SZQGT v Minister for Immigration & Citizenship
[2011] FMCA 744
•7 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 744 |
| 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 misunderstood the relevant test, failed to take a relevant consideration into account, took an irrelevant consideration into account, made a finding unsupported by evidence and denied the applicant procedural fairness. |
| Migration Act 1958, ss.5, 36, 46A,195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Horvath v Secretary of State for the Home Department [2001] 1 AC 489 Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZQGT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1089 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 September 2011 |
| Date of Last Submission: | 26 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| 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 1089 of 2011
| SZQGT |
Applicant
And
| MINISTER FOR IMMIGRATION & 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 arrived by boat at Christmas Island on 23 February 2010. On 24 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 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.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error as well as an injunction restraining the Minister from relying on that recommendation.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, 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 are set out at paras.7-37 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 16 March 2010:
a)he is a Hazara and a Shia Muslim who was born in a village in Jaghori, in the Ghazni province of Afghanistan;
b)he left Afghanistan because of Taliban cruelty. He was arrested by the Taliban in 1999 because he was clean shaven. He was detained for one night and beaten before being released. Nothing else had happened before or after that incident; and
c)he feared returning to Afghanistan because he could be arrested and killed by the Taliban on the basis that he is a Hazara and a Shia Muslim.
RSA application
In a statutory declaration declared on 24 April 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)the Taliban routinely kidnapped, beat and killed Hazaras because they hated them. The Taliban also forced young Hazara men to fight and, if they refused, killed them;
b)he escaped the oppression of the Taliban in 1999. He had lived in fear and decided to leave Afghanistan before he was seriously hurt or killed;
c)the situation for Hazaras in Pakistan had deteriorated. Hazaras had no residency rights or access to protection. They were targeted by extremists groups and were killed almost daily. Anti-Hazara groups such as Wahabis and Sepa Sahaba killed Shia Muslims because they believe that Shia Muslims are not true Muslims;
d)his features are distinctively Hazara which would make him an easy target in both Afghanistan and Pakistan;
e)the authorities in Afghanistan cannot protect him as they cannot protect themselves because the government is weak whilst the Taliban grows stronger; and
f)he has no right to reside in Pakistan and thus does not have access to police or government protection or support. Many Hazaras are killed in Pakistan but the authorities do not investigate and no one opposes the Pashtun and Baluch.
At his RSA interview on 29 April 2010 the applicant said that his brother-in-law was still in his village but he had not spoken to him for eleven years. He also claimed that if he were to operate a shop in his home area, he would need to travel to purchase supplies to increase his profits.
Proceedings before the Reviewer
The applicant sent submissions to the Reviewer on 8 September 2010 essentially repeating his claims and adding that he feared returning to Afghanistan because of, among other things, an imputed political opinion. He claimed that he would suffer serious harm in Afghanistan as a returnee.
The applicant was interviewed by the Reviewer on 30 November 2010 at which point he made the following additional claims:
a)he had a family farm in his village which he had left with a family friend but no one lived in the family home. His father, when he had been alive, had worked the farm. His cousins remained in his village;
b)before he left Afghanistan, he had been a shop owner in his village and had travelled to different places to purchase supplies. Whilst there were secure routes into Jaghori, he needed to travel to other cities and there were no safe routes to take. The Taliban were all around and patrolled the roads;
c)the hospitals in Jaghori were not well organised and people needed to travel to hospitals in Kabul or Herat. The schools only went up to Year 10 so students had to travel to Kabul after that;
d)returnees had “lost their heads” and he would not be one of them; and
e)he could not live in Kabul because there was no security there, Hazaras had been killed there, the government was not working properly and he could not live a proper life.
