SZQLB v Minister for Immigration
[2012] FMCA 1198
•13 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1198 |
| MIGRATION – Application for review of decision by Independent Merits Reviewer - applicant claims Post-Traumatic Stress Disorder - claim that the Reviewer did not put the nature and content of this adverse information to the applicant – claim that Reviewer failed to deal with material evidence raised by evidence – claim that Reviewer failed to take into account a relevant consideration – claim that irrelevant considerations taken into account by the Reviewer – no claims sustained – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 46, 477 |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 |
| Applicant: | SZQLB |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1507 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 October 2011 |
| Date of Last Submission: | 30 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Amended Application filed on 30 September 2011 be dismissed.
The Applicant pay the First Respondent’s costs, of and incidental to the Application, as agreed or assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1507 of 2011
| SZQLB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the court orders made on 9 August 2011, the solicitors for the First Respondent, the Minister for Immigration and Citizenship (the “Minister”), were required to file and serve a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of materials provided is identified as the Court Book (“CB”). On the date of the hearing the CB was marked as Exhibit “A”. A supplementary Court Book (“SCB”) was tendered consisting of one document and was marked Exhibit “A1”. A typed transcript of the interview of the applicant, SZQLB, held on 4 March 2011 at Villawood Detention Centre by the Independent Merits Reviewer, Kerry-Anne Hartman prepared and attached to the affidavit of Sue Archer affirmed 29 September 2011 which was also read into evidence. An affidavit of the applicant affirmed 14 July 2011 that attaches a copy of the transcript of interview on 4 March 2011 by the Independent Merits Reviewer (the “Reviewer”) was filed in these proceedings. A copy of that interview was not reproduced in the CB. These documents are the only evidence before the Court.
At the first court date directions hearing, the applicant was granted leave to file and serve an amended application, giving full particulars of each ground of review relied upon, together with any supporting affidavit material. An amended application, as well as an affidavit of the applicant affirmed on 14 July 2011 (referred to above) were filed and served. The applicant and the Minister were also granted leave to file and serve short submissions and a list of authorities for the hearing, which both parties elected to do.
Background
The background material contained in the Statement of Reasons of the Reviewer indicates that the applicant is a citizen of Afghanistan and entered Australia as an unauthorised boat arrival and was taken to Christmas Island on 4 January 2010. The applicant was first interviewed by officers of the Minister, in an entry interview on 18 January 2010. In that interview, he gave information that he was an Afghani citizen, a Shi’a Muslim of the Hazara ethnic group and born in a village in Jaghori District in the Ghazni province of Afghanistan. He had no formal schooling and was a self-employed truck driver until 2003. He is married with 9 children.
On 6 March 2010 he lodged a request for Refugee Status Assessment (“RSA”). The applicant claimed in a statutory declaration dated 6 March 2010 that, as a result of Taliban activities, he was forced to flee Afghanistan to Pakistan. He claimed he and his family were forced out because they were ethnic Hazaras. In 2002 between 10 and 12 Talebs came to his house, then took him away to a Taliban controlled area where he was held for three hours, during which time he was beaten with rifles and a thick piece of wood. The Taliban wanted the applicant and his sons to join their fight. Eventually, the applicant bribed one of them and was able to run away. He escaped to Angori where he stayed with a friend. After his escape, the Taliban came to his home, took his truck and harmed his family. The applicant then paid a smuggler to smuggle him into Pakistan where he was joined by his family two months later.
The applicant, who was an unlawful non-citizen in Pakistan, claimed the hatred for Hazaras was building in that country. He stated that in approximately November 2009 when he was taking his wife by bus to visit a doctor, the police stopped the bus and proceeded to assault and rob the Hazara passengers. One of the officers put a knife to the applicant’s throat and said he would cut it if he saw him again. The applicant left Pakistan a month later. The applicant claimed that after he arrived in Australia, one of his sons was killed by the Taliban when he returned to Afghanistan to collect money that the applicant was owed for the sale of land. Another son was killed in Quetta by the Taliban.
The applicant was interviewed by an officer of the Minister on 9 March 2010. Part of the RSA record states:
The [applicant] does not appear to have developed any profile, especially taking into account he has not lived in the country for the last eight years, that would warrant him being targeted by the Taliban … He experienced no difficulties while travelling to Jaghori and Ghazni. Prior to the alleged 2002 incident he was not subject to any attention by the Taliban.
(CB 92)
The officer conducting the interview accepted that the applicant lived in Pakistan from 2002 until December 2009 and found that the applicant’s motives for leaving Pakistan were socio-economic and opportunistic. The officer was not satisfied the applicant had a well founded fear of persecution because of any Convention ground.
By an undated letter, attaching a decision record dated 15 April 2010 (the “First Decision”) the applicant was notified that the Australian Government had determined that he was not a refugee as defined in the 1951 Convention as amended by the 1967 Protocol (CB 76). The assessor was not satisfied that the applicant had a genuine fear of harm, or that there was a real chance of persecution occurring (CB 93). Accordingly, she did not consider that the applicant had a well founded fear of persecution for a Convention reason.
In a further statutory declaration dated 7 June 2010 the applicant claimed that he and his family were, while in Pakistan, constantly abused and attacked by both Sunnis and Taliban. In 2009, a Baluchi police officer grabbed the applicant and threatened to cut his throat.
On 10 September 2010 the Reviewer (the “Second Decision”) recommended that the applicant did not meet the definition of refugee as set out in the 1951 Convention and amended by the 1967 Protocol (CB 123). On 27 January 2011, the applicant’s agent provided a submission to the Department in support of their client’s request for review of the earlier findings that he was not a refugee, following the High Court of Australia’s decision in PlaintiffM61/2010E v Commonwealth of Australia (2010) 243 CLR 319 (CB 155). A further review was then conducted.
In a decision made by the Reviewer on 28 June 2011 and forwarded by letter dated 5 July 2011 (CB 202) the second Reviewer recommended that the applicant should not be recognised as a refugee. It is this decision, Review Case Number “OSB019”, that is subject to review in this Court.
Decision of Independent Merits Reviewer
I rely on the convenient summary of Ms Mitchelmore, appearing for the first respondent, which is contained in her written submissions filed in these proceedings:
12. The reviewer accepted that the applicant was a national of Afghanistan (at [35], CB228). However, she did not accept that he had been detained and tortured by the Taliban in 2002. Noting that the district in which the applicant lived was an area with an almost entirely Hazara population, and that there were no reports of the Taliban entering the district and forcing Hazaras to fight for them, the reviewer considered the applicant’s claim that the Taliban came to his home in 2002, asked him and his sons to fight for them and drove him to Sangi Masha when he refused was implausible (at [41], CB 229). The reviewer also noted that when he first made this claim, the applicant had not said that he was detained and tortured, but, rather, that he had run away; she considered that if the applicant had been detained and tortured he would have made this claim when first interviewed (at [42], CB 229).
13. In so far as the applicant claimed that his son had been killed by the Taliban, the reviewer did not accept that he had provided truthful evidence (at [46], CB 230). She observed that country information indicated that travelling on roads in Afghanistan was very dangerous, with many travellers stopped and robbed by criminals and insurgent groups. The reviewer found it implausible that, eight years after leaving Afghanistan, the car in which the applicant’s son was travelling was stopped by persons who were specifically looking for the applicant (at [47], CB 231). Further, she noted that the applicant gave an account of these events to her which differed from the account he had previously provided, claiming not to know who had stopped the car his son was travelling in when he had consistently said it was the Taliban (at [48], CB 231). The reviewer also did not accept that another of the applicant’s sons was killed in Quetta by the Taliban (at [59]-[60], CB 233).
14. The reviewer had a number of difficulties with the applicant’s claim that his father in law was a member of the Nehzet faction of Hizbi Wahdat, the political party that controlled the Jaghori District, and in 1998, that soon after he was killed, members of the Nasr faction came and took his daughters, forced them into marriage, and forced him into hiding for three years (at [50], CB 231). As with other aspects of his claims, the reviewer noted that the applicant did not make this claim until the present review (at [52]).
15. In rejecting the applicant’s claims, the reviewer noted that she had reviewed the psychological assessment that he provided, which stated that the applicant was suffering from post traumatic stress disorder and depression, and had trouble recalling events. She took the applicant’s mental state into account when assessing his credibility (at [38], CB 228), but ultimately she did not consider that it overcame the difficulties that she identified in the applicant’s account of various incidents.
16. In so far as the applicant claimed to fear persecution as a Hazara, the reviewer referred to country information which stated that Hazaras were not currently persecuted on any consistent basis, although the security situation in Afghanistan was fluid and the current situation might not last indefinitely (at [68], CB 234). She accepted the advice in a February 2010 report prepared by the Department of Foreign Affairs and Trade (DFAT), to the effect that the Hazara do not presently live in fear of systematic persecution as they did under the Taliban regime (at [74], CB 235-6).
17. The reviewer was also not satisfied that the applicant faced a real chance of persecution if he returned to his village in the Jaghori District, noting that the district remained out of reach of Taliban control due to the military and political power of Hizbi Whadat Khalili/Nasr faction (at [80], CB 237). Noting that the applicant had been employed as a truck driver, the reviewer accepted that travel into and out of Jaghori was dangerous, with the roads remaining vulnerable to attacks by the Taliban, petty thieves and organised criminals, but she considered that travel was dangerous for all ethnic groups (at [81], CB 238).
