SZQGX v Minister for Immigration

[2011] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGX v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 863

MIGRATION – Review of decision of Independent Merits Reviewer – application for protection visa – well-founded fear of persecution – whether protection proffered by non-state factors relevant – judicial comity.

Migration Act 1958 (Cth), ss.36(2), 46A, 476, 477(1), 477(2)

Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
SZQGU v the Minister of Immigration & Another [2011] FMC 718
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953
Harjit SinghRandhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

Applicant: SZQGX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

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

File Number: SYG 1092 of 2011

Judgment of: Raphael FM

Hearing date: 31 October 2011

Date of Last Submission: 31 October 2011

Delivered at: Sydney

Delivered on: 31 October 2011

REPRESENTATION

Counsel for the Applicant: Mr L. Robison

Solicitors for the Applicant: Barwick Legal

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The application is dismissed.

3. The applicant pay the first respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1092 of 2011

SZQGX

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 in this matter is a citizen of Afghanistan, a Hazara and a Shia Muslim who arrived in Australia by boat some time prior to 25 April 2010. Upon arrival, 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) (the Act) whether he would allow the applicant to make an application for a protection visa. That assessment was made on 18 August 2010 and was in the negative. The applicant then sought review of that decision from an independent merits reviewer, Mr Packer, who interviewed the applicant and considered the claims made on his behalf and by his advisors.

2. On 21 February 2011 Mr Packer affirmed the original decision that the applicant did not meet the criteria for protection visa set out in s.36(2) of the Act. He recommended that the claimant not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.  Mr Packer’s decision is found between pages 229 and 257 of the court book; at [86] CB 250 he sets out the applicant’s essential claims and these are accepted by those appearing for the applicant today and by the respondent.  They are:

   ·    “He is a man who is a Hazara and a 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. 

   ·    He suffered harm in the past as a result of his ethnicity and religion.  When he was a late teenage, he fled from the area of Altimo in Jaghori to Iran, as the Kuchi and Taliban were coming.  His uncle was wounded in the subsequent fighting. 

   ·    After being expelled from Iran in 2007 he returned to his village.  Although nothing happened to him, he felt trapped and in danger in Jaghori.  After 2 months he went with his mother, 2 brothers and 2 sisters to Pakistan. 

   ·    His family suffered harm in the past.  In 2000 his brother […] went missing in Kandi Pusht, believed killed by the Taliban.

   ·    He now has no one left in Afghanistan as his 2 sisters recently moved to Iran.  He does not know what has happened to the family farm.  It is neither relevant nor reasonable for him to relocate within Afghanistan.

   ·    He recently found out a person from his home village was killed on the road to Ghazni.”

3. It is common practice on the part of those considering these applications to look at the applicant’s claims as a whole and then divide them between what I describe as the generic and specific claims, of course, always realising that the generic can be influenced by the specific and vice versa.  It is not suggested here that the reviewer made any errors of law in this respect and it is accepted that the eventual decision was made on the basis of the generic claims, those being the alleged fear of persecution, should he return to what was his home area in Jaghori. 

4. The fact that the applicant has brought his complaints to this court is as a result of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14. This decision allowed judicial review of reports of independent merits reviewers and it is accepted that this court has jurisdiction to hear those reviews under s.476 of the Act. In this particular case, the Minister submits that the application is rendered incompetent by s.477(1) of the Act unless time is extended under s.477(2). Although the Minister formally opposed the granting of an extension of time, I advised the parties that, having read the affidavit of Frances Lillian Milne dated 21 October 2011, in which she explains that she is a coordinator for Balmain for Refugees, a volunteer organisation which assists failed asylum seekers, I am of the view that the delay in filing the applicant’s claim was, in all the circumstances, excusable and it is in the interests of justice that the claim be heard and determined.

5. In Mr Packer’s decision, he comes to the view at [116] CB 256 that:

   “… there is not a situation of generalized violence in Hazara-dominated districts in Ghazni province [which includes Jaghori] 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.”

