SZQLM v Minister for Immigration
[2011] FMCA 921
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 921 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – Hazara Shia Afghan from Jaghori – IMR found real chance of localised persecution for perceived political opinion – failure to address general ethnic and religious claim when finding that relocation to Kabul was practicable – application for judicial review upheld – declaration of legal error. |
| Constitution, s.75(v) Federal Magistrates Court Rules 2001 (Cth), Sch.1 Pt.2 item 1(c) Migration Act 1958 (Cth), ss.36(2), 46A, 476, 477 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, [2003] HCA 26 Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQHC v Minister for Immigration & Anor [2011] FMCA 851 |
| Applicant: | SZQLM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMINIC LENNON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1547 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 10 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Smith |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent denied procedural fairness by failing to address the applicant’s claim that he had a well‑founded fear of persecution by reason of his ethnicity and religion if he returned to Afghanistan and was expected to relocate to Kabul.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1547 of 2011
| SZQLM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DOMINIC LENNON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia without travel documents by boat which was taken to Christmas Island in March 2010. On 25 June 2010 he requested an assessment by the Department of Immigration of his refugee status (the “RSA”), under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 3 November 2010, and the applicant then applied for ‘independent merits review’ (the “IMR”) under those procedures. Mr Lennon was appointed to conduct that review, and interviewed the applicant in the presence of his migration agent at Scherger Immigration Detention Centre on 19 April 2011.
On 13 June 2011, Mr Lennon recommended that the applicant should not be recognised as a person to whom Australia has protection obligations. The applicant filed his present application to the Court on 21 July 2011, seeking a declaration that Mr Lennon’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. No issues arise in relation to satisfaction of the time limit under s.477 of the Migration Act.
Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’. The Minister concedes that Mr Lennon’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 at [51].
Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Lennon’s report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making. The relief sought in the present application can only be contemplated, if I am satisfied that Mr Lennon made such an error. It is not the function of the Court to engage in merits review of Mr Lennon’s findings as to the risks which might face the applicant if he returns to Afghanistan, nor to consider whether the applicant should be permitted to reside in Australia.
When examining Mr Lennon’s reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]‑[13]). These principles include the obligation not to read Mr Lennon’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a ‘benign approach’ when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).
The applicant’s refugee claims
The applicant’s claimed personal history was, notwithstanding some doubts expressed by Mr Lennon, essentially accepted by him and by the earlier RSA assessor. They accepted that he was a young national of Afghanistan, who was of Hazara ethnicity and Shia Muslim religion. They accepted that his family lived in a rural location in Jaghori district of Ghazni province, in which the population was predominantly Hazara. They accepted that the applicant and his brother had supported their families with income from a business transporting produce and goods between their district and Ghazni city. Both of the decision‑makers accepted that the applicant was at heightened risk of persecution by the Taliban if he returned to his former location and occupation, as a result of being perceived to have helped a pro‑government agency transport building products. They accepted that this came about after an incident in late 2009, when the applicant and his brother were stopped, physically mistreated, and detained, in the course of making such a transportation. They accepted that the applicant had escaped and that his brother had disappeared, and that the applicant had then fled to Kabul and then overseas.
The applicant’s concern about his heightened profile of risk arising from this incident was put at the forefront of his evidence given in writing and orally at a series of interviews before and during the RSA and IMR procedures. Thus, for example, in his RSA statement, the applicant claimed:
19.I believe if I return to Afghanistan I would face a real chance of being killed because I helped the Ministry of Rural Development and it is a crime in the eyes of the Taleban. If they arrest you they are merciless. They will also want to harm me because I am a Hazara and Shia.
In relation to his risk as an Hazara Shia, the applicant’s agent at both the RSA and IMR stages made ‘generic’ written submissions concerning the applicant and other Hazara Shia clients. They cited country information which supported the proposition that all of their clients faced a real chance of serious harm everywhere in Afghanistan by reason of their ethnic and religious attributes alone. Submissions to this effect were also strongly maintained by the agent specifically in relation to the present applicant, notwithstanding that, for example in their last written submission dated 14 May 2011, they conceded that there is “inconsistency and diversity of information in relation to this issue” (see Court Book p.130).
The applicant’s refugee claims were addressed by the RSA assessor by findings which did not clearly reject the applicant’s ‘generic’ claim, but suggested that he could “reduce his exposure to Taliban interest” by internal relocation to Kabul. The assessor said:
I accept that all Hazaras have an increased risk of harm from the Taliban, due to that group’s negative attitude to the ethnic and religious minority and their generally violent and dictatorial ways.
This claimant has established a reasonable additional profile of risk attributed to his transport of goods proscribed by the Taliban.
It would be open to the claimant to reduce his exposure to Taliban interest by resettling in an urban environment where he will be less visible on returning to Afghanistan.
…
An anecdotal media report from February 2010 suggests that access to education and employment may have improved for some Hazaras in the Afghan capital, Kabul — although it notes that consolidating such gains will ‘depend on the Taliban never returning to official power’. That the Taliban is not in a position of official power and there is no immediate prospect of this despite the fraught security environment, indicates that these improvements are of real value. A recent press report reads:
‘Since the 2001 invasion, an influx of Hazaras has changed the composition of the capital. More than a million Hazaras now live here, making up more than a quarter of the city’s population. With a new generation of Hazaras attending school in relative security and motivated by their parents’ dispossession, their success could alter the country’s balance of ethnic power.’
Effective protection by Afghan state authorities — such as to displace any real chance of the claimant being persecuted by the Taliban — is not absolute in the province of Jaghuri or in Kabul. Indeed UNHCR suggest that “...impunity continues to be pervasive...”.