The Proceedings
The applicant filed an application in this Court on 15 July 2011. With the leave of the Court, an amended application was filed on 30 September 2011. The grounds of the Amended Application were pleaded as follows:
1. That the IMR did deny the applicant procedural fairness.
Particulars:
i) The IMR rejected a psychological report of 3 March 2011 by a clinical psychologist “in so far as it tends to corroborate the applicant’s account” without first putting the applicant on notice that it proposed to reject it or giving him an opportunity to respond.
ii) The IMR rejected the applicant’s late raising of the conflict with the Nasr faction was not because the applicant “did not trust the previous interpreters” or due to “the applicant’s mental state” but rather because “he is fearful of his future and that of his family and is prepared to provide whatever evidence he thinks will strengthen his claims”, and came to that view without first putting the applicant on notice of the basis that it proposed to reject it or giving him an opportunity to fully respond.
iii) The IMR did not deal with the statutory declaration of 8 November 2010 from the applicant’s brother-in-law asserting that the applicant “was taken up to the mountains and forcibly sodomised”, that the applicant didn’t disclose to anybody “because it is a shame that it happened to him” and that he is “suffering severe mental issues”, in that the applicant was put on notice that the IMR proposed to reject the evidence or give him an opportunity to respond to those issues raised.
iv) The IMR did reject Professor Maley’s criticism of the February DFAT report without placing the applicant on notice that it proposed to reject the evidence or give him an opportunity to respond to those issues raised.
2. That the IMR did ignore relevant material and/or failed to consider all substantial claims and information put forward by the applicant.
Particulars
The IMR did not deal with the claim advanced in the statutory declaration of 8 November 2010 from the applicant’s brother-in-law asserting that the applicant “was taken up to the mountains and forcibly sodomised”, that the applicant didn’t disclose it to anybody “because it is a shame that it happened to him” and that he is “suffering severe mental health issues”.
3. That the IMR , in finding that the claimant does not face a real chance of persecution if he returns to Ghazni province because he is Hazara Shi’a because “Jaghori remains out of reach of the Taliban control due to the military and political power of Hezb-I Wahdat Khalili/Nasr factions” the second respondent fundamentally misunderstood the correct test to be applied under the 1951 Convention Relating to the Status of Refugees (“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 of the military and political power of a non-state actor, the Hezb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
4. That the IMR, in finding that the claimant does not face a real chance of persecution if he returns to Ghazni province because he is Hazara Shi'a because “Jaghori remains out of reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/Nasr factions” the second respondent failed to take a relevant consideration into this 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 Hezb-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.
5. 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 4 above.
6. 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 Hezb-I Wahdat Khalili/Nasr faction; and
d. what conditions attached to any protection offered by the Hezb-I Wahdat Khalili/Nasr faction.
7. 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 the Jaghori and Malistan districts both remain out of Taliban control due to military and political power of Hezb-I Wahdat Khalili/Nasr faction; and
b. That protection afforded by the Hezb-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 Hezb-I Wahdat Khalili Nasr faction to protect the applicant in particular or Hazaras in the Jaghori district generally were never put to the applicant, denying him the opportunity to call evidence or make submissions on the point.
The matter then came before the Court for hearing on 7 October 2011. Shortly before the hearing both sides filed their written submissions and lists of authorities.
Legal Basis for Judicial Review of Offshore Entrant Processing
Mr Bodisco, appearing for the applicant, indicated in his written submissions that the first ground of review pleads a failure by the Reviewer to afford procedural fairness to the applicant. Once the assessment and review processes are undertaken for the purpose of the Minister considering whether to exercise power under the Migration Act 1958 (Cth) (the” Act”), consideration of the exercise of the power “must be procedurally fair to the person in respect to whom that consideration is being given” (Plaintiff M61 (supra) at [78]). Procedural fairness required the second respondent, 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” (Plaintiff M61 (supra) at [89]).
In Plaintiff M61 (supra) the High Court found that the decision to establish and implement the RSA and Independent Merits Review (“IMR”) procedures was a decision by the Minister to consider whether, in respect of any offshore person who made a claim, Australia owed that person protection obligations (Plaintiff M61 (supra) at [66]). As one of the powers being considered was that pursuant to s.46A to lift the bar to allow offshore entrants to make an application for protection visas the exercise of the power would be pointless unless the RSA and IMR processes were according to the criteria and principles of the Act, as construed and applied by the Courts of Australia (Plaintiff M61 (supra) at [88]).
In Plaintiff M61 (supra) the High Court found the RSA assessment and subsequent IMR were subject to procedural fairness as these processes extended the claimant’s period of detention. Hence the Court found the assessment and review must be procedurally fair and must address the relevant legal questions (Plaintiff M61 (supra) at [77]).
Ground 1 – Denial of Procedural Fairness
Applicant’s Submissions
Mr Bodisco, in his written submissions, contends that the Reviewer did not put the nature and content of this adverse information to the applicant in the interview. Nor did the Reviewer otherwise put the information or its substance to the applicant.
Particulars 1, 2 and 3
Mr Bodisco submits that the psychological report which was dated 3 March 2011 and received after the interview was dealt with by the Reviewer in the following terms:
a)At CB 228, [38] of the IMR, it states:
38. Following the interview the claimant’s adviser submitted the claimant’s Psychological Assessment Report. He did not make any submissions concerning the claimant’s mental capacity to undertake the interview. Throughout the interview the claimant appeared to fully understand the questions I asked him. He explained why he had left Afghanistan. He described his life in Pakistan. He explained why he did not want to return to Afghanistan. I accept the opinion of the psychologist that the claimant is fearful about his own situation and future and that of his family. I do not have any concerns that the claimant was unable to provide evidence at interview. I did not have any concerns with the manner in which the claimant gave his evidence. I have given consideration to the claimant’s mental state when assessing his credibility. For the reasons given below, so far as the report tends to corroborate the claimant’s account, the report is given no weight.
b)At CB 229, [42] of the IMR, it states:
42. I am not satisfied that the claimant’s mental state explains his failure to claim he was detained and tortured by the Taliban at his early entry interview.
Mr Bodisco submits that this information was “credible, relevant and significant to the decision to be made” per Brennan J in Kioa v West (1985) 159 CLR 550 at 628 – 629, applied by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Indigenous Affairs (2005) 225 CLR 88 at [15]. The statutory declaration by the brother-in-law of the applicant on 8 November 2010 raised squarely the issue of the applicant’s mental state.
Mr Bodisco contends that procedural fairness required at least that the substance of new information to be put to the applicant: Plaintiff M61 (supra) at [91] where it states:
Third, 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 reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.
The transcript of the interview of 4 March 2011 is demonstrative of the fact that, at no point, was the issue of the mental capacity or otherwise raised with the applicant or his adviser.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [32] the High Court proved what the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591 said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party that is 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 to ascertain the relevant issues and to be informed of the nature and content of adverse material.
(Emphasis added by the Court.)
In Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte MIAH (2001) 206 CLR 57 per Gaudron J at [86], [99] her Honour stated:
The basic principle in respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet that case that is put against him or her [54].
54. See Delta Properties Pty Ltd v Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11at 18, per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 112 per Mason J; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 495 per Murphy J; FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 350 per Gibbs CJ, 360 per Mason J, 376 per Aiken J; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 569 per Gibbs CJ; at 582 per Mason J; 602, per Wilson J; 628 per Brennan J, 633, per Deane J.
Mr Bodisco contends that, having squarely raised the issue of a diagnosis of post traumatic stress disorder and depression (CB 199), and his reported memory and concentration issues (CB 196), requires the Reviewer to then place the applicant on notice that it proposed to reject it and give him an opportunity to then respond. This is particularly so, given that the issues relating to his mental capacity had been raised in the statutory declaration of 8 November 2010 (CB 209) and had not effectively been dealt with by the reviewer. In Darabi v Minister for Immigration and Citizenship (2011) 250 FLR 301 at [110] the Court found on a consideration of clause 4.1 and Annexure “D” of the IMR Guidelines that the nature of the IMR is “…a “review de novo” of the applicant’s claims. That is a fresh mind, not influenced by the initial findings, is to be brought to bear on those claims”. It is submitted that once raised, those issues required due consideration, however, they were not given due consideration.
Particular 4
Mr Bodisco submits that the Reviewer did reject the report by Professor W. Maley (CB 222). The Maley report was rejected in the Statement of Reasons at [69] (CB 234) due to specific assertions regarding the subjective nature and limited scope for interviews of “academic” writing as a class of report. The reviewer stated:
69. I have considered the advisers submission that February DFAT report should be given little weight. I note Professor Mulley’s criticism that the DFAT report is inherently subjective due to the nature of the sources relied and the limited scope for interviews. I am of the view that economics face the same limitations.
This then became the “make weight” at [79] (CB 237) for impugning the applicant’s claim in respect of having a well-founded fear of persecution. The reviewer stated:
Professor Maley in his report expresses the view that “no part of the Ghazni can realistically be considered safe for Hazaras even in districts where they might seem numerically predominant.” Other reports indicate that the Hazara districts of Ghazni province are secure…
The assumptions about Professor Mulley’s work were never put to the applicant and nor was he provided an opportunity to lead evidence on this point.
