SZQUE v Minister for Immigration - [2012] FMCA 842

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQUE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 842

MIGRATION – Application for review of IMR decision – Hazari Shia claims to be owed protection obligations – whether Afghanistan state unwilling to afford protection to him for Convention reason – no error identified.

Migration Act 1958 (Cth), s.476
Commonwealth Constitution, s.75(v)

Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
WZAPH v Minister for Immigration & Anor [2012] FMCA 773
Minister for Immigration v Khawar [2002] HCA 14

Applicant:

SZQUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

PETER TYLER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number:

SYG 2425 of 2011

Judgment of:

Lindsay FM

Hearing date:

6 September 2012

Date of Last Submission:

6 September 2012

Delivered at:

Perth

Delivered on:

6 September 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr P.R. Macliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application for review filed on 24 October 2011 do stand dismissed.
That the Applicant pay the Respondent’s costs of the proceedings in the sum of $6471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

SYG 2425 of 2011

SZQUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PETER TYLER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Before me today is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks an order by way of judicial review arising out of a report from an Independent Merits Review (“IMR”) in relation to his application for a protection visa and, specifically, a report that addressed whether or not the Minister for Immigration and Citizenship should lower the bar and permit his application for a protection visa given his status as an off-shore entry person.
The jurisdiction the Court has as far as migration decisions under the Act are concerned is the jurisdiction that is the same as the High Court has under s.75(v) of the Commonwealth Constitution. The nature of the jurisdiction relating to off-shore entry persons was the subject of the High Court decision of Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and has been the subject of subsequent Full Court Federal Court authority, in particular the decision of SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. The nature of this Court’s task in applications of this nature is not so much the identification of error in the report itself – though that is an integral part of the process – but it is positing the future reliance by the Minister on the report and asking whether such reliance would give rise to error. So it arises out of the report but in a strict sense, it is not directed to the report.
The view I take in relation to whether or not I have to identify jurisdictional error is that I do not and that it would be sufficient for the applicant to establish either a jurisdictional error or an error of law or – to the extent that this third notion is not part and parcel of either of the first two – a denial of procedural fairness arising out of the way the interview for the report and the report itself was conducted. My reasons for taking that view are explained in my decision of WZAPH v Minister for Immigration & Anor [2012] FMCA 773.
But as I say, I am not certain that much turns on that because the amended application upon which the applicant relies – being a document filed on 7 February 2012 and prepared by Mr J.F. Gormly of counsel – sets forth a ground of review that is capable of being understood as a contention for jurisdictional error in any event.
The applicant is a citizen of Afghanistan of Hazara ethnicity. He and his family have lived in Iran, however, since 1985 although he and his father visited an uncle in Afghanistan in 2008. He left Iran at the end of 2009 because he was about to be deported to Afghanistan by the Iranian government.
The applicant arrived in Australia on Christmas Island on 13 May 2010. I have already indicated his status as an off-shore entry person. He requested a Refugee Status Assessment (“RSA”); that was carried out. He had the assistance of a migration agent in that exercise. He then exercised his entitlement to the review and it is the review decision of 12 October 2011 that is the subject of the judicial review application to this Court.
The applicant’s case during the course of the RSA and the review itself was relatively straightforward. He feared a return to Afghanistan based on his Hazara ethnicity and his Shia Muslim faith. He relied to a significant extent upon his account of his experiences with his father when they returned to Afghanistan in 2008 to the Ghazni Province of Afghanistan (which was where he was born). He said that whilst they were there, the father’s brother formed the view that they had returned so that the father could take his share of their father’s land. He said the response of his uncle was hostile and that he threatened to report the father to the Taliban who would kill him. He relied significantly – and it was a significant theme of his agent’s submissions – upon the contention that the Hazara people were subject to persecution and violence at the hands of the Taliban.
