SZQQV v Minister for Immigration
[2012] FMCA 413
•21 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 413 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer that the applicant not be recognised as a person to whom Australia has protection obligations – whether availability of state protection needs to be considered if an applicant does not fear persecution because non-state actors provide adequate security. |
| Migration Act 1958, ss.36, 46A,195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331 SZQGX v Minister for Immigration & Citizenship [2012] FCA 306 SZQKC v Minister for Immigration & Citizenship [2012] FCA 249 SZQGI v Minister for Immigration & Citizenship [2012] FCA 343 |
| Applicant: | SZQQV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2115 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 February 2012 |
| Date of Last Submission: | 22 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Robison |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2115 of 2011
| SZQQV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 5 January 2010. On 20 February 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
On 16 March 2010 an officer in the department administered by the first respondent (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 3 June 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Court’s jurisdiction and extension of time
Ostensibly the applicant brought these proceedings out of time and thus he sought an extension of time pursuant to s.477 of the Act. He nevertheless submitted that because the Reviewer’s recommendation was simply that, a recommendation and not a migration decision, and that the purpose of the present litigation is to restrain the Minister from making an unlawful decision in the future, namely, a decision in accordance with the Reviewer’s recommendation, the time limit under the Act does not apply to these proceedings.
Since the decision in this matter was reserved, the Full Court of the Federal Court delivered its judgment in SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331 where it was held that the s.477 time limit does not apply to review by this Court of recommendations of independent merits reviewers. Consequently, the application in these proceedings was not made out of time and it is not necessary to consider further the application for an extension of time.
Background facts
The recommendation made by the Reviewer was supported by written reasons which included a statement of the facts relied on to reach her decision. Relevant factual allegations are summarised below.
Entry interview
The applicant provided the following information during his entry interview on 29 January 2010:
a)he was a Hazara Shia;
b)he was born in Afghanistan in the Jaghori district of Ghazni province. He lived there until his departure in October 2009;
c)between 1997 and August 2009 he was a self-employed mechanic and used parts salesman. He travelled to Vesh and Kandahar every fortnight to obtain spare parts and was always scared of being caught and killed by the Taliban; and
d)he went to Iran in 2001 and to Kazakhstan and Korea in 2008 for business.
RSA application
In a statement dated 20 February 2010 submitted in support of his application for an RSA, the applicant also claimed that he witnessed two Hazaras being killed by the Taliban in 1996. A few years later, in 1999, he was hit by the Taliban for not washing before prayers. The applicant claimed that he left Afghanistan because he felt that it was no longer safe to travel between Ghazni and Kandahar.
Proceedings before the first independent merits reviewer
The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. There was a previous recommendation made on 21 June 2010.
In proceedings before the first independent merits reviewer, the applicant made the following claims in addition to those made in the RSA process:
a)he was targeted by the Taliban because he was a Hazara Shia. He was a well-known businessman and had had to disguise himself and his profession every time he travelled so that the Taliban would not recognise him;
b)he had had to pay bribes to the Taliban every time he crossed into one of their territories. He was targeted more than others because of his appearance;
c)in May or June 2007 two brothers from his village were killed by the Taliban. Their deaths really affected him because they were family friends; and
d)in May or June 2009 he witnessed two Hazaras being killed by the Taliban. He was travelling on the same road at the time.
Proceedings before the Reviewer
In a letter dated 15 February 2011 the applicant’s advisers told the Reviewer that the applicant intended to provide a statement setting out new evidence relevant to his claim for refugee status. It was submitted that the applicant’s travel history was “significantly different” from that which he had claimed at the RSA stage and before the first independent merits reviewer. It was submitted that the applicant had not disclosed that he had previously applied for asylum and that he had omitted this information because he had been warned that if he revealed it he would remain in detention for a very long time. It was submitted that the material facts of the applicant’s claims nevertheless remained unchanged, namely, that he was a Hazara Shia who feared persecution by the Taliban. It was also submitted that the applicant feared that because of his imputed political opinion he would be targeted as a supporter of the Afghan government and international forces due to his Hazara ethnicity and because of his status as a returnee with significant experience in western countries.
