SZQKE v Minister For Immigration and Anor (No.3)
[2011] FMCA 878
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQKE v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2011] FMCA 878 |
| MIGRATION – Review of Independent Merits Review decision in respect of an offshore entry person – applicant claiming persecution in Afghanistan on the basis of his ethnicity and religion – Tribunal finding that the applicant did not have a well-founded fear of persecution in his home province – consideration of whether the Reviewer erred in determining that the applicant would not face persecution in travelling to his home province. |
Migration Act 1958 (Cth), ss.36, 46A, 91R, 91S, 195A, 474, 477
Plaintiff M61/201E v Commonwealth (2010) 85 ALJR 133
Ponnudurai v Minister for Immigration [2000] FCA 91
SZQKE v Minister for Immigration & Anor (No.2) [2011] FMCA 847
| Applicant: | SZQKE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1398 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 2 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Schofield King Lawyers |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application filed on 24 October 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1398 of 2011
| SZQKE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of a claim for protection made by an offshore entry person. The report of the Reviewer is dated 29 April 2011 and was notified to the applicant by letter dated 4 May 2011. The applicant applied for judicial review of the Reviewer’s decision on 1 July 2011. On 2 November 2011 I ordered that the time for the filing of that application be extended up to and including 1 July 2011, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”)[1].
[1] SZQKE v Minister for Immigration & Anor (No 2) [2011] FMCA 847
The following statement of background facts in relation to the applicant’s protection claims is derived from the parties’ written submissions.
The applicant is a citizen of Afghanistan who most recently left that country in October 2008[2], and arrived at Christmas Island by boat in January 2010[3] after an extended journey through Pakistan, Iran, Malaysia and Indonesia[4]. He is 38 years of age and an ethnic Hazara from Bamyan (or Bamian) Province in Afghanistan.
[2] Court Book (“CB”) 24. His family had spent 11 years in Iran.
[3] CB 91
[4] CB 25
The applicant applied for a Refugee Status Assessment (RSA) on
13 March 2010. That means that, for the purposes of s.46A of the Migration Act, he is an offshore entry person and cannot make a valid application for a visa. However, the Minister has power to lift the bar under s.46A in respect of the applicant as well as to grant him a visa under s.195A. As explained in Plaintiff M61/201E v Commonwealth (2010) 85 ALJR 133, the procedures adopted by the Minister and his Department in relation to people in the applicant’s position were as a consequence of a decision by the Minister to consider whether to exercise his powers under those provisions. Further, the assessment and review undertaken as part of those procedures must be procedurally fair and must address the relevant legal question or questions: M61/2010E at [77].
In his entry interview at Christmas Island the applicant is reported to have claimed that whilst travelling between Bamyan, Wardak Province and Kabul in mid 2008 the Taliban identified him as a designer of women’s clothes and stopped him, accusing him of encouraging prostitutes. He told them he would not do it anymore. When he returned home his family urged him to leave because the Taliban had already killed his father and his sister’s husband. He left about a month later[5].
[5] CB 11
In a statement attached to his RSA application the applicant claimed that he was a popular wedding and party clothes designer for women, and that that occupation was against Sharia law. He also gave more detail of his interrupted journey at the hands of the Taliban. He said that he was detained, that he gave money to one of the guards and absconded, leaving his car and belongings behind. He also claimed that he feared the Taliban because he is Hazara and a Shia Muslim, and because he is an evil person in the eyes of the Taliban. He also said that his late father was prominent, and had been killed by the Taliban because of that[6].
[6] CB 48-9
On 30 March 2010 the applicant was assessed as not being someone to whom protection obligations were owed. The RSA officer recorded that in her interview the applicant had said that he escaped the Taliban by paying money to a soldier, and that he had been able to make women’s clothes during the time of the Taliban regime because his clothes were only worn in the presence of the owner’s families[7].
He applied for an Independent Merits Review and was interviewed by a Reviewer on 19 and 23 August 2010.[7] CB 78-9
In written submissions following the Independent Merits Review application the applicant’s advisor stated that in his entry and RSA interviews the applicant was too ashamed to mention that the mullahs in his village had accused him of running a brothel[8], that the personal conduct of the girls who worked for him was casting a shadow on his reputation, that his home and shop were burned down after he left Afghanistan and that the Taliban had issued a death warrant (a fatwa) in his name[9]. The advisor also made submissions about persecution for reason of race, imputed political opinion and various particular social groups[10].