Respondent’s Submissions
Ms Mitchelmore submits that Mr Bodisco’s submissions on Grounds 1 and 2 are a miscomprehension as to what procedural fairness actually requires. In Minister for Immigration & Citizenship v SZGUR & Anor (2011) 241 CLR 594 per French CJ and Kiefel J at [9] their Honours stated:
…A decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision [6].
[6] Commissioner of Australian Capital Territory Revenue v Alphapharm Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591 – 592; and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 161 – 162; [29] – [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;[2006] HCA 63; Re Minister for Immigration, Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 219 [22] per Gleeson CJ, Gummow and Heydon JJ; [2003] HCA 56 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte MIAH (2001) 206 CLR 57 at 117 – 118 [194] per Kirby J; [2001] HCA 22.
Particulars 1, 2 and 3
Ms Mitchelmore submits that the first three particulars in relation to the psychologist’s report relate to the manner in which the Reviewer dealt with that report, both in terms of substance of the report as to his mental health and insofar as it tended to corroborate the applicant’s account of what had occurred to him in Afghanistan. Ms Mitchelmore argues that the particulars of Ground 1 misdescribe what the Reviewer said about the report. Looking at [38] of the decision (extracted at [18(a)] above), it is clear that the Reviewer is not rejecting the views of the psychologist as to the applicant’s mental health and mental state. What the Reviewer is concerned with, in that paragraph, is an issue that has arisen in the context of her decision, as to whether or not the subsequent receipt of the report from the psychologist as to the applicant’s mental health had an impact on the hearing and whether or not that was a fair hearing by reason of that mental state. Ms Mitchelmore notes that the applicant’s adviser did not make any submission about the applicant’s mental capacity to undertake the review.
What the Reviewer is concerned with in [38] is whether or not, having subsequently received that report, her view changed as to whether or not the applicant had been given a fair hearing. The Reviewer goes on to indicate that, in her view, the claimant appears to fully understand the questions that she asked him, was responsive and was able to explain the reasons why he left Afghanistan. He was able to describe life in Pakistan and why he did not want to return to Afghanistan. The Reviewer stated:
I accept the opinion of the psychologist that the claimant is fearful about his own situation in the future, and that of his family.
(CB 228)
The Reviewer did not have any concern that the applicant was unable to provide evidence at the interview. In other words, insofar as his capacity to give evidence was concerned, notwithstanding the report of the psychologist, she was satisfied that the applicant had been given a fair hearing. The Reviewer further noted that she had given consideration to the applicant’s mental state when assessing his credibility. In other words, in terms of assessing whether or not the applicant is to be believed. The Reviewer has taken into account the material in the psychologist’s report as to the applicant’s mental state. Ms Mitchelmore submits that there is nothing that can be impugned insofar as that reasoning is concerned and the Reviewer indicates:
For the reasons given below so far as the report tends to corroborate the claimant’s account, the report is given no weight.
(at [38] CB 228)
This is not a rejection of what the psychologist had said, but simply not giving that report any weight. Weight that is given to evidence provided by an applicant is a matter for the decision-maker. That is not something in respect to which the reviewer was required to give the applicant an opportunity to comment on.
In SZBEL (supra) at [48], in the context of the Refugee Review Tribunal it was found that procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, the Court said:
…to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Ms Mitchelmore referred to the submissions made by Mr Bodisco in respect to Kioa v West (supra) at [18] above where his Honour, Brennan J, was speaking of information available to a decision-maker that was adverse to the interests of the person who was to be affected by that decision. In Applicant VEAL of 2002 (supra) it was an unsolicited letter that the Department received that made allegations against the applicant in that case, whereas in Plaintiff M61 (supra) the Court was dealing with country information that was adverse to the applicant which the reviewer did not put to him for comment. It is clear from [85] in the decision in Plaintiff M61 (supra) where the Court notes that the Reviewer did not accept that the plaintiff had left his country for the reasons he claimed. An important basis for that conclusion was information provided to the reviewer by the Department as country information. In the course of the reviewer’s interview of the plaintiff none of that country information was put to the plaintiff. In particular, none of the propositions recorded in the reviewer’s reasons were raised with the plaintiff or his advisers for comment or consideration.
Ms Mitchelmore contends that the applicant’s complaint in this matter is not with the information in respect of which the applicant was not given an opportunity to comment on, but with what the Reviewer made of evidence that he had advanced. Procedural fairness did not require the applicant to be put on notice that the psychologist’s recording of what he had been told by the applicant would not be given weight. Ms Mitchelmore submits that is not what procedural fairness requires as that would be more along the lines of providing a running commentary of the Reviewer’s response to information that has been provided by the applicant or on his behalf.
Ms Mitchelmore refers to the issue of Post Traumatic Stress Disorder (“PTSD”) raised in Mr Bodisco’s submissions at [22] that raise the issue of whether the Reviewer was obliged to put the applicant on notice that she proposed to reject the evidence she received about his mental state. Ms Mitchelmore argues that is a misdescription of what the Reviewer said in the decision record at [38]. The Reviewer, ultimately, in assessing the applicant’s credibility gave consideration to his mental state, but she did not accept that that evidence overcame the difficulties that she otherwise perceived with his account; such as the truth of his claim that he had been detained and tortured by the Taliban, when he claimed that they attended his house in 2002, but in his initial entry interview he did not say anything about the detention or the beating having occurred. The Reviewer reached this conclusion in circumstances where the applicant had not, in the Reviewer’s opinion, had any difficulty at the hearing in terms of responding to questions and answers and appeared to understand the proceedings. Ms Mitchelmore submits that there was no denial of procedural fairness insofar as to the Reviewer’s treatment of the psychologist’s report.
Particular 4
This raises the issue of how the Reviewer dealt with the information, which came from Professor Maley, that the applicant relied upon in contradiction to other information that the Reviewer had to hand about the situation in Afghanistan. Ms Mitchelmore contends that the selection of and the weight given to country information is entirely a matter for the decision maker. In this matter, the Reviewer is assessing evidence that has been put and that assessment is not a process in respect to which the Reviewer was required before it decided not to place definitive weight on what Professor Maley said in his report. That is not something that the Reviewer needs to go back and put to the applicant before the Reviewer made a decision in terms of Professor Maley’s criticism of the Department of Foreign Affairs and Trade (“DFAT”) report. A similar limitation in the Reviewer’s opinion could have been experienced by other academics. Consequently, the Reviewer did not put any definitive weight on what Professor Maley had said. Ms Mitchelmore argues that this is an aspect of the thought process in respect of which procedural fairness did not require the Reviewer to go back to the applicant before reaching that view.
Ground 1 – Consideration
Mr Bodisco contends that the Reviewer did not put the nature and content of adverse information that she had to the applicant. The adverse information identified by Mr Bodisco was the psychological assessment report of Marc Chaussivert of the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), particularly the PTSD and depression, and the rejection of Professor Maley’s report. In Particular 4, Mr Bodisco claims that the statutory declaration provided by the applicant’s brother-in-law dated 8 November 2010 raised the applicant’s mental state. At [7] of that declaration is states:
… and Mr [SZQLB] is suffering from severe mental health issues and he is going to end his life of he is not granted on shore protection than go back to Afghanistan
(CB 153)
Mr Bodisco advances his argument on the basis that the substance of new information is required to be put to the applicant: Plaintiff M61 (see [19] above) similarly, adverse material: SZBEL (supra) (see [20] above) and be given an opportunity to put their case and meet the case that is put against them: Ex Parte MIAH (see [21] above).
In respect to the psychological assessment report the Reviewer states at the end of [38] of her Findings and Reasons that “the report tends to corroborate the claimant’s account”. I understand the comment by the Reviewer that “the report is given no weight” when received and considered after the date of the interview to mean that the report does not contain any material that could be considered to be new, contradictory or adverse, or raise anything that requires an opportunity to respond. By the end of the interview the Reviewer had formed her view as to the applicant’s mental state and credibility. In the Reviewer’s mind there was nothing in the psychologist’s report that in any way altered or changed the view she had formed. Consequently, the contents of the psychological assessment report did not add to the body of the evidence before the Reviewer and so carried no weight. As pointed out by Ms Mitchelmore in her submissions (at [24] above); (see SZGUR at [9]; see [24] above):
… Procedural fairness requires a decision-maker to identify for a person affected any critical issue not apparent from the nature of the decision or the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
At that point in the Decision Record, the Reviewer considered this aspect of the applicant’s credibility and the psychological report, which does not introduce new information as established in SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609, nor is it adverse to the applicant as it, in effect, confirms the Reviewer’s own observation or put a case that needs to be responded to. I agree with the submission by Ms Mitchelmore at [25]-[28] above.
In respect to the PTSD and depression, this is raised in the psychological report and summarised at 11. Overview of symptoms (CB 198) where it states:
Mr [SZQLB] reported a number of psychological signs and symptoms and despite a high level of self control displayed some of these during the interview. These can be categorised as they have above into criterion areas that are necessary for a diagnosis of Post-Traumatic Stress Disorder.
The findings in relation to Post –Traumatic Stress and Depression are reinforced by his results on the symptom measures that find he is symptomatic for anxiety, depression and PTSD. In the case of anxiety there is overlap between a diagnosis of clinical anxiety (Generalized Anxiety Disorder or GAD) and PTSD however given that this overall presentation includes the features of PTSD this is the appropriate diagnosis.
