SZQJY v Minister for Immigration
[2011] FMCA 969
•7 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 969 |
| MIGRATION – Review of decision of Independent Merits Reviewer – application for protection visa – persecution – well-founded fear of persecution – where IMR finds area of return to be safe – whether IMR required to take into account inadequate state protection – independent country information – whether IMR failed to put adverse information to applicant. |
| Migration Act 1958 (Cth), s.477 |
| Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 Minister for Immigration v Respondents S152/2003 [2004] 222 CLR 1 SZQGX v Minister for Immigration & Anor [2011] FMCA 863 SZQGU v Minister for Immigration & Anor [2011] FMCA 718 SZBEL v Minister for Immigration & Anor [2006] 231 ALR 592 VHAP of 2002 v Minister for Immigration [2004] ALD 559 |
| Applicant: | SZQJY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1363 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 28 November 2011 |
| Date of Last Submission: | 28 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2011 |
REPRESENTATION
Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Solicitors for the Respondent | Australian Government Solicitor |
ORDERS
Pursuant to s.477 of the Migration Act 1958 the time for filing the application be extended to 29 June 2011.
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1363 of 2011
| SZQJY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a forty-one year old Afghan citizen of Hazara ethnicity and Shia Muslim religion. He was an undocumented boat arrival at Christmas Island on 11 January 2010. He sought Australia’s protection from persecution he claimed he had suffered at the hands of the Taliban at his home in Jaghori Province of Afghanistan on 12 March 2010. He was provided with a migration agent to assist him in connection with his application. The agent made a submission to the Department of Immigration and Citizenship on 25 March 2010 [CB 86 – 97]. The applicant was subjected to a refugee status assessment, the outcome of which was notified to him on 3 May 2010. The assessment concluded that he was not a person to whom Australia owed protection obligations. The applicant exercised his right to have the status assessment reconsidered by an independent merits reviewer and attended a hearing before the reviewer together with his migration agent. On 2 November 2010 the reviewer confirmed the original assessment [CB 130 -159]. For reasons which are not relevant it was determined that the applicant should have a further independent merits review and for that review the applicant was interviewed on 7 March 2011 again with the assistance of a migration agent. On the 18 May 2011 the second reviewer concluded that the applicant was not a person to whom Australia owed protection obligations and so advised the Minister.
Following a decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 decisions of Independent Merits Reviewers have been subject to judicial review. On 29 June 2011 the applicant filed an application for review in this court. The application was two days outside the 35 day time limit imposed by s.477 of the Migration Act 1958 (the “Act”). The applicant has applied that the time for making the application be extended until 29 June. The solicitor who filed the application was only appointed on 28 June consequent upon a grant of legal aid and in the grounds of application indicated that the failure to comply with the time limit was an oversight. The respondent does not object to the extension of time and in the circumstances the court is minded to grant it.
The basis for the applicant’s claim to have a well-founded fear of persecution for the convention reasons of race and religion were that as an Hazara Shia he was targeted by the Taliban and that his life would be in danger from them. More particularly, he claimed that approximately three months before he departed he was driving from his home when he was stopped by the Taliban with oil and foodstuffs in his car. They took the oil and foodstuffs and threatened the applicant that if he came that way again they would burn his car. Later he indicated that they would burn the car with him inside. He told that some seven months before he left Afghanistan his father had been travelling in Uruzghan Province to visit a friend and had not returned and it was assumed by the applicant and his family that his father had been taken by the Taliban.
It is not necessary for the court to go into any more detail about the applicant’s claims of persecution that were particular to him because at [38] [CB 212] the reviewer stated:
“[38]I did not find the claimant to be a truthful of credible witness for all the reasons set out below”.
These reasons are set out between [39] [CB 212] to [49] [CB 215]. These findings are not the subject of dispute in this application.
At [50] [CB 215] the reviewer proceeds to deal with the applicant’s generic claim:
“[50]I have to now consider whether the claimant can return to his village in Jaghori district, Ghazni province and live there without a real chance of serious harm amounting to persecution in the reasonably foreseeable future.”
