SZQGU v Minister for Immigration & Anor

[2011] FMCA 718

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGU v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 718

MIGRATION – Independent merits review of refugee claims of offshore entry person – Afghan Hazara Shia applicant residing in Pakistan – IMR found safe area in Afghanistan protected by non-State militia – not necessary for State protection to be found – no error of law or procedural unfairness – time for application extended – application dismissed.

Migration Act 1958 (Cth), ss.36, 46A, 476, 476A, 477

Alami v Minister for Immigration & Citizenship [2011] FMCA 623
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953
SZATV v Minister for Immigration (2007) 233 CLR 18
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZPZI v Minister for Immigration & Anor [2011] FMCA 530

Applicant: SZQGU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1090 of 2011

Judgment of: Smith FM

Hearing date: 24 August 2011

Delivered at: Sydney

Delivered on: 23 September 2011

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 May 2011.

2. The application is dismissed.

3. The applicant must pay the first respondent’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1090 of 2011

SZQGU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia without any visa, by boat reaching Christmas Island in February 2010. On 31 March 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 14 July 2010, and the applicant then applied for ‘independent merits review’ under those procedures.

2. Mr Packer performed such a review and on 15 February 2011 reported to the Minister, after interviewing the applicant and receiving submissions from his migration agents, Playfair Visa and Migration Services of Sydney. Mr Packer found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth), and recommended that he not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. The applicant was notified of the report by letter from the Department of Immigration dated 24 February 2011.

3. The applicant filed his present application to the Court on 30 May 2011, seeking a declaration that Mr Packer’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. The Minister concedes that Mr Packer’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”). 
   The Minister, however, submits that the application is rendered incompetent by s.477(1) of the Migration Act, unless time is extended under s.477(2). The Minister opposes the granting of an extension of time.

4. I have held in another case that an IMR report and recommendation of the present type is a ‘migration decision’ which is subject to the time limit in relation to relief of the type sought in the present application (see Alami v Minister for Immigration & Citizenship [2011] FMCA 623 at [48]-[67]). It is necessary, therefore to consider whether I should grant an extension of about two months, which would render the present application competent. I shall explain at the end of this judgment, why I have decided to do so.

5. Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Packer’s report reveals any error of law, including denial of procedural fairness, in its reasoning or in the procedures followed before its making.  The relief sought in the present application can only be contemplated if I am satisfied that Mr Packer made such an error.  It is not the function of the Court to engage in merits review of Mr Packer’s findings as to the risks facing the applicant if he returned to Afghanistan, nor to form its own opinions on whether the applicant should be permitted to reside in Australia. 

6. When examining Mr Packer’s reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]).

The applicant’s refugee claims and Mr Packer’s findings

1. The applicant’s background and claims for Australia’s protection under the Refugees Convention were presented at his entry interview at Christmas Island, at an interview in the course of the Department’s RSA procedures, at an interview with Mr Packer on 24 November 2010, and in several written submissions made on his behalf by his migration agent.  In short, he claimed, and Mr Packer accepted, that he is a national of Afghanistan with no other nationality or rights of entry to another country.  He was born in a Hazara Shia family which followed rural pursuits in a village in Jaghori district, Ghazni province of Afghanistan.  At a young age, he and his family fled from their home to Pakistan at the time of the Soviet-backed communist revolution.  They settled in Quetta, where in recent years he had conducted a shoe shop in a bazaar, until forced to close it by Taliban activities in 2009.

2. The applicant’s fears of returning to Afghanistan and his claims for protection were sufficiently summarised by Mr Packer:

   90.    Essentially, the claimant claims to fear persecution in Afghanistan because:

   ·    He is a man who is a Hazara and Shia Muslim.  Accordingly, he will suffer discrimination and serious harm as a member of a minority ethnic group and minority religious group.  He will suffer serious harm from the Taliban, Pashtuns and Sunni Muslims in Afghanistan.

   ·    His father returned to Afghanistan for a visit (most probably) in November-December 2001 but disappeared in Kandi Pusht presumed killed by the Taliban.  The claimant fears he will suffer the same fate in Afghanistan.

   ·    His brother was killed in Quetta, Pakistan in 2003: when a bomb exploded (interview at Christmas Island and submission on 16 November 2010), or when gunmen opened fire (written statement of 31 March 2010 and my interview).  The claimant fears he will suffer the same fate in Pakistan.  He also raised other claims about Pakistan.