There are many reports of casualties ensuing from bombing that targets roads, government activities, coalition forces and so on — these type of incidents may create risk for Hazaras but only incidentally, not on a discriminatory basis.
In the case of Kabul, there is now a substantial Hazara population and a relatively secure environment.
After the defeat of the Taliban in 2002, many Hazaras who left Afghanistan for Pakistan or Iran returned to Afghanistan. They did not settle in their original home towns, but in Kabul, where they found more opportunities for a better life. According to the New York Times:
… since the 2001 invasion, an influx of Hazaras has changed the composition of the capital. More than a million Hazaras now live here, making up more than a quarter of the city’s population.
The law provides for freedom of movement within Afghanistan. A judicial and legal system with limited function exists in Afghanistan and the police authorities in Kabul are generally willing to enforce the law, although their ability to do so is limited by inadequate resources and dependent to some extent on the loyalties of individual officers. In addition, The International Security Assistance Force (ISAF) helps maintain security in and around Kabul and it works alongside the Afghan Security Forces and as a result the general security environment there is much better than in other areas.
Country information indicates that whilst Kabul has been subject to attacks by militants at times over the last year, the attacks were not targeted against Hazaras or Shi’as but aimed at the government, with civilians incidentally affected by incidents that did not target them specifically.
In relation to this particular claimant, there are no specific reasons or factors that would prevent his relocation to Kabul. He is young and well and has relocated for work purposes previously. He has no clearly established profile that would elevate his risk beyond others in the capital.
I am therefore not satisfied there is a real chance the claimant would suffer serious and selective harm amounting to persecution in Afghanistan for the reason of his ethnicity, religion and imputed political opinion.
(citations omitted)
I note that the RSA assessor’s reasoning did not include an express finding that the ‘reduced exposure’ of the applicant’s risk from the Taliban as an Hazara, if he relocated to Kabul, could be characterised as being lower than a ‘real chance’ of serious harm. A similar concern arises from Mr Lennon’s reasoning, whether he appreciated that such a finding was essential before principles of internal relocation could be applied. As I shall explain, on the judicially established principles of internal relocation, it is not enough to find that an Hazara Shia refugee claimant would not face an elevated risk “beyond others in the capital”, unless it is also found in quantitative terms that the claimant’s risk of persecution in Kabul for a Convention reason fell short of a ‘real chance’. That risk, satisfying Refugees Convention definition, can exist even if the possibility of harm for such a reason were “well below 50 per cent” (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572). If that possibility is found, the claim for protection can be upheld even if all residents of Kabul face other risks at the same degree for non‑Convention reasons.
The topic of relocation was raised by Mr Lennon in the course of his interview of the applicant. He said in his report:
28.I noted that there are a million Hazaras in Kabul and that there is a cohesive Hazara community which would assist returnees arriving. I noted that one commentator stated that the Hazaras could take control of Kabul. The claimant responded that he has no one in Kabul. He reiterated that he did not want to talk about Hazaras but about himself. I explained that I was considering the issue of the reasonableness of relocation to Kabul. I noted that the UNHCR’s repatriation program resettled 300 Hazaras families to Kabul between March and June 2010 and that many Hazaras have established small businesses in Kabul. He stated that those people must have had connections and when he was there he did not even leave the hotel. He would be a stranger in Kabul. I stated that I would take that into account but that a large number of returnees have been absent from Afghanistan for a long time and also strangers to Kabul but have nevertheless resettled there. He stated that he is in a different situation. They may be in a strong financial position or have a body guard. His life cannot be compared with other peoples’ lives. He added that when he was on Christmas Island he heard of fighting near the presidential grounds.
29.I noted that country information indicated that Hazara districts provided better education and health services that the non‑Hazara districts in Ghazni province. He stated that he cannot stay inside Jaghori. He needs to be able to travel and it is very risky and dangerous. He stated that the Taliban know where his house is.
30.I noted that the Los Angeles Times, in December 2010, observed that Hazaras wield power and are an emerging middle class, enrolling in university in computer, medical and language courses. He reiterated that he does not know anyone in Kabul. He stated that the Taliban are blocking the road at Qarabagh and Tamki and their power is growing daily. I noted that country information indicated that the power of the Hazaras is growing daily. He stated that he disagreed with that.
31.I noted that a report in the Canberra Times referred to the Hazaras’ expanding ownership of businesses and that their observation of the religious festivity of Moramman was a demonstration of a new powerful status. He stated that the Taliban desecrate Hazara graveyards.
The agent’s oral and written submissions to Mr Lennon maintained that “relocation was irrelevant” because the applicant would remain at risk if he lived anywhere in Afghanistan – including Kabul – not only because of his heightened profile but also by reason of his ethnicity and religion alone. It is clear, in my opinion, that the applicant’s claim to be at risk of persecution by the Taliban for Convention reasons of ethnicity and religion, and of not receiving an adequate level of protection in respect of that persecution, extended beyond his former location in Jaghori, and was supported by reference to information which gave this claim enough substance so as to require it to be addressed by Mr Lennon.
Thus, Mr Lennon records that the agent included such a claim in his submissions at the interview held on 19 April 2011:
32.At the close of the interview the agent made submissions. He also stated that he would translate documents and submit them to me. The agent submitted that the country information is very general but the claimant’s evidence was consistent with the country information i.e it is on the road that the persecution of Hazaras occurs. The agent submitted that the claimant’s evidence goes to extent of risk and reasonableness of relocation. There was a localized risk in Jaghori and general risk throughout the rest of Afghanistan. The agent submitted that the claimant faced risk on the basis of race, religion and imputed political opinion arising from the kidnapping incident. The agent submitted that the warning letters established that there was both a localized risk and wider risk arising from that incident. He submitted that there is a generalized risk to the claimant throughout Afghanistan so relocation was irrelevant. He submitted that even if I found that the risk was localized and not present outside the areas that pose a danger, relocation is unreasonable pursuant to the UNHCR Guidelines of 17 December 2010.