The way in which the application was conducted and the way in which he presented at interview made it clear that this was going to be a matter that would be determined significantly on the basis of the country information that was available to the reviewer. Unsurprisingly, the great bulk of the report is taken up with an analysis of the country information, that is, with the information that assisted the reviewer in coming to a view as to whether persons of Hazara ethnicity and Shia faith or both were persons who would experience persecution for Convention-related reasons if they return to Afghanistan.
It is plain that the reviewer considered that information carefully. The country information did not speak with one voice, not by any means. There was material from the Department of Foreign Affairs and Trade; the UNHCR and the US Embassy. That material, and especially the Australian material, suggested significant improvements in relation to the experience of the Hazara people in Afghanistan, although recognised the existence in some areas and for some persons to have difficulty, either at the hands of Pashtun or specifically difficulty at the hands of the Taliban and related groups.
There was an article by a Professor Maley, “On the Position of the Hazara Minority in Afghanistan”, dated 27 June 2010, which was set out in extenso by the reviewer in his report. Professor Maley took a different view than that which emerged in the bulk of the information which the reviewer had mentioned to that point. In particular, he thought that the classification of the disputation between Hazaras and Pashtuns in certain areas of Afghanistan as disputes in relation to land ownership was too simplistic. He thought it was much more complicated than that, and it is fair to say that his view is one which is suggestive of the likelihood of the experience of persecution for Convention-related reasons by the Hazara in Afghanistan at the present time, or at least at the time of the authorship of his report, which was only back in 2010.
So that country information is set out and it is evaluated, and the reviewer comes to a view, as he was obliged to do, in relation to that material, and the reviewer says at [51]:
Having considered the material currently available concerning Afghanistan, along with the general country information provided by the claimant’s representative, I do not accept that there is independent corroboration of claims that the Taliban specifically targets Hazara Shias on a general and discriminatory basis. The evidence does suggest that individual Hazaras have been targeted either individually for other reasons or as part of general insurgency and its attacks on government and other facilities.
And at [52]:
I do not accept that there was evidence available to support a conclusion that the “social discrimination” referred to in the US State Department Report is so severe as to amount to persecution.
At [53] he indicates that, amongst the plethora of country information he had read, the reviewer attached significant weight to what he described as the “recent report” by the Department of Foreign Affairs and Trade.
At [54] he goes on to say – it says:
Whilst I knowledge –
I think it is meant to say “acknowledge” –
Professor Maley’s comment that the ability of DFAT officers in Afghanistan to conduct field research of their own is extremely limited given the tight security constraints under which they operate, and that this applies also to a number of the organisational informants on whom they rely in other embassies and in international agencies such as UNHCR, the evidence does not suggest that academic observers have had any better direct access in recent times.
And he goes on:
On the other hand, it is evident that independent reports such as the FIS and CPAU reports already cited have had extensive access to a range of local sources, including at district level in Jagouri.
Jagouri I understand to be within the Ghazni province and then the ultimate conclusion in relation to this claim of fear of persecution as a Hazari is summarised at [55], where the reviewer says:
On the basis of available current material, I do not accept that the Taliban specifically targets Hazaras or Shias or Hazara/Shias differentially from the population at large, nor that Hazaras face a real chance of harm amounting to persecution by non-state actors (ie: Pashtuns in general and the Taliban in particular) for the essential and significant reason of their ethnicity and/or religion. I do not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the refugee Convention definition. Nor do the UNHCR guidelines suggest that it should.
Having come to that conclusion about the position of Hazaras generally, the reviewer notes, and properly notes, in the following paragraph that that does not entail that an individual Hazara Shia cannot be found to be a refugee on the basis of their own circumstances and experiences, to which his or her ethnicity or religion may be relevant.
[57] goes on to note the reviewer’s acceptance that, when Hazaras come to the adverse attention of the Taliban for some other reason, the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion. In particular, he says in that paragraph that he is satisfied that the Taliban have a predisposition to perceive Hazaras as potential political opponents. It is against that background that he examines the applicant’s own experiences, and central to his own experiences of Afghanistan, of course, are the experiences of his father with his uncle in their return to Afghanistan in 2008.