   ·    It is neither relevant nor reasonable for him to return to Afghanistan as he has no family or livelihood in Afghanistan.

   91.    Submissions argued the claimant has a well-founded fear of persecution on account of his Hazara ethnicity and Shia religion; and actual/imputed political opinion of being opposed to Taliban rule and supportive of government forces.  Also because of membership of a particular social group, namely: actual/perceived sympathizers or supporters of the coalition forces or foreign workers/NGOs; returnees from a Western country; and failed asylum seekers returning from a Western country.  Additionally, persecution which has taken the form of “having restrictions imposed on their freedom of movement threatening their capacity to subsist or being able to participate equally in the political, economic and civil life of the country”.

3. Mr Packer’s conclusions in relation to these claims were summarised by him at the end of his report:

   129.  I do not accept that the male claimant’s ethnicity and minority religion by themselves, mean that in Afghanistan he faces a real chance of serious harm amounting to persecution by non-state agents (Pashtuns, Sunni Muslims, Taliban), or government authorities.

   130.  Nor do I accept that his particular and individual claims show that he faces a real chance of serious harm amounting to persecution.  His parents took him from Afghanistan when he was young and he has not returned since.  The father’s death in 2001 occurred at the end of the Taliban regime and is now distant in time.  The brother is claimed to have been murdered in Pakistan but I am not assessing the claimant against that country.

   131.  I conclude the security situation in the [applicant’s] area does not prevent the claimant from returning to reside there, and I do not accept he has a well-founded fear of persecution as a returnee.  I am not satisfied that the affects of the general insecurity and insurgency in Afghanistan, together with the threats to safe and secure travel within Afghanistan, amount to a well-founded fear of persecution for a Convention reason.

   132.  In sum, I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason.  I do not accept that in Afghanistan he will face a real chance of persecution for reason of his race, religion or political opinion (real or imputed).  I do not accept that in Afghanistan he would face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason.

   133. I am not satisfied that the claimant is a person to whom Australia has protection obligations under the Refugees Convention. I find that the claimant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958.

4. In short, Mr Packer based his adverse recommendation upon a finding that the applicant did not satisfy one element arising in the Convention definition of ‘refugee’ adopted by s.36(2) of the Migration Act, being a finding that his fear of being persecuted for a Convention reason if he returned to Afghanistan was not ‘well founded’, because, in Mr Packer’s opinion, he could live safely in the region of his family’s former home.

5. Under the interpretation of the Convention definition given by the High Court, the requirement that a fear be ‘well founded’ invokes an objective assessment of whether the risk of the feared Convention-related persecution in the country of nationality amounts to a ‘real chance’ (see SZATV v Minister for Immigration (2007) 233 CLR 18 at [18] and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572). Moreover, this test is not satisfied, if the decision-maker is satisfied that there is no such risk in one part of the country of nationality, provided that the ‘safe area’ is one where it is reasonable to expect the applicant to reside, either because it is the location of his former home or is another location where it is ‘reasonable’ to expect him to live, in the sense of ‘practicable’ (see SZATV (supra) at [17]-[26]).

6. Mr Packer’s reasons for concluding that the applicant could return to his family’s former location in Afghanistan first involved his rejection of a general submission that the applicant’s ethnicity and minority religion by themselves established a real chance of Convention-related persecution throughout Afghanistan.  After an examination of relevant general information whose assessment was in dispute, he concluded that it was necessary to approach the applicant’s claims by reference to his ‘particular and individual claims’.  No legal or procedural error was argued to have affected Mr Packer’s reasoning up to that point, in the present application.

7. Implicitly, in the course of his reasoning, Mr Packer found that the risk of persecution faced by an Afghan claimant by reason of attributes of Hazara ethnicity and Shia religion were ‘susceptible of a differential assessment based upon matters of regional geography’, depending upon his individual circumstances (cf. SZATV (supra) at [26]).

   
   

   He proceeded to explain why he found that there was a ‘safe area’ in Afghanistan to which the present applicant could return:

   105.  In sum, I do not accept that the male claimant’s ethnicity and minority religion by themselves, mean that in Afghanistan in the reasonably foreseeable future, he faces a real chance of serious harm amounting to persecution by non-state agents (Pashtuns, Sunni Moslems, Taliban) or government authorities, for any Convention reason.  I have therefore turned to his particular and individual claims: an approach endorsed by the UNHCR.