I agree with Ms Mitchelmore’s submission that Mr Bodisco’s argument advanced in [22] above, being that the Reviewer rejected the evidence contained in the psychological assessment report concerning the applicant’s mental state, is a misdescription of what the Reviewer actually did. The Reviewer at [38] in the Findings and Reasons clearly states “the report tends to corroborate the claimant’s account”. I believe it would be unusual for a person who is not a clinical psychologist or practising mental health practitioner to engage in a detail analysis of an assessment report. Rather, the Reviewer, having completed the interview and then being provided with the assessment report, formed the view that the report was consistent with and corroborated the Reviewer’s own observations. On the material before me it appears that the comment “the report is given no weight” means that the report contains nothing that is contradictory to the view the Reviewer had already formed and does not warrant any amendment to the decision. I acknowledge that this could have been expressed in more appropriate terms; however, the assessment report is not being rejected as suggested by Mr Bodisco in his submissions.
I further agree with Ms Mitchelmore that the applicant’s psychological assessment report was raised as part of the Reviewer’s task of assessing the applicant’s credibility, which is part of a a broader spectrum that has to take into account all that the applicant said during his interview, together with supplementary written submissions provided by his adviser, the applicant’s brother-in-law’s statutory declaration and independent country reports. This assessment process was also influenced by the manner in which the applicant responded to questions and described his situation. I do not accept Mr Bodisco’s argument that the applicant needed to be placed on notice that the psychologist’s assessment did not change the Reviewer’s view she had formed and the applicant should have been given an opportunity to respond, especially when the Reviewer stated that the assessment corroborated his statement.
In respect to Professor Maley’s report the Reviewer had before her a number of reports that provided differing or conflicting analysis of the situation of Hazaras. After the passage extracted by Mr Bodisco at [23] above the Reviewer continued:
I also note that Australian Embassy officials relied on information and advice from international organisations based in Afghanistan and had conversations with a number of Hazara rights advocates living in Kabul.
([69], CB 235)
The Reviewer, at [25] of the Statement of Reasons, lists the 19 separate reports on country information that she has considered together with the material submitted by Craddock Murray Neumann, the applicant’s adviser, which includes the report “On the Position of the Hazara Minority in Afghanistan” prepared by Professor Maley. The Reviewer then refers in [26]-[33] to various parts of some of these reports that make specific references to the circumstances and conditions faced by the Hazara. The Reviewer does no more than set out what elements of particular reports are preferred over others. The statement at the first part of [68] sets out a preference of material rather than a rejection. I agree with Ms Mitchelmore’s approach that this is an aspect of the thought process of the Reviewer and in respect of which the issue of procedural fairness did not require the Reviewer to provide the applicant with this decision on preference of report material requesting comment before reaching a view on the preferred material.
I am satisfied that Ground 1 cannot be sustained and should be dismissed.
Ground 2 – Reviewer Ignored Relevant Material and/or Failed to Consider All Substantial Claims
Applicant’s Submissions
Mr Bodisco submits that in circumstances where a material issue is raised by the evidence, the failure by a reviewer to deal with it amounts to a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23], [26] – [27], [86] – [89]. The Reviewer did not refer to a statutory declaration dated 8 November 2010 by the applicant’s brother-in-law. Although this material was “summarised” in the statement of reasons at [18] (CB 209), the full ambit of the claim, including that the applicant “was taken to the mountains and forcibly sodomised”, that the applicant didn’t disclose it to anybody “because it is a shame that it happened to him” and he is “suffering severe mental health issues”.
Mr Bodisco contends that none of these issues were put to the applicant, including the significant impact of these incidents on the mental health of the applicant. The summary of material, as listed in [18], substantially ignores particular aspects of the claim, including a possible motivation for why these issues had not been raised and the necessary nexus between these events and the applicant’s mental state. The fact that the Reviewer ignored relevant material and/or failed to consider all substantial claims and information put forward by the applicant amounted to a failure to exercise jurisdiction. Because the Reviewer failed to consider all the integers of the claim, it failed to complete the exercise of jurisdiction embarked upon: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J at [42].
Respondent’s Submissions
Ms Mitchelmore submits that in order to succeed on this ground the applicant will have to satisfy the Court that it is appropriate to draw an inference that the Reviewer did not have regard to this particular part of the brother-in-law’s statutory declaration. If the Court was satisfied that it was appropriate to draw that inference it would remain for the applicant to establish that the information was relevant in the sense that the decision maker was bound to take it into account and that it could have materially affected the reviewer’s decision.
Ms Mitchelmore submits that an omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 1389 per Lindgren J at [58]. In the matter before this Court, the issue is not an omission to refer to a piece of evidence, as the brother-in-law’s statutory declaration is summarised by the Reviewer at [80] of her reasons. The applicant’s submission is narrower than that ordinarily made in these types of cases, in that a particular part of that declaration was not considered. Ms Mitchelmore contends that even if it was established that the information was not considered, the applicant has omitted to address the distinction between a failure to consider claims and a failure to consider evidence. The obligation on the part of the Reviewer is to consider the applicant’s claims.
The failure to avert to a piece of evidence does not, of itself, constitute jurisdictional error. It has long been settled that the decision-maker does not need to refer in its decision to every piece of evidence that an applicant puts forward. Jurisdictional error will only be established if the failure to mention a particular piece of evidence supports an inference that the Reviewer failed to consider a claim that the applicant advanced: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] and [63]. Ms Mitchelmore contends that the brother-in-law’s account in his statutory declaration as to what happened to the applicant at the hands of the Taliban is no more than evidence in support of the claim that the applicant, himself, made and that the Reviewer considered. Namely, that he was detained and tortured by the Taliban and that claim was clearly considered by the Reviewer. The applicant’s complaint that the way in which the Reviewer dealt with the statutory declaration of the applicant’s brother-in-law is without foundation.
Ground 2 – Consideration
The claim in this ground is that a particular part of the applicant’s brother-in-law’s statutory declaration made on 8 November 2010 failed to be considered by the Reviewer. That passage appeared in [6] of the declaration and states:
I know that Mr [SZQLB] was taken up the mountains and forcibly sodomised. I found this through my sister (his wife) but Mr [SZQLB] didn’t disclose this to anybody because it is a shame that it happened to him and he is not able to speak about it openly.
Further the other statement appears in [7]:
…Mr [SZQLB] is suffering from severe mental health issues…
(CB 153)
The Reviewer, in the Findings and Reasons, initially dealt with the issue of the applicant’s mental capacity to undertake the interview at [38] (CB 228). Based on her observations, the contents of the psychological assessment and the absence of any submission by his representative concerning the applicant’s capacity to undertake the interviews lead to the conclusion at [38]:
…I did not have any concerns with the manner in which the claimant gave his evidence. I have given consideration to the claimant’s mental state when assessing his credibility…
(CB 228)
The Reviewer again considers the applicant’s mental capacity at [42]:
42… at his early entry interview the claimant did not claim he was detained and tortured by the Taliban. He claimed that when they came to ask him to fight he ran away to the mountains. I have considered the claimant’s mental state as a possible explanation for his failure to raise this claim. The psychologist stated in her report that the claimant reported he had difficulty in remembering things. She expressed the opinion that his mental state may affect his capacity to recall trauma events. At the interview with me the claimant provided detailed evidence about this incident…
… I am not satisfied that the claimant’s mental state explains his failure to claim he was detained and tortured by the Taliban at his early entry interview…
(CB 229)
The applicant’s mental capacity was also addressed at [54]:
54… I have considered the claimant’s mental state as a possible explanation for his failure to raise claims in the early stages of his review. In the Psychological Assessment Report the psychologist stated that the claimant reported he had a persistent reactions of anger or hostility and a mistrust of others. I am not satisfied the claimant’s mental state explains his failure until after negative recommendation by Reviewer 1 to raise the claim that his family was involved in conflict with the Nasr faction. I am of the view that the introduction of this significant new claim so late in process is not because the claimant did not trust the previous interpreters…
The Statement of Reasons clearly addressed the applicant’s mental capacity and mental health issues. It must be acknowledged that there are a wide number of mental health issues that may need to be addressed, in respect of the applicant’s quality of life issues, but these do not necessarily impact on the area of focus addressed by the Reviewer in respect of the applicant’s ability to present and discuss his claim being advanced. The Reviewer was narrowing her assessment as to whether the applicant could give evidence and if it was credible. The Reviewer did not specifically refer to the “severe mental health issues” comment in the brother-in-laws statutory declaration which, at its best, could only be a lay observation. However, the Reviewer was alert to the situation and had the benefit of the psychological assessment as well as her own observation. On a fair reading of the decision record I am not satisfied that the severe mental health issue raised by the brother-in-law was overlooked.
In respect of the applicant being forcibly sodomised, this is not specifically mentioned in the decision record, however, the incident is recorded in [42] where it states:
He told me the number of Taliban who came to his home, the season they came, the time of day they came and what they had said to him. He described in great detail how he was put into their car where he was detained and how they tortured him…
(CB 229)
The Reviewer then makes the following observation about the applicant’s claim:
… I am not satisfied that the claimant’s mental state explains his failure to claim he was detained and tortured by the Taliban at his early entry interview. I am of the view that is the claimant had been detained and tortured by the Taliban when they came to his house in 2002 and demanded his sons fight for them given the significance of his claim he would have made this claim when he was first interviewed by the Department.
