SZQOG v Minister for Immigration - [2013] FCCA 203

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQOG v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 203

Catchwords:
MIGRATION – Judicial review – independent merits review – whether jurisdictional error by reason of failure to consider or address applicant’s claims – whether applicant denied procedural fairness because of failure to inform of adverse conclusions or inferences – whether jurisdictional error by failure to take into account relevant evidence – whether jurisdictional error because evidence misconstrued – whether jurisdictional error by exclusion from consideration of consistent and relevant evidence of persecution – whether jurisdictional error by failing to take into account relevant considerations concerning relocation.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), ss.36(2), 91R(1) and (2), 476

Cases cited:
Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
AZAAA v Minister for Immigration & Citizenship & Anor (2009) 177 FCR 363; [2009] FCA 554
Craig v The State of South Australia (2003) 184 CLR 163
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
DZABT v Minister for Immigration & Anor [2012] FMCA 489
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354; [2008] FCA 902
Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225
Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Indatissa& Anor (2001) 64 ALD 1; [2001] FCA 181
Minister for Immigration & Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220; [1999] FCA 719
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
MZXIV v Minister for Immigration & Anor (No.2) [2006] FMCA 1454
MZYNK v Minister for Immigration & Anor [2011] FMCA 994
MZYOS v Minister for Immigration & Anor [2012] FMCA 422
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347
SZATV v Minister for Immigration & Citizenship & Anor (2007) 233 CLR 18; [2007] HCA 40
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs& Anor (2006) 228 CLR 152; [2006] HCA 63
SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214
SZEUZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1032
SZFDV v Minister for Immigration & Citizenship & Anor (2007) 233 CLR 51; [2007] HCA 41
SZKLA v Minister for Immigration & Anor [2008] FMCA 42
SZNNP v Minister for Immigration & Anor [2009] FMCA 973
SZOKA v Minister for Immigration & Anor [2010] FMCA 685
SZOPV v Minister for Immigration & Anor [2011] FMCA 243
SZOPX v Minister for Immigration & Citizenship [2011] FCA 552
SZOUG vMinister for Immigration & Anor [2011] FMCA 316
SZQEK v Minister for Immigration & Anor [2011 FMCA 628
SZQGI v Minister for Immigration & Anor [2011] FMCA 715
VAAD & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCAFC 117
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 233 CLR 1; [2006] HCA 60
VMOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCAFC 225
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131
WZAND v Minister for Immigration & Anor [2009] FMCA 26
WZANW v Minister for Immigration& Anor [2009] FMCA 1075
Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Applicant:

SZQOG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1845 of 2011

Judgment of:

Judge Lucev

Hearing date:

25 July 2012

Date of Last Submission:

25 July 2012

Delivered at:

Perth

Delivered on:

21 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr M Tedeschi

Solicitors for the Applicant:

CASE for Refugees

Counsel for the Respondents:

Mr P Hannan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

SYG 1845 of 2011

SZQOG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) for a declaration and injunction in relation to an independent merits reviewer’s (“the IMR”) decision (“IMR Recommendation”) at Court Book (“CB”) 161-189 finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“Convention”).

The grounds of the application

There are seven separate grounds for the application, each particularised, as further amended by the applicant’s Further Amended Grounds for Judicial Review filed by leave on the day of hearing. Each ground was the subject of extensive written submissions by the applicant (62 pages in total) and the respondent (29 pages in total). Each ground is set out and dealt with separately and fully below.

Relief sought

The applicant seeks the following relief:
a)a declaration that the IMR’s IMR Recommendation was not made in accordance with law, by reason of the grounds of this application;
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation; and
c)costs.

Jurisdiction

The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision: Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.

Background facts

The background facts are as follows:
a)the applicant was born on 31 December 1974 in Voruzgan Province in Afghanistan: CB 33 and 64;
b)the applicant’s current wife is 32 years of age, and the applicant has six sons aged between three and 17 years, as well as two nephews aged 12 and 14, who are dependent upon him: CB 6, 42-43 and 46;
c)the applicant worked in Iran from 2000 to 2002: CB 9;
d)the applicant arrived at Christmas Island by boat on 24 April 2010: CB 1, 37 and 87;
e)an entry interview was conducted with the applicant at Christmas Island on 7 May 2010: CB 1, 19 and 30;
f)a Refugee Status Assessment (“RSA”) was requested by the applicant on 10 October 2010: CB 31 and 55;
g)the applicant made a statutory declaration on 10 October 2010 (“Applicant’s Statutory Declaration”) in support of the RSA: CB 59-60;
h)an RSA interview (“RSA Interview”) was conducted with the applicant on 14 October 2010: CB 162; affidavit of Shayla Marie Strapps affirmed 14 April 2012 (“Ms Strapps’ First Affidavit”) at para.3;
i)the RSA was determined on 26 November 2010 (“RSA Determination”): CB 87-97, and the applicant was informed of the negative RSA Determination by letter from the Department of Immigration and Citizenship (“Department”) dated 26 November 2010: CB 85-86;
j)the applicant’s solicitors made a request for independent merits review on behalf of the applicant on 7 December 2010: CB 103-107; and
k)a 49 page submission by the applicant’s solicitors (“Applicant’s Solicitors’ Submissions”) was made in support of the applicant’s request for an independent merits review and emailed to the IMR on 29 March 2011: CB 108 (email), CB 109-157;
l)the applicant was interviewed by the IMR on 7 April 2011: (“IMR Interview”): CB 171-175 at paras.40-74; and
m)the IMR Recommendation was given on 29 July 2011: CB 161-187, and the applicant was advised of the IMR Recommendation on 2 August 2011: CB 159-160.

The IMR’s summary of the applicant’s claims

The claims made by the applicant and the bases for those claims were summarised in the IMR Recommendation as follows:
a)the applicant was resident in Afghanistan at the time of the events alleged to constitute persecution for a Convention reason or reasons;
b)the applicant is an ethnic Hazara Shi’ite Muslim: CB 183 at para.101;
c)the Taliban persecute Hazaras by reason of their ethnicity, and may stop a Hazara (including the applicant) on the road and kill them for being a Hazara: CB 182 at para.98 and 186 at para.114;
d)the Taliban persecute Hazaras because they regard them as religious infidels, because they are Shi’ite Muslims: CB 182 at paras.98 and 100 and CB 183 at para.101;
e)the Taliban tormented the applicant on a number of occasions, and targeted him for working with the Afghanistan government or foreign interests, and may stop the applicant on the road and kill him for suspected complicity with the Afghanistan government or foreign interests: CB 182 at para.98, CB 183 at paras.101-104 and CB 186 at para.114; and
f)the applicant’s village was surrounded by Kuchi nomads who had threatened to kill the population of the village, and the applicant had been the subject of constant threats by Kuchi nomads to kill him, and the Kuchi nomads had destroyed the applicant’s crops: CB 185 at para.110.
Relevant aspects of the applicant’s claims are expanded upon further below, where necessary.