   His place of origin

   106.  The claimant indicated his place of origin in Afghanistan is his home village of [location], in the Jaghori district, Ghazni province.  In the absence of any contrary indications I accept this is his place of origin.  I also accept he resided in the [home village] area before leaving Afghanistan.

   107.  I am unable to get a clear picture of when the claimant’s father took the family to Pakistan as at different times he has said he was aged 9, 10 or 18 years at the time.  Regardless, if he was born in 1974 as he states, he left Afghanistan before the Taliban era and has lived most of his life in Pakistan.

   108.  At my interview he stated he no longer has family in his home village and he does not know what happened to the family farm.  When I queried why the family had not used contacts in Badarzar to find out what happened to the family farm, he replied his father had gone to Afghanistan in 2001 to find out.  Nonetheless, in his statement of 31 March 2010 he told of talking to many people about the dangerous road travel to and from his village.  His ready knowledge of road travel in and out of the village suggests he knows more about the village and the family farm than he has told.  Regardless, the home area is the place his family originated in and dwelt until departing to Pakistan.  This is where he would have social and tribal links: there will be people in the village and surrounding area who remember his family.  It is reasonable to consider that if the claimant returns to Afghanistan in the foreseeable future, he will return to his place of origin.

   109.  Numerous reports show Jaghori is an almost 100% Hazara region with a population of perhaps 250,000 with some enclaves of Pashtuns towards the outskirts, and Angori village which is populated mainly by Pashtuns.  Most reports concerning Ghazni province discuss the poor security conditions in the Pashtun-dominated districts, and some reports suggest the Hazara-dominated districts are increasingly under threat by the Taliban.  Sources discuss the Taliban’s night letters that announced a closure of the road to Jaghori ‘thereby raising fears of a replication of a Taliban road blockage of essential supplies in the late 1990s’ and raising speculation in June 2010 of a possibly imminent attack of the Taliban of Jaghori district.

   110.  Nonetheless, authoritative sources (comments from an Afghan MP set out in a July 2010 DFAT advice; Cooperation for Peace and Unity report, DFAT, AIHRC, UNHCR) indicate the Hazara districts are secure.  The AIHRC advised DFAT that Hazaras in Hazarajat reportedly did not face the particular challenges faced by Hazara minorities in other provinces.  In particular, the 2009 CPAU report discussed that:

   •Despite the risk of future ethnic conflict between the Taliban and Hazara, the risk of this is likely to be lower in Jaghori than elsewhere in the Hazarajat.

   •Additionally, Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat.

   •Consequently, to date there are no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr as the Taliban has not yet taken steps to challenge groups in control of the Hazarajat region.

   •The report concludes that despite pervasive Taliban influence in Ghazni province, the Taliban remain at the outskirts of Jaghori and Malistan districts.

   Although dated April 2009, the report’s conclusions have not been contradicted by later events.  Other reports indicate the Hazara community in Ghazni province (particularly in Jaghori district), enjoys better educational and health facilities than neighbouring provinces, and due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts.

   111.  The 2010 UNHCR report discusses the stable security situation in Hazara majority districts despite some reports of past Taliban attacks and the poor security in the remainder of Ghazni province:

   Marginalized during the Taliban rule, the Hazara community continues to face some degree of discrimination, despite significant efforts by the Government to address historical ethnic tensions.  Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening. Although not able to launch widespread operations in Jaghori, there are some reports of Taliban attacks in the district.  Jaghori district is increasingly isolated given that some access routes to and from the district, including large stretches of the strategic Kabul-Kandahar road, are reportedly under Taliban control. (p31)

   112.  The UNHCR report contains a footnote reference to ‘some reports of Taliban attacks in the district’ which details just 3 occurrences: the 2007 murder of members of the former police chief’s family in Angori by the Taliban, undated attacks against bordering police posts in Hutqul; and night letters distributed to villagers in 2009.  The few violent occurrences are consistent with reports that the Taliban operate against government and military targets.

   113.  I further note and accept the September 2010 DFAT advice (see above) which indicates there are secure route/s between Kabul and Ghazni, and between Ghazni and Jaghori.  These secure routes, together with the protection afforded by the Hazara faction which is strong across the Hazarajat including the Jaghori area, lead me to conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, travelling to the Badarzar area upon his return.