The applicant’s advisers also enclosed the following documents with their letter of 15 February 2011:
a)a letter from the applicant’s employer in Dubai certifying that the applicant had worked for his company from October 2004 to August 2009;
b)photocopies of the applicant’s United Arab Emirates driver’s licence and residence permit issued in June 2005 and December 2007 respectively; and
c)a report on the situation of Hazaras in Afghanistan.
In a statement dated 17 February 2011 the applicant claimed the following:
a)in his RSA application he stated that he had lived in Afghanistan until 2009, however, he had not lived in or returned to his home village in Afghanistan since 1994;
b)he left Afghanistan in about 1980 [sic] to work in Iran. He returned in 1993/94 and stayed for about twelve months, during which time he married. He had trouble finding work in Afghanistan so returned to Iran where he worked in construction;
c)he moved to Dubai in 1996 and then to Pakistan in 1999 (where his family had lived since 1996);
d)in late 1999/early 2000 he returned to Iran and from there travelled to Azerbaijan, Ukraine and then Hungary. In about mid-2000, while in Hungary, he was arrested for being an illegal immigrant and was detained in immigration detention for about five months. When he was released he went to Slovakia for a few days and then to Austria where he stayed in a refugee camp for two to three months. He did not apply for asylum in Austria because he was advised that it would be quicker and easier to apply in the United Kingdom;
e)in 2001 he left the refugee camp in Austria, travelled across Europe and eventually landed in Belgium. He sought asylum under a false name and spent the next two and a half years in a refugee camp. When his application was rejected, he went to Italy but could not find work there;
f)in 2004, after having been advised that it was safe to return to Afghanistan, he settled in Kabul and started a business. However, the situation worsened and he could not find work. He then went to Dubai where he stayed until 2009, travelling to Kazakhstan and Korea for business in between;
g)he returned to Afghanistan in 2009. He immediately went to Pakistan but stayed only a short time because it was dangerous for Hazaras in Quetta;
h)he feared harm from the Taliban because he was a Hazara; and
i)he also feared that the Taliban would target him because he had lived abroad for an extended period of time and would be perceived as being sympathetic to western forces in Afghanistan and possibly a Christian convert.
The applicant was subsequently interviewed by the Reviewer on 18 February 2011 at which point he made the following claims:
a)he left Pakistan at the end of 1999, travelled to Iran and then went to Azerbaijan where he worked as a tiler for six months. He then travelled across Europe from 2000 to 2004;
b)he did not see his wife between 1999 and 2004;
c)he could not obtain a visa to enter Pakistan so was unable to visit his family while he was living in Dubai (from 2004 to 2009) and his family could not live in Dubai. He later said that he did manage to visit his family by flying Kandahar and then using a smuggler to get to Quetta;
d)he could not remember where the detention centre in Hungary was located but it was “near the border”;
e)the refugee camp where he stayed in Belgium was close to France; and
f)he did not tell the truth initially because he was told by the smuggler what to say and what not to say. The smuggler told him that if he told the truth he would not be accepted as a refugee in Australia.