In a subsequent written submission, the agent concluded:
In summary in regard to country information, we submit that in having regard to all of the available country information, including acknowledging the inconsistency and incompleteness of the information, the country information does not confirm that Hazaras and Shia Muslims are not subject to persecution, but that Hazaras and Shia Muslims are at risk of Convention‑related persecution and that whether there is a “real chance” of persecution is to be considered on the basis of a claimant’s individual circumstances.
We refer to the “risk profiles” within the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Afghanistan, 17 December 2010 and to the statement (page 3) that “UNHCR considers that individuals with the profiles … require a particularly careful examination of possible risks”. We submit that the claimant, is within the risk profiles of “individuals associated with, or perceived as supportive of, the Afghan Government” and “ethnic minorities”.
Whilst the claimant may be in an ethnic majority whilst within Jaghori, we submit that the claimant would be within the risk profile of “ethnic minorities” as soon as he would travel outside of Jaghori into a Hazara‑minority area. We refer to the available country information about the ethnic composition within Ghazni, including that many areas are composed of a Pashtun and Taliban majority and/or are under Pashtun and Taliban control.
On the basis of the individual circumstances of the claimant, whilst having regard to relevant country information and speculating as to the reasonably foreseeable future, we submit that there is a factual and objective basis at the present time, for the claimant’s fear of persecution.
We submit that there is a “real chance” that the claimant would suffer “serious harm”, including a threat to his life or liberty, of significant physical harassment or ill‑treatment, inflicted by the Taliban, if the claimant returned to Afghanistan. We submit that a “real chance” of persecution arises from the claimant’s past experiences and imputed political opinion and also from the claimant’s present personal circumstances, including his ethnicity and religion.
We submit that there is a “real chance” that the claimant would suffer significant economic hardship, denial of access to basic services or denial of capacity to earn a livelihood, threatening his capacity to subsist, on the basis that the claimant may be unable to travel outside of Jaghori due to the risk of Convention‑related persecution.
In regard to the issue of whether protection is available to the claimant, on the basis of the information presented by the claimant and available, objective information about conditions within Afghanistan, (including as summarised within the “County Guidance Note, Afghanistan, March 2011”, 30 March 2011, issued by DIAC, pages 23‑26), we submit that state protection is unavailable to the claimant within Afghanistan. We also submit that the claimant cannot be assured of obtaining sufficient and reliable protection from surrogate authorities, including in Jaghori.
The claimant claims to be at risk of harm throughout Afghanistan, including on the basis of his imputed political opinion.
(emphasis added)
The agent also made written submissions that it would be impractical to expect the applicant to relocate to Kabul:
If it is determined that the Claimant has a well‑founded fear of persecution, which is localised rather than nation‑wide or generalised, we acknowledge that it is necessary to consider whether it would be reasonable for the Claimant to seek refuge in another part of Afghanistan, in which there he would not be at risk of persecution.
A Guide to Refugee Law in Australia (at 6‑6) refers to the decision of the High Court in SZATV v MIAC (2007) 233 CLR 18 which endorsed the proposition that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of an applicant and the impact upon that person of relocating within their country. We refer to the range of considerations as to whether relocation is reasonable, at 6‑11, 6‑12 of the Guide.
We refer to the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Afghanistan” dated 17 December 2010, and to the section, “C. Internal Flight or Relocation Alternative” (at pages 38‑40), providing information about relevant considerations and conditions in Afghanistan in considering whether relocation is reasonable.
We refer to the following country information about relocation and conditions within Afghanistan.
United States Department of State, 2009 Country Reports on Human Rights Practices — Afghanistan, 11 March 2010, available at Within the section “National/Racial/Ethnic Minorities”:
“Ethnic minorities continued to face oppression, including economic oppression. Dasht‑i Barchi, one of Kabul’s poorest neighbourhoods, was home to a large Hazara population. Average earnings per day were 13 Afghanis (25 cents) per person, although the minimum wage was 63 Afghanis ($1.25) per day; average household size was nine to 10 persons. In Dasht‑i Barchi, 60 percent of all families rented their homes and were therefore subject to landlord exploitation; 50 percent of families’ income went to cover rent, and families moved frequently.”
Information presented by Ms Kazem to DIAC, RRT and IMR staff on 8 October 2010 at the office of Independent Merits Review, Sydney, (referred to above), in particular, within the section “Relocation”.
Internal Displacement Monitoring Centre (IDMC), Afghanistan: Need to minimise new displacement and increase protection for recently displaced in remote areas, 11 April 2011, available at: (page 1):
The UN and ICRC have recorded that 730,000 people have been internally displaced in Afghanistan due to conflict since 2006, an average of 400 a day. At the end of January 2011, 309,000 people remained internally displaced due to armed conflict, human rights abuses and other generalised violence. This figure was higher than at any time since 2005.
The basic needs of recently displaced people across most regions of the country are often unmet, increasing the risk of disease and death. Internally displaced people (IDPs,) have also been vulnerable to food insecurity, while insecurity and the absence of basic services in places of displacement have forced many IDPs into protracted secondary displacement in urban areas. The Afghan government is generally unable or unwilling to assist IDPs. Hundreds of thousands of IDPs have been assisted by international agencies, but assistance outside camps has been short‑term and restricted by problems of funding and access.