   114.  Although in Ghazni province, the claimant’s home area is in a Hazara community.  Whilst there is generalized violence elsewhere in the province, it is the case that the claimant would be conducting his life in Jaghori district, a Hazara-dominated region that is his place of origin and where he can reasonably seek access to traditional family and/or community structures.  Country information shows that Jaghori district is a secure area where markets, health care and particularly schools continue to function.  Additionally, one conclusion of the UNHCR report (in ‘Internal flight or relocation alternative’) is that the traditional family and community structures of Afghan society continue to constitute the main protection and coping mechanism particularly in rural areas where infrastructure is not as developed.  I conclude there is not a situation of generalized violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there.  I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future in his home area.

   115.  Additionally, I acknowledge that economic conditions are poor throughout Afghanistan, but do not accept that the claimant’s personal financial circumstances upon his return, mean that he faces a real chance of serious harm for a Convention reason.

   116.  In sum, I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason.

   (Citations Omitted)

1. Mr Packer then examined the applicant’s individual circumstances and history other than his place of origin, and explained why they did not establish a risk of persecution in Afghanistan for the special reasons claimed.  In this respect, he considered the implication of the disappearance of the applicant’s father in about 2001, the death of the applicant’s brother in Pakistan in 2003, and the situation of the applicant as a returnee asylum seeker.  It is unnecessary to examine this reasoning, since it is not the subject of the grounds of review argued before me.

The applicant’s grounds of review

1. The grounds were elaborated in an amended application filed on

   
   

   22 August 2011:

   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”).

   Particulars

   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 non-state actors, including the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan, and the “traditional family and community structures of Afghan society.

   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.

   Particulars

   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, and the “traditional family and community structures of Afghan society, the second respondent failed to take into account the insufficient protection offered by the Afghan state.

   3.The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.

   Particulars

   In finding the applicant did not have a well founded fear of persecution, the second respondent took the irrelevant considerations 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, and the “traditional family and community structures of Afghan society.

   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.

   Particulars

   The applicant refers to and repeats the matters referred to in the particulars to Ground 2 above.

   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.

   Particulars

   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

   6.The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.

   Particulars

   The second respondent relied on particular assumptions to conclude that the applicant did not have a well founded fear of persecution:

   a.That Jaghori and Malistan districts both remain out of Taliban control due to the military and political power of Hizb-I Wahdat Khalili/Nasr faction; and

   b.That protection offered by the Hizb-I Wahdat Khalili/Nasr faction is strong across the Hazarajat including the Jaghori district.

   The specific assumptions as to the military and political ability of the Hizb-I Wahdat Khalili/Nasr faction to protect Hazaras in the Jaghori district were never put to the applicant, denying him the opportunity to call evidence or make submissions on the point.

2. In his written and oral submissions, counsel for the applicant accepted that grounds 1 to 5 could be ‘rolled up’ into a single error of law by Mr Packer shown in his reasoning which I have extracted above.  This was a failure to appreciate that, on its correct construction, the Refugees Convention definition required a decision-maker to be satisfied that the internationally responsible government of the country of nationality would be willing and able to provide effective protection against the feared persecution in a perceived ‘safe area’, before it could be found that the applicant’s fear of persecution in his country of nationality was not ‘well founded’. 

3. Counsel then submitted that Mr Packer’s error in this respect had caused him:

   i)to fail to make findings as to the ability of the government of Afghanistan adequately to protect the applicant in his place of origin,

   ii)to rely upon irrelevant information that the region was rendered safe by the power of a non-government agency, being the “Hizb-I Wahdat Khalili/Nasr faction”,

   iii)to find a ‘safe area’ in the absence of any evidence showing the ability of the government of Afghanistan adequately to protect the applicant in his place of origin, and

   iv)to fail to consider the matters listed in the particulars under ground 5, which arose from the circumstances of the Taliban insurgency which had left the Jaghori district an unprotected island surrounded by insurgents.

4. Counsel for the applicant was unable to cite authority for the proposition that the Convention definition requires a relevant safe area to be adequately protected by the government of the country of nationality, and not by some other agency or circumstance which insulates that area from the feared persecution.  However, he submitted that the proposition was supported by the discussion of the relevance of State protection in the judgment of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [21]:

   [21]  Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view 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 at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath where she said, in relation to the sufficiency of state protection against the acts of non-state agents:

   [I]f it is sufficient, the applicant's fear of persecution by others will not be 'well founded'; if it 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; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.