Summary of the IMR Recommendation

The IMR Recommendation recommended that the applicant not be recognised as a person to whom Australia owed protection obligations under the Convention: CB 187 at para.120. The IMR’s reasons for making that recommendation are summarised below:
a)the applicant was not credible and:
i)gave inconsistent evidence and introduced significant new claims at a late stage: CB 182 at para.97, CB 184 at paras.105-106, and CB 185 at paras.110 and 112; and
ii)made implausible denials of knowledge about his family circumstances in Qalai Shada: CB 185 at para.112;
b)save for the time spent in Iran, the applicant was a farmer in or around Barkar from about 1987 to 2008, and appears to have been a type of leaseholder or share-farmer not owning the land upon which he farmed, but devoted most of his time during this period to taxi driving and derived little income from farm work: CB 184 at para.108;
c)the applicant regularly drove taxis, possibly as early as 2002, or at least by 2004, until 2008, and was still driving and delivering during 2009: CB 184 at paras.109;
d)the applicant opened and ran a shop in Barkar in or around 2009 but that activity did not bring him into contact with the Taliban: CB 185 at para.109;
e)there is no sufficiently compelling evidence that as at mid-2010 the Taliban were about to invade the Jaghori district: CB 182-183 at para.100;
f)the applicant had lived and worked in Daikundi since his return from Iran in 2002: CB 185 at para.113 and CB 187 at para.117;
g)the applicant will be readily recognised by the Taliban as a Shi’ite Hazara because of his looks and because he also spoke like a Shi’ite Hazara: CB 183 at para.101;
h)the applicant had had no encounters with the Taliban: CB 183 at paras.101-104, CB 184 at paras.106-107 and 109; and CB 185 at para.109;
i)the applicant did not work (as he had alleged) for the World Food Programme (“WFP”) or any related entity: CB 183 at para.105 and CB 184 at paras.107 and 109;
j)no community in which the applicant lived, nor the applicant himself, faced any significant difficulty with Kuchi nomads, and if they did, it was not for a Convention related reason: CB 185 at para.110;
k)the applicant had moved almost his whole family to Qalai Shada in Ghazni City, a move inconsistent with the applicant’s claims for persecution, in circumstances where:
i)the applicant makes no Convention related or other relevant claims about the family’s circumstances in Qalai Shada;
ii)the applicant’s children were going to school and his family was living an unremarkable life in Ghazni Province: CB 185 at paras.111 and 112, and CB 187 at para.117; and
iii)the Taliban did not have any effective presence in or near the part of Ghazni Province where the applicant installed his family: CB 187 at para.117;
l)the Taliban does not have any effective presence in or near the areas of Daikundi where the applicant had lived and worked since his return from Iran to Afghanistan: CB 185 at para.113 and CB 187 at para.117;
m)the applicant can travel safely to and practicably access Daikundi (where the applicant lived and worked) and Qalai Shada in Ghazni City (where the applicant’s family lives and his children go to school) from Kabul, despite the fact that people are occasionally kidnapped for ransom: CB 186 at paras.114-116, and also CB 184 at para.109;
n)the applicant would not face a Convention related risk of harm as a returned asylum seeker: CB 186-187 at para.117; and
o)the applicant’s reliance on an Afghanistan minister’s statement as evidence to support the claim of Convention related harm was not made out as the statement was mainly about humanitarian concerns: CB 186-187 at para.117.
Relevant aspects of the IMR Recommendation are dealt with in more detail below in the consideration of each ground of review.

Objections to affidavits

The Minister objected to the various affidavits sought to be tendered by the applicant, which, subject to the objections, were accepted into evidence on the basis that the Court would rule on the objections as part of its Reasons for Judgment.
In relation to the affidavit of Hamidullah Wasim affirmed 9 May 2012 (“Mr Wasim’s Affidavit”) the Minister objected to paragraphs 5 to 14 which dealt with the interpretation of the entry interview and paragraphs 15 to 26 dealing with the interpretation of the RSA Interview. The basis for those objections was essentially that the accuracy of the entry interview and RSA Interview were irrelevant in the context of a judicial review of an independent merits review. Generally, the Court would accept that might be the case, save where:
a)the IMR relied upon the accuracy of the interpretation, with or without notice to the parties, in relation to critical or credibility issues, where it subsequently transpired that the interpretation was inaccurate; or
b)the accurate interpretation contains an admission by the applicant against interest.
In this case the objections to paragraphs 5 to 14 relating to the entry interview, and paragraphs 15 to 25 of the RSA Interview are upheld. They are upheld on the basis that, in any event, their content is irrelevant to any matter which is properly in issue. Whilst there may be some minor discrepancies in relation to what was interpreted, and some minor discrepancies in terms of place names and positions, none of these appear to be directly relevant to, or dispositive of, any matter in issue, individually or cumulatively.
Paragraph 26 falls into a different category in that the applicant makes an admission that he may have had “one or two contacts with Taliban”: paragraph 26(c), before he had the shop. That is a potential admission against interest critical to the outcome of ground 6 below, and the Court will therefore overrule the objection to paragraph 26.
In relation to the affidavit of Robert Foote affirmed 17 May 2012 (“Mr Foote’s Affidavit”) only paragraph 7(a) and (c) are objected to on the basis that the interpreters there named interpreted the entry interview and RSA Interview (the former inferentially). In circumstances where nothing in Mr Wasim’s Affidavit indicates any error in interpretation of any relevance in the entry interview the objection to paragraph 7(a) of Mr Foote’s Affidavit is upheld. Likewise, save for the applicant’s admission against interest in the RSA Interview referred to in paragraph 26 of Mr Wasim’s Affidavit, there is nothing of any relevance or dispositive, individually or cumulatively, in the remaining alleged interpretation errors in the RSA Interview, and therefore the objection to paragraph 7(c) is upheld.
In relation to Joanna Olga Tedeschi’s affidavit affirmed 17 April 2012 (“Ms Tedeschi’s Affidavit”) that affidavit consists of various maps of Afghanistan, or parts thereof, derived from the website known as Google Maps, length of journey calculations derived from the above maps, two charts said to be derived from country of origin documents listed in the RSA record, and Ms Tedeschi’s commentary on those charts.
Save for an admission by the Minister as a model litigant that Annexure K, which is a chart setting out ethnicity and province of intended final destination, seemingly in relation to the assisted voluntary repatriation of UNHCR registered Afghans, which was a document before the RSA Officer, the remaining material was not before the RSA Officer or the IMR. There was no obligation on the IMR to have regard to the maps or any information derived from them. The choice of independent country information referred to by an IMR is solely a matter for the IMR, and there is no obligation on an IMR to make inquiry with respect to other or more recent country information than that to which the IMR is referred by the parties, or is otherwise independently obtained by the IMR: SZEUZ v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1032 at para.7 per Driver FM (“SZEUZ”). The policy reason for this is obvious: the IMR could be engaged on a never-ending task of sourcing country information from all manner of government agencies, independent think-tanks, media and press reports, and information on the worldwide web, such that if obligated to do so, the task would be a never-ending one, and any applicant for judicial review could always point to other country information seemingly relevant and said not to be considered by an independent merits reviewer. It follows that the affidavit material related to the maps, length of journey derived from the maps, and the chart not before the RSA Officer are all inadmissible. Likewise, Ms Tedeschi’s commentary on both the chart which was before the RSA Officer (and which is admissible) and the chart which was not before the RSA Officer, are inadmissible. The admissible chart speaks for itself, and the other chart is inadmissible. In any event, without any evidence as to her qualifications or experience, and without any information as to prior employment other than her employment as personal assistant to the applicant’s pro bono Counsel, it might be said that Ms Tedeschi was not qualified to comment upon the charts, if any commentary was necessary. In the circumstances, the objections to Ms Tedeschi’s Affidavit are upheld, and therefore all but paragraphs 1, 43 and 44 and Annexure K of Ms Tedeschi’s Affidavit are inadmissible.

