would have a well-founded fear of persecution for a Convention reason. For these reasons, this allegation does not disclose error on the Reviewer’s part.
Denial of procedural fairness
…
… the Reviewer was not required to alert the applicant to the weight which particular evidence would be accorded. …
Further, it should be noted that paras.27 and 28 of the Reviewer’s reasons describe part of the Reviewer’s interview with the applicant in the following terms:
27.I next discussed country information (see ‘Independent evidence/Country information’ below) at length. I indicated this shows:
· The Taliban are not specifically targeting/killing Hazara, Shia.
· Multiple sources indicate the Jaghori district of Ghazni province is a majority Hazara district with almost 100% of the population Hazara.
· The Jaghori district of Ghazni province is not a Taliban dominated area. One source reports the district remains out of the reach of Taliban control due to the military and political power of the Hiz-i [sic] Wahdat Khalili/Nasr faction.
· There are many returnees in Jaghori and returnees are not targeted for that reason alone.
· There are schools, hospitals and bazaars in Jaghori. There is one or more secure routes into Jaghori.
28.I suggested this information might mean he could live safely in Jaghori district.
The applicant has not suggested that the Reviewer’s summary of this interview was inaccurate or deficient in any way. Consequently, I conclude that the applicant was placed adequately on notice of the information in question and of its potential significance. (at [30], [33], [36], [39], [43], [45]-[47])
As a consequence of those conclusions it was found in the primary decision that the applicant had not made out his allegations.
As noted earlier, the nature of the order remitting the proceeding to this Court and the reasons in the appeal decision to which I must have regard are such that the findings to which reference has just been made have not been disturbed and need not be reconsidered for the purposes of the present decision.
Conclusion
By reason of the conclusions reached in the primary decision concerning the applicant’s substantive application, I find that he has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed with costs of $6,646 in accordance with the present fixed scale.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 September 2013
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