Having regard to the individual circumstances of the claimant, including the absence of traditional support mechanisms, such as extended family, community or tribal support able to host the claimant in other areas within Afghanistan, the absence of property ownership of the claimant, the limited occupational skills of the claimant, the extended family that the claimant has responsibility to support, the logistical and practical difficulties and risks in relation to the relocation of the claimant’s family, the reported conditions within urban centres including Kabul, including in regard to the rate of unemployment and income‑levels, pressures on the limited infrastructure and essential services, the criminality rate and level of insecurity, we submit that relocation would, in all the circumstances, be unreasonable.
The agent’s two earlier ‘generic’ submissions also cited information which addressed the “question of internal flight alternative/relocation options for the Hazara claimants”. They referred to DFAT travel advice which pointed to general security concerns in Afghanistan, including Kabul (see Court Book pp.75‑76). The second ‘generic’ submission submitted material suggesting that “the security environment in Kabul generally is undeniably highly precarious”, and pointing to the difficulties facing the displaced population living in Kabul. The submission also suggested that Hazara would encounter special difficulties, including from government agents as a result of entrenched discrimination. It referred to an incident in August 2010 in which several Hazara demonstrators were shot by Afghan police, and submitted that “the security environment in Kabul is dangerous for Hazaras” (see Court Book p.121).
Mr Lennon’s reasoning
Mr Lennon’s report recounted the applicant’s evidence and submissions which I have summarised above. He then cited various sources of background information, concerning the ‘general security situation in Afghanistan’, ‘treatment of Hazaras and Shias’, the population and security of roads in Ghazni province and Jaghori district, the situation of returnees and failed asylum seekers, the involvement of Hazaras in politics, and ‘effective protection in Kabul’.
Some of the extracts contained opinions bearing on the applicant’s ‘generic’ refugee claim as an Hazara Shia, in particular a February 2010 DFAT report confirming that Hazaras had been the subject of discrimination and persecution in the past but “currently, however, Hazaras were not being persecuted on any consistent basis”. However, Mr Lennon gave no focused discussion of the differing opinions on this topic which were cited in the submissions of the applicant’s agent, and I do not consider that he implicitly found against the agent’s ‘generic’ submission in the course of his discussion of background country information.
Nor, unlike other IMR reports which I have recently examined, did Mr Lennon include in his ‘discussion and findings of fact’ and ‘analysis’ sections of his report any findings specifically rejecting the ‘generic’ Hazara Shia refugee claim. The debate before me was therefore whether this claim was implicitly addressed and rejected in the context of Mr Lennon’s consideration of the reasonableness of the applicant and his family relocating to Kabul.
Mr Lennon’s reference to ‘independent evidence’ concerning ‘effective protection in Kabul’ consisted of:
Effective protection in Kabul
76.On 27 September 2010 the UNHCR in Peshawar advised the Islamabad Australian DFAT post that around 300 Hazara families had been repatriated since January 2010. The largest number of families (around 150) were repatriated to Wardak province. Kabul and Bamayan were the second and third most popular destinations. According to UNHCR, Kabul as a large city is attractive to Hazara families, which often run small businesses.
77.National elections were held in September 2010. On 24 November 2010 the Christian Science Monitor reported that “while concerns remain about the corruption and fraud, one of the biggest flashpoints ahead may prove to be the disproportionately large number of Hazara representatives elected ... All this is a serious concern for many of the country’s Pashtuns who allege that they are now underrepresented, especially in Wardak and Ghazni. On 2 December 2010 the Los Angeles Times reported that (the official results) ratifies the victories of 11 candidates who are members of the minority Hazara ethnic group. On 16 December 2010 the Los Angeles Times reported that:
Now, with more opportunities available for minority Hazaras — who make up probably less than a fifth of the country’s population-the Hazaras have increased their social, political and economic standing. Unlike the Pashtuns Hazaras view Western forces as protectors and have wholeheartedly backed the nation’s political process...Every year they’re expanding their presence” said Wadir Safi a professor of political science at Kabul University, where he says the proportion of Shiite Hazaras has increased dramatically “They are the ones in power now. They are a minority, but they are very united”. Hazaras faces now crowd the entrances to Kabul University as well as a new crop of private education institutes in the capital and elsewhere that offer computer, medical and language courses. Some Afghans accuse the Hazaras of overstepping their place and Westerners of manipulating the country’s ethnic politics...“Many Hazaras have become middle‑class” said Candace Rondaeaux, an Afghan‑based analyst for the International crisis group, a Brussels and Washington based think tank. For the first time they have decent jobs, housing, a little money in their pockets and the ability to insulate themselves from political pressures...
78.In an article published in The Canberra Times on 22 January 2011 Professor Amin Saikal refers to the position of the Hazaras:
…to mention the case of the Hazaras alone the changing situation has resulted in enormous empowerment of this traditionally deprived group. The Hazaras are Shiite Muslims with a distinct ethnic identity of their own. While constituting about 10% of the population, they today wield a share in the power structure and economic life of Afghanistan well beyond their numerical strength. They have succeeded in securing not only constitutional and legal rights pertinent exclusively to protecting their ethnic and sectarian identity, but also a strong presence in the executive leadership and legislature. In the September 2010 parliamentary elections, which was declared by the international community as the best conducted by Afghanistan standards the Hazaras won 59 of 249 seats in the lower house. This together with their expanding ownership of many businesses, has transformed them into a powerful group in the country. Their raw power was on full display during the annual commemoration of the sacrifice of the grandson of the Prophet Muhammad and the third Imam (or true successor to the Prophet Muhammad), Hussain, in the third week of December 2010 called Moharram. Their well organised and united commemoration was as much about demonstrating their political power as it was about mourning Hussein’s death. As one perceptive observer noticed “they now have the strength and solidarity to take over Kabul if they want to do so”. Karzai has cultivated Hazara leaders as part of the practice of ethnic manipulation, but this is now generated a serious impasse....