In relation to Ms Strapps’ First Affidavit the Minister objects to Annexures D1 through to D6 inclusive being various maps of Afghanistan showing Taliban or insurgent activity in 2007, 2008, 2009, a figure showing insurgent areas of operation in Afghanistan, a map of mined areas in Afghanistan and a map of land mines or unexploded ordinance in Afghanistan. The annexures appear to be derived from accessing websites referred to in country of origin documents referred to in the RSA Determination. Thus they are documents secondary to the documents before the RSA Officer, and only accessible by accessing the websites referred to in the documents referred to in the RSA Determination. As such, the documents were not themselves before the IMR, and indeed, not before the RSA Officer. It was for the IMR to determine what country information it relied upon: SZEUZ at para.7 per Driver FM. Further, there is no basis for concluding that even if the IMR had accessed these documents via the website referred to in the document before the RSA Officer, that any different conclusion might have been reached. It is not the law that the IMR is obliged to look at every website referred to in a document referred to in the RSA Determination. Again, the policy reason is obvious: if there is an obligation to do this, then there must be an obligation to follow through and access websites referred to in the websites referred to in the RSA Determination, and the task of referring to websites would be a never-ending one for the IMR. Annexures D1 to D6 were not before the IMR, and strictly not before the RSA Officer. In the circumstances they are irrelevant, and not admissible.
The Minister also objects to Annexures 1 to 4 of the further affidavit of Shayla Marie Strapps affirmed 20 June 2012: (“Ms Strapps’ Second Affidavit”). The documents referred to in Annexures 1 to 4 of Ms Strapps’ Second Affidavit are country of origin documents which were set out in the RSA Determination. As such, they were documents which were available to the RSA Officer in reaching his unfavourable assessment in the RSA Decision, and were documents taken into account by the IMR: CB 162 at para.7. In those circumstances, the objection to their admissibility is not upheld. It remains the case however that the use to which those documents might be put in relation to the country information contained therein is a matter for the IMR.
It follows that where an objection has been upheld in relation to the above affidavits the relevant paragraphs and annexures are to be struck out of the relevant affidavit.

Ground 1

Ground 1 is as follows:
(A)The second respondent made jurisdictional errors, denying the applicant procedural fairness by not considering or addressing the claims for refugee status and persecution based on his well founded fear of persecution, as he was a member of the Hazaras who are a group that are persecuted due to ethnic and religious minority of the group and the criterion stated in section 91R(1) & (2)(a), (b), (c), (d), (e) and (f) of the Migration Act 1958, which claims had been made by the applicant and by the second respondent failing to take into account relevant evidence supporting those claims.
(B)The second respondent made jurisdictional errors, denying the applicant procedural fairness by not taking into account when he could and should have the country of origin or documentary evidence readily available comprised by:
(i)Annexures D-1 to D-6 in the affidavit of Shayla Strapps of 16 April 2012;
(ii)Annexures A to L to the affidavit of Joanna Olga Tedeschi of 17 April 2012;
(iii)Annexures 1 to 4 to the further affidavit of Shayla Marie Strapps of 20 June 2012.
Section 91R(1) and (2) of the Migration Act provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