On 27 January 2011 the applicant responded to a “natural justice letter” sent by the Reviewer and made the following claims:
a)he feared persecution from the Taliban, the Baluch, the Sepah Sahaba, and other Sunni and Wahabi groups;
b)Hazaras were asked to pay additional bribes at border crossings; and
c)he did not have family or community connections 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 accepted that the applicant was a Hazara and a Shia Muslim, ethnic and religious minorities in Afghanistan, but did not accept that the applicant’s ethnicity and religion by themselves meant that he would face a real chance of serious harm amounting to persecution in Afghanistan in the reasonably foreseeable future by non-state agents or the government. In this regard:
a)the Reviewer referred to country information which indicated that in the past few years individual Hazaras had at times suffered serious harm as a result of insurgency attacks on persons associated or perceived as supporting the government, in attacks on communications, facilities and road transport, and during some disputes over land and access to natural resources. However, he found that the reports did not show that Hazaras and Shia Muslims were targeted and persecuted for the sole reason of their minority status. The Reviewer found that different sources indicated that the Taliban targeted persons associated with or perceived as supporting the Afghan government and NATO forces and that this did not support the contention that Hazara Shias were persecuted for their religion and ethnicity alone;
b)the Reviewer was not satisfied that the effects of the general insecurity and insurgency in Afghanistan, together with the threats to safe and secure travel within Afghanistan, gave rise to a well-founded fear of persecution for a Convention reason;
c)the Reviewer found that information from various sources did not corroborate the claim that Hazara Shias were targeted by the government, the Taliban, the majority Sunni Muslims, or any other non-state party on a general basis and that instead there had been positive reports that the general situation of the Hazara Shias had improved. He noted and accepted two Department of Foreign Affairs and Trade (“DFAT”) reports which indicated that although there had been a resurgence of the Taliban, Hazaras were not targeted by the Taliban as they had been in the past and that conditions for Hazaras had improved significantly since the fall of the Taliban although limited employment opportunities, security challenges and a perception of discrimination encouraged Hazara migration; and
d)the Reviewer did not accept that the social discrimination against Hazaras referred to by some sources, including the United Nations High Commissioner for Refugees (“UNHCR”), DFAT and the US Department of State, was so severe that it amounted to persecution.
After being satisfied that the applicant was originally from a village in the Jaghori district of the Ghazni province in Afghanistan, the Reviewer found that there was not a real chance in the reasonably foreseeable future that he would face serious harm, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason. In this regard:
a)the Reviewer noted that the applicant had some family members in his village and that his village would be the place where he would have family, social and tribal links. The Reviewer concluded that if the applicant were to return to Afghanistan, he would return to his place of origin;
b)the Reviewer noted that authoritative sources (comments from an Afghan MP set out in a DFAT advice, a Cooperation for Peace and Unity (“CPAU”) report, the Afghanistan Independent Human Rights Commission and the UNHCR) indicated that Hazara districts were secure. In particular, a 2009 CPAU report considered that the risk of ethnic conflict between the Taliban and Hazara was lower in Jaghori than elsewhere in the Hazarajat. It also considered that the Jaghori and Malistan districts remained out of the Taliban’s reach due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction which seemed to be robust across the Hazarajat. The Reviewer noted that even though the report was written in 2009, its conclusions had not been contradicted by later events. He also noted that other reports indicated that the Hazara community in the Ghazni province enjoyed better educational and health facilities than did neighbouring provinces and had greater access to these service than Pashtun dominated districts;
c)the Reviewer noted and accepted DFAT advice which indicated that there were secure routes between Kabul and Ghazni, and between Ghazni and Jaghori. These secure routes, and the protection afforded by the Hazara faction which was strong in the Jaghori area, led the Reviewer to conclude that there was not a real chance that the applicant would face harm travelling to his home area upon his return to Afghanistan;
d)the Reviewer found that the applicant’s home area was a Hazara dominated region where he could reasonably seek access to traditional family and/or community structures. He referred to country information indicating that the applicant’s home area was a secure area where markets, health care and schools continued to function. He concluded that there was not a situation of generalised violence in Hazara dominated areas which would prevent the applicant from residing there; and
e)the Reviewer acknowledged that economic conditions throughout Afghanistan were poor but did not accept that the applicant’s personal financial circumstances upon his return would mean that he faced a real chance of harm for a Convention reason.
The Reviewer accepted that the applicant’s detention and beating by the Taliban, together with restrictions on travel, had caused him to have a subjective fear of returning to Afghanistan. However, the Reviewer found that the incident and surrounding circumstances had occurred many years earlier during the Taliban regime. He did not accept that the incident and the applicant’s departure from Afghanistan many years before would lead to the applicant facing a real chance of serious harm if he returned to his home area.
The Reviewer did not accept that the applicant would be prevented from undertaking his business or employment because of insecurity on the roads outside Jaghori district. He noted that there were major bazaars in Jaghori and country information showed that there were secure routes into Jaghori such that the applicant would be able to source goods from outside Jaghori.