Under the heading “Analysis” Mr Lennon recognised that the applicant had made claims of “Convention nexuses” of “Race–Hazara”, “Religion–Shia”, and “Imputed Political Opinion – (from the claimant’s possession of items seen as contraband by the Taliban …”). He then considered “whether there is a real chance of persecution by reason of any of the Convention nexuses”.
However, his discussion under this heading made adverse findings only by reference to the applicant’s situation in relation to the Jaghori district of Afghanistan, and did not address the level of risk facing the applicant in relation to these ‘nexuses’ elsewhere in Afghanistan, including Kabul.
The only findings which were addressed at the risks facing the applicant in all parts of Afghanistan, concerned “Religion–Shia”.
In relation to this “discreet claim (religion)”, Mr Lennon concluded:
106.… I find, therefore, that there is not a real chance of the claimant being persecuted on account of his religion upon his return to Afghanistan.
However, his findings concerning the applicant’s more compelling claims to be at risk due to his ethnicity, combined ethnicity and religion, and perceived political opinions arising from being a Hazara Shia, were confined to only part of Afghanistan. Thus, in relation to the applicant’s ethnicity as an Hazara, Mr Lennon concluded:
100.In light of the country information on Jaghori, I have come to the conclusion that Hazaras in Jaghori do not face a real chance of persecution by reason of their ethnicity.
In relation to the applicant’s membership of the social group of “Hazara‑Shias”, he concluded:
109.… I consider that the overwhelming weight of country information indicates that Hazara Shias in Jahgori do not face a real chance of persecution by reason of their race or religion or by reason of being a failed asylum seeker and returnee from the West and I find that they do not.
In relation to imputed political opinion based on the kidnapping incident, he concluded:
113.As I have indicated in other decisions, I accept that a person may face, on Taliban‑controlled roads, a real chance of persecution (bearing in mind that that includes anything other than a remote or fanciful chance) for holding, or being perceived to hold anti‑Taliban views. I also accept that that persecution could include assault, abduction or worse. I also acknowledge that while not all roads are dangerous, the more circuitous and safer routes may adversely impact on the claimant’s business as a truck driver to the extent that it would diminish his business to the point of depriving him of his subsistence. I also considered if the claimant had any alternative means of subsistence- while there was passing reference to farming property, there is no basis for finding that the claimant could earn a living as a farmer or evidence that, should the claimant’s work as a truck driver be diminished, he has other resources upon which to subsist. Accordingly, I find that the adverse impact of the kidnapping incident on the claimant’s work may well deprive him of the means of subsistence. In that sense, I find that the claimant does face a real chance of being persecuted again by reason of a pro‑West and anti‑Taliban political opinion imputed to him for being in possession of a vehicle containing government material (the kidnapping incident).
Without making any express findings on whether the applicant’s significant fears of future persecution for Convention reasons were correctly to be treated as being geographically isolated to Jaghori district, Mr Lennon turned to address the topic of relocation to Kabul. His reasoning was:
114.In light of that finding it is necessary to consider the issue of relocation. The test in relation to whether a person can return to their place of origin, is whether the person would face a real chance of persecution for a Convention reason in that place. The test in relation to whether a person can relocate to another place is a more generous one: the claimant is not required to show that he faces a real chance of persecution in that other place, only that it would be unreasonable to expect him to relocate there. As I find that the claimant does face a real chance of persecution in Jaghori, it is necessary to consider the issue of relocation.
RELOCATION TO KABUL
115.Having found that the claimant faces a real chance of persecution if returned to Jaghori I have considered whether he could reasonably relocate to Kabul.
116.In my discussion with the claimant at interview he submitted that relocation is not practicable. He emphasised that I should consider his individual circumstances rather than the situation for Hazaras generically. He stated that Hazaras who have resettled in Kabul must have had connections and when he was there he did not even leave the hotel. He stated that he would be a stranger in Kabul. He stated that the Hazaras who were successful in Kabul may be in a strong financial position or have a body guard. He stated that he is in a different situation. His life cannot be compared with other people’s.
117.The claimant’s agent submitted that I should consider a number of factors including:
•the absence of traditional support mechanisms such as extended family or community or tribal support able to host the claimant in other areas within Afghanistan;
•the absence of property ownership of the claimant;
•the limited occupational skills of the claimant;
•the extended family that the claimant has responsibilities to support;
•the logistical and practical difficulties and risks in relation to the relocation of the claimant’s family;
•the reported conditions within urban centres including Kabul including in regard to the rate of unemployment and income levels;
•pressures on the limited infrastructure and essential services;
•the criminality rate and
•level of insecurity
118.In considering this issue I am conscious of the need to carefully consider the claimant’s individual circumstances, rather than general information about a hypothetical Hazara being relocated to Kabul. I have also had regard to the UNHCR Eligibility Guidelines 2010, Internal Flight Alternative (IFA) or Internal Relocation Alternative (IRA) which states:
Whether an IFA/IRA is “reasonable” must be determined on a case‑by‑case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. To this effect the following elements need to be taken into account: (i) the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; (ii) the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; (iii) the ability to sustain themselves, including livelihood opportunities; (iv) the criminality rate and resultant insecurity, particularly in urban areas; as well as (v) the scale of displacement in the area of prospective relocation.