Applicant’s submissions

The applicant’s submissions on ground 1 run to more than 26 pages. They are as long as the IMR Recommendation itself.
The applicant alleges that he raised claims on at least six grounds referred to in s.91R of the Migration Act, and that being a member of a minority ethnic (Hazara) and religious group (Shi’ite Muslim) he has a well-founded fear of persecution due to a lack of protection by the State of Afghanistan.
It is said that these claims were raised in the applicant’s entry interview, RSA Interview, Applicant’s Statutory Declaration, the Applicant’s Solicitors’ Submissions and the IMR Interview.
The applicant then sets out submissions with respect to each of the “grounds” referable to s.91R of the Migration Act.
With respect to a threat to a person’s life or liberty under s.91R(2)(a) of the Migration Act it is noted that the applicant is a Shi’ite Muslim Hazara, and it is asserted that he cannot go back to Afghanistan as he would be killed by the Taliban. Numerous documents are then referred to, and summarised, including:
a)Professor William Maley’s well-known paper from December 2002 on the position of the Hazara minority in Afghanistan: CB 116-118 (“Maley Report”);
b)an article in the International Herald Tribune on 7 August 1999 referring to historical discrimination and persecution against Hazaras since the Hazara Wars of 1891 to 1893, and a three day massacre of Hazara in 1988 by the Taliban in Mazar-i Sharif: CB 118-119;
c)an Associated Press article from 7 January 2004 dealing with a massacre of Hazara travellers near the border of Uruzgan and Helmand provinces in Afghanistan: CB 119;
d)a Reuters Newsagency article of 25 June 2010 in relation to the beheaded bodies of eleven men found in Uruzgan province, who were allegedly beheaded because they were ethnic Hazaras and Shi’ite Muslims: CB 119;
e)Thomas Ruttig’s 18 June 2010 article concerning a new Taliban front and detailing presumed Taliban involvement in clashes between settled Hazaras and incoming Pashtun nomads in Wardak/Maidan province: CB 121;
f)a 27 May 2010 article by Fabrizio Foschini concerning the Kuchi Hazara conflict: CB 121, referring to clashes between nomadic Kuchis seeking to graze on pasture lands in the Hazarajat, and their clashes with the Hazara, and Taliban support for the Kuchis, and the fleeing of the Hazara population of the district;
g)a New York Times article of 26 June 2010 stating that no part of the Ghazni Province can now be considered to be safe for Hazaras, and the Taliban might be attempting to push forward into mainly Hazara settled areas in the central region of Afghanistan, such that the situation for Hazara in those provinces could become dire, and a fear of being persecuted would not be ill-founded: CB 122;
h)the Secretary-General’s report to the United Nations General Assembly Security Council on 16 June 2010 concerning security in Afghanistan, and the position of the Taliban: CB 126-127; and
i)articles in The Australian newspaper in April 2010 that claims that there was a new golden age for the Hazara people are premature and inaccurate, and that the position in Afghanistan is uncertain, and that the position is in fact becoming worse in Afghanistan generally: CB 128-129.
The applicant then asserts that the IMR did not refer to various reports highlighting the human rights situation in Afghanistan, which it has asserted is characterised by continuing and escalating violence, the abuse and oppression of minority groups based on religion and ethnicity, as well as government officials’ impunity and lack of accountability for such abuse and oppression, and refers to various reports relating to the worsening position of the Hazara minority, and the population generally in Afghanistan, such that there is a threat to life or liberty, particularly for a person such as the applicant who is both an Hazara and a Shi’ite.
The applicant then deals with the IMR Recommendation, and:
a)having referred to some parts of the RSA Interview: CB 165-166, the IMR does not refer to evidence given by the applicant that the Hazara are not recognised in Afghanistan as other people are recognised in Afghanistan, giving rise to a claim that they are a persecuted minority on the basis of both ethnicity and religion;
b)the IMR does not refer to that part of the RSA Interview with the applicant:
i)which indicates reasons why it is not safe for him to return to Afghanistan, and that his life would not be safe and secure; or
ii)where reference is made to a recent attack by the Taliban on Hazara during which about 20 people were killed;
c)although the IMR referred to the submission made in the Applicant’s Solicitors’ Submissions relating to conditions in Daikundi, the IMR failed to take into account the references to the conditions of the Hazara in the central regions of Afghanistan in which Daikundi is located, including an ANSO report describing Ghazni as the most unstable province in Afghanistan, making reference to Taliban violence on some roads outside of Jaghori, and the failure of the IMR to take account of the fact that the applicant has to travel between provinces, and the IMR’s failing to take into account certain documents relevant to the unsafe conditions in Daikundi, to which the IMR had access;
d)the failure of the IMR to refer to the fact that the applicant said in his RSA Interview that he is fearful for his life and that it is unsafe for him to return to Afghanistan because he would be killed: CB 88;
e)in the references to the IMR Interview in the IMR Recommendation (which cover some 32 paragraphs from paragraphs 41 to 72 at CB 172-175), there is very limited reference to the applicant having a well-founded fear of persecution as a result of being a Hazara Shi’ite in Afghanistan, or having a well-founded fear of being harassed, harmed, physically ill-treated or killed because he is a member of a minority group in Afghanistan;
f)acknowledges that there is reference to the applicant’s fear of suffering serious harm from the Taliban as a result of being Hazara: CB 172 at para.47, and what is described as “limited reference” to the claim of a well-founded fear of persecution as a result of being a Hazara Shi’ite at CB 182-183 at paras.98-101;
g)recognises that the IMR considered that there were two strands to the applicant’s claim, one generic, and one specific, and that two distinct and separate claims had been fused into the one claim;
h)notes that the IMR Recommendation refers to “some independent evidence and opinions about the general law and order situation in Afghanistan and about the Taliban’s attitude to Hazaras in particular in various circumstances set out”: Applicant’s submissions, para.61, but that the reasons did not refer to the evidence and opinions about the persecution of the Hazaras as members of a particular minority ethnic or religious group;
i)acknowledges that the IMR considered, and discounted, the views of Professor Maley and Mr Ruttig, and takes issue with the IMR’s analysis of Mr Ruttig’s reasoning, and says that it appears that Professor Maley’s analysis is accepted, but ignored and not taken into account;
j)details various country information documents to which it is said that the IMR had access which were not referred to in the IMR Recommendation, including one (document No. 28) which was not referred to in the Applicant’s Solicitors’ Submissions even though it was listed in the Country of Origin documents; and
k)submits that the IMR was not justified in not considering all available claims by reason of a finding at CB 184 at para.107 that the Taliban were involved in criminal activity as experienced by the applicant, which was not Convention related, and asserts that the IMR failed to consider or assess The Afghanistan Crime and Safety Report (“Crime and Safety Report”) which suggests that it is difficult to differentiate between politically motivated criminal behaviour, terrorism and traditional illegal activity: CB 124.
The applicant submits that there was an error of law in that the IMR failed to consider or assess a cogently supported claim of a well-founded fear of persecution by reason of the applicant being both Hazara and Shi’ite in Afghanistan.
The applicant claims that he is likely to suffer significant physical harassment or significant physical ill-treatment for the purposes of s.91R(2)(b) and (c) of the Migration Act by reason of his being a Hazara Shia, and that he therefore has a well-founded fear of persecution of future persecution in Afghanistan. The applicant submits that these claims are not dealt with at all in the IMR Recommendation’s findings and reasons, and that the failure to do so amounts to an error of law. In particular it is argued that the IMR’s reasoning is confused because the IMR was not satisfied that the applicant had ever encountered the Taliban in the past, and did not accept that he had done so, and therefore ignored or dismissed these claims: CB 183.
The applicant relies upon the extent of the Taliban’s area of influence between the years 2007 to 2009 as revealed by a UK Country of Origin Report dated 26 June 2009 which was available to the IMR, but not referred to, but also not referred to in the Applicant’s Solicitors’ Submissions.
The applicant next makes submissions that relate to the applicant suffering a significant economic hardship that threatens the applicant’s capacity to subsist or a denial of the capacity to earn a livelihood of any kind that threatens the applicant’s capacity to subsist for the purposes of s.91R(2)(d) and (f) of the Migration Act, which are said to be claims made at CB 11, 21, 59, 60, 88, 110, 112, 123, 125, 128, 132-134, 137.
The applicant’s submission acknowledges that the IMR Recommendation refers to “some evidence” in relation to these issues: CB 164-166, paras.18-19, 26-30, 31-33; CB 172-174, paras.46-52, 56 and 59-65; CB 176-181 at paras.66-72, 78, 80-83 and 85-94.
The applicant acknowledges that the IMR indicates that he carefully considered and weighed a range of independent material, and that information accepted by the IMR supports a finding being made of persecution as a result of meeting the criteria in s.91R(2)(d) or (f) of the Migration Act: CB 182 at paras.96 and 99.
The applicant submits that the IMR failed to consider certain Country of Origin documents relating to economic conditions in Afghanistan, and that the IMR ought to have taken that information (being Country of Origin documents No’s. 9, 27 and 28) into account notwithstanding that it was not raised in the Applicant’s Solicitors’ Submissions.
The applicant also submits that the IMR did not consider, assess or make a finding based on the above matters, and in doing so failed to take into account relevant information. Having cited the primary finding of the IMR at CB 186 at para.115 the applicant submits that the IMR failed to consider issues of kidnapping, the risk of running over a mine or improvised explosive device, or the economic hardship caused by the limitations on the applicant’s freedom of movement while driving his taxi on the main roads to and from his home, and whether or not these constituted a risk of serious harm. The applicant submits that the IMR failed to consider that at times only 7% of the roads in Daikundi province are accessible, but does acknowledge that issues of the safety and availability of various roads are contained in the Court Book, and specifically in the IMR Recommendation at CB 164, para.18; CB 172, para.43; CB 174, paras.56 and 59; CB 176 at paras.78 and 80; CB 178 at para.86; CB 179-180 at para.87; CB 181 at para.93; CB 184 at para.109 and CB 186 at paras.114-115.
The applicant submits that his capacity to subsist in Afghanistan was affected by the denial of access to basic services, such that that denial threatened his capacity to subsist. This claim was said to have been made, or reiterated, during the RSA Interview where the applicant expressed concern that he was unable to move or travel between provinces without risk of encountering the Taliban, and that he was so afraid that he made arrangements to leave Afghanistan, and in the meantime, kept a low profile and struggled to not leave the house unnecessarily: CB 88. The applicant asserts that these claims, based on s.91R(2)(e) were not considered by the IMR in the IMR Recommendation findings and reasons, and that no specific reference to these matters or claims was made in the IMR Recommendation.
The applicant highlights a number of reports indicating:
a)social discrimination against Hazara Shias: CB 123;
b)a lack of basic infrastructure, government services and emergency health facilities making Afghanistan an exceptionally hazardous country in which to visit or reside: CB 124;
c)official corruption in Afghanistan which is a primary impediment to the entrenchment of effective institutions: CB 125;
d)an increase in the number of civilian deaths between 2000 and 2010: CB 127;
e)a human rights report from 2010 indicating that there is an absence of due process of law under the Afghanistan legal system, and that Afghans face arbitrary detention, denial of access to a lawyer, and denial of the right to challenge the grounds of their detention before an impartial judicial officer, and that court proceedings are often marred by corruption and abuse of process: CB 130;
f)an Amnesty International 2010 report indicating that Taliban and insurgency activity targets schools, teachers, pupils and humanitarian and aid agencies, preventing many from operating in Afghanistan: CB 137;
g)the high level of displacement of Afghanistan refugees from their homes in the central and north-eastern areas, in part because of food shortages: CB 138; and
h)the links between Afghan law makers and armed groups: CB 153.