The Reviewer did not accept that the applicant had a well-founded fear of persecution due to his membership of any of the following particular social groups: actual or perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs; returnees from Western countries; failed asylum seekers returning from a Western country; or as a returnee for any reason. In this regard:
a)the Reviewer referred to country information indicating that there had been incidents of harm to deportees where they were known or suspected of returning with large amounts of money but noted that these incidents appeared very isolated, relating to their particular circumstances and the general insurgency. He noted that other sources referred to the economic and social difficulties facing returnees but not to them being adversely targeted by non-state agents or government authorities for that reason only;
b)the Reviewer referred to a DFAT report noting that individuals returning to Afghanistan where they no longer had a family, land or social network would have difficulties but found that the applicant and his family would still have community and tribal links in his home area; and
c)the Reviewer noted and accepted a DFAT report indicating that Hazaras would not be targeted because they had sought asylum in the West and concluded that there was no credible evidence before him that persons returning to Afghanistan from Western countries as failed asylum seekers were targeted and persecuted for that reason. The Reviewer found that the applicant had not provided any compelling evidence that he had modified his religious views or been Westernised to any degree such that he would receive adverse treatment for becoming Westernised, atheist or un-Islamic in his practices.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings. In his application filed on 30 May 2011 initiating these proceedings the applicant alleged in support of his request for an extension of time the following:
1.The applicant was notified of the decision of Independent Merits reviewer on 24 February 2041 [sic].
2.The applicant found difficulty contacting the migration lawyer who assisted him apply for a protection visa while he was on Christmas Island. When he did so the migration lawyer was not able to assist the applicant apply to the Federal Magistrates Court (FMC).
3.The applicant later heard that a community group called Balmain for Refugees was trying to assist those refused protection by the Independent Merits Review.
4.The applicant contacted Frances Milne from Balmain for Refugees and asked for a lawyer to assist him apply to the FMC for review of the decision of the Independent Merits Reviewer.
5.Ms Milne indicated there were not enough lawyers to assist at that time and she was attempting to find more.
6.In mid April a barrister called Mr Bodisco confirmed the grounds in this application as having reasonable prospects of success.
7.On 20 April 2011 the applicant was placed in Silverwater MRCC after the fires for a period and released without charge about 2 weeks later and taken to Marybyrnong [sic] IDC where he now remains.
8.Ms Milne tried to get lawyers in Victoria to meet the applicant to sign his documents but failed. She flew to Victoria on 26/05/2011 and arranged with Marybynong [sic] to meet the applicant to get these documents signed.
The applicant filed an amended application in which he 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.
Extension of time
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 decision was dated 16 February 2011 and in order to be within the time described by s.477 the applicant needed to file his application no later than 23 March 2011. However, as his application was not filed until 30 May 2011 it was out of time.
The formal criteria for considering an extension of time application found in s.477(2)(a) have been satisfied and thus it is necessary to determine whether it is in the interests of the administration of justice that an extension be allowed. In my view, the considerations relevant to that issue, in this case, are whether the applicant has demonstrated a satisfactory explanation for the delay in commencing the proceedings and whether the substantive proceedings have reasonable prospects of success.
The application for an extension of time was supported by an affidavit affirmed by Frances Lillian Milne on 26 September 2011. Ms Milne is the co-ordinator of Balmain for Refugees which she describes as a volunteer organisation which assists failed asylum seekers including many “offshore asylum seekers from Christmas Island”. Ms Milne deposed to the difficulty which she had encountered in obtaining legal assistance for such persons.
Ms Milne’s affidavit satisfies me that the applicant has a satisfactory explanation for the delay in commencing these proceedings. However, for the reasons which follow, I am not of the view that the substantive application has reasonable prospects of success. As a result, the time to bring these proceedings will not be extended.
Substantive application
Relevant test misunderstood
The first allegation in the amended application was particularised as follows:
The second respondent found the applicant did not have a well founded fear of persecution, because the applicant could avail himself of the protection of a non-state actor, the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
The applicant submitted that the Convention test required a person to be outside his or her country of nationality owing to fear of persecution for reasons of membership of a particular social group and unable to avail himself or herself of the “‘protection’ of the county of nationality, or unwilling to do so owing to a well-founded fear of persecution”.
He submitted that although it is now well accepted that the “protection” in question refers to the external protection of the country of nationality, for example diplomatic or consular protection, the ability of a state to provide internal protection was not irrelevant.
In this regard, the applicant referred to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.
In that case Gleeson CJ, Hayne and Heydon JJ discussed the Convention and, in particular, the immediate context of its operation being that of a putative refugee who is outside the country of his nationality and who is unable, or owing to fear of persecution unwilling, to avail himself of the diplomatic or consular protection extended abroad by a country to its nationals. Their Honours also discussed the wider context of the Convention’s operation being its general purpose of enabling a person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn to the international community for protection. Their Honours cited with approval the view taken by the majority of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 that, in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant:a)to whether the fear is well-founded;
b)to whether the conduct giving rise to the fear is persecution; and
c)to whether a person is unable or, owing to fear of persecution, is unwilling to avail himself of the protection of his home state.
