SZQRB v Minister for Immigration
[2012] FMCA 75
•3 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQRB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 75 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer’s decision was affected by legal error. |
| Migration Act 1958, ss.5, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | SZQRB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | A.M. CARWARDINE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2123 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 February 2012 |
| Date of Last Submission: | 3 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2123 of 2011
| SZQRB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| A.M. CARWARDINE IN HIS 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 23 May 2010. On 30 October 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”). He is currently in immigration detention and, it may be presumed, has been so since he landed at Christmas Island. On 17 February 2011 an officer in the department administered by the first respondent Minister (“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 15 August 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, 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. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
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 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the Reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons which have been reproduced in the Court Book (“CB”) at pages 117-131. The facts alleged in support of the applicant’s claim for protection were set out by the Reviewer in those reasons.
Entry interview
The applicant made the following claims during his entry interview on 30 June 2010:
a)he was born in Jaghori district, in the Ghazni province of Afghanistan;
b)he left Afghanistan because it was an unsafe place and Jaghori was “like a room” and he could not go anywhere;
c)the Taliban killed Hazaras because of their ethnicity and religion. He had not been “caught” by the Taliban yet and nothing had specifically happened to him but there had been “threats in the area and other problems”; and
d)if he returned to Afghanistan the Taliban might kill him.
RSA application
In a statement in support of his application for an RSA signed on 30 October 2010, the applicant made the following additional claims:
a)Jaghori district is surrounded by areas occupied by the Taliban. If people need medical treatment or supplies they are forced to travel to Ghazni or Kabul which is dangerous as there are serious risks of capture or death;
b)Hazara Shias are persecuted and constantly targeted for harassment and interrogation;
c)Hazara Shias are able to practice their religion in Jaghori but they faced problems in other areas;
d)the government would not be able to protect him if he returned to Afghanistan. He would be killed because he would be a returnee and associated with the West; and
e)he could not relocate to another area because the Taliban is everywhere and the security situation was not stable.
At his RSA interview on 2 November 2010 the applicant also claimed that he had never experienced problems with other tribes or people of different ethnicity. He said that he had never had any direct contact with the Taliban but was “very scared of them”. The applicant claimed that his home area was safe and peaceful but that it was very dangerous outside his home area because of the Taliban.
Proceedings before the Reviewer
The applicant’s migration agent sent a submission to the Reviewer dated 18 July 2011. It was submitted that the applicant feared that he would suffer persecution if he returned to Afghanistan because of his race as a Hazara, his religion as a Shia, his imputed political opinion as a supporter of the Afghan government and/or reconstruction efforts and his membership of a particular social group of failed asylum seekers. It was also submitted that state protection was not available to the applicant and that it would not be reasonable for him to relocate to Kabul or any other part of Afghanistan because of the security environment, the risk of persecution, hardship and access to the area.
The applicant was interviewed by the Reviewer on 21 July 2011 at which point he made the following additional claims:
a)he left Afghanistan because there was no peace. His home area is surrounded by the Taliban and he could not walk around freely;
b)there were Taliban around Jaghori and it was not safe to go outside his house;
c)his neighbours had asked his family where he was but there had been no threats to his family;
d)some houses had been burnt down in Nawur by the Kuchis and about twenty villages had been burnt. The Taliban had also poisoned a well in Malistan; and
e)Jaghori is not self-sufficient and required supplies from outside. If he travelled to Kandahar from Jaghori he would be arrested and his money and vehicle taken.
Reviewer’s findings and reasons
The Reviewer found the applicant to be credible. He found that given the applicant’s consistent evidence, and the finding about his credibility, the applicant had a genuine subjective fear of persecution involving his death. Taking into account the established historical background and animosity of the Taliban and Pashtuns towards Hazaras for ethnic and religious reasons, the Reviewer was satisfied that when Hazaras come to the adverse attention of the Taliban for other reasons, the extent of harm was exacerbated by reason of their Hazara ethnicity and Shia religion. However, after noting that the applicant had maintained that nothing had happened to him and that he had not had direct contact with the Taliban, the Reviewer found that the applicant had not come to the attention of the Taliban.