(CB 229)
During the interview of the applicant by the Reviewer on 4 March 2011 conducted with the assistance of a Dari-English interpreter and in the presence of his adviser, the issue of the applicant being detained and beaten was discussed in the following terms:
I asked the claimant to explain what happened when the Taliban came to his home in 2002. He claimed 12 Taliban who were armed came at about 11.30am. He claimed it was spring time. He claimed they stopped their car and said to him we need lunch to eat…
He claimed he gave them lunch and when they had finished their lunch they said to him “we need your 2 sons to fight with us and to be in our group.” He claimed that when he said no they arrested him, put him in their car and drove him to Sangi Masha.
I asked the claimant to describe where he had been detained. He claimed that they had small camping houses. He claimed that they beat him from the time they arrested him until they took him to the jail. He claimed it took about 7-8 hours to get to the jail… He claimed he had a friend in Sangi Masha who was a doctor and he came at night time paid money and then they ran away. He claimed he was detained for about three hours…
(CB 211)
The Reviewer returned to the issue of being detained and tortured later in the interview:
I put to the claimant the concerns I had about the claims he made. I put to the claimant the concerns I had about his claim that the Taliban in 2002 came to his home asked him and his sons to fight for them and took him away and tortured him… I put to the claimant that I also had concerns that he did not claim he had been detained and tortured by the Taliban in his early interview. He responded “I did make that claim”. I then read to the claimant what the departmental officer had recorded. I put to the claimant that he had told the officer “They keep on grabbing my collar and asking me to go to war; if not they asked for money; I went to the mountains; they took my car.” I put to the claimant that he was asked 2-3 times if there was anything else he wanted to say and he said no. I put to the claimant that his claim that he was detained and tortured by the Taliban was a very significant claim and the fact he did not make that claim at his early entry interview may lead me not to accept the claim.
(CB 214)
The Reviewer raised with the applicant the subject of his being detained and subsequent torture on a number of occasions, emphasising that these events were very significant to his application for protection. I note on all occasions, the nature of the torture was not discussed as to the form that it took. The only explanation offered by the applicant is that during the car trip between his home and Sangi Masha was that he was beaten. No further description of the form of beating was given. Whether it was administered to any particular part of the body was not mentioned, and, whether it was delivered by hand, sticks, weapons or other material is not detailed. This raises the question why the claim of being forcibly sodomised should be detailed when none of the other torture is described in precise terms. Due to the nature of the structure and expression used by the Reviewer in her Statement of Reasons, the absence of specific references to the forced sodomy does not establish that that particular element of the brother-in-law’s statutory declaration was not considered.
The Reviewer expressed to the applicant and his adviser during the interview her reservations about the claim that the applicant was detained, taken away and tortured. The Reviewer indicated that the failure to raise this incident at the early entry interview placed the whole issue in question as to whether it had, in fact, occurred. The focus on one particular form of torture over all others was not the significant point when the subject of any torture having taken place was in severe doubt. I am not satisfied that an inference can be drawn that the brother-in-law’s statutory declaration was not considered by the Reviewer, however, the whole issue of torture of the applicant by the Taliban was not accepted by the Reviewer because it was not raised at the early entry interview and subsequently after being advanced by the applicant, there were a number of inconsistencies in the account. This was clearly raised with the applicant, but in the Reviewer’s view was an unsatisfactory response. In the circumstances the ground cannot be sustained and should be dismissed.
Grounds 3, 4, 5, 6 and 7
Ms Mitchelmore indicated to the Court that Mr Bodisco acknowledged that the pleaded Grounds in respect to 3 to 7 had been rejected by this Court in a number of decisions. These matters were heard before Cameron FM and are identified as SZQDZ v Minister for Immigration and Citizenship & Anor [2011] FMCA 652; SZQER v Minister for Immigration and Citizenship & Anor [2011] FMCA 738. Mr Bodisco indicated that he was not pressing Ground 7 and, consequently, these comments only related to Grounds 3 to 6, inclusive.
Ms Mitchelmore submits that, in order for this Court not to follow the reasoning in the three decisions listed above as a matter of comity, the Court would have to be satisfied that the reasoning of his Honour Cameron FM was plainly wrong. In support of this proposition Ms Mitchelmore referred to the decision in SZNFB v Minister for Immigration and Citizenship & Anor (2009) 231 FLR 241 per Nicholls FM at [23] – [24] where his Honour stated:
23. Whether such an argument may be raised or not, I am not persuaded, in any event, that his Honour was “plainly wrong”. The relevant test was set out, for example, as the Minister submits, in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 ALR 1 at [148] per Weinberg J:
…
The word “plainly” does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.
24. In my respectful view, regard must be had to the totality of what his Honour said. That is, that the obligation in s 66(2)(d)(ii) of the Act is “simply” to state the relevant time in which the application may be made. In my respectful view, the sentence that follows in his Honour’s Reasons for Judgment applies this principle to the facts of the case before his Honour.
Since the hearing of this matter all of the above mentioned decisions of SZQDZ (supra), SZQER (supra) and SZQGT v Minister for Immigration and Citizenship & Anor [2011] FMCA 744, together with SZQGV v Minister for Immigration & Citizenship [2011] FMCA 743 and SZQFR v Minister for Immigration and Citizenship & Anor [2011] FMCA 785 were heard on appeal in SZQDZ v Minister for Immigration and Citizenship & Another (2012) 200 FCR 207. The main issue on appeal concerned practice and procedure, particularly the time limit for filing and whether s.477 of the Migration Act applies to an application to restrain the Minister from making a decision under s.46A(2) applying to an application that seeks a “quia timet” injunction and whether this is an application in relation to a migration decision. Further, whether the assessment on recommendation of an Independent Merits Reviewer is a “decision of an administrative character”.
The Full Court found that s.477 of the Migration Act does not apply to recommendations by an Independent Merits Reviewer. In respect of each of the five applications, leave to appeal was granted, the appeals were treated and instituted instanter, then orders dismissing the proceedings below were set aside and the proceedings were remitted to the Federal Magistrates Court to make final orders consistent with the Full Court’s reasons. Significantly, the issues that are referred to in Grounds 3 to 6 in the matter before this Court and form part of the judgments in SZQDZ, SZQER, SZQGV, SZQGT and SZQFR in the Federal Magistrates Court were not addressed by the Full Court and no reference to their validity was made.
Ground 3 – Misunderstanding of the Correct Test to be Applied
Applicant’s Submissions
Mr Bodisco submits that the reviewer misconstrued and misapplied the test as set out in Article 1A(2) of the Refugee’s Convention and s.36(2) of the Act in relation to whether Australia has protection obligations to the applicant. This is based on two findings by the Reviewer:
a)At [80] (CB 237):
… I find that Jaghori remains out of reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/Nasr factions. As a result to date there have been no reported clashes between the Taliban and the Hezb-I Wahdat Khalili/Nasr factions and the Taliban have not yet taken steps to challenge groups in control of the Hazarat region. Despite pervasive Taliban influence in Ghazni province and attempts to penetrate Hazara areas the Taliban remain on the outskirts Jaghori. I am not satisfied that the claimant faces a real chance of persecution if he returns to his village in the Jaghori district, Ghazni province because he is Hazara Shi'a.
b)At [83] (CB 238):
… I do not accept that the general insecurity is for a Convention reason or that there is a discriminatory aspect to the generalised violence. The claimant would be conducting his life in Jaghori district that is Hazara dominated and is stable and secure. Jaghori district is the claimant’s place of origin where he would have access to traditional family and community structures to support him…
Mr Bodisco contends that the Reviewer, by basing her decision on the issue of whether the applicant could avail himself of protection of non-state actors, rather than the Afghan state, has asked herself the wrong question in relation to whether the applicant’s fear of persecution was well-founded. As a result, the Reviewer’s recommendation was not made according to law. There are two cumulative traditions in Article 1A(2), both of which must be satisfied in order for a person to meet the definition of “refugee” to whom countries owe protection obligations. The first condition is that the person is outside his or her country of nationality owing to fear of persecution for reasons of membership of a particular social group. The second condition is that the person isn’t able to avail himself or herself of the “protection” of the country of nationality or is unwilling to do so owing to a well-founded fear of persecution. It is now accepted that the “protection” referred to in the second limb refers to an external protection of the country of nationality, for example, diplomatic or consular protection: Minister for Immigration and Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1 per McHugh and Gummow JJ at [61], Gleeson CJ at [22] – [23]; Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 per Gleeson CJ, Hayne and Heydon JJ at [19]; SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 per Gummow, Hayne and Crennan JJ at [16] – [17].
Mr Bodisco submits that the narrow definition of “protection” does not mean that the ability of the state to provide internal protection is irrelevant, as stated in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (supra) per Gleeson CJ, Hayne and Heydon JJ at [18] – [19]. In Minister for Immigration & Multicultural Affairs v Khawar (supra), Gleeson CJ at [22] explained “accepting that, at that point of the article, the reference is to protection in the narrower sense, an inability or unwillingness to seek diplomatic protection may be explained by a failure of internal protection in the wider sense”.
In Respondents S152 (supra) their Honours Gleeson CJ, Hayne and Heydon JJ at [20] stated that “protection” in a sense of the state’s responsibility to safeguard rights and freedoms “has a broader meaning” than the narrower sense in which the term is used in Article 1A(2), but so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Article 1A(2). Their Honours continued:
21. Having regard to both the immediate and 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 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 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 which she said, in relation to the sufficiency of State protection against the acts of non-State agents:
“If it is sufficient, the applicant’s fear of persecution by others will not be “well-founded”; if it is insufficient, it may turn the act of others into persecution for a Convention reason; in particular it may supply the discretionary 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 protection of his home State.”