[8] see also CB 122-3
[9] CB 92
[10] CB 98
The advisor also quoted an International Council on Security and Development Report dated 16 November 2009 to the effect that of the four “Doors” leading of Kabul, three, including that to the West through Wardak[11], are unsafe[12].
[11] i.e. the route to Bamyan.
[12] CB 111
During the interview for his first IMR review the applicant made new claims to the effect that he arranged parties for small groups of men and supplied dancing girls, some of whom were prostitutes and had sex with the men. This and not the dress making business was the reason for the fatwa against him[13]. An Independent Merits Review recommendation, adverse to the applicant, was made on 22 September 2010[14].
[13] CB 239
[14] CB 233-251
Following the decision of the High Court in M61/2010E the applicant was assessed for a second time by the second respondent, who interviewed him on 11 February and 25 March 2011.
Prior to that second assessment the applicant provided another statement through his advisor. In that statement the applicant said that his business did not involve prostitution, that he only organised parties with dancers, and if the girls had sex with clients that was their business[15]. He also clarified the incident where he escaped from the Taliban, saying that he asked the guard if he could go out and relieve himself, and that he left money with the guard and fabric and other goods in his car. After the guard let him go he ran away[16].
[15] CB 276 [12]-[16]
[16] CB 276 [17]-[19]
The Reviewer accepted that the applicant is a Hazara and Shia Muslim from Bamyan in Afghanistan. However, due to numerous significant inconsistencies and changes in the claims made to the assessor and the two merit reviewers the Reviewer did not find the applicant to be a truthful and credible witness and did not accept that the applicant had provided a truthful account of his personal profile, experiences and activities in Afghanistan[17].
[17] CB 357 [65]
On the basis of country information the Reviewer did not accept that the applicant’s ethnicity and minority religion by themselves meant that he faced a real chance of serious harm amounting to persecution by the Taliban[18].
[18] CB352 [42]
The Reviewer found that Bamyan was a safe haven for the Hazara and the applicant would not face persecution there[19]. The Reviewer accepted that the applicant was able to design and make western style wedding dresses as he claimed and found that he would not face persecution in Bamyan for this reason[20].
[19] CB 358 [67]
[20] CB 358 [68]
The Reviewer then considered whether the applicant would face persecution for a Convention reason travelling to Bamyan[21]. After considering the relevant country information which identified persons at risk as being civilians associated with the government or perceived to be so associated, the Reviewer concluded that the applicant did not fall into either of these categories. She then reasoned that the applicant did not face a risk of serious harm amounting to persecution for any Convention reason in relation to his travel into and out of Bamyan[22].
[21] The reasonableness of having to make the journey was not the question being addressed, this not being a relocation finding.
[22] CB 359 [71]
The present application, evidence and submissions
The applicant relies upon an amended application filed on 24 October 2011. The ground in that application is:
The second respondent erred in failing to lawfully consider whether the applicant faced a well founded fear of persecution in attempting to return to Bamyan, being the part of Afghanistan where she found that he would be safe.
Particulars
(a) Error in finding that because the applicant is not a member of a group which faces a greater risk than others, he did not have a well founded fear of persecution.
I received as evidence the book of relevant documents filed on 5 August 2011. Affidavits put in evidence bore on the question of an extension of time but not on the consideration of the ground in the amended application once time was extended.
As is apparent from the amended application, the only issue arising in this case relates to whether the Reviewer fell into error in considering whether the applicant faced a well-founded fear of persecution in attempting to return to his home region of Bamyan.
Consideration
I accept the applicant’s contentions on the applicable law.
The Reviewer’s recommendation was a decision in terms of s.474(3)(h) of the Migration Act, for the purposes of determining whether or not a submission would be made to the Minister to exercise his power under s.46A(2) of the Migration Act to “lift the bar” and permit the applicant to apply for a visa (see M61/2010E). It was also within the Minister’s power to grant the applicant any category of visa under s.195A of the Migration Act.
The High Court held in M61/2010E (at [8]) that the Reviewer was bound to act according to law by applying relevant provisions of the Migration Act and decided cases. The Court held that the fundamental question to which the assessment and review procedures had to be directed is to be understood as whether the criterion stated in s.36(2) of the Migration Act was met, and that had to be understood by reference to other relevant provisions of the Migration Act (at [89]). It may be inferred that in circumstances where the applicant was seeking Australia’s protection, the Reviewer was obliged to consider whether he met the requirements of s.36(2) of the Migration Act, as qualified by ss.36(3)-(7), as well as, among other relevant provisions, ss.91R and 91S.