119.In terms of the practical impediments to relocation and whether the claimant could establish himself and find employment in Kabul, I note that the claimant has stated that he has only been to Kabul on one occasion. That was en route to Australia and that on that occasion he stayed indoors. I noted his claim that he would be “a stranger” in Kabul. On the other hand, the claimant has also demonstrated resourcefulness in relocating and working in Iran as a stonecutter for two years from the ages of 16 to 18 years old. The claimant then established, with his brother, their own interstate haulage business in Jaghori and he was able to arrange passage to Australia. The claimant is a mature 26 year old male with previous experience in resettling and working in construction in Iran and establishing his own business in Afghanistan. In addition, as indicated above, country information reveals that there is a substantial and cohesive Hazara community in Kabul, said to comprise one quarter of the population. The combination of the claimant’s experience, skills in stonecutting and truck driving, his resourcefulness and the fact that he would be entering a city with a large and established Hazara community, supports the conclusion that it would not be unreasonable for the claimant to relocate to Kabul.
120.In relation to cultural and religious factors, there are a large number of Afghanis, including Hazaras, returning to Kabul some of whom have managed to establish small businesses. In these circumstances, it is difficult to see how the claimant would be perceived as a stranger given the commonality of his experiences with other returnees, in particular, Hazaras. I also note in this context that the claimant has had experience in relocating to, and finding employment in, a far more alien environment (Iran) as a younger man. Furthermore, there is no evidence to indicate that he and his family would be prevented from practising his Shia religion within his own Hazara community in Kabul.
121.I am mindful of the practical challenges in resettling a large family from Jaghori to a major urban centre in Kabul. However, I consider that for this particular claimant, with experience in resettling in a large city (Isfahan in Iran), and his overall work and business experience, a relocation by him and his family to Kabul would not be unreasonable.
122.I note that the claimant is claiming that the kidnapping incident has elevated his profile to the extent that he will be pursued wherever he goes in Afghanistan, including Kabul. However, I do not accept that in a Hazara community of perhaps a million people he will be traced over this incident which occurred in another district, some 12‑18 months ago. I consider that the claimant’s problems were and would be localised to the Taliban controlled roads he would use if he were resuming work as a truck driver based in Jaghori and travelling on those roads. I do not consider that those problems extend to Kabul.
123.I acknowledge that the claimant may experience some risk of violence and crime in Kabul. However, in light of the country information about the size, cohesive nature and growing power of the Hazara community in Kabul, I find that that risk to his day to day well‑being would not be at a level where it would be unreasonable to expect him to live there. I do not consider that the criminality rate represents an unreasonable obstacle to relocation.
124.I have carefully considered the claimant’s family and personal circumstances but do not consider that any of the claimed barriers to relocation make it unreasonable for him to relocate to Kabul.
CONCLUSIONS
125.I have considered the claimant’s claims and find that there is a real chance that he would be persecuted in Jaghori on the basis of his imputed political opinion were he to return there now or in the reasonably foreseeable future. However I found that the claimant could reasonably relocate to Kabul.
126.I find that the claimant does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
The ground of review
Counsel for the applicant addressed his submissions at one ground which was pleaded in an amended application filed at the hearing:
GROUNDS OF THE APPLICATION
1.In recommending to the First Respondent that the Applicant was not a person to whom Australia owed protection obligations, the Second Respondent made errors of law in that:
A.He failed to consider whether the applicant had a well‑founded fear of persecution in areas of Afghanistan other than in and around Jaghori;
B.In considering whether it would be reasonable to relocate to Kabul, failed to consider the individual circumstances of the applicant including:
(i) The applicant’s subjective fear of persecution from the Taliban who, he said, were everywhere;
(ii) The risk of harm as an Hazara (including, but not limited to the past treatment of the applicant accepted by the second respondent but found not to amount to persecution: CB 208 [95];
(iii) the way in which 13 people (the applicant’s dependent family members) were going to:
•travel to Kabul; and
•find accommodation there.
(iv) How the applicant could financially support himself and 13 people in Kabul in circumstances where the second respondent accepted that the diminution of his delivery business would result in deprivation of subsistence.
(v) The differences between moving to Isfahan (in Iran) as a single 16 year old and to Kabul as an unemployed 27 year old with 13 dependents including, but not limited to:
•Accommodation;
•Cost of food;
•Safety;
•Subjective fear of persecution by the Taliban;
•The large number (1 million) of other Hazara who have recently moved to Kabul and are competing for the same resources and employment; and
•Finally, the cumulative effect of all of these matters and the circumstances actually considered by the second respondent.
As emerged obliquely in counsel’s written submission, but became clear in the course of exchanges between counsel and the bench, this ground, makes two separate contentions of error of law or procedural fairness:
i)Mr Lennon’s conclusion that the applicant could reasonably relocate to Kabul “did not in fact consider the applicant’s individual circumstances” bearing on the practicability of such a relocation by him and his family; and
ii)Mr Lennon failed to address an essential ingredient under the Convention definition in relation to internal relocation, being whether all the applicant’s well‑founded fears of Convention‑related harm by reason of being an Hazara Shia were localised to only one part of the country of nationality.
In relation to the first error, the applicant’s counsel submitted that I could conclude, as did the Full Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22], [63] and [73], that Mr Lennon did not “give consideration to the practical realities facing the [applicant] with respect to accommodation” and future subsistence in any relocation to Kabul, in accordance with the observations of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, and of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at [24]. In the latter – and later – case their Honours explained:
23The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well‑founded fear of persecution.
24However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
25It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. The distinction was emphasised by Lord Bingham in Januzi as follows:
“[T]he thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality.”
The reasoning in the last sentence might be applied to such matters as differential living standards in various areas of the country of nationality, whether attributable to climatic, economic or political conditions. In Januzi Lord Hope of Craighead added:
“I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio‑economic human rights.”