That is to say:
a)if state protection is sufficient, the applicant’s fear of persecution by others will not be well-founded;
b)if state protection is insufficient, it may turn the acts of others into persecution for a Convention reason, in particular it may supply the discriminatory element in the persecution meted out by others; and
c)if state protection is insufficient, it may be the reason why the applicant is unable, or if its amounts to persecution unwilling, to avail himself of the protection of his home state. (Respondents S152/2003 at 9 [21]).
The applicant submitted that the Reviewer had failed entirely to consider the Afghan state’s ability to provide state protection in the Jaghori district, instead asking whether the Hizb-I Wahdat Khalili/Nasr was able to provide protection to him. He also referred to the Reviewer’s reference to statements in the 2009 CPAU report to the effect that:
a)the risk of future ethnic conflict between the Taliban and Hazaras is likely to be lower in Jaghori than elsewhere in the Hazarajat;
b)the Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat;
c)the Taliban had not yet taken steps to challenge groups in control of the Hazarajat region; and
d)despite the pervasive Taliban influence in Ghazni province, the Taliban remained at the outskirts of the Jaghori and Malistan districts.
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.
What the Reviewer was required to do, and what he did, was to consider whether the circumstances in which the applicant would find himself were he to return to his home district were such that he had a well-founded fear of persecution for a Convention reason. The Reviewer did not err in the manner alleged by the applicant. He simply observed that the faction’s operations excluded Taliban influence such that, on the facts, the applicant’s fear of persecution was not a well-founded one.
Failure to take relevant consideration into account
The second allegation of the amended application was particularised as follows:
In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan, the second respondent failed to take into account the insufficient protection offered by the Afghan state.
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
The third ground of the amended application was particularised as follows:
In finding the applicant did not have a well founded fear of persecution, the second respondent took the irrelevant consideration into account that the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
The applicant submitted that the Convention test is directed to the question of protection by the state and that although states are not obliged to eliminate all risks of harm or to guarantee the safety of their nationals in all circumstances, those nationals are entitled to expect a level of protection which meets international standards. He submitted that the Reviewer continually referred to the protection offered by the “faction”, presumably the Hizb-I Wahdat Khalili/Nasr faction, and failed to consider the protection offered by the Afghan state.
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.
Consequently, the allegation that the Reviewer took an irrelevant consideration into account is not made out.
Finding made without evidence
The particulars of the fourth allegation were the same as those of the second allegation.
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.
For these reasons, the fourth ground of the amended application is not made out.
Relevant test misunderstood
The fifth ground of the amended application was particularised in the following terms:
In assessing the reasonableness of requiring the applicant to live in the Jaghori region of Afghanistan, the second respondent failed to consider:
a.whether the applicant’s freedom of movement would be significantly curtailed;
b.whether the internal safety of the applicant would be illusory or unpredictable;
c.the quality of protection offered by the Hizb-I Wahdat Khalili/Nasr faction; and
d.what conditions attached to any protection offered by the Hizb-I Wahdat Khalili/Nasr faction.
The applicant submitted that the Reviewer was required to consider whether his unwillingness to return to the Jaghori district was objectively reasonable in the sense discussed in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The matters which the applicant submitted were relevant to such a consideration were that his freedom of movement would be significantly curtailed, internal safety was illusory or unpredictable, the quality of protection offered by the faction was questionable and that any such protection might be conditional.
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 applicant submitted that procedural fairness required the Reviewer to put to him the substance of matters that the Reviewer knew of and considered might bear upon whether to accept the applicant’s claims. He submitted that the Reviewer’s failure to alert him to the determinative weight which was to be given to the protection afforded by the faction denied him an opportunity to call evidence concerning such protection and any conditions which might be attached to it.
However, the Reviewer was not required to alert the applicant to the weight which particular evidence would be accorded. As was said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152:
Secondly, as Lord Diplock said in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry,
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility. (reference omitted) (at 166 [48], [49])
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.
For these reasons, the final ground of the amended application is not made out.
Conclusion
I find that none of the matters alleged by the applicant in his substantive application discloses error on the part of the Reviewer and thus further conclude that the substantive application does not have reasonable prospects of success. In those circumstances, I find that it is not in the interests of the administration of justice that the time for the commencement of these proceedings be extended. Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 October 2011
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