Mr Bodisco submits that the applicant squarely raised the issue of inadequate state protection before the Reviewer. However, despite this and, although the correct test as to whether the 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 freedoms of its nationals”: SZATV (supra) at [20], the Reviewer did not ask herself whether the Afghan State provided a level of protection which meets international standards, as:
a)The Reviewer failed entirely to consider the Afghan State’s ability to provided protection in the Jaghori district; and
b)Instead the Reviewer was tantamount to asking whether the Hezb-I Wahdat Khalili/Nasr faction was able to provide protection for the applicant.
Mr Bodisco submits that by acknowledging that the Taliban “has not yet taken steps to challenge groups in control of the Hazarajat region and that Jaghori remains out of reach of Taliban control due to the military and political power of the Hezb-I Wahdat Khalili/Nasr faction”, the Reviewer accepted that the region was not yet under control of the Afghan State: Record of Decision at [96] (CB 203). The purpose of the Convention is for the international community to provide protection in circumstances where a person’s national state is unable to do so. Whether a nation state offers “real protection” has been described as the “focus” of the Convention definition of refugee: Randhawa v Minister for Immigration. Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-441. Mr Bodisco argues that as a consequence:
a)The Reviewer failed to recognise this principle and therefore applied the wrong test when accessing the applicant’s claim for a protection visa; and
b)This resulted in a recommendation that was not made in accordance with law.
Respondent’s Submissions
Ms Mitchelmore referred the Court to the decision by his Honour Cameron FM in SZQDZ (supra). In that decision at [1] it identifies the applicant as a citizen of Afghanistan. At [7] the claims made by the applicant are set out which indicate that he is of Hazara ethnicity and is a Shi’a Muslim. The claims that he made at the RSA application are summarised at [8]. The Findings and Reasons of the Reviewer are set out from [13]. At [15] the Reviewer accepted that the applicant was originally from Jaghori district, and found that there was no real chance that he would face serious harm there in the reasonably foreseeable future noting that there was authority of sources indicating that Hazara districts were secure and that DFAT advice indicated that there were secure routes between various districts, including Ghazni and Jaghori. The applicant’s home area was a Hazara dominated region where he could reasonably seek access to traditional family and/or community structures.
Ms Mitchelmore submits that at [25] his Honour Cameron FM commences his analysis of the ground, the first being, that the Reviewer misunderstood the test under the Convention and the Act. The applicant’s submissions are referred to at [27] and at [28] the same material Respondents S152 (supra) was referred to and the applicant relies on that case in the same way in the matter before this Court.
At [29] Cameron FM notes that the argument was:
The applicant’s argument was that the availability of effective state protection was a matter to be considered by the Reviewer whether or not he, the applicant, required protection from the Afghan state and the Reviewer erred because he did not consider this but instead concluded that protection was available from the Hezb-I Wahdat Khalili/Nasr faction.
At [30] Cameron FM sets out his reasoning:
… the Reviewer did not conclude that the applicant could avail himself of the faction’s protection. Rather, he found that the military and political power of that faction seemed to be robust across the Hazarajat to the exclusion of the Taliban. The Reviewer’s conclusion was simply that circumstances in the Hazarajat were such that any fear of persecution by the Taliban in that area which the applicant might have was not factually well-founded. The Reviewer said nothing about whether the applicant could avail himself of the faction’s protection, confining his observations to the practical effect which the faction’s operation in the Hazarajat had on Taliban activities in that area.
… the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution in the Jaghori district meant that there was no need for him to consider whether effective Afghan state protection was available to the applicant were he to return there.
Ms Mitchelmore submits that the reasoning there is correct.
Consideration – Ground 3
I note the submissions made by Ms Mitchelmore in respect of the approach taken by His Honour Cameron FM in SZQDZ (supra) at [30] (which is reproduced at [70] above). I intend to follow that course in this matter as the Reviewer sets out in some detail the various reports available to her and those provided by the applicant’s adviser. These are listed at [25] in the Statement of Reasons. The Reviewer then proceeds to analyse those reports at [26]-[33], clearly indicating the relevant aspects upon which she relies. The Reviewer sets out her findings at [84] which states:
I have considered all of the claimant’s claims, both individually and cumulatively as well as all of the evidence including the adviser’s submissions in assessing his protection related claims. Taking into account all of the evidence before me I find that the claimant does not have a well founded fear of persecution for any Convention reason if he was to return to Afghanistan now or in the reasonably foreseeable future.
In support of this conclusion the Reviewer summarised her review of the available reports as follows:
71. I have considered the adviser’s submission that the information in the U.S. Department of State Reports 2008 and 2009 indicated Hazaras continue to face substantial discrimination. I do not accept that the social discrimination and economic oppression referred to in those reports amounts to “serious harm” within the meaning of s. 91R.
72. I have placed significant weight on the information and advice in other report including, Amnesty International Report 2010, the U.S. International Religious Freedom Report and the UNHCR Eligibility Guidelines for Assessing the Internal Protection Needs of Asylum Seeker for Afghanistan, December 2010. The information in these reports does not identify Hazara Shi'as at risk of persecution from the Taliban due to their ethnicity and religion alone. The Eligibility Guidelines considers that the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity what is required is regard to the “individual circumstances” of each case.
73. I accept that the situation for particular individuals and groups will wax and wane over time and that it is important to look beyond insignificant and cosmetic changes. I accept that there have been significant improvements for Hazara communities in Afghanistan since the Taliban lost power. I accept that Hazaras are making the most of the opportunities now open to them especially in relation to access to education and employment. I accept that Hazaras have an active involvement in the political process and hold important positions in the government of Afghanistan.
74. I prefer the cumulative evidence before me from a wide range of authoritative sources rather than relying of the opinions of individuals academics. I accept the advice in the February 2010 DFAT report that the 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. I do not accept that the claimant’s ethnicity and religion by themselves means that is he returns to Afghanistan in the reasonably foreseeable future he faces a real chance of persecution by the Taliban.
I am of the view that the argument that the Reviewer misconstrued and misapplied the test in Article 1A(2) and s.36(2) cannot be sustained and this ground should be dismissed.
Ground 4 – Failure of the Review to take a relevant consideration into account
Applicant’s Submissions
Mr Bodisco submits that the Reviewer failed to take into account a relevant consideration, mainly the applicant’s claim, that the state of Afghanistan did not offer him adequate protection from persecution by the Taliban. The applicant raised the inadequacy of the protection offered by the Afghan State before the Reviewer (CB 58). The Reviewer failed to make any finding in relation to the applicant’s evidence that the state of Afghanistan did not provide adequate protection against persecution in the Jaghori district of Afghanistan. The Reviewer also failed to make findings as to the State’s toleration or discrimination with respect to persecution of members of the particular groups of which the applicant claimed to be a member. Country information was before the Reviewer that the Jaghori district was under the control of the faction and not the Afghan State.
Mr Bodisco submits that the correct test to be applied for 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 in Article 1A(2) of the Refugees Convention and s.36(2) (of the Act):
a)In circumstances where an issue is raised as a material issue by evidence, a failure by the Reviewer to deal with, it amounts to a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [58]; Dranichnikov v Minister for Immigration and Multicultural Affairs (supra) at [23], [26]-[27], [86]-[89]. The Reviewer failed to address and deal with the claim put by the applicant. Because the Reviewer failed to consider all the integers of the claim it failed to complete the exercise of jurisdiction embarked upon: Htun v Minister for Immigration and Multicultural Affairs (supra) per Allsop J at [42]; and
b)By failing to consider whether the Afghan State afforded adequate protection to the applicant, the Reviewer failed to take into account a relevant consideration and did not make her recommendation in accordance with the law.
Respondent’s Submissions
Ms Mitchelmore referred the Court to the reasons of his Honour Cameron FM in SZQDZ at [33]-[35] which state:
33. The second ground of the amended application was particularised as follows:
In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hezb-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.
34. The applicant submitted that the Reviewer failed to make any finding in relation to his evidence that the state of Afghanistan did not provide adequate protection against persecution in the Jaghori district or any findings as to state toleration of persecution of members of the particular groups of which the applicant claimed to be a member. He submitted that a fundamental part of the test of whether a person’s fear of persecution is well-founded is whether the relevant state provides adequate protection. He said that the Reviewer failed to consider this.
35. For the reasons given in relation to the first ground of the amended application, the Reviewer was not required to turn his mind to whether, in circumstances where the applicant did not have a well-founded fear of persecution by the Taliban were he to return to the Jaghori district, the Afghan state was able to provide him with adequate protection. As a consequence, the Reviewer did not fail to take into account a relevant consideration as the applicant alleges.
Ground 4 – Consideration
I believe that the issue raised in the ground of review is correctly addressed by his Honour Cameron FM in SZQDZ v Minister for Immigration (supra) at [29]-[31]:
29. The applicant’s argument was that the availability of effective state protection was a matter to be considered by the Reviewer whether or not he, the applicant, required protection from the Afghan state and the Reviewer erred because he did not consider this but instead concluded that protection was available from the Hezb-I Wahdat Khalili/Nasr faction.