5. Counsel also cited the judgment of Kirby J in that case:

   [101]    The most obvious failure of state protection will arise when the state and its agencies and officials are the actual perpetrators of serious harm to a person who subsequently claims protection on the ground of refugee status. However, another class that will enliven the Convention is a case like Khawar, where the agencies of the state are unable or unwilling to provide protection to their nationals. Where the evidence establishes that this is the case it will potentially lend support to claims of "fear". It may sustain such claims of fear as "well-founded". This is because, to the extent that state agencies or officials engage in the harmful conduct or neglect or omit to provide protection or redress, they render subjective fears substantial and "well-founded". They are "well-founded" because of the protective role ordinarily to be attributed to a state and its functionaries, the resources that the state normally has to carry out its functions and the scope for sustained oppression where the state is actively or passively involved in the conduct amounting to "persecution".

   [102]    When these qualifications are met, the relevant acts and omissions will arguably fall within the notion of "persecution" as used in this context. They will help establish the necessary link between the "well-founded fear" and the propounded ground, in this case "for reasons of … religion". In the case of an applicant for refugee status who is outside the country of nationality, they will potentially explain why he or she is "owing to such fear … unwilling to avail himself [or herself] of the protection of [the] country [of nationality]".

6. However, in my opinion, these passages do not support the proposition that the existence in the location to which the applicant would return of adequate State protection against Convention persecution is a prerequisite before that location can be regarded as a relevantly safe area so as to prevent a finding of ‘well-founded’ fear.  Their Honours’ discussion points to no more than the possible factual relevance to that issue, of evidence concerning the local effectiveness of State protection.  In my opinion, the judgments in Respondents S152/2003 leave open the possibility that non-government agencies or local conditions may be identified which render safe a particular area of a country so as to render fears of persecution in that area not ‘well-founded’, regardless of whether an internationally recognised government is able to protect all of its citizens against persecution in all parts of the country, and in the perceived safe area in particular. 

7. In my opinion, as with countries facing a total breakdown of civil government, under the ‘well-founded’ element of the Convention definition of refugee, the individual circumstances prevailing in an area to which an applicant could return need to be examined objectively to determine the real chance of the feared Convention–related persecution occurring to the claimant in that area (cf. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [7], [69]-[70], [151]-[155], and [227]). The absence of adequate protection being provided by an internationally recognised government may make more likely the risk of the feared persecution occurring in that area, but it is open to a decision-maker to find that other circumstances exist which negate the risk of Convention-related persecution to the claimant. I therefore do not accept the construction of the Convention definition of ‘refugee’ which is the foundation of grounds 1 to 4 of the present application.

8. I accept the submission of counsel for the Minister, that the opinion of Sundberg J in Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 remains consistent with later authorities, including Respondents S152/2003.  I would respectfully adopt his Honour’s reasoning in that case, which suggests that it is sufficient for a decision-maker to be satisfied as to the absence of a relevant risk in a safe area, and that the reasons for the absence of that risk are irrelevant to the validity of a finding that the Convention definition is not satisfied. 

9. In Siaw, it was argued that a Tribunal erred “in holding that the ‘relocation principle’ is applicable where the protection available is provided by an armed international force and not by an applicant’s own State”.  Sundberg J held at [7] that this involved a misreading of the Tribunal’s reasoning.  But he also held that the reasons for the area being safe were irrelevant:

   [8]Although the submission at present under consideration does not appear to have been put to Heerey J in Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 or to the Full Court on appeal [2001] FCA 76, that case supports the view that so long as an area is safe for an applicant to return to, the consequence of which is that any fear of return he may have is not well-founded, it does not matter that that safety is brought about by UN as well as government forces. Cole is relevantly indistinguishable from the present case. The Tribunal's findings in that case, based on the same country and other information about Sierra Leone, were substantially the same as those made by the Tribunal in the present case. The Tribunal in Cole found that the presence of the UN in Sierra Leone, particularly in and around Freetown, and its commitment to implementing the peace agreement, made it safe for the applicant to return without a real chance of facing persecution in the reasonably foreseeable future. Heerey J rejected various attacks on the Tribunal's decision and dismissed the application for review. On appeal the Full Court upheld Tribunal findings in substantially the same terms as those made by the Tribunal in the present case, concluding on that basis that there was no real chance of the applicant being persecuted on his return and that accordingly, any fear of persecution he may have was not well-founded.