[51]I have considered a number of different reports about Jaghori. I find that it is a district almost entirely populated by Hazaras. I find that the district is currently safe and relatively stable compared to Pashtun districts in Ghazni. I find that the people in Jaghori district, enjoy better educational and health facilities than neighbouring provinces due to their better security environment. I have considered the reports in June 2010 that suggested that there were signs the Taliban might attempt to push forward into Hazara settled areas in the central region of Afghanistan. I note that this has not happened. I find that the risk of future ethnic conflict in Jaghori is lower than elsewhere in the Hazarajat. I find that Jaghori remains out of reach of Taliban control due to the military and political power of Hizb-I Wahdat Khalili/Nasr faction. I find that the Taliban remain at the outskirts of Jaghori. I am not satisfied that the claimant faces a real chance of serious harm amounting to persecution if he returns to his village in Jaghori district, Ghazni province because he is a Hazara Shia.”
It is these two paragraphs which give rise to the two grounds of application found in the Further Amended Application filed in this court on 28 November 2011. The two grounds are:
“1.That the second respondent failed to take a relevant consideration into account
Particulars
The second respondent failed to take into account the inadequacy of state protection offered to the applicant by the Government of Afghanistan in the Jaghori region.
2.That the second respondent denied the applicant procedural fairness.
Particulars
The second respondent did not put to the applicant relevant country information, namely an April 2009 report by Cooperation for Peace and Unity (CPAU).”
The applicant proceeds from a reading from what fell from the majority, Gleeson CJ, Hayne and Heydon JJ, in Minister for Immigration 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 inquiry 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 Horvath9 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."
In his helpful written submissions Mr Bodisco for the applicant notes that the applicant himself expressed concern about the inability of the state to protect him in papers for his assessment interview [CB 19] and [CB 34], his statement of claims [CB 59] and the submissions by his agents. In Mr Bodisco’s submissions he states:
“[26]The applicant squarely raised the issue of inadequate state protection before the second respondent. As outlined by the second respondent in his statement of reasons, the applicant argued these issues in his early interview and in the submissions made on his behalf.
[27]Despite this, and although the correct test as to whether a person has a well-founded fear of persecution will be informed by the “international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals”, the second respondent did not ask herself whether the Afghan state provided a level of protection which met international standards.
[28]In this way, it is submitted that the second responded failed entirely to consider the Afghan state’s ability to provide protection in the Jaghori district.
[29]Instead, the second respondent asked whether the Hizb-I Wahdat Khalili/Nasr faction (“the faction”) or family and other social supports were able to provide protection for the applicant.
[30]It is submitted that the correct test to be applied, whether the State provides adequate protection, is a fundamental part of the test of whether a person’s fear of persecution is well-founded under the definition of refugee under Art 1A(2) of the Refugees convention and section 36(2) of the Act.
[31]It is submitted that in circumstances where an issue is raised as a material issue by the evidence, a failure by the second respondent to deal with it amounts to a constructive failure to exercise jurisdiction. The Tribunal failed to address and deal with this claim put by the applicant. Because the Tribunal failed to consider all the integers of the claim, it failed to complete the exercise of jurisdiction embarked upon.
[32]By failing to consider whether the Afghan state afforded adequate protection to the applicant, the second respondent failed to take into account a relevant consideration, and did not make his recommendation in accordance with law.
[33]Further, it was accepted in Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85 at [32]:
“When the question is whether there is a well-founded fear, it is relevant that the failure of the state to do anything about the relevant conduct is the result of inability, as well as tolerance or condonation.”
[34]Clearly, in the present case, the inability of the state to afford protection to the applicant form non-state actors such as the Taliban was a relevant consideration. Indeed, it was a key integer of the claim raised by the applicant.”