30. As to the latter point, the Reviewer did not conclude that the applicant could avail himself of the faction’s protection. Rather, he found that the military and political power of that faction seemed to be robust across the Hazarajat to the exclusion of the Taliban. The Reviewer’s conclusion was simply that circumstances in the Hazarajat were such that any fear of persecution by the Taliban in that area which the applicant might have was not factually well-founded. The Reviewer said nothing about whether the applicant could avail himself of the faction’s protection, confining his observations to the practical effect which the faction’s operation in the Hazarajat had on Taliban activities in that area.
31. As to the other point raised by the applicant, the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution in the Jaghori district meant that there was no need for him to consider whether effective Afghan state protection was available to the applicant were he to return there. The political composition of those who keep the peace and make an area secure is not relevant to the assessment of whether an applicant has a well-founded fear: Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7] per Sundberg J. Contrary to the applicant’s submissions, Respondents S152/2003 does not require another conclusion. Nothing said by the majority in that case suggests that in this case there was a need to consider the question of state protection in the absence of actions by third parties which could amount to persecution, whether in their own right or because of the acts or omissions of the Afghan state.
In the matter before the Court, the Reviewer addressed this issue at [73]-[74] of the Statement of Reasons where she stated:
73. I accept that the situation for particular individuals and groups will wax and wane over time and that it is important to look beyond insignificant and cosmetic changes. I accept that there have been significant improvements for Hazara communities in Afghanistan since the Taliban lost power. I accept that Hazaras are making the most of opportunities now open to them especially in relation to access to education and employment. I accept that Hazaras have an active involvement in the political process and hold important positions in the government of Afghanistan.
74. I prefer the cumulative evidence before me from a wide range of authoritative sources rather than relying of the opinions of individual academics. I accept the advice in the February 2010 DFAT report that the 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. I do not accept that the claimant’s ethnicity and religion by themselves means that if he returns to Afghanistan in the reasonably foreseeable future he faces a real chance of persecution by the Taliban.
(CB 235- 236)
The applicant’s claim that he was seeking protection is initially set out in his statutory declaration of 6 March 2010 as follows:
The country to which I fear returning
18. Afghanistan
Why I left the Country
19. – 30.
What I fear may happen to me in Afghanistan
31. I will be killed
Who I think may harm/ mistreat me in Afghanistan and why?
32. The Pashtuns of the Taliban because I am Hazara.
Do you think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if I/we were to go back
33. No
Do I think that there is a place in that country where I could be safe?
34. No everybody in Afghanistan can tell that I am a Hazara.
(CB 56-58)
In the written submissions prepared on behalf of the applicant by Craddock Murray Neumann Lawyers, addressed to the Independent Merits Reviewer, dated 24 May 2010, the applicant’s claims are expressed as following:
Summary of our client’s claims
Our client has claimed that in 2002, 10 or 12 Taliban militants come to his house, to demand that he prepare tea and give them food. Once they finished eating, our client claims that they grabbed him, tied his hands and feet, and abducted him. Our client was taken to a Taliban – controlled area (Sangi Masha) and beaten with a butt of a gun, the points of rifles, and with a thick piece wood. Our client was also punched and kicked. The Taliban demanded that our client give his sons to work for the Taliban and assist in their insurgency, as well as securing his support. Our client managed to escape by bribing one of the militants.
After escaping from Taliban captivity, our client fled Afghanistan. After our client’s escape, the Talban visited his house and stole all of his possessions. The Taliban brutally assaulted every member of our client’s family, breaking his son’s limbs.
Sometime early in 2010, our client’s son, [son’s name] returned to Afghanistan to collect money owing to our client’s family. Our client claims that, according to a witness, our client’s son was abducted by the Taliban. Our client later discovered that his son had been murdered. According to our client, the Taliban attached a note to his son’s body, stating that his family were to be killed.
Our client fears that he will be persecuted by the Taliban and other extremist groups in Afghanistan because of his race (Hazara), membership of a particular social group (Hazara) and/or his religion (Shi’a/ Islam)
We submit that our client’s claims are ostensibly Convention related.
(CB 101)
The basis of the applicant’s claim is that he was unable to return to the whole of the country of Afghanistan, whereas the Reviewer has narrowed her attention to the territory of the Jaghori District in the province of Ghazni. This area has distinctive features that differentiate it from other regions of Afghanistan. At the Entry Interview he stated that he did not wish to return to either Afghanistan or Pakistan because of the presence of Taliban. However, he acknowledged that prior to 2002 he had not experienced problems with the Taliban. The period of influence of the Taliban ceased in 2005. The February 2000 DFAT report indicates that the Hazara in the Ghazni province do not live in fear of systematic persecution on any consistent basis. The CPAU Report, Conflict Analysis, Jaghori and Malistan districts, Ghazni Province, April 2009 states that Jaghori District is almost entirely populated by Hazaras. Contrary to the statements made by the applicant the UNHCR Eligibility Guidelines states that the Taliban has not been able to launch widespread operations in the Jaghori district. Consequently, it was appropriate for the Reviewer to confine her consideration to the Jaghori district rather than the whole country of Afghanistan which had widely varying conditions in various provinces and districts.
I agree with the approach of Cameron FM in that the Reviewer concluded that the applicant did not have a well-founded fear of persecution in the Jaghori district. This meant that there was no need for her to consider whether effective Afghan State protection was available, to the applicant, were he to return there. The analysis to be adapted is set out in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 per Sundberg J at [7] where his Honour stated:
Error of law in applying "relocation principle"
7. The applicant submitted that the 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. The Tribunal did not so hold. The Tribunal twice noted that government forces had regained control of Freetown in early 1999. Later it said that the government controlled Freetown and surrounding areas and had disarmed about one third of the combatants it had aimed to disarm by December 1999. Then it referred to the fact that Freetown and its surrounding areas had been secured by the government and UN forces. Yet again it referred to Freetown and its environs having been secured by the UN and government forces. In announcing its conclusion that the applicant did not face a real chance of persecution in Freetown and its environs, the Tribunal attributed this to the fact that the "current combination of UN and government security forces" would provide adequate protection. At no stage did the Tribunal attribute the applicant's safety solely to the UN forces. Although the Tribunal's formulation of its holding varied from place to place, a fair reading of its reasons is that it was a combination of UN and government forces that would provide adequate protection. For the Tribunal to have erred in relation to the "relocation principle", the applicant would have to establish that it was in error in accepting that protection could be provided by forces that were to any extent international in character. In any event, the applicant's submission, whether as formulated or as it must in my view be formulated, misunderstands the Tribunal's course of reasoning. As a result of cl 866.221 of Schedule 2 of the Migration Regulations 1994, Australia has protection obligations under the Refugees Convention to an applicant 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 ...."
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 government forces.
I am satisfied that this ground cannot be sustained and should be dismissed.
Ground 5 – Irrelevant considerations taken into account by the Reviewer
Applicant’s Submissions
Mr Bodisco submits that the reasons that set out in relation to the earlier ground, whether non-state actors providing protection is not relevant to the test of whether a person’s fear of persecution is well-founded, under the definition of refugee under Article 1A(2) of the Refugees Convention and s.36(2) of the Act. The Refugees Convention and the Act, which was implemented in order to fulfil Australia’s international obligations in relation to that Convention, are primarily concerned with the ability of each nation state to protect its nationals from persecution. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [9] the issue of protection available from a country of nationality was emphasised in the Supreme Court of Canada in Attorney-General of Canada v Ward (1993) 110 DLR (4th) 1 where it was stated at 441:
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… The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states became engaged…
Mr Bodisco submits that the test is directed towards a question of protection by the State. While States are not obliged to eliminate all risks of harm or guarantee the safety of their nationals in all circumstances, many of this group are entitled to expect a level of protection which meets international standards: Respondents S152 (supra) at [26]-[29]. The availability of protection by non-state actors, particularly in circumstances where there is no evidence as to their relationship with the State, and the nature of any conditions imposed as a condition of protection is an irrelevant consideration. However, as set out in relation to the submission regarding the correct test to be applied, the Reviewer continually referred to the protection offered by the faction. The Reviewer did not consider the protection offered by the Afghan State. By considering the protection offered by the faction, the Reviewer took an irrelevant consideration into account and did not determine whether the applicant’s fear of persecution was well-founded, in accordance with the law.
Respondent’s Submissions
Ms Mitchelmore again referred the Court to the reasons of his Honour Cameron FM SZQDZ at [36] – [38] where his Honour stated:
36. The third ground of the amended application was particularised as follows:
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 Hezb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
37. The applicant submitted that the Convention test is directed towards questions of protection by the state and that although states are not obliged to eliminate all risks of harm or guarantee the safety of their nationals in all circumstances, their nationals are entitled to expect a level of protection which meets international standards. He said that the availability of protection by non-state actors, particularly in circumstances where there was no evidence concerning their relationship with the state and the nature of any conditions imposed as a condition of protection, was an irrelevant consideration.
38. This ground of the amended application proceeds on a false premise, namely, that the Reviewer concluded that the Hezb-I Wahdat Khalili/Nasr faction provided the applicant with some form of surrogate state protection. The Reviewer did not do this; instead he found that the presence and operation of that faction in the Hazarajat had the practical effect of excluding the Taliban from operating there. To conclude that a political organisation’s military force effectively excludes the influence of another is a very different thing to saying that the former provides surrogate state protection to individuals living within its area of control.
