SZQGV v Minister for Immigration - [2012] FMCA 785

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 785

MIGRATION – Review of report and recommendation of Independent Merits Reviewer – applicant claiming political, ethnic and religious persecution in Afghanistan – applicant’s fear not well-founded – whether the review was procedurally unfair and whether the report was made in excess of authority considered.

Migration Act 1958 (Cth), s.36

Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
MZYPW v Minister for Immigration [2012] FCAFC 99
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319
Razai v Minister for Immigration [2012] FCA 394
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZQDZ v Minister for Immigration & Anor [2011] FMCA 652
SZQDZ v Minister for Immigration & Anor [2012] FMCA 793
SZQDZ v Minister for Immigration & Anor (2012) 286 ALR 331
SZQGU v Minister for Immigration [2011] FMCA 718
SZQGU v Minister for Immigration [2012] FCA 340
SZQGV v Minister for Immigration & Anor [2011] FMCA 743

Applicant:

SZQGV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1091 of 2011

Judgment of:

Driver FM

Hearing date:

3 September 2012

Delivered at:

Sydney

Delivered on:

28 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr S Prince

Solicitors for the Applicant:

SBA Lawyers

Solicitors for the Respondents:

Mr A Markus
Australian Government Solicitor

ORDERS

The further amended judicial review application filed on 22 June 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1091 of 2011

SZQGV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application for an injunction to restrain the first respondent (the Minister) from relying upon the report and recommendation of the second respondent (the Reviewer). The Reviewer prepared a report dated 24 February 2011 in which he found that the applicant does not meet the criterion for a protection visa in s.36 of the Migration Act 1958 (Cth) (the Migration Act). The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol.
The matter has been before the Court previously[1]. The matter was remitted to the Court for rehearing by order made by Rares J on behalf of the Full Court of the Federal Court, following the decision in SZQDZ v Minister for Immigration & Anor[2].
[1] SZQGV v Minister for Immigration & Anor [2011] FMCA 743
[2] (2012) 286 ALR 331
The applicant is a 29 year old citizen of Afghanistan. He claimed to fear persecution from the Pashtuns, the Taliban and/or the Sunni Muslims based on his Hazara ethnicity and the fact that he is a Shia Muslim. He also claimed to fear persecution by reason of imputed political opinion as a returnee from a Western country, as a perceived sympathiser of the coalition forces or NGOs, and/or as a failed asylum seeker.
The applicant claimed that he first left Afghanistan in 2000 (age 17) after an incident with some members of the Taliban after he was found eating during Ramadan in breach of the fast. The applicant went to Iran, where he lived for approximately five to six years, working on construction sites as a builder.
The applicant returned to Afghanistan in 2006 to his home village of Dawood in the Jaghori district and began working in his family owned shop. He claimed that in order to obtain supplies for his shop it was necessary to travel regularly on unsafe routes to Ghazni city and to Kabul.
The applicant claimed to have left Afghanistan for Australia following an incident that arose in 2009 when he bought an unregistered car from a Pashtun person.
The Reviewer discussed with the applicant various country information that suggested that the Hazara/Shia Muslims were not specifically targeted by the Taliban, that his district (Jaghori) was not a Taliban dominated area and was reasonably secure, that there were many returnees in Jaghori and that they were not targeted for that reason alone.
On 17 January 2011, the Reviewer sent a letter[3] to the applicant inviting comment on certain country information and the applicant's representative responded on 6 February 2011 providing submissions and reference to various country information.
[3] Court Book (CB) 158 and following