The duty of the reviewer to consider the availability of state protection at the time she considers whether the applicant has a well-founded fear of persecution is not denied. But it only becomes necessary if it is found that the fear exists. In the instant case the reviewer did not consider that the applicant had such a fear because he was to be returned to an area in which Hazaras constituted almost 100% of the population and in respect of which the Taliban were being kept to the outskirts. If there is no fear it is not necessary to consider whether such a fear is well-founded. If I am wrong about this and the reviewer accepted that the applicant had a genuine subjective fear then the availability of state protection is not the only matter to be taken into consideration. The submissions made by the applicant in this case have been made in several others including SZQGX v Minister for Immigration & Anor [2011] FMCA 863 which was decided by myself after consideration of the views expressed by Smith FM in SZQGU v Minister for Immigration & Anor [2011] FMCA 718 where his Honour had also been taken to the extract from S152 quoted above. I said of his Honour’s decision at [8]:
“[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.”
Like his Honour I also relied heavily on the views of Sunberg J in Siaw at [7 – 8] and relied particularly on [9]:
“[9]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.”
I do not see that there is any difference in the case being made by this applicant to that being made in SZQGX or any of the other six cases which had been heard in the court by the time I came to consider SZQGX. Mr Bodisco asserts that I and my colleagues have misunderstood S152 and that the views expressed there overrule what was said in Siaw. Whilst he made that point forcibly and with obvious conviction he has not persuaded me to change the views which I held as recently as 31 October 2011. I do not believe that in the instant case it was necessary for the reviewer to consider the lack of state protection, which I believe she implicitly accepted, when weighing up whether or not the applicant’s fear was well-founded. The fear was not well-founded because the area to which he would be returned was safe, howsoever that safety may have been effected.
The second ground of the application relates to a piece of independent country information referred to at [23] [CB 201] and set out in more detail at [26] [CB 209]. The whole of the information is set out below:
“[26]An April 2009 report by Cooperation for Peace and Unity (CPAU) provides the following information about Jaghori:
Jaghori and Malistan are the only districts in Ghazni almost entirely populated by the Hazara. Towards the outskirts of Jaghori are other communities including Pashtuns.
A number of parties remain active in Jaghori but overall the Nasr faction of the former Hizb-i-Wahdat (Khalilli) is the most influential.
Reports indicate that due to the difficulty the Taliban have had in penetrating Hazara areas they are to some extent actively fuelling tensions between Hazara and Pashtun communities in Ghazni in an attempt to further their control by making inter-community relations volatile and fragile.
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. This is because in the past the people and elders of this district demonstrated unique negotiation and proactive peace building strategies towards the Taliban in the 1990’s.
The Taliban have focussed their efforts on extending their influence in Ghazni because they view it as a strategic province with proximity and read access to Kabul.
Developments in Taliban tactics over the past two years include and increased reliance on suicide and roadside attack. Ghazni contains a key stretch of the Kabul-Kandahar road which is the only practical route to Kabul from the south and is serious affected by insecurity. This stretch of road has been the target of numerous attacks by Taliban. One of the secondary highways that joins Jaghori and Qarabagh in Ghazni is even more dangerous than the Kabul-Kandahar road, and reports indicate that his road is frequently targeted by Taliban patrols and attacks.
Despite pervasive Taliban influence in Ghazni Taliban remain at the outskirts of Jaghori and Malistan districts.”
The applicant argues that he was not made aware of the existence of this piece of information and although he accepts that some reference was made to “those aspects known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made”; Plaintiff M61 at [91] he did not believe that the reviewer complied with the strictures set out in SZBEL v Minister for Immigration & Anor [2006] 231 ALR 592 at [32]:
“In Alphaone the Full Court rightly said:19
"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."
The applicant goes further than this, however. He also argues that it extends beyond “putting those aspects” to identifying the information and providing a copy of it to the applicant. The applicant argues that this follows from the views expressed by Allsop J in VHAP of 2002 v Minister for Immigration [2004] ALD 559 at [27 – 28], in particular, his Honour’s reviews that:
“Natural justice is ultimately a question of fairness.”