The applicant’s counsel submitted that Mr Lennon’s reasoning on relocation failed to include any discussion of the practical problems which would face the applicant and his family in finding adequate accommodation and a sufficient means of subsistence in Kabul, particularly in the light of the country information cited by the applicant’s agent, and taking into account Mr Lennon’s own finding that the applicant would not have available his former means of subsistence from his business as a truck driver in Jaghori. Counsel submitted that the absence of discussion on the matters particularised in the amended ground of review, showed that Mr Lennon had failed to appreciate what was required under the Randhawa and SZATV relocation test of reasonably “practicable” based on an examination of the hypothesised future circumstances of the applicant.
In relation to the second error, counsel for the applicant pointed to the structure of Mr Lennon’s reasoning, which proceeded on the basis that, once he had found that a well‑founded fear of Convention persecution arose in a particular locality, the practicability of relocation in another area could be addressed without considering whether, in the language of their Honours in SZATV at [26] “the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography”.
As I understood him, counsel submitted that the applicant had maintained a significant claim that he would be at risk in all locations in Afghanistan, including Kabul, not only because of the ‘kidnapping incident’ but also because of his attributes as an Hazara Shia alone. Mr Lennon may have found that the applicant’s fears arising from the ‘kidnapping’ incident were ‘localised’, but he was also obliged to address the applicant’s ‘generic’ Hazara Shia claim in its possible application to Kabul, before considering the practical reasonableness of expecting the applicant to relocate to Kabul so as to avoid persecution in Jaghori. When failing to make findings on the generic Hazara Shia claim in relation to possible future residence in Kabul, Mr Lennon had “sidestepped consideration” of that question (c.f. SZATV at [32]). Counsel submitted that this error was demonstrated at the commencement and conclusion of Mr Lennon’s discussion of relocation, where he made a geographically‑limited finding that “there is a real chance that he would be persecuted in Jaghori” which did not exclude the possibility that the applicant might also face non‑localised persecution as an Hazara Shia. Mr Lennon then addressed the practicability of a relocation to Kabul without making findings which addressed the applicant’s ‘generic’ Hazara Shia claim in relation to that part of Afghanistan.
The Minister’s response to both errors invited me to find in Mr Lennon’s reasoning sufficient indication that Mr Lennon had correctly appreciated the ‘practicability’ test of relocation, and that he had also implicitly found against the applicant’s claim that he would face a real chance of persecution by reason of being an Hazara Shia if he relocated to Kabul.
My conclusions
The applicant’s submissions on both of the contended errors invite me to examine Mr Lennon’s reasoning, and draw inferences of legal error from the omission of expressed findings and discussion relating to two factual issues which – it is common ground – arose for Mr Lennon’s determination on the true construction of the Convention definition of ‘refugee’ adopted by s.36(2) of the Migration Act.
Undoubtedly Mr Lennon was required, as a matter of law on the principles of relocation examined in SZATV and earlier Federal Court cases, to make findings which addressed how a future relocation to Kabul could be reasonably expected as a matter of practicability in the applicant’s individual circumstances.
Under the principles concerning relocation as a ground for excluding Australia’s protection obligations, Mr Lennon was also undoubtedly required to make findings on whether the applicant’s ‘generic’ and non‑localised refugee claims based only on his ethnicity and religion were well founded – at least in relation to Kabul, before issues of practicability of relocation to that city could become relevant to exclude Australia’s protection obligation. Mr Lennon’s legal duty to address that issue might also be found in his obligation to address all the refugee claims raised before him, and not just claims relating to the applicant’s situation in Jaghori (see Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, [2003] HCA 26 at [24], NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63], and Plaintiff M61 at [90]).
As I noted at the commencement of this judgment, I am conscious that I should take a ‘benign’ approach to understanding Mr Lennon’s report, and should not lightly infer error merely because other decision‑makers might have included more extensive discussion which addressed the two issues. I am also conscious that IMR reports concerning refugee claims of Hazara Shia should be considered in a context where reviewers and claimant’s IAAAS agents are dealing with recurring issues and a common background (cf. SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at 72). However, Mr Lennon was directed by the Minister’s IMR guidelines to write a report which “address[es] all the claims made by the claimant, reflect genuine consideration of them, and set out clear findings on all questions of fact that are material”. In this situation, it is open to me to draw an inference of legal error from the absence of an expressed finding on an important issue which would have been expected to be made, if Mr Lennon had correctly understood the above two issues.
An inference from the absence of a necessary finding may be that Mr Lennon overlooked the relevant legal principles arising from the Convention definition as explained by the High Court (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 at [47]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [33]‑[36]; and Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 at [43]‑[49], [55], [72], [91]‑[92], [98]).
In relation to the first contended error, Mr Lennon’s reasons which I have extracted above undoubtedly show that he was aware that he could not find that Australia’s protection obligations were negated by the existence of an internal safe haven without considering whether relocation would be ‘practicable’, and that this required consideration of the applicant’s individual circumstances in the event that he returned to Afghanistan and attempted to live with his family in Kabul. Mr Lennon expressly noted at [117] a list of ‘factors’ which might prevent such a finding, and which had been submitted by the applicant’s agent. This list drew his attention, inter alia, to potential uncertainties about how a family consisting of the applicant, his wife, and his two children, and his dependent widowed sister‑in‑law and her children, would be accommodated and supported if they moved from their village in Jaghori. The submission also pointed to country information suggesting that many displaced Hazara were living in Kabul in a situation which could obviously not be regarded as ‘reasonable’ under the relocation principal.
However, Mr Lennon undoubtedly had read that submission, and I would not disbelieve his statements that he had considered the matters it raised. I do not consider that there is any necessary logical inconsistency between his findings in paragraphs 113 and 119‑120.