Findings of the Reviewer

On 24 February 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. He accepted that the applicant was a Hazara and Shia Muslim. However, the country information did not support the proposition that such people have been targeted and persecuted for reason of their minority status alone. The effects of the general insecurity and insurgency in Afghanistan did not give rise to a fear for a Convention reason. Deaths of other Hazaras at the hands of the Taliban arose by reason of other involvement, such as involvement with the Afghan government and NATO forces. He did not accept that social discrimination against Hazaras was so severe as to amount to persecution.
The Reviewer found that the security situation in the applicant's home area and Jaghori would not prevent the applicant from returning to reside there, as it was protected by Hazara factions and in particular the Hizb-I Wahdat Khalili/Nasr faction which remains robust in the region.
Country information showed that whilst there had been incidents of harm to returnees reported, this was usually where the returnee was known or suspected of returning with substantial amounts of cash. Such incidents were in any event very isolated, and sources did not conclude that returnees were being adversely targeted by non-state agents or government authorities for that reason alone. There was no credible evidence which showed that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted. As the applicant had not modified his religious views or been Westernised to any degree, the Reviewer did not accept that the applicant would be considered a Christian or a spy on his return.
As to the applicant's specific claims, the Reviewer made adverse credit findings rejecting the claim to have fled Afghanistan due to alleged fear of harm from two Pashtuns who wished to avenge the killing of their brother. He found the claim was inherently implausible and the applicant's evidence about it was internally inconsistent[4]. Furthermore, even if he had accepted the claim as true (which he did not), the harm that the applicant claimed to fear was not for a Convention reason.
[4] see CB 203 [122]-[123] of the statement of reasons
As to the applicant's claim to be unable to travel safely outside Jaghori to obtain supplies for his shop, the Reviewer found on the basis of country information that there were safe routes available for travel to Ghazni and Kabul.

The judicial review application

These proceedings began with a show cause application filed on 30 May 2011. The applicant now relies upon a further amended application filed on 22 June 2012. That application contains two grounds additional to the original application which were added by consent following remittal of the matter from the Federal Court[5]. The grounds in the further amended application are:
[5] This matter was re-heard before me prior to this Court’s interlocutory judgment in SZQDZ v Minister for Immigration & Anor [2012] FMCA 793. I subsequently drew that decision to the attention of the parties but there is no indication that I should not consider the additional grounds in the further amended application.
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 a non-state actor, the Hisb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
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 Hisb-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.
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 consideration into account that the applicant could avail himself of the protection of the Hisb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
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 Hisb-I Wahdat Khalili/Nasr faction; and
d. what conditions attached to any protection offered by the Hisb-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 district both remain out of Taliban control due to the military and political power of Hisb-I Wahdat Khalili/Nasr faction.
b. That protection afforded by the Hisb-I Wahdat Khalili/Nasr faction is strong across the Hazarajat including the Jaghori district;
c. That the applicant would not be able to purchase a car with “no proof of ownership”;
d. That Pashtuns who falsely accused the applicant of a crime would “just let him go” and allow him “two weeks” to advise them of the car seller;
e. That the said Pashtuns knew the applicant “because they had traded in the shop in the past.
The specific assumptions as to the military and political ability of the Hisb-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.
The specific assumptions about the applicant’s account of persecution by certain Pashtuns was also never put to the applicant, denying him the opportunity to call evidence.
7. The Reviewer denied procedural fairness to the applicant in that he failed to identify to the applicant that the 2010 DFAT Report identified in paragraph 142 of the decision; and the date and sample used in the “[D]eported to Danger II” report by the Edmund Rice Centre would be used adversely to the interests of the applicant.
8. The Reviewer failed to make a finding that the applicant’s home village was not on the outskirts of Jaghori or Malistan Districts and that travel to the home village would not involve travel through the outskirts of Jaghori and Malistan districts and accordingly failed to identify the correct issue and its decision was affected by that error so that he exceeded his authority and power.
The applicant accepts that he will fail in this Court on grounds 1-6 in the further amended application because of recent decisions of the Federal Court. Those grounds are maintained in the further amended application to allow the formal submission to be put that the decisions of the Federal Court, which require them to be dismissed, were wrongly decided. There is no dispute that this Court is bound by the relevant decisions of the Federal Court. Accordingly, only grounds 7 and 8 of the further amended application require attention in this judgment.
I have before me as evidence the book of relevant documents filed on 6 July 2011 and the affidavit of Sue Archer made on 15 August 2012, to which is annexed a transcript of the interview conducted by the Reviewer with the applicant at the Villawood Immigration Detention Centre on 21 December 2010.