Once again the arguments raised here have already been raised before this court, most prominently in Darabi v Minister for Immigration & Anor [2011] FMCA 371 where they were given detailed consideration by FM Nicholls. At [87] his Honour reminded his readers:
“[87]As the Minister submitted, Flick J in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations[2011] FCA 370 at [34] gives clear relevant direction:
“First, irrespective of whether the requirement of disclosure is to be found by way of implication in s 487-10(1) or in the common law rules of procedural fairness, it is considered that the requirement is satisfied where the ‘substance’ of the legal and factual concern is disclosed. There is no requirement that the documents or other material relied upon need necessarily also be disclosed. Thus, in the context of procedural fairness, in M61/2010E v The Commonwealth[2010] HCA 41 at [91], [2010] HCA 41; 272 ALR 14 at 36 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that ‘procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims’. The ‘precise detail of all matters upon which’ a decision-maker intends to rely need not necessarily be disclosed: McVeigh v Willarra Pty Ltd[1984] FCA 379; (1984) 6 FCR 587 at 601 per Toohey, Wilcox and Spender JJ. See also: Karina Fisheries Pty Ltd v Evans (Unreported, Federal Court of Australia, Forster J, 1 July 1988).”
The court has been provided with a Transcript of the interview between the reviewer and the applicant where at [T49] the reviewer states:
“R:I want to put to you some information specifically about Jaghori. Jaghori is an almost 100% Hazara region. It’s safe and a relatively stable district compared to the Pashtun districts in Ghazni. Can you please listen to what I’m saying and I’ll give you the opportunity to comment. People in the Jaghori district enjoy better educational and health facilities because of the better security environment. So you will be returning to an area that is 100% Hazara region, relatively stable, and with access to education and health facilities.
…
R:I’d like to put to you that Jaghori remains out of reach of Taliban control due to the military and political power that the Hizb-1 Wahadat Nasr faction and the risk of future conflict between the Taliban and Hazara is lower in Jaghori than elsewhere, because in the past the elders of Jaghori negotiated with the Taliban. So there’s been no reports, or very few reports of the Taliban attempting to infiltrate Jaghori. The Taliban remain on the outskirts of Jaghori.
…
R:The people of Jaghori have always said that they’ve never attempted to form – the Taliban have never come into Jaghori or tired to control Jaghori, and that’s the whole point, they’ve remained on the outskirts of Jaghori.”
The reviewer’s conclusions on these matters were found at [51] of its decision record extracted at [4] above and it is well to look at them carefully to see the extent to which they include matters raised in the Co-operation for Peace and Unity Report found at [209] and extracted in these reasons at [11]. There is the finding that Jaghori is almost entirely populated by Hazaras. That was clearly put to the applicant. There is the finding that Jaghori remains out of reach of Taliban control due to the military and political power of Hizb-I Wahdat. That was also clearly put to the applicant. There is the finding that the risk of ethnic conflict in Jaghori is lower than elsewhere in the Hazarajat. It is not said why the reviewer came to this conclusion but if he came to it from a reading of the CPAU document then the reason given there, namely “because in the past people and elders of this district demonstrated unique negotiation and proactive peace building strategies towards the Taliban in the 1990s” is also referred to. Finally, the only other piece of adverse information in the CPAU Report, that the Taliban remain at the outskirts of Jaghori and Malistan districts is also mentioned. I am satisfied from my perusal of the transcript and the review decision that the reviewer complied with the requirements of M61/2010E. But even if I am wrong about that the applicant has a further and more difficult hurdle to jump because in the first reviewer’s decision found at [140 – 143] very detailed extract from the CPAU Report is set out. The applicant received a copy of that reviewer’s decision and thus would have been in a position to be aware of the existence of this information before he attended the interview with the second respondent. In those circumstances I do not believe that the applicant can to argue that this information was not made available to him.
In the circumstances I am unable to find that the reviewer fell into jurisdictional error in the manner in which she reached her decision and thus the application is dismissed and the applicant is required to pay the respondent’s costs which I assess in the sum of $6,240.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 7 December 2011
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