The Reviewer canvassed the evidence and country information available to her. This included information to the effect that:
a)persecution of the minority Hazaras in Afghanistan has taken place over several centuries[23];
b)the Taliban had in the more recent past restricted the movement of Hazaras and committed atrocities against them[24];
c)there is currently no evidence of a campaign by the insurgency to target Hazaras, and that currently Hazaras are not being persecuted on any “consistent basis”[25];
d)discrimination against Hazaras has however continued[26];
e)there have been atrocities committed against Hazaras in the recent past, such as in Uruzgan Province in 2010 when 11 Hazara men were murdered and decapitated, allegedly by the Taliban[27];
f)the roads in and out of Bamyan are in “an enormously poor condition”. There are two routes to Kabul which are closed for long periods between November and April due to snowfall in winter and floods in spring[28];
g)travel into and out of Bamyan can be dangerous and has become more challenging in the context of a broader deterioration in security in Afghanistan. “Individuals associated with the Government and international community may be at greater risk than others on the road.”[29] (emphasis added)[30].
[23] CB 342.5
[24] CB 342
[25] CB 342.8 - 343.2
[26] CB 343.5
[27] CB 346.3
[28] CB 349 [28]
[29] CB 350.2
[30] This is from a DFAT report dated October 2010.
The Reviewer accepted that the applicant is an Hazara, and a Shia Muslim[31], and that Hazaras have been persecuted in the past, including by the Taliban who committed atrocities against them[32]. Whilst acknowledging that the situation was fluid and that it was important to consider substantial rather than cosmetic changes the Reviewer accepted that there had been significant improvement in the situation of Hazaras and that they were making the most of their opportunities. She found, conformably with certain country information that:
... Hazara do not live in fear of “systematic persecution as they did under the Taliban and that currently Hazaras are not being persecuted on any consistent basis”.
[31] CB 352 [40]
[32] CB 352 [41]
She found that being Hazara and Shia do not of themselves make the applicant a refugee[33].
[33] CB 352-3 [42]
This then required an examination of the applicant’s individual claims. Having considered the inconsistencies in those claims over the course of the RSA and Independent Merits Review procedures, the Reviewer concluded that the applicant was not being truthful, and did not accept that[34]:
a)he was being targeted by the Taliban because he was a dress designer,
b)he organised parties,
c)the mullahs disapproved of his dress designing business or his party business;
d)the mullahs issued a fatwa against him;
e)his home and shop were destroyed;
f)that two of his sons were killed.
[34] CB 353 [43] – 357 [65]
Given those findings the Reviewer placed no weight on the documentation submitted on the applicant’s behalf [35].
[35] CB 357 [65]
The Reviewer did accept that the applicant comes from Bamyan Province, and that he would seek to return to Bamyan[36]. In that respect the Reviewer found that the applicant did not face a well-founded fear of persecution were he to return to and live in Banyam and resume making western style dresses there[37].
[36] CB 357 [66]
[37] CB 358 [67]
So far as his ability to get to Bamyan is concerned the Reviewer stated[38]:
I accept that travel into and out of Bamyan can be dangerous but it is civilians who are associated with or perceived to be associated with the Government or the International community who are at greater risk than others on the roads. There is no evidence to suggest that that the claimant has had any association with the Government or the International Community. I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel into and out of Bamyan. (emphasis added)
[38] CB 358-359 [71]
The applicant contends that this is not what was said by DFAT in the advice upon which this finding was made. The advice was that those associated with the government or international community may be at greater risk.
Having so found, the Reviewer conceded that generalised violence and insurgent attacks continue in Afghanistan, but she did not consider that the general insecurity was for a Convention reason, or that there was a discriminatory aspect to the generalised violence.
The Reviewer rejected that applicant’s remaining claims.
The issue in this case is concerned with the Reviewer’s conclusion that the applicant would return to Bamyan and that although travel into and out of that province was dangerous, the applicant did not face a well founded fear of persecution for a Convention reason when travelling there.