   The basis of the view expressed is found in a section of Mr Packer’s report commencing at [111] CB 254 and headed “Security in Jaghori District”.  That section notes that Jaghori is an almost 100 percent Hazara region and cites independent country information that

   “Hazaras in Hazarajat reportedly do 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, Jaghuri 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. …”

6. The factual circumstances in this case reflect, with a considerable degree of identity, those faced by Smith FM in SZQGU v the Minister of Immigration & Another [2011] FMC 718 (SZQGU).  In that case, his Honour considered an argument put by the applicant that the protection being provided in the returnee’s area by non‑State actors did not satisfy the requirements of Article 1A(2) of the Convention which states that the term “refugee” applies to a person who:

   “…owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

7. Smith FM gave a lengthy and well‑reasoned decision.  He quoted at length from another of Mr Packer’s decisions, which, relevantly, was in very similar terms to that before me.  He noted that counsel for the applicant, whilst unable to cite authority for the proposition that the Convention definition required 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 insulated that area from feared persecution, did rely upon the decision of the High Court, in particular, Gleeson CJ, Hayne and Heydon JJ, in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [21] (S152).

8. Having set out the relevant paragraphs upon which counsel relied, his Honour opined that those passages did not support the proposition that the existence, in the location to which the applicant would return, of adequate state protection was a prerequisite for that location to be regarded as, relevantly, safe, so as to prevent a finding of a well‑founded fear.  He explained his reasoning at [20] of his decision and went on to make reference to the decision of Sundberg J in Siaw v  Minister for Immigration & Multicultural Affairs [2001] FCA 953 (Siaw), which he considered to be consistent with later authorities, including S152.

9. Mr Robison, who presents the applicant’s case today, accepts that SZQGU  is one of six cases heard in this court already in which the argument that protection provided by non‑state actors does not comply with the convention definition has been put.  He accepts that it is necessary for me to find that those decisions are clearly wrong in order that I might come to a different conclusion, one being made in his favour.  The point of difference that he puts to me between this case and those is that, rather than rely upon S152, he relies on what fell from the Full Bench of the Federal Court: Black CJ, Beaumont and Whitlam JJ, in Harjit SinghRandhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265; [1994] FCA 1253 (Randhawa). He reminds the court that the Chief Justice said at [8]:

   “The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”

10. Then, at [9]:

    “The importance of looking to the protection available from the country of nationality was emphasised in the Supreme Court of Canada in Attorney‑General of Canada v. Ward (1993) 103 DLR (4^th) 1., in which La Forest J, delivering the judgment of the Court, said (at 12):

    ‘International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national.  It was meant to come into play only in situation when that protection is unavailable, and then only in certain situations.  The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.  For this reason James C. Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection:  see The Law of Refugee Status (Toronto:  Butterworths, 1991), at page 135.’

11. Although Siaw was not specifically before the Full Bench in Randhawa, there is no suggestion in that judgment that the views expressed by Sundberg J, to which I shall come shortly, were incorrect.  Those views proceed on the basis of an analysis of Article 1A(2) which I believe to be correct and appropriate. 

12. That analysis requires an assessor of refugee status to look first at whether or not the person appearing before him or her has a well-founded fear of persecution for one of the Convention reasons.  “Well-founded fear” being comprised of two constituents, one subjective and the other objective.  If there is no well-founded fear it is not necessary to take the definition any further.  Sundberg J points this out in paragraphs [7]-[8] of his Honour’s judgment where he says:

    “[7] Accordingly, 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. In this connection I see no difference between cases where adequate protection is provided

    *    entirely by government forces

    *    by a combination of government forces and friendly forces

    *    by forces from a neighbouring country or ally

    *    by mercenaries (alone or paid to assist government forces)

    *    by United Nations forces invited to assist the government forces.”         

    [8] Although the submission at present under consideration does not appear to have been put to Heerey J in Cole v the Minister [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 the UN as well as government forces.”

13. Sundberg J also considered whether or not the respondent Tribunal in his case was required to make any findings about the availability of adequate state protection.  At [9] his Honour 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.”

14. It seems clear to me that the course adopted by Mr Packer, to consider first whether or not the applicant had a well-founded fear of persecution, was the correct one and that nothing that fell from the Full Bench in Randhawa negates that.  Mr Packer concluded, for reasons which are available on the evidence, that this applicant would not have such a fear should he return to his home and, therefore, the necessity to consider whether he could obtain state protection was otiose.  This conclusion is similar to that to which Smith FM came and, it will be patently obvious, to my mind, it was not clearly wrong.  On the contrary, it was clearly correct.

15. Similarly, the decision of Sundberg J in Siaw was equally correct and I should not purport to differ from it. 

16. In those circumstances I will make the following orders: I am satisfied in the terms of s.477(2) that time should be extended and order that the time for making the application provided by s.477(1) of the Act is extended up to and including 30 May 2011. The application is dismissed. The applicant pay the first respondent’s costs assessed in the amount of $5,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date:  8 November 2011