In my opinion, minds could differ as to the prospects of the applicant finding an alternative livelihood for his family if he could not resume his occupation as a truck driver in Jaghori. Similarly, Mr Lennon was not necessarily required to accept that the applicant and his family would find themselves in the same position as displaced Hazaras living in “one of Kabul’s poorest neighbourhoods”, which was described in the applicant’s submission.
Ultimately, counsel for the applicant criticised Mr Lennon’s report not because it did not advert to the elements of practicality in relation to the applicant’s envisaged future life in Kabul, but because it did not provide fully satisfying reasons why Mr Lennon had concluded that “it would not be unreasonable for the claimant to relocate to Kabul”. Counsel submitted that “although the IMR purported to have considered the applicant’s individual circumstances, he did not in fact do so”. Specifically, he submitted:
·Although it is clear that Mr Lennon thought the applicant would be able to find a means of livelihood, he did not satisfactorily explain what this would be and why he thought it would be available.
·Although Mr Lennon said that he was “mindful of the practical challenges in resettling a large family from Jaghori”, he did not explain how he could reasonably expect this family to overcome these challenges.
·Although he appeared to recognise the challenges facing all residents of Kabul arising from insecurity from the Taliban insurgency, he did not satisfactorily explain why these could be regarded as not providing “an unreasonable obstacle”.
However, these submissions did not persuade me to infer any failure on the part of Mr Lennon to appreciate what was required under the Randhawa and SZATV principles of practicability. The brevity of Mr Lennon’s reasoning reflected the brevity of the submissions made by the applicant’s agent. The applicant and his agent did not attempt to explore in submissions the ramifications of the elements of the applicant’s individual circumstances which Mr Lennon was invited to consider. It is therefore understandable, that Mr Lennon felt obliged only to record his conclusions in relation to the important elements. Although a reader of his report might not be persuaded by how he expressed his conclusions, I consider that the criticisms made by the applicant’s counsel amounted to no more than a challenge to the merits of the conclusions. Ultimately, I consider that they provided at best possible grounds for ‘emphatic disagreement’ with Mr Lennon’s conclusions (cf. Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48 at [34]).
I therefore have not been persuaded that Mr Lennon’s reasoning and conclusions on the ‘practicabilty’ of the applicant relocating to Kabul dislose any misapprehension as to a principle of law which Mr Lennon was bound to apply. I would not draw the same inference of legal error in the present case, as was drawn by the Full Court in NAIZ (supra) from the ‘summary way’ in which the RRT made its findings on relocation in that case.
I have found the applicant’s second contention of legal error by Mr Lennon more difficult to address. Counsel for the Minister conceded that it was not possible to find anywhere in Mr Lennon’s report, an express finding to the effect that the applicant would not face a real chance of persecution by reason of his attributes of Hazara ethnicity and Shia religion, if he was forced to return to Afghanistan to live in Kabul or anywhere else in Afghanistan away from his former residence and occupation in Jaghori. However, she submitted that I could conclude from a general reading of his report that Mr Lennon had implicitly found that such a real chance would not exist in Kabul.
Counsel for the Minister submitted that the best location for drawing this implication is in paragraph 120, where Mr Lennon made points supporting relocation in Kabul “in relation to cultural and religious factors”. However, in my opinion, this paragraph addressed the suggestion that the applicant and his family would lack a supportive community in Kabul, and did not answer the applicant’s generic claim, in effect, that all members of the Hazara community in Kabul and elsewhere have a well‑founded fear of persecution by reason of their race and religion.
Similarly, I am unable to find in paragraph 122 of Mr Lennon’s report a finding which addressed that claim. His finding that “the claimant’s problems were and would be localised” was, in its terms and context, directed only at explaining why Mr Lennon regarded as localised the applicant’s refugee claim of a heightened risk of perceived political opposition to the Taliban arising from the kidnapping incident. It did not address the generic Hazara Shia claim.
Considering the course generally of Mr Lennon’s reasoning, I accept the submissions of the applicant’s counsel that it tends to suggest that he overlooked the need to address the applicant’s generic Hazara Shia claim in its possible relevance beyond Jaghori. In particular, the framing of the opening and concluding paragraphs 115 and 125 supports the submitted ‘side‑stepping’ of an essential issue, which had to be addressed before Mr Lennon could find that principles of relocation were applicable to exclude Australia’s protection obligations.
The obscure and dubious reasoning of paragraph 114 also tends to suggest that Mr Lennon overlooked the need for the decision‑maker to be satisfied that the applicant did not “face a real chance of persecution in that other place”, and that he thought that he could move directly from upholding a claim of localised persecution to considering the practicality of relocation, without addressing another refugee claim raised by the applicant which was not necessarily susceptible of geographic isolation.
I have therefore not been persuaded by the submissions of the Minister’s counsel that I should infer that Mr Lennon appreciated the need, as a matter of law, for him to address the applicant’s claim to fear persecution merely as an Hazara Shia, not just in Jaghori but in all locations in Afghanistan including Kabul. Nor that I should infer that he made an implicit adverse finding on that claim. I conclude from the absence of any clear finding on this important issue, that Mr Lennon erred in law by failing to address that issue before finding that the applicant did not meet the criterion set out in s.36(2) of the Migration Act.
I conclude that the applicant has established a right to a declaration in relation to this error. I consider that a declaration should cause the Minister to direct a further IMR review, and that it is not necessary for me to consider giving other relief.
I consider that the applicant should receive an order for costs under the scale for migration proceedings provided in Sch.1 Pt.2 item 1(c) of the Federal Magistrates Court Rules 2001 (Cth). The applicant’s counsel’s submissions did not persuade me that the present case reveals any special or different features which would justify exceeding that scale, and I consider that it provides the appropriate measure of party/party costs in the present case.
I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 9 December 2011
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