Following the interview the Reviewer wrote to the applicant putting her concerns about his credibility. The applicant’s advisers responded by letter dated 4 March 2011 which, relevantly, enclosed a letter to the mayor of Jaghori asking him to confirm that the applicant had not been resident in the area since 1996.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The fact that the applicant had been prepared not only to change his story about where he lived but had also been deliberately untruthful in relation to his experiences and activities in Afghanistan at a time when he claimed to the Reviewer he had not been living there indicated to the Reviewer that the applicant had not been a truthful or credible witness and had been prepared to provide whatever information he thought necessary to be accepted as a refugee. The Reviewer noted the explanation provided by the applicant’s adviser that the applicant had “omitted” this information because he did not wish to reveal that he had applied for asylum previously as he had been warned by people smugglers that if he revealed this information he would remain in detention for a very long time. The Reviewer had serious concerns about this explanation for the following reasons:
a)at his interview on 18 February 2011 the applicant claimed that he left Pakistan in late 1999, travelled to Iran and then to Azerbaijan and did not see his wife or return to Pakistan until 2004. However, at the same interview he confirmed that he had a nine year old son who was born in August 2001 and who would therefore have been conceived at a time when the applicant claimed he had been in Europe. This indicated to the Reviewer that the applicant had not provided a truthful account of where he had lived from 1999 to 2004;
b)the applicant claimed that he travelled to various countries in Europe between 2000 and 2004 but was vague about where he had lived and been detained. For example, he could not tell the Reviewer the location of the detention centre in Hungary (where he claimed he had been detained for five months) or the refugee camp in Belgium (where he claimed he had stayed for two and a half years), information which, in the Reviewer’s opinion, the applicant should have been able to provide. The applicant’s evidence further indicated to the Reviewer that he had not provided a truthful account of where he had lived from 1999 to 2004;
c)the applicant claimed that after he left Pakistan in 1999 the only place where he had worked was in Azerbaijan. In the Reviewer’s opinion, the applicant’s claim that he had travelled through Europe from 2000 to 2004 without working was implausible;
d)at the interview the applicant claimed that he had obtained a business passport in Kabul in 2004 which he used to travel to Kazakhstan and Korea while working in Dubai. However, when asked by the Reviewer why he had failed to use his passport to travel other countries to seek protection if he could not apply for protection in Kazakhstan and Korea as he claimed, the applicant did not respond. This indicated to the Reviewer that the applicant had not been truthful when he claimed that he had obtained a business passport in 2004;
e)given the findings she had made in relation to the applicant’s credibility, the Reviewer had some concerns about the genuineness of the documents submitted by the applicant. Further, the Reviewer noted that the letter addressed to the mayor of Jaghori stated that the applicant had migrated to Pakistan in 1996 because of the area’s insecurity, which was inconsistent with the applicant’s evidence at the interview that he left Afghanistan in 1996, went to Iran and then to Dubai to work. The Reviewer also noted the translator’s comment that the document was not quite readable “especially the complementary closing sections which related to certification and confirmation”; and
f)given that the country information indicated that many Hazaras from Jaghori travelled to Iran and Pakistan to work, the Reviewer accepted that the applicant had not lived in his village in Afghanistan since 1996. However, she did not accept that he left Pakistan in 1999 and thereafter lived and resided in Europe from 2000 to 2004 or that he had applied for asylum in Belgium.
The Reviewer did not accept that the applicant’s ethnicity and religion by themselves meant that he faced a real chance of persecution by the Taliban in Afghanistan, noting that:
a)according to advice from the United Nations High Commissioner for Refugees (“UNHCR”), there was no evidence of a campaign by the insurgency to target Hazaras. Further, while the security situation in Afghanistan was fluid, Hazaras were not currently being persecuted on any consistent basis. The UNHCR also advised that Hazara migration patterns were “out of synch” with levels of threat and more in keeping with economic imperatives associated with labour migration;
b)the United Nations Assistance Mission in Afghanistan stated that it had not received any reports of Hazaras being specifically targeted or discriminated against; and
c)a report from Amnesty International and a report from the US Department of State did not identify Hazara Shias as being at risk of persecution from the Taliban due to their ethnicity and religion alone.
The Reviewer accepted that there had been significant improvements for Hazara communities in Afghanistan since the Taliban lost power, that Hazaras were making the most of the opportunities open to them in relation to education and employment and had been active in political processes. The Reviewer accepted that Hazaras did not live in fear of systemic persecution as they did under Taliban rule and were not being persecuted on any consistent basis.