Minister’s submissions

The Minister submits that this ground fails on the facts and that the IMR:
a)did address the applicant’s claims of persecution by reason of the applicant’s Hazara ethnicity and Shi’ite religion; and
b)did consider evidence supporting the applicant’s claims of persecution by reason of the applicant’s ethnicity and Shi’ite religion.

Consideration

The IMR knew and understood that the applicant was a Hazara Shi’ite Muslim, and that he claimed persecution arising from his race and religion: CB 164 at para.23 and CB 166 at para.34. Expressly, the IMR found that there were two strands to the applicant’s claims:
… a generic claim about the treatment of Hazaras by the Taliban for reasons of their race and infidel religious stance; and a particular claim about the Taliban targeting … [the applicant] individually for working with the government and/or foreign interests, a claim that is not dependent on his Hazara status, since the Taliban are reportedly opposed to anyone in Afghanistan working with the government and/or foreigners, but to which his Hazara status is cumulatively relevant.
CB 182 at para.98.

The IMR also referred to country information concerning whether or not there was targeted or systemic persecution of Hazaras (or other Shi’ite Muslims), by either government or non-governmental actors: CB 176-177 at paras.80-85, and in that regard referred to authoritative governmental sources, including the Department of Foreign Affairs and Trade (“DFAT”) in Australia and the United States Department of State (“US State Department”), as well as the Maley Report, and to the ethnic composition of the district from which the applicant came: CB 177-178 at para.86. Indeed, the applicant’s own submissions demonstrate the breadth of material, by way of country information, that was considered by the IMR, much of which might be said to demonstrate, with considerable force, the general lack of safety and high level of criminality to which persons travelling in Afghanistan, or working for the Afghan Government or non-governmental organisations associated with the Afghan Government, might be exposed.
The IMR did not, however, conclude that the applicant was at a risk for a Convention reason merely because he was a Hazara Shi’ite, and, that on the basis of the country information, including the country information cited by the applicant, concluded that the “persecution” complained of was not directed at Hazara Shi’ites alone, but also affected other travellers and land owners, including the Pashtuns (whom the applicant equated to the Taliban). Although a conclusion reached in relation to possible internal relocation, it is also relevant to note that the return of the applicant to either Ghazni or Barkar was held not to give rise to any real chance of Convention related persecution, because, amongst other things:
a)the Taliban were not killing Hazaras simply because they were Hazaras; and
b)Hazaras kidnapped for ransom are kidnapped on the basis of mercenary criminality, not for Convention reasons.
CB 186 at para.115.
The applicant’s submissions put numerous other bases for alleged errors in the IMR Recommendation.
It was not necessary for the IMR to set out and deal with every contention or evidentiary issue before the RSA, or raised in the RSA Interview. The issues before the RSA about which it is complained that the IMR did not “refer to” related to:
a)persecution of Hazaras as an ethnic and religious minority; and
b)a lack of safety and security for Hazaras, and recent attacks on Hazaras, in Afghanistan.
It was not necessary for the IMR to refer to every piece of evidence before the IMR. The IMR considered the claim made as to the risk of persecution because the applicant was a Hazara Shi’ite in Afghanistan, and in particular one who had lived in Barkar, and who had also lived and travelled in the Daikundi, Ghazni and Jaghori areas. The IMR considered a body of evidence, including, as he said, information provided by the applicant: CB 162 at para.7. It was not necessary for the IMR to set out in detail every piece of evidence considered, nor is it an error if evidence is, in any event, misconceived by the IMR: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at paras.46-47 and 58-63 per Marshall, Mansfield and Siopis JJ (“WAKK”); WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at para.7 per Lee J (“WAHP”). The IMR Recommendation is an administrative decision at a level of generality not susceptible to minute examination upon judicial review: the reasons of an administrative decision-maker are meant to inform, and not to be scrutinised in an over zealous fashion: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The latter is a significant failing not only on this ground of review, but on most, if not all of the grounds of review. In this case the IMR considered the claim of Convention based persecution of the applicant on the basis of his being a Hazara Shi’ite Muslim, and rejected that contention, based, in large part, on cogent country information which indicated that Hazara Shi’ites in Afghanistan are not persecuted on the basis of their race or religion for Convention reasons. That conclusion was open to the IMR on the basis of the country information which the IMR considered.
The applicant complains that the IMR failed to take account of the conditions of the Hazara, and in particular the risk to Hazaras travelling along roads in Daikundi, Jaghori and Ghazni. The IMR did however take into account those matters, referring to them extensively in the setting out of the country information, and also in the IMR’s findings and reasons. In relation to travel in Daikundi, Jaghori and Ghazni, a significant part of the IMR’s findings and reasons relate to the applicant’s life, residence and travel, especially as a taxi driver until at least 2008, and possibly 2009, in and around Jaghori, Ghazni and in particular Daikundi: see for example CB 184 at paras.108-109, CB 185-187 at paras.113-115 and 117, where the IMR set out:
a)the applicant’s use of roads as a taxi driver between Daikundi, Jaghori, Nawur and Ghazni City: CB 184 at para.108;
b)the applicant’s taxi driving and knowledge and use of roads not reached or controlled by the Taliban during the years that he was a taxi driver, and in which “he adhered to safe or safer roads all the time he drove between his home area and other destination or pick-up points, such as Ghazni City”: CB 184 at para.109;
c)the applicant’s long residential and occupational ties in Daikundi, and his regular travel as a taxi driver in Hazara controlled Jaghori, and his decision to set up his family to live and go to school in Ghazni City: CB 185-186 at para.113;
d)the applicant’s evidence regarding safer roads between Daikundi and Ghazni, and his evidence as to the frequency with which he had accessed Ghazni in the past, including accessing it for the purpose of travelling out of Afghanistan: CB 186 at para.114;
e)the chances of the applicant being killed or kidnapped whilst travelling back to Ghazni City or to Barkar and Daikundi: CB 186 at para.115; and
f)the lack of presence of the Taliban in Daikundi where the applicant had lived and worked or in that part of Ghazni province where his family lived and his children went to school: CB 187 at para.117.
There is therefore no foundation for the suggestion that the IMR failed to consider issues related to conditions for the Hazara in the areas referred to, or failed to consider the hazards of a Hazara Shi’ite using roads in and around Daikundi, Jaghori and Ghazni, and specifically so in relation to their use by the applicant.
The applicant also seemingly criticises the IMR’s consideration of the Maley Report. It is said that it appears that the analysis in the Maley Report is accepted, but then ignored and not taken into account. The Court is not able to accept that such a conclusion can be drawn from the IMR Recommendation. The IMR Recommendation notes that the Maley Report is cited in the Applicant’s Solicitors’ Submissions: CB 168 at para.35. The Maley Report is again referred to, and part thereof quoted, under the country information set out by the IMR, and the IMR expressly states that he has “had regard to” the Maley Report: CB 177 at para.82. Part of that consideration or having regard to the Maley Report is set out under the IMR’s findings and reasons where the IMR notes that the applicant has drawn attention to the Maley Report, in the following terms:
In particular, … [the applicant] has drawn attention to the views of Prof. Maley and Mr Ruttig. The Rutting material in particular refers, as at mid-2010, to an “imminent” invasion of Jaghori that has not occurred. The notion of the Taliban potentially intending to invade Jaghori is built on impressions of old enmity between the two groups, heightened in the 1990s when the Taliban tarred the Hazaras as “infidels” and committed mass murders amongst the Hazara population. Ruttig and Maley seem to regard individual, localised episodes like the beheading of nine Hazaras in Khas Uruzgan as evidence of an unabated Taliban campaign against the Hazara.
CB 182 at para.100.
Read properly and in totality it can be seen that the Maley Report analysis was not accepted by the IMR, contrary to the submission of the applicant, and indeed the IMR criticised the Maley Report for its alleged exaggeration of “individual, localised episodes” into “an unabated Taliban campaign against the Hazara”. In any event, even if that were not the case, misconception of evidence is not an error which would warrant relief in this case: WAKK at paras.46-47 and 58-63 per Marshall, Mansfield and Siopis JJ; WAHP at para.7 per Lee J.
The applicant also suggests that the IMR failed to consider and assess the Crime and Safety Report, particularly as it related to the distinction between criminal, terrorist and illegal activity. It is evident however that the IMR did consider the Crime and Safety Report, extensive parts of which were set out in the IMR Recommendation: CB 169-170 at para.37. It is significant that the part set out highlights the general law and order difficulties in Afghanistan, and does not point to any particular Convention related harm relevant to the Hazara Shi’ite population: CB 169 at para.37. The passage set out does highlight the fact that those associated with “westerners” and non-governmental organisations associated with westerners are likely to be targets of the Taliban, but as the IMR ultimately found that the applicant’s assertion that he worked with the WFP was “invented”: CB 186 at para.106, that reference is of no avail to the applicant.
The submission on this point also fails at a more general level because:
a)the country information to be relied upon by the IMR; and
b)the weight to be given to the country information to be relied upon by the IMR,
are both matters for the IMR: Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 Gummow and Hayne JJ; [1999] HCA 14 at paras.195-197 per Gummow and Hayne JJ (“Abebe”); NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ (“NAHI”). As the Full Court of the Federal Court observed in NAHI at para.11 per Gray, Tamberlin and Lander JJ:
… The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
It is plain that the IMR having regard to certain country information, and weighing that country information, has arrived at a conclusion with respect to the alleged persecution of Hazara Shi’ites generally, and of the applicant specifically, which, whilst adverse to the applicant, was open on the available evidence. That is sufficient to preclude the legal error alleged in this respect by the applicant: Abebe CLR at 580 per Gummow and Hayne JJ; HCA at paras.196-197 per Gummow and Hayne JJ.
The claim of a failure by the IMR to consider significant physical harassment or ill-treatment of the applicant in the context of a well-founded fear of future persecution, as opposed to past persecution, was said to have been ignored or dismissed by the IMR.
In Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a social group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence: Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ;
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. Now, see also, Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider; and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction: Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
In Dranichnikov the High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief: Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”) the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim: Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker”: Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354 at 362 per Jessup J; [2008] FCA 902 at para.22 per Jessup J.
What is required of the decision maker was described in practical terms by this Court in MZXIV v Minister for Immigration & Anor (No. 2) [2006] FMCA 1454 (“MZXIV (No. 2)”) where the Court spoke of the decision maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”: MZXIV (No. 2) at para.44 per Riley FM, and of “a specific consideration of the claim”: MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”), namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
Was the claim of persecution on the basis of Hazara race at the hands of the Taliban actually made? In this case there was no doubt that the relevant claims were made, the issue is whether or not they were considered in their terms by the IMR.
In Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 (“Guo”), in relation to the predictability of future events which might give rise to a real chance of serious harm, the High Court observed that there would be cases where “the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.”: Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. That determination requires an estimation of the likelihood that an event will give rise to the occurrence of conduct causing serious harm, and in that respect, regard must be had to what has occurred in the past as a guide to what might happen in the future: Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In determining whether or not there was a well-founded fear of persecution the IMR was obliged to look to see whether or not there was a current or prospective threat to the applicant on a Convention-related ground: VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 233 CLR 1; [2006] HCA 60.
The IMR’s findings and reasons looked at factors which might cause the applicant to be physically harassed or ill-treated. The IMR appreciated the nature of the claim being made, noting in the IMR Recommendation the applicant’s claims:
a)in the entry interview that:
i)there was a lack of safety for him in Afghanistan: CB 164 at para.18; and
ii)he may be killed by the Taliban or a suicide bomber if returned to Afghanistan: CB 164 at paras.19 and 20; and
b)in the RSA application and RSA Interview that he:
i)was fearful of Kuchi who had attacked his village when he was a farmer: CB 165 at paras.26-27; and
ii)risked being mugged, robbed or killed by the Taliban whilst working as a driver in particular for a “foreign company”, namely the WFP: CB 165 at para.28.
Similar claims to those made above were made in the Applicant’s Solicitors’ Submissions, noted in the IMR Recommendation: CB 166-167 at para.34. Those submissions were supported by reference to various materials which suggested that both historically and contemporaneously Hazara Shias are at risk of physical harassment and ill-treatment, and more so currently for those working in Afghanistan with the government or non-governmental organisations: CB 169-170 at para.37. In the IMR Interview the applicant was specifically questioned about the incidents on roads in central Afghanistan whilst he was working for the WFP, and in relation to his engagement with the Kuchi: CB 172-175 at paras.43-72. As otherwise set out above, the IMR also had regard to country information relating to the:
a)safety of the applicant in Ghazni and Daikundi provinces, especially in the context of potential Taliban attacks, as well as instances of criminality and local political and economic rivalry, as reported upon by the Afghanistan NGO Security Office (“ANSO”): CB 176 at paras.78 and 79;
b)travel in central Afghanistan, especially on routes connecting Jaghori to Ghazni City, and a DFAT 28 September 2010 Report which dealt with security in central Afghanistan: CB 176 at para.80;
c)the Maley Report;
d)a December 2009 report from the Finnish Immigration Service concerning the situation in the Jaghori district, including a section on the safety of the roads in and around Jaghori, and the safety of Jaghori itself, and the ethnic makeup of Jaghori (being “almost entirely inhabited by Dai Chupan Hazaras of several sub-tribes”): CB 177-178 at para.86; and
e)significant information on Taliban activity in Ghazni from several sources including press reports, UNHCR Eligibility Guidelines and the US Naval Post Graduate School: CB 179-181 at paras.87-93.