The applicant draws attention to the Reviewer’s findings that:
a)the Taliban have committed atrocities against Hazaras in the past[39];
b)Hazaras are not currently being persecuted on a “consistent basis”[40]; and
c)people associated with the Government or the International community are at greater risk than others on the roads.[41]
[39] CB 352 [41]
[40] CB 352 [42]
[41] CB 358 [71]
I accept that the Reviewer had no evidence to suggest that the Taliban, a fundamentalist Sunni movement, have changed their attitude to Shia Hazaras, or that they have completely abandoned persecution of Hazaras. Indeed, country information[42] suggested the contrary. It may also be inferred from the above that Hazaras continue to face a risk of serious harm, even if they are not being systematically persecuted.
[42] CB 346
It is in that context that the applicant targets the Reviewer’s finding[43] about the dangers en route to Bamyan. The applicant contends that the mere fact that one group of people are, or may be, at greater risk than others does not mean that others are not also at, “... a risk sufficiently tangible to enable it to be said that there is a real chance of persecution” (Ponnudurai v Minister for Immigration [2000] FCA 91 at [12]). The applicant submits that the Reviewer failed to determine, in accordance with law, whether the applicant faced a real chance of persecution for reason of his ethnicity and religion were he to attempt to return to Bamyan.
[43] at CB 358 [71]
The applicant concedes that:
a)country information was to the effect that there is a gravel airstrip in Bamyan[44]; and
b)the applicant did in fact leave Bamyan without being killed.
[44] CB 349.9
The applicant responds that, first there is no evidence whatsoever of any flights at all between Kabul and Bamyan, let alone flights available to civilians. Secondly, the applicant contends that fact that the applicant did leave Bamyan at one time does not answer the question of whether he has a well founded fear of persecution whilst attempting to return. The issue is whether there is a real chance of his being persecuted in attempting to return, and not whether an attempt to return would be “suicidal”.
However, there is no doubt that the Reviewer considered the risk faced by the applicant in travelling to Bamyan and I do not accept the contention that she failed to do so lawfully. I accept the Minister’s submission that the Reviewer did not fall into legal error in considering the issue. She expressly states that she is not satisfied that the claimant faces a real chance of serious harm amounting to persecution for any Convention reason in relation to travel into and out of Bamyan[45] (emphasis added). The Reviewer had already provided her reasons for finding that the claimant did not face a real chance of harm amounting to persecution from the Taliban by reason of his ethnicity and religion[46]. The express consideration of the risk factors associated with travel to Bamyan are simply the Reviewer addressing the matters which the country information suggest might affect an applicant over and above those which are generally present in Afghanistan and which the Reviewer had considered earlier in her reasons. This earlier consideration does not have to be repeated in order to demonstrate that the conclusion reached by the Reviewer was valid because nothing was overlooked.
[45] CB 358 [71]
[46] CB 352 [42]
In circumstances such as the present, where a decision maker finds that an applicant may live in his home region of the country from which he has fled without a well-founded fear of persecution for a Convention reason but that that region is surrounded by other territory through which the applicant must pass in order to reach his home, and which is dangerous, decision makers must consider whether that necessity of transit will expose an applicant to a well-founded fear of persecution. In the present case, I am satisfied that the Reviewer did give lawful consideration to that issue. The applicant’s concern is with the adequacy of that consideration but, in my view, that dispute goes to the merits to the Reviewer’s report and recommendation. The Reviewer took the view that, while the applicant would be subjected to risk in travelling to Bamyan, the harm that may befall him would not amount to persecution for a Convention reason. It was simply part of the general risk of harm that all Afghans faced in traversing the areas in question. That conclusion was, in my view, open to the Reviewer on the material before her. The consideration might have been more fulsome but the consideration given to the issue was lawful, in that the consideration addressed the right question and no relevant material was overlooked.
Neither do I accept that the Reviewer fell into the error identified in Ponnudurai at [12], which was based upon statutory grounds of review. The Reviewer did not incorrectly interpret the relevant law or misapply the law to the facts. The Reviewer’s reasoning on the risk found by the applicant in travelling to Bamyan, while it might be contestable on the merits, was consistent with her reasoning on the risk he feared in Bamyan. While the risk might be higher outside Bamyan, the Reviewer was not satisfied that there was a Convention nexus to it.
I conclude that the decision of the Reviewer is not affected by any jurisdictional error and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 25 November 2011
2
4
0