Consideration

Counsel for the applicant provided helpful written submissions addressing the grounds in the further amended application.

Grounds 1 to 5

Grounds 1 to 5 were previously addressed by this Court by reference to the reasons of Cameron FM in SZQDZ v Minister for Immigration and Anor[6].
[6] [2011] FMCA 652. See SZQGV v Minister for Immigration and Anor [2011] FMCA 743
The decision of Federal Magistrate Cameron in SZQDZ was overturned on appeal[7].
[7] SZQDZ v Minister for Immigration & Anor (2012) 286 ALR 331
However, it is accepted that since the decision of Federal Magistrate Cameron, the same grounds, as appear in grounds 1 to 5 of the present application, were dismissed in Razai v Minister for Immigration[8]; and SZQGU v Minister for Immigration[9].
[8] [2012] FCA 394
[9] [2012] FCA 340
Accordingly, as this Court is bound by Razai and SZQGU, the applicant accepts that grounds 1 to 5 cannot succeed in this Court, although the applicant formally submits that Razai and SZQGU were wrongly decided.

Ground 6

Ground 6 was previously dealt with by this Court in the context of consideration of the application to extend time.
At that interlocutory stage, no evidence was before the Court consisting of the transcript of the interview with the Reviewer[10].
[10] see [2011] FMCA 743 at [40]
However, the view I took of ground 6 ultimately turned on the relevance or otherwise of the issue of State protection. That was determined by reference to the reasoning on grounds identical to grounds 1 to 5 in SZQGU v Minister for Immigration[11] and SZQDZ[12].
[11] [2011] FMCA 718
[12] [2011] FMCA 652- see SZQGV [2011] FMCA 743 at [47] to [51]
Accordingly, the applicant accepts that this Court is bound by the reasons of the Federal Court in SZQGU and accordingly, ground 6 must be dismissed. The applicant formally submits that SZQGU was wrongly decided, and on that basis the ground should be allowed. However, the applicant accepts that such a submission cannot succeed in this Court.