The Reviewer was not satisfied that if the applicant returned to his village in Jaghori he would face a real chance of persecution because of his ethnicity or religion, noting that:
a)Jaghori was almost entirely populated by Hazaras;
b)numerous reports indicated that the Hazara districts of Ghazni province are secure;
c)according to a UNHCR report, due to their better security environment people in Jaghori enjoyed better educational and health facilities than those living in other districts in Ghazni;
d)according to a Cooperation for Peace and Unity Report, the risk of future ethnic conflict between the Taliban and Hazaras was lower in Jaghori than elsewhere in the Hazarajat. Further, Jaghori remained out of the Taliban’s reach due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction. As a result, there had been no reported clashes between the Taliban and the Hizb-I Wahdat Khalili/Nasr faction and the Taliban had not taken steps to challenge groups in control of the Hazarajat region; and
e)although the applicant’s neighbouring village was populated mainly by Pashtuns, the applicant gave evidence that his village was “100%” Hazara.
The Reviewer was not satisfied that the applicant would face a real chance of persecution travelling to his home area or travelling in and out of Jaghori. The Reviewer accepted that the roads into Jaghori remained vulnerable to attack but found that a secure route existed between Jaghori and Ghazni city. With respect to the applicant’s submission that Hazaras were asked to pay additional bribes at border crossings where Pashtuns were allowed to cross freely, the Reviewer did not accept that this discrimination was so severe that it amounted to serious harm.
The Reviewer did not accept that the applicant would face a real chance of persecution in Afghanistan as a “returnee”, a “western returnee”, a “failed asylum seeker from a western country” or a “returnee who has been away from Afghanistan for a significant period”. The Reviewer noted the following in this connection:
a)there were reports stating that people who returned to Afghanistan westernised in habits because of a long residence in western society might for that reason attract adverse attention. However, the Reviewer found that the applicant was not a truthful or credible witness and did not accept that he had lived in Europe from 2000 to 2004. The Reviewer did not accept that the applicant would be perceived as associated with or supportive of the international community;
b)the country information indicated that for generations many Hazaras left Jaghori to work in other countries for long periods of time but there was no evidence that these men were targeted by the Taliban on their return or persecuted for that reason;
c)a UK Home Office Report discussed the economic and social difficulties facing returnees but did not refer to returnees being targeted for that reason alone; and
d)there was no credible evidence before the Reviewer indicating that persons returning from western countries as failed asylum seekers were targeted by the Taliban for that reason.
The Reviewer was not satisfied that the applicant would be perceived as a Christian convert or that he would face a real chance of persecution on this account. The Reviewer noted that while there were reports that persons who returned with modified religious views after residence in western society might attract adverse attention, in the applicant’s case, he claimed that he had lived in Iran and then Dubai from 2004 to 2009, both of which were Muslim countries. Further, the applicant provided no evidence that he had modified his religious views during his time in Australia.
The Reviewer was not satisfied that the applicant would be perceived to be working for or supportive of the government and international forces because of his ethnicity or religion. The Reviewer noted that the UNHCR Eligibility Guidelines 2010 referred to an incident in which the Taliban had killed a group of Hazaras who were trying to form a traditional militia in defiance of the Taliban and were suspected of being informants to NATO troops. The Reviewer noted that these people were killed because of the specific activities they were involved in, not just because they were Hazara Shias. Given that the applicant did not claim to have any association with the Afghan government, the international community or international military forces, the Reviewer was not satisfied that the applicant’s ethnicity or religion alone meant that he would be perceived to be working for or supportive of the government and international forces. The Reviewer was not satisfied that he would face a real chance of persecution on this account.
The Reviewer accepted that the general security situation in Afghanistan had deteriorated and that this gave rise to a volatile and unpredictable situation. However, she did not accept that this was Convention-related or that there was a discriminatory aspect to the generalised violence. Consequently, the Reviewer was not satisfied that the effects of the general insecurity and insurgency in Afghanistan gave rise to a well-founded fear of persecution for a Convention reason.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Second Respondent recommended to the First Respondent on the above mentioned date [6 June 2011] 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 (refer to here and after as “The Recommendation”).