Applicant’s submissions

The applicant refers to SZATV in relation to the question of internal relocation, and it is said that internal relocation will not be a reasonable option if there are logistical or other safety impediments to gaining access to the separate part of the state that is suggested as a safe haven, nor if the evidence indicates that there are other and different risks in the place of internal relocation propounded, or where safety could only be procured by going into hiding, or where the place would not be accessible due to the requirements imposed for internal relocation: SZATV CLR at 42 per Kirby J; HCA at para.80 per Kirby J. Further, it is said that the personal circumstances of the applicant, including the viability of the propounded place of internal relocation and support mechanisms available, particularly in circumstances where an applicant has already been traumatised by actual or feared persecution, need to be weighed in judging the reality of the proposed or propounded place of internal relocation: SZATV CLR at 42-43 per Kirby J; HCA at para.81 per Kirby J. Further, it is argued that SZATV is authority for the proposition that considerable care must be exercised in concluding that internal relocation is a reasonable option when, by definition, the applicant has not taken advantage of its manifest convenience and arguable attractions: SZATV CLR at 43 per Kirby J; HCA at para.82 per Kirby J.
In relation to ground 7(a) the applicant asserts that the IMR did not take into account the inadequacy of State protection offered to the applicant in the areas in which the applicant was said to be able to return, or the adjoining areas in Afghanistan.
In relation to ground 7(b) the applicant argues that the fact that he had to flee the farm in Barkar indicates that it is unlikely he could return to that region having fled in the first place. Further, it is argued that although there was a large fight with the Kuchi in this area 17 or 18 years ago that does not mean that the threat has abated, and his evidence was that after a few months absence the Kuchi and Taliban moved in to take over the land, and it can therefore be inferred that the applicant has lost the use of the land and it cannot be said that it is practicable for him to return to farm it.
In relation to the finding that it is safe for the applicant to drive safely on roads in Daikundi, the Jaghori region and Qalai Shada in Ghazni City, the applicant says that the IMR did not consider the risk of kidnapping, or the economic hardship caused by the limitations in the applicant’s freedom of movement whilst driving his taxi on the main roads to and from his home to be serious harm, nor the availability of security of alternative driving routes.
The applicant also disputed that Qalai Shada was safe, saying that he could be attacked outside of “the camp”, and asking rhetorically where in Afghanistan he would be safe given that the government could not save itself.
The applicant asserts that in relation to the finding that the applicant would be safe in Daikundi where he has long residential and occupational ties, or Jaghori which is Hazara controlled and to which he has regularly carried passengers as a taxi driver, or in Ghazni where he has set up his family to live and go to school, that that ignores the contents of the Home Office UK Border Agency Country of Origin Report (document 9) of 26 July 2009 which refers to the insecurity of the roads in both Ghazni and Daikundi province, including the whole of Ghazni province and the Daikundi districts and the highway from Uruzgan to Daikundi.
The applicant asserts that the IMR did not have regard to his evidence of the difficulty of transit within Afghanistan when concluding that he was able to practicably access his home region in Afghanistan, Daikundi or Qalai Shada in Ghazni City by means of safe or safer roads between Daikundi and Ghazni, the frequency of which he has accessed Ghazni in the past, and his familiarity with Ghazni and the Kabul-Kandahar road: CB 186.
The applicant asserts that the IMR misconstrued his task of assessing the practicability of relocation and the threat of kidnap on his return is relevant, and which is a real risk: CB 125. The applicant says that the IMR did not take into account relevant evidence that he identified, particularly from Country of Origin information, the substance of which is that:
a)Taliban inflicted violence is reported on some Ghazni roads outside Jaghori;
b)conditions in Daikundi province near Jaghori district of Ghazni province are infrequently reported, due to not receiving enough information from that part of Afghanistan;
c)in Ghazni, insurgents control most Pashtun districts and travel is dangerous for all ethnic groups, and both Pashtun and Hazaras are limited in their ability to move through districts dominated by the other. Access to Jaghori has also become more difficult and there are three routes connecting Jaghori to Ghazni City, the most frequently used road passing through Nawur district and which is considered secure. Another road through Muqur is insecure to Taliban presence, and the third route through Qarabagh is very insecure: CB 176;
d)Jaghori is surrounded by Pashtun areas to the south-east, south and south-west and there are Pashtun enclaves of villages in the border areas;
e)Jaghori district is very vulnerable to isolation because of its hostile Pashtun neighbours and the closure of roads in winter after snow fall, and the way to Jaghori through Ghazni City is unsafe according to all sources; and
f)the UK Country of Origin Report of July 2009 indicates that the greatest restriction of movement in some parts of the country is the lack of security where in many areas insurgent violence, banditry and landmines make travel extremely dangerous, especially at night.
The applicant also submitted that the main problem concerning Jaghori is getting in and out and that the Taliban are seen as a serious threat by the people of Jaghori: CB 177-178. Information concerning the insecure nature of the roads into Jaghori is then set out. See CB 179-180.
The applicant also cited the fact that the IMR referred to the worsening security environment in certain parts of Afghanistan and an increasing number of civilian casualties including in Ghazni, and the need for a broadening of international protection that may be needed in assessing whether or not there is a situation of generalised violence in the place of former residents of Afghanistan: CB 180-181.
The applicant also submits that Ghazni is not seen as safe, and that there are generally low opinions of the Afghanistan National Army and Afghanistan National Police, and that there have been ongoing reports about Taliban activities in Ghazni province and in the roads and highways around Ghazni, many of which are reportedly blocked, particularly in districts south-east of Ghazni: CB 180-181.
The applicant refers to the number of individuals returned to Afghanistan from Pakistan and the provinces to which they returned and their ethnicities to suggest that Hazaras are not returning to Afghanistan in the same proportion as they bear to the usual population of Afghanistan.
In relation to ground 7(c) the applicant relies on the submissions made in ground 1, in relation to claims invoking s.91R(2)(f) of the Migration Act, and in relation to ground 6, particular (b).
In relation to paragraph 7(d) the applicant asserts that the IMR did not take into account the attributes of the applicant as a Hazara which attracted the apprehended persecution and was insusceptible of different assessment based on prime matters of regional geography and that the applicant’s safety could only be procured by going underground and going into hiding: see SZFDV v Minister for Immigration & Citizenship & Anor (2007) 233 CLR 51 at 60 and 62 per Kirby J; [2007] HCA 41 at paras.33 and 40 per Kirby J.