Ground 7

Ground 7 derives from the finding at [142] of the Reviewer's report.
At [142][13] the Reviewer stated that:
The Edmund Rice Centre for Justice & Community Education has chronicled investigations into the treatment of rejected asylum seekers. A report "Deported to Danger II" in September 2006 detailed interviews of some Afghani returnees. The report is now over 4 years old and concerns the particular circumstances of a small sample of returnees told from their perspective. I do not accept that this report corroborates the contention that failed asylum seekers are persecuted in Afghanistan for that reason. I further note and accept the September 2010 DFAT report which indicates contacts in Afghanistan did not believe Hazaras would be targeted because they had sought asylum in the west. There is no credible evidence before me which shows that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted for a Convention reason.
[13] CB 207
The supportive material from the Edmund Rice Centre was dismissed because of two matters identified in that information: first, the age of the report; secondly, the small sample of the returnees interviewed.
This is not a case involving the test for procedural fairness represented by s.424A(3) of the Migration Act. The common law principles of procedural fairness apply as articulated in Re Minister for Immigration; Ex parte Miah[14].
[14] (2001) 206 CLR 57 at [99] and [140]; approved in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [30], [63], [123] and [227]
Accordingly, the test is whether the applicant had an opportunity to put his or her case to the Reviewer and to meet the case that was put against him or her[15]. Further, there is a question whether the applicant was given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposed to take into account in deciding upon its exercise[16].
[15] see Miah (2001) 206 CLR 57 at [99]
[16] Miah at [140]; see also Muin at [62]-[63]
The applicant contends that the finding made by the Reviewer about the material from the Edmund Rice Centre was adverse to his interests because the Reviewer rejected material which otherwise had supported his claims. The applicant further asserts that there is a question as to whether favourable material was disregarded in circumstances where it was misrepresented that regard would be had to that material, unless it was questioned by the Reviewer[17]. The applicant acknowledges that it was his agent who provided a reference to the Edmund Rice Centre report to the Reviewer by letter dated 18 December 2010. There was no discussion about that report during the interview conducted between the Reviewer and the applicant. However, on 17 January 2011 an officer of the Minister’s Department sent correspondence to the applicant’s legal adviser which invited comment on a range of issues, including issues relating to the circumstances of returnees to Afghanistan, on the basis that the information provided in an attachment supported a conclusion that returnees to Afghanistan do not face persecution for that reason alone. The attachment referred to country information concerning the general circumstances of Hazaras and Shia Muslims in Afghanistan, the circumstances of returnees as referred to in particular in DFAT reports dated 3 February 2009, 21 February 2010 and June and September 2010. The attachment also referred to country information concerning the circumstances of Hazaras in the Jaghori district. The applicant’s adviser sought an extension of time to reply, which was granted. The adviser provided a response dated 6 February 2011 which dealt in particular with the circumstances of returnees. On page 4 of the response[18] the adviser stated:
The issue of returnees has been canvassed in previous submissions and also in the response by Amnesty, quoted above. The well known film “Deported to Danger” involves interviews with some returnees and talks of others who were killed after return. This possibility has been backed up by Ms Kazem in her talk: “The Taliban are very good at keeping lists of people they are targeting. Failed asylum seekers can likely be put on such a list depending on what kind of activities they were involved in before they left Afghanistan.”
[17] See Muin per Gaudron J at [60]-[65]; Hayne J at [250], [256] and [257] and Kirby J at [200]
[18] CB 172

I accept that the Reviewer came under an obligation in the circumstances of this case to provide an opportunity for the applicant to respond to adverse information bearing upon the question of the circumstances of asylum seekers returning to Afghanistan (particularly those of Hazara ethnicity and Shia religion). In my view, the Reviewer met his obligation to accord procedural fairness to the applicant by disclosing country information which was adverse to the applicant’s claims, insofar as it represented that Hazara Shia failed asylum seekers could return safely to Afghanistan and in particular the Jaghori district of Afghanistan.
The applicant complains that he was not provided an opportunity to contest the Reviewer’s reasoning for dismissing the Edmund Rice Centre report which supported his claims. It is true that that opportunity was not provided. However, in my view, procedural fairness did not require that the Reviewer provide that opportunity. As has been stated many times, a decision maker is not under any obligation to provide a “running commentary” on his or her thought processes prior to reaching a decision[19]. The correspondence sent to the applicant’s legal adviser after the interview would have alerted the applicant (and his advisers) that the Reviewer was minded to prefer other country information to that contained in the Edmund Rice Centre report. They therefore had the opportunity to address the relative merits of the various pieces of country information. Further, the reasons why the Reviewer rejected the Edmund Rice Centre report were based upon the date and content of the report. Both were (or should have been) known to the applicant and his legal advisers at the time the legal advisers referred the report to the Reviewer. These were not circumstances that would necessarily have taken the applicant by surprise.
[19] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
I conclude that the requirements of procedural fairness did not oblige the Reviewer to disclose in advance of his report his reasons for rejecting the Edmund Rice Centre report.