2. The Recommendation was affected by legal error.
Particulars
a)The Second Respondent failed to take into account a relevant consideration namely the Applicant’s claim that the state of Afghanistan did not offer the Applicant adequate protection from persecution from the Taliban.
b)The Second Respondent took into account an irrelevant consideration namely a purported nexus between provision of protection by a non-State actor and the test of whether the Applicant’s fear of persecution was well founded as per the definition of ‘Refugee’ under Article 1A(2) of the said Convention and/or section 36(2) of the Migration Act 1958 (Cth).
c)The Second Respondent failed to apply the correct test under the said Convention and/or to the said Act in so far as the Second Respondent failed to consider the reasonableness of the willingness of the Applicant’s returning to the Afghanistan or any region thereof.
d)The Second Respondent failed to afford procedural fairness to the Applicant by considering the protection by non-State actors.
e)The Second Respondent failed to afford procedural fairness to the Applicant by not considering the absence of the adequacy of protection by the State of Afghanistan.
f)The Second Respondent failed to afford procedural fairness to the Applicant by failing to alert the Applicant to the determinative weight of the provision of protection of a non-State actor.
Definition: in this pleading “non-State actor(s)” refers to the person, persons and/or groups who have an alleged ability to provide protection within Afghanistan, other than the State of Afghanistan and its instrumentalities, including but not limited to the Hizb-I Wahdat (Khalili)/Nasr faction and/or its members.
State protection
The applicant submitted that the Reviewer took into account the alleged ability of the Hizb-I Wahdat Khalili/Nasr faction to protect him. Although the applicant submitted that to do so was erroneous, in his written submissions he accepted that authority in this Court was to a different effect. After judgment was reserved in this matter, the applicant’s counsel advised the Court of the decisions of the Federal Court in SZQGX v Minister for Immigration & Citizenship [2012] FCA 306 and SZQKC v Minister for Immigration & Citizenship [2012] FCA 249, both of which concerned the question, as Rares J later expressed it in SZQGI v Minister for Immigration & Citizenship [2012] FCA 343 at [1]:
Does the definition of “refugee” in the Refugees Convention apply where the decision-maker has found that the claimant’s home, in his country of nationality, is in an area in which he or she has no well founded fear of persecution, because persons other than the government of that country provide effective protection in that area from the harm feared?
All of those matters were appeals from this Court and are thus binding on it. Neither party has sought to make further submissions in light of any of those decisions. In each of those cases Rares J concluded, as his Honour put it in SZQGX at [9]:
Once the reviewer came to the conclusion that the appellant had no well founded fear of persecution were he to return to the Jaghori district or the Hazarajat area, it was not necessary for him then to embark upon a consideration of whether the absence of that fear had a relation to the ability of the State of Afghanistan to provide particular protection in the circumstances.
It must therefore be concluded that the Reviewer did not deny the applicant procedural fairness as alleged in paras.2(a), (b) and (d)-(f) of the application because in the circumstances she was under no duty to consider the ability of the Afghan state to provide the applicant with protection and she did not err by considering the practical effects of factional power in the applicant’s home region in Afghanistan.
Reviewer misapplied Convention test
Although the applicant alleged in para.2(c) of his application that the Reviewer did not properly apply the Convention in so far as it was concerned with the reasonableness of him relocating within Afghanistan, in his written submissions, this ground was approached in the same way as all the others in the application, although expressed slightly differently. In his written submissions the applicant argued:
21.The definition of the term “refugee” has two key cumulative components:
a. A well-founded fear of persecution
b. and the inability of the person’s state to provide protection.
22.Therefore, in taking into account the alleged ability of a person or group which is not part of the government of Afghanistan is to misunderstand one half of the definition of refugee.
The reasoning applicable to the remainder of the application is equally applicable to this allegation with the result that it must be found that it does not disclose error on the part of the Reviewer.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 21 May 2012
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