The Reviewer found that the real chance of the applicant suffering persecution was slight and that the factual basis for the applicant’s fear as a Hazara Shia was “remote”. In making this finding, the Reviewer had regard to the applicant’s evidence that he had not come to the attention of the Taliban and to the following information:
a)a April 2009 report from Cooperation for Peace and Unity (“CPAU”) advising that despite the risk of future ethnic conflict between the Taliban and Hazaras, the risk was lower in Jaghori than elsewhere in the Hazarajat because the people and elders of Jaghori had demonstrated unique negotiation and proactive peace building strategies towards the Taliban in the 1990s. The report further advised that the Jaghori and Malistan districts remained out of the reach of Taliban control due to the military and political power of the Hizb-i Wahdat Khalili/Nasr which seemed to be robust across the Hazarajat;
b)a 28 September 2010 report from the Department of Foreign Affairs and Trade (“DFAT”) which observed that security challenges in Ghazni were not specific to the Hazara community and that Hazara districts were relatively stable compared to the Pashtun districts. The report indicated that Hazara strongmen controlled most of the Hazara districts and that the possibility of wholesale violence against the Hazara community in Ghazni was unlikely. This was unlikely given commanders’ strength and the flexibility of their relationships with other factional and insurgency networks, including the Taliban;
c)United Nations High Commissioner for Refugees (“UNHCR”) Guidelines dated July 2009 advising that Pashtun communities were suffering more from the insurgency than Hazaras because they were the primary targets for Taliban control;
d)a DFAT cable dated 21 February 2010 noting that the United Nations Assistance Mission in Afghanistan had not received reports of Hazaras specifically being targeted or discriminated against. It also noted that Hazaras did not live in fear of violence or systematic persecution as they had under Taliban rule;
e)CPAU and Finnish Immigration Service reports dated 2009 and an article by Professor Amin Saikal reporting that Jaghori was not only a stable and secure district with a productive homogeneous population but also a centre for Islamic cultural and religious practice with comparatively high quality health care and education facilities and a high level of female social involvement;
f)a Kabul Centre for Strategic Studies paper dated June 2008 indicating that the rate of Hazaras being killed by the Taliban was higher and that the government had been unable to provide them with protection;
g)information by the Minority Rights Group International that Afghanistan was listed as the third highest country with respect to the risk of mass killings against particular groups in 2011, with Hazaras listed as being at particular risk;
h)UNHCR Guidelines dated 17 December 2010 advising that notwithstanding the comparatively stable security situation in some Hazara districts, the security situation in the remainder of Ghazni province, including access to routes to and from the secure districts, had been worsening; and
i)comments by Thomas Ruttig and Professor William Maley to the effect that no part of Ghazni could realistically be considered safe for Hazaras even in districts were they were the majority.
In relation to the applicant’s claimed fear based on his ethnicity and religion, the Reviewer noted that the proposed withdrawal of western forces from Afghanistan in 2014 was qualified by the requirement that Afghan forces would be ready to take over security responsibilities. Given that, as well as the fact that the applicant had had no contact with the Taliban and nothing had happened to him, together with country information pointing to the strength of local commanders and their relationships with factional and insurgency networks, the Reviewer found that there was no real chance of the applicant suffering persecution in the reasonably foreseeable future.
In relation to the applicant’s claims of an imputed political opinion as a supporter of the Afghan Government and/or its reconstruction efforts, the Reviewer again had regard to the strong local Jaghori authorities. Given that, and the fact that the applicant had never come to the attention of the Taliban, the Reviewer found that the chance that he would suffer persecution then or in the reasonably foreseeable future was slight. The Reviewer concluded that there was no real chance of the applicant suffering persecution due to his imputed political opinion.
The Reviewer accepted that the applicant was part of a social group of failed asylum seekers. However, the Reviewer took into account the opinions of the UNHCR and DFAT that returnees from western countries or failed asylum seekers would not be targeted. Together with country information on the strength of the local authorities, this led the Reviewer to find that there was no real chance that the applicant would suffer persecution due to his membership of a particular social group of failed asylum seekers.
In relation to the applicant’s claim that he avoided travelling outside Jaghori because he feared the Taliban on the roads, the Reviewer referred to country information showing that there were certain routes in and out of Jaghori that were safe, albeit longer. Further, the Reviewer noted country information showing that the main route to Ghazni was now safe, having been secured by Afghan forces and it could be used without fear of persecution. In addition, country information indicated that Jaghori had the best available health facilities in the central highlands, leading the Reviewer to conclude that there was no need to travel routinely for treatment. The Reviewer thus found that there was no real chance of persecution in this regard in the reasonably foreseeable future.
Given his findings, the Reviewer did not consider it necessary to consider the question of relocation.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings.
The ground of the application commencing these proceedings was pleaded as follows:
1.That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
However, in his oral submissions to the Court, the applicant did not point to any such error on the part of the Reviewer. Instead, he pressed the merits of his claim to meet the Convention tests of a refugee.
The Court’s role is not to determine that issue but to consider whether the applicant was or was not afforded procedural fairness by the Reviewer. It has not been suggested that the Reviewer failed to consider the applicant’s claims, that he failed to apply the relevant tests correctly or that he failed to afford the applicant a hearing which was procedurally fair.
The fact that the applicant disagrees with the Reviewer’s conclusions does not, without more, demonstrate error on the Reviewer’s part. If the findings made by the Reviewer lacked any evidentiary support or were illogical or unreasonable in the sense discussed by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 then that would be a different case. But that was not what was alleged nor, in my view, could such an allegation be made out.
Conclusion
It has not been demonstrated that the Reviewer denied the applicant procedural fairness. For that reason, the substantive relief sought in the application will be refused and it is thus not necessary to consider the application for an extension of time.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 February 2012
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