Minister’s submissions

In relation to this ground, and each of its particulars, the Minister submits that the ground fails on the facts, and that the IMR did consider each of the issues referred to in the grounds, and made factual findings thereon. In those circumstances each of the grounds simply fall away. In support of that proposition the legal propositions and authorities set out in relation to grounds 3 and 4 above are repeated by the Minister.

Consideration

For reasons otherwise set out above: see para.97 above, there was no reason for the IMR to consider State protection, the applicant having been found to have no well-founded fear of the Taliban, particularly in and around his home area. Further, in relation to the issue of the applicant returning to his home area, the IMR considered, expressly and in some detail, the capacity of the applicant to return to his home area, and concluded that it would be safe for him to travel from Kabul to Daikundi via places like Nawur and Jaghori: CB 186 at paras.114-116. In the circumstances, the question of State protection does not arise for consideration. It is clear that there was no doubt in the IMR’s mind as to the correctness of the view that the applicant would be able to travel safely home from Kabul, and that was a finding open on the available evidence, and it was therefore unnecessary for the IMR to consider the question of State protection in the context of the applicant’s return to Afghanistan. Ground 7(a) therefore cannot be made out.
In relation to ground 7(b) the factual premise underpinning the ground, namely that it was not possible for the applicant to drive safely on the roads referred to, is contrary to the IMR’s finding based on the country information considered by the IMR. In the circumstances, that was a factual finding which the IMR was able to make on the available information, including country information, and it cannot be said that the IMR failed to consider the capacity of the applicant to drive safely on the roads concerned. In those circumstances the factual premise underpinning the alleged serious economic hardship does not exist. Furthermore, and in any event, the finding of serious economic hardship is not consistent with the evidence which demonstrates that the applicant has for some years operated as a driver in these areas, and albeit that he may have been stopped by the Taliban, that has not occurred for a Convention related reason. Ground 7(b) fails because the IMR must be taken to have taken into account implicitly the question of serious economic hardship, and certainly to have taken into account expressly the capacity of the applicant to drive safely on the roads concerned. Ground 7(b) is therefore not made out.
In relation to ground 7(c) the IMR was not required to take into account the applicant’s inability to return to farming in Barkar, because his evidence was that he had given up farming at least as long ago as 2008 and had moved to Ghazni City. He had done so, together with his family, and changed employment in so doing, at least insofar as he was no longer employed in farming. Furthermore, the IMR took into account the land dispute issues raised by the applicant, and concluded that they were not Convention related issues, particularly as they related to the Kuchi nomads. It may be that the applicant has lost his land, but, if so, that has occurred because he gave up farming, and in any event the disputes which made him do so have been found, on grounds which were open to the IMR, to not be Convention related disputes. Ground 7(c) is therefore not made out.
As to ground 7(d) it is apparent from the country information extensively referred to, both in the context of the Applicant’s Solicitors’ Submissions and the country information independently referred to by the IMR, together with the IMR’s consideration of the capacity of the applicant to internally re-locate and to get from Kabul to his home area in the event of a return to Afghanistan, that the IMR was aware of, and made an assessment of, regional geographic issues which might affect the applicant’s ability to return to Afghanistan, and his capacity to return to and live in his home area. The IMR made findings that the applicant was able to safely return home from Kabul if returned to Afghanistan, by means of his knowledge of the relevant roads and which of those roads were safe for him to travel, together with the fact that Hazaras are not persecuted by the Taliban simply for being Hazaras and Shi’ites. The IMR also considered that the applicant could safely return to and re-locate to his home area, primarily because it was a safe predominantly Hazara area, and that the applicant could safely work in and around those areas for reasons which are otherwise set out above. There was no evidence that the applicant’s safety could “only” be procured by going underground or going into hiding, and that assertion is inconsistent with the bulk of the applicant’s past conduct where, apart from two non-Convention related incidents, he has travelled safely in and around his home area both as a driver and a shopkeeper. Ground 7(d) is therefore not made out.
In all the circumstances ground 7 is not made out.

Conclusions and orders

The Court has concluded that none of the grounds of the application have been made out. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 21 June 2013