10. Sundberg J’s judgment at [9] also cited authority (if it is needed) that a decision, which rejects a refugee claim on the ground that a fear is not well-founded in relation to a relevant safe area of the country of nationality, is not vitiated by any failure to consider the existence of State protection in relation to other elements of the Convention definition.  He said:

    ….Because of its finding that the applicant did not have a well-founded fear of persecution, the Tribunal was not required to make a separate finding as to the ability or otherwise of Sierra Leone to offer protection to the applicant. If it had made an error of law in the assessment of state protection, it would not have been an error that affected the decision to affirm the refusal to grant a protection visa. The error would not have had any impact on the ultimate decision of the Tribunal to affirm the delegate's decision. See Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at 519-520.

    (See also Sundberg J’s reasoning at [13].)

11. Considering Mr Packer’s reasoning in the present case, it is not apparent to me that he failed to consider whether the government of Afghanistan would be unable to provide protection to the applicant in Jaghori, nor that he found that it would not be able to do so, whether through its own armed forces engaged with the Taliban, or through the militia of one of its constituents or supporting ‘factions’, or through the international forces engaged in the Afghanistan war.  In this respect, the discussion in Mr Packer’s paragraph 110 appears to me to leave open the possibility that the ‘Hizb-I Wahdat Khalili/Nasr faction’ may have been associated with the government of Afghanistan.  This possible reading of his reasoning was not explored in the submissions made to me, and it was not submitted that such a finding was not supportable by reference to the country information before Mr Packer.

12. However, in my opinion, on the interpretation of the Convention definition explained above, Mr Packer’s reasoning would not have reflected error of law, even if it is read as showing that he was able to satisfy himself that the applicant’s place of origin was relevantly ‘safe’ merely by reason of the political and military power of a ‘faction’ unrelated to the internationally recognised government of Afghanistan. 

13. I therefore conclude that Mr Packer’s reasoning leading to his finding that “there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason” does not reveal material error of law of any of the species contended in grounds 1 to 4.

14. In relation to ground 5, assuming that it has independent foundations, I am not persuaded that Mr Packer did not consider the particularised matters when assessing the risk facing the applicant in his place of origin.  Moreover, in my opinion, these particulars raise arguments going only to the factual merits of Mr Packer’s assessment of that risk, and no material error of law would be established even if any of these matters were not examined and given weight by him.

15. In relation to ground 6, counsel for the applicant made only cursory submissions in support of the contended failure of procedural fairness. 

16. In my opinion, it is clear that Mr Packer afforded a reasonable level of procedural fairness in relation to his reliance on country information suggesting that the applicant would be safe from his feared persecution if he returned to Jaghori, including the information in “the 2009 CPAU report” cited in paragraph 110 of his report. 

17. This information, including its reference to the military and political power of the Hizb-I Wahdat Kahili/Nasr faction, was expressly raised by Mr Packer with the applicant and his agent at the interview. 

    
    

    Mr Packer describes this at paragraph 37-41:

    37.    I next discussed country information (see ‘Independent evidence/Country Information’ below) at length.  I indicated this suggests:

    ·   The Taliban are not specifically targeting/killing Hazara, Shia.  However, reports indicate they are targeting persons associated with Afghani government authorities, international organisations, traditional leadership figures, and civil society activists.

    ·   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 Hiz-I 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.

    38.    I suggested this information might mean he could live safely in Jaghori.

    39.    The claimant stated he cannot return to Afghanistan.  His father was killed.  He has lived in Pakistan for 26 years: his accent has changed; he dresses differently; he has no relatives to support him there.  It is not safe.  It is surrounded by Pashtuns, and he discussed the Pashtun versus Hazara history.

    40.    He stated he agrees that Jaghori is Hazara and is safe, but it is like a cage.  They cannot travel to Kabul or south and many people are killed on the roads.  Jaghori is safe itself but Pashtuns surround it and control the roads.  He discussed how Hazara are killed and vehicles taken or forced to pay taxes.

    41.    The agent next made oral submission including:

    ·   Only one road to Jaghori is secure.  A map of Jaghori showing Badurzar was provided.

    ·   Ruttig gave the opinion Jaghori was at risk.

    ·   The UNHCR report is a huge document and the claimant is illiterate: so how can he persuade the Reviewer off the top of his head that the information is not correct.

    ·   The Angori bazaar has Talebs in it.

    ·   The UNHCR and US Department of State say Hazara are not targeted by the reality disputes this.  Pashtuns have persecuted Hazara over the centuries

    ·   The claimant suffers depression.