Ground 8

Ground 8 arises from the acceptance by the Reviewer that within the Jaghori district, there are enclaves of Pashtuns towards the outskirts[20]. Both of those districts are sub-divisions of the Ghazni province.
[20] CB 204 [131] and the Reviewer's acceptance of the advice to DFAT set out at [132] of the reasons at CB 204-205; including the report that Taliban remained at the outskirts of Jaghori and Malistan districts (CB 205.4)
The Reviewer found that the applicant could reasonably return to his “home area of Dawood, a Hazara dominated area in the Jaghori district”[21]. Further, the Reviewer found that, although in the ethnically mixed Ghazni Province, the applicant’s home area is in the Hazara community where his family continue to live[22].
[21] CB 206 [141]
[22] CB 206 [136]
The applicant concedes that in considering the danger faced by the applicant once he arrived in his home village of Dawood, the Reviewer properly considered whether that area is in a Hazara dominated part of Jaghori. However, the applicant contends that the Reviewer failed to consider whether the available route of travel to Dawood passing through the outlying areas of Jaghori were subject to Taliban control.
The Reviewer found that the applicant could return to his home area because there are “secure routes between Kabul and Ghazni, and between Ghazni and Jaghori”[23].
[23] CB 205 [135]
The finding that there were “secure routes” to Jaghori (through the North in Nawur), was combined with the finding that the Hazara dominated areas in Jaghori were safe, to conclude that the applicant could travel safely to his home district[24].
[24] CB 205 [135]
The applicant acknowledges that it is not open in these proceedings to challenge any of the Reviewer’s factual findings on this issue but asserts that there is a lacuna in the consideration of the applicant’s claims to fear the Taliban in reaching his home. It is said to arise from the generality of the finding concerning the possibility of safe passage within the Jaghori district (as opposed to the particularity of attention) which is necessary, in considering whether a particular route within the Jaghori district to the applicant’s home village involves travel through parts which are on the outskirts of the Jaghori district and so subject to Taliban control.
The applicant contends that, although it may be accepted that the Reviewer has placed the home village of Dawood in the “Hazara dominated” part of Jaghori district (ie not the outskirts), there is no such finding in relation to the roads on which he would have to travel once arriving in Jaghori district via Nawur to Dawood.
The applicant contends that the failure to engage in this particular consideration of the route from Jaghori to the applicant’s home village is a failure to consider an integer of his claims.
I accept that, if a particularly important factual issue bearing upon a Reviewer’s recommendation has not been considered, or effectively side stepped by the Reviewer, such an approach involves a type of error for which relief can be granted[25]. In my view, however, the Reviewer did not fall into the error which is asserted. The Reviewer rejected the applicant’s claim that he faced a well-founded fear of persecution in Afghanistan simply because of his Hazara ethnicity and Shia religion. At [118] of his report[26] the Reviewer said:
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[27]
[25] see MZYPW v Minister for Immigration [2012] FCAFC 99 at [38] per Yates J referring to Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [90] and Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [24] and [95]
[26] CB 203
[27] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009 and December 2010
Further, the Reviewer did not accept that the applicant had suffered Convention related persecution in his home district in the past. Neither did the Reviewer consider that the applicant would suffer Convention related persecution in his home district in the future. In relation to the issue of travelling from Kabul to his home village, the Reviewer stated at [135][28]:
I further note and accept the September 2010 DFAT advice (see above) which indicates 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 his home area upon his return. I also conclude that should he continue his business as a shopkeeper, he would be able to travel on a secure route/s to Ghazni and Kabul to purchase stock.
[28] CB 205
At [136][29] the Reviewer acknowledged that there was a risk of violence in Afghanistan in parts of Ghazni Province but found that the applicant’s home village is relatively secure, as are some travelling routes to Kabul. Even if the Reviewer were wrong in that assessment, it would not follow that the risk to which the applicant was subject was Convention related. In my view, (and without expressing any view as to the correctness of the Reviewer’s finding), the report deals adequately with the risk confronting the applicant in travelling to his home village from Kabul. That risk, when viewed in the context of the report as a whole, is a risk of generalised violence – not a risk of Convention related persecution.
[29] CB 206

Conclusion

I conclude that the applicant has failed to demonstrate reviewable legal error in the report and recommendation of the Reviewer. I will order that the application be dismissed.
I will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 28 September 2012