Consideration – Ground 5
I accept the submission made by Ms Mitchelmore that the pleading of this Ground proceeded on a false premise that the Reviewer made the critical finding that the applicant would be afforded adequate protection from the Hezb-I Wahdat Khalili/ Nasr faction in the Jaghori region. The Reviewer did not make that finding, rather she stated at [79] in the Statement of Reasons that:
…Other reports indicate that the Hazara districts of Ghazni are secure. The Finnish Immigration Report suggests the people in Jaghori district, enjoy better educational and health facilities due to their better security environment. Halima Kazem in her presentation to the RRT expressed the view that the Majority Hazara areas are considered relatively safe. The UNHCR Eligibility Guidelines contrasts the stable security situation in the Hazara majority districts with the poor security in the remainder of the Province. The Cooperation for peace and Unity Report states that the risk of future ethnic conflict between the Taliban and Hazara is likely to be lower in Jaghori them elsewhere in the Hazarajat…
(CB 237)
Then at [80] the Reviewer continued:
…I find that Jaghori remains out of reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/ Nasr faction. As a result to date there have been no reported clashes between the Taliban and Hezb-I Wahdat Khalili/ Nasr and the Taliban have not taken steps to challenge groups in control of the Hazarat region. Despite pervasive Taliban influences in Ghazni province and attempts to penetrate Hazara areas the Taliban remain on the outskirts of Jaghori. I am not satisfied that the claimant faces a real chance of persecution if he returns to his village in Jaghori district, Ghazni province because he is a Hazara Shi'a.
The Reviewer’s finding was that the presence and operation of the Hezb-I Wahdat Khalili Nasr faction in Hazarajat had the practical effect of excluding the Taliban from operating there. There is no suggestion that the faction’s military force was proving surrogate state protection to individual citizens. Rather, their presence excluded the Taliban from acting in the district. This ground cannot be sustained and should be dismissed.
Ground 6: No evidence to support Reviewer’s critical finding
Applicant’s Submissions
Mr Bodisco submits that there was no evidence to support the Reviewer’s critical finding that the applicant would be afforded adequate protection in the Jaghori region. The Reviewer had no evidence on which to base her findings, that the State of Afghanistan afforded adequate protection to the applicant. The Reviewer only dealt with evidence, concerning the non-State actor (the Hezb-I Wahdat Khalili Nasr faction). There was no evidence available to the Reviewer on which to base her findings that the applicant’s fear of persecution was not well-founded, as there was no evidence concerning protection offered by the State of Afghanistan. To the contrary, the CPAU Report on which the Reviewer relied in relation to findings about the protection offered by the faction, made it clear that the faction is not a State actor. The CPAU Report also noted Afghanistan’s inability to provide protection in the Jaghori region.
Similarly, in an excerpt from the DFAT Hazara Report, quoted by the Reviewer, it is stated that “[t]hreats facing the Hazara community vary across different provinces and districts, and accordingly to protection arrangements brokered with local commanders. There is a lack of effective protection from the state in Ghazni, but Hazara strongmen control most of the Hazara districts…” (Statement of reasons at [30], CB 226). By making a finding in relation to the protection afforded to the applicant in circumstances where the relevant protection is State protection, but where no evidence in relation to the ability of the State of Afghanistan to provide protection was considered, the Reviewer made a recommendation without evidence and therefore not made in accordance with the law: Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at [356].
Respondent’s Submissions
Ms Mitchelmore again referred to his Honour Cameron FM and the decision in SZQDZ v Minister for Immigration (supra) at [41] – [42]:
41. The applicant submitted that, as there was no evidence concerning the protection offered by the state of Afghanistan, the Reviewer had no evidence upon which to conclude that the applicant’s fear of persecution was not well-founded.
42. The basis of the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution was the strength of the Hezb-I Wahdat Khalili/Nasr faction in the Hazarajat and the related fact that the Taliban were effectively excluded from that area by reason of the faction’s strength. For the reasons already given, it is not always necessary for the availability of state protection to be a factor in reasoning leading to a conclusion that an individual does not have a well-founded fear of persecution for a Convention reason. It may be, as in this case, that the fear which the applicant alleges would not be factually well-founded were he to reside in a particular part of his home country…
Ground 6 – Consideration
The submissions by the applicant’s adviser and the Reviewer both made reference and relied on passages from the UNHCR Eligibility Guidelines. The Reviewer acknowledged this in the Statement of Reasons at [80] (CB 237) and referred to the footnote details of two attacks in 2007, the murder of members of a former police chief’s family in Angori by the Taliban and undated attacks against bordering police posts in Hutqul. The Reviewer then sets out her finding as:
…I find that Jaghori remains out of reach of Taliban control due to the military and political power of Hezb – I Wahdat Khalili/ Nasr faction. As a result to date there have been no reported clashes between the Taliban and Hezb-I Wahdat Khalili/ Nasr and the Taliban have not taken steps to challenge groups in control of the Hazarat region.
In Mr Bodisco’s earlier submission on protection he referred the Court to the decision is Respondents S152 (supra). The relevant parts of the reasoning of the joint judgment of Gleeson CJ, Hayne and Heydon JJ are found at [18]:
…that serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the state…
Then at [21] their Honours stated:
…in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge it’s obligation to protect its citizens may be relevant at three stages of the inquiry raised by Art1A(2)
In Respondents S152 (supra) the joint judgment provides that State protection was a relevant matter in the assessment of whether a person comes within the Convention definition of refugee:
a)The claimant’s fear is well-founded;
b)The conduct giving rise to the fear of persecution; and
c)The claimant is unable or, because of the fear unwilling to avail himself of state protection.
(Respondents S152 at [21]-[23])
At [21] of Respondents S152 (supra) their Honours stated:
Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath [v Secretary of State for Home Department [2001] I AC 489 at 495] 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…
In the judgment of McHugh J in Respondents S152/2003 (supra) his Honour at [32]-[34] sets out the critical question in determining whether the evidence establishes a well-founded fear of persecution exists, as follows:
32… When a person fears persecution for a Convention reason from the random and uncoordinated acts of private individuals, the ability of that person’s country to eliminate or reduce the risk of persecution may be relevant in determining whether the person has a well-founded fear of persecution. It is likely to be relevant to that issue when the persecutor is known or readily ascertainable. But determining whether the government of the country of nationality is able to prevent harm from random and uncoordinated acts of private individuals is not a necessary element in determining whether the person’s fear of harm from random acts is well founded. The need for such a determination is a variable factor that may be decisive in some cases but irrelevant in others. Nor is the absence of protection of the person by the State, in the context of a purported duty to protect, an element of persecution.
33. In determining the issue of well-founded fear, the critical question is whether the evidence established a real chance that the asylum seeker will be persecuted for a reason proscribed by the Convention, if returned to the country of nationality. If the evidence shows that the persecutors have targeted the asylum seeker, the ability of the country of nationality to protect that person will be relevant to the issue of well-founded fear. If the evidence shows no more than that private individuals randomly harm the class of persons to which the asylum seeker belongs but fails to show that that person has a real chance of suffering harm, the ability of the country to eliminate those acts is irrelevant…
34. In the present case, the Tribunal found that in the past the male respondent had not suffered acts of persecution for a Convention reason and that there was only a remote chance that he would suffer such acts in the future. That was a factual conclusion open to the Tribunal and was not reviewable in the Federal Court. Having made that finding of fact, the Tribunal was not bound to determine whether the country of nationality had the ability – in a practical sense or otherwise – to eliminate those acts.
In SZDBB & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 298 his Honour Raphael FM was considering the question of “whether the Tribunal failed to exercise its jurisdiction in failing to ask whether the standards of protection in Indonesia met international standards of protection – whether the Tribunal misunderstood what is meant by the term “persecution”. His Honour referred to the judgment of McHugh J in Respondents S152/2003 (supra) at [32] – [34]. At [7] his Honour Raphael FM stated:
In other words, there is no need to test whether a state complies with the international norms of the provision of adequate protection unless the applicant is in need of that protection.
In the matter before the Court, the Reviewer, in her Findings and Reasons, considered the situation in the Jaghori District and whether the Taliban were likely to enter into the area and threaten the population’s security. At [78]-[80] the Reviewer summarised a number of reports that she had read and considered. At the end of [80] the Reviewer stated:
…I find that Jaghori remains out of the reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/ Nasr faction. As a result to date there have been no reported clashes between the Taliban and Hezb-I Wahdat Khalili/Nasr and the Taliban have not taken steps to challenge groups in control of the Hazarat region. Despite pervasive Taliban influence in Ghazni province and attempts to penetrate Hazara areas the Taliban remain on the outskirts of Jaghori. I am not satisfied that the claimant faces a real, chance of persecution if he returns to his village in Jaghori district Ghazni province because he is Hazara Shi'a.
(CB 237)
Adopting the reasoning summarised above by Raphael FM, the applicant in this matter is not in need of State protection. Consequently, the complaint being advanced by Mr Bodisco on behalf of the applicant that the Reviewer failed to consider whether the applicant would be afforded adequate protection in the Jaghori region does not arise because the applicant is not in need of that protection. Accordingly this ground cannot be sustained and should be dismissed.
Conclusion
Accordingly, none of the grounds pleaded by the applicant in the amended application can be sustained and the amended application should be dismissed with costs.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 13 December 2012
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