1. The country information was further put to the applicant’s agent for their written comment, in an invitation dated 17 January 2011 (see Court Book p.129-130).  In response, the applicant’s agent took issue with the suggestion that the applicant would be safe in Jaghori from persecution directed at him as a Hazara Shia, citing other country information. 

2. Taking these oral and written exchanges into account, in my opinion Mr Packer sufficiently complied with his obligation to “identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power” and to “advise of any adverse conclusion which would not obviously be open on the known material” (see Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [9]). Mr Packer was not otherwise obliged to “expose his mental processes or provisional views to comment before making the decision in question” (see Alphaone, cited with approval in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [29])

3. For all of the above reasons, I am not persuaded that the applicant has identified any error of law or denial of procedural fairness materially affecting Mr Packer’s report or recommendation to the Minister. 

   
   

   I must therefore dismiss the application.  Costs should follow the event.

Whether time should be extended under s.477(2)

1. My above conclusion on the substantive merits of the grounds of the application might appear to leave academic whether I should extend the time provided under s.477(1). However, this is not the case, since if I dismiss the application as incompetent rather than on its merits, the applicant loses a right of appeal, but is able to start proceedings afresh in the High Court unimpeded by estoppel (see s.476A(3)(a) of the Migration Act). It is therefore appropriate for me carefully to consider whether I am satisfied that “it is necessary in the interests of the administration of justice” to extend the 35 day time limit by about two months.

2. The applicant’s explanation for the delay in filing his application was given in his original application.  Although it is not verified, the Minister’s counsel did not dispute its assertions:

   1.The applicant was notified of the decision of Independent Merits Reviewer on 25 February 2011.

   2.The applicant found difficulty contacting the migration lawyer who assisted him to 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 to the Federal Magistrates Court (FMC).

   3.The applicant later heard that a group called Balmain for Refugees was trying to assist those refused protection by the Independent Merits Reviewer.

   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.Frances Milne from Balmain for Refugees indicated there were not enough lawyers to assist at that time and she was attempting to find more.

   6.In mid April barrister Mr Bodisco confirmed the grounds in this application as having reasonable prospects of success.

   7.An application to the FMCA was prepared for signing but access to VIDC was stopped during the fires and for a period afterwards.  On 20 April 2011 the applicant was placed in Silverwater MRRC and released without charge about 2 weeks later and taken to Maribyrnong IDC where he now remains.

   8.Ms Milne tried to get lawyers in Victoria to meet the applicant to sign his documents by failed.  She flew to Victoria on 26/05/2011 and arranged with Maribyrnong IDC to meet the applicant to get these documents signed.

3. An affidavit sworn by Ms Milne was also relied upon by the applicant.  She is “the Coordinator of Balmain for Refugees, a volunteer organization which assists failed asylum seekers in Villawood Immigration Detention Centre (VIDC) and in the community.”  I have noted her involvement in other cases over recent years, and have been impressed by her efforts, which are generally of assistance to the administration of justice – something which cannot always be said in relation to other applicants’ helpers without legal qualifications.  In her affidavit, she explained how her group had become involved in the cases of substantial numbers of offshore entry persons who had been brought to Villawood, and also some who were held in other places, and her difficulties in finding legal advice and representation for these people during February and March 2011. 

4. Although her affidavit did not specifically address her involvement in assisting the present applicant, I consider that it generally assists in understanding the delay in filing an application.  I note that Ms Milne took a responsible approach, which is often not observed even by lawyers acting for applicants in this jurisdiction, of not advising the applicant to file an application until its substantive grounds had been considered and settled by counsel.

5. Taking into account the circumstances now shown in the material before me, I consider that the delay has been explained and is acceptable in the light of the matters described by Ms Milne. 

   
   

   No prejudice has been pointed to by the Minister.

6. I also consider that the grounds originally formulated by counsel, and elaborated by him in the amended application and in his written and oral submissions, had reasonable merit, notwithstanding that I have not been persuaded to accept them.  The point of construction of the definition of ‘refugee’ is of importance, and deserved consideration in the light of recent jurisprudence in the High Court.

7. Taking into account all the circumstances, I am satisfied in terms of s.477(2), and shall therefore order that time be extended, so as to render the present matter competent for final determination under this Court’s jurisdiction under the Migration Act.

8. I must, however, dismiss the application on its merits.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  23 September 2011