There is a key factual finding at [60] of the reviewer’s report. He says:
I do not accept it as plausible that his uncle, a Hazara, would have the inclination or ability to report the claimant and his father to the Taliban as being Iranian spies in the expectation that its members would influence the family dispute one way or the other or to kill them. I find it untenable that on the one hand the claimant claims the Taliban targets all Hazaras and then suggests that they would make an exception in respect of his uncle in the matter of a family dispute.
That is his finding on that topic, and in any event, as the reviewer goes on to note, his concerns in relation to the serious harm from his uncle in particular was not Convention-related.
The only ground that is advanced now in the amended application of 7 February is not, on the face of the report, one that was agitated at the review itself. I do not think that matters. If there is an unarticulated claim resting there that has not been the subject of proper examination, it is perfectly appropriate for it to be a matter that is taken into consideration during the course of this judicial review. Essentially, the ground advanced is a synthesis of the applicant’s personal experiences against the background of the Hazara-related issue that was agitated in a more general sense.
The sole ground of review advanced is one that says that the applicant fears his uncle’s threats and harm if he returned to claim ownership of his family’s land, but implicit in that claim was that the state would not provide protection and that, whilst the land dispute between the members of the family was not Convention-related, the reasons why the state would not provide protection were said to be Convention-related reasons. That is, when the uncle called upon the Taliban to harm the applicant, on his case, when he returns, he would be unable to avail himself of state protection because, firstly, of his Hazara background and, secondly, because of the fact that he would be perceived as someone who had lived in a Western country.
It is not a claim that was articulated in his agent’s submissions. It is not a claim that appears to have emerged in his interview. But as I say, it is not inappropriate for the matter to be raised at this point if it is there waiting to be articulated, and I accept that, if the state was unwilling to provide the applicant with protection in such circumstances and that unwillingness arose for a Convention reason, then it would not matter whether or not the original source of his difficulties, the family dispute about which he seeks state protection, is not Convention-related. There is ample authority for that proposition, and in particular the decision of the High Court in Minister for Immigration v Khawar [2002] HCA 14.
There are two difficulties with that argument. Perhaps before I come to them, and just to fully articulate the argument, it is said that the failure of the reviewer to give consideration to this integer of this claim amounted to a denial of procedural fairness capable of amounting to jurisdictional error in that it might be seen as a failure to exercise jurisdiction.
But the two difficulties are these. Firstly, there is no evidence at any stage advanced or no contention advanced that the applicant proposes to seek to resume an interest in the land that his father apparently made some kind of claim to in 2008, so that does not appear to have been advanced as an intention on the part of the applicant at any point, and so the catalyst, as it were, for bringing down upon his head all of these matters that would require the protection of the state is absent.
But secondly and more importantly, the evaluation of that claim by the reviewer did not get to first base in the light of his finding in [60] which I have read out. The reviewer unambiguously and, in my view, quite reasonably on the material before him takes the view that it is untenable, to use his expression, that the Hazara uncle would behave in the way that the applicant claims he would.
Even if I had a different view, which I do not, in relation to the unambiguous factual finding the reviewer has made there, it would not, in my view, be an appropriate exercise of the jurisdiction I have in these kinds of matters to take a different view and to clothe that different view in the language of jurisdictional error or error of law. There is nothing about the factual finding that would warrant me taking that view. The finding is an unexceptional one.
Against that background of there being no evidence of the applicant proposing to resume an interest in the ownership of the land and in the light of that factual finding at [60], the need for state protection then does not arise. So in those circumstances, the evaluation of whether state protection would or would not be made available on account of a Convention reason is, and would be in the circumstances, a jejune exercise. In other words, the question of a need for state protection does not arise in the facts and circumstances of the case before the reviewer.
That was the only ground advanced by the applicant in the amended application.
For these Reasons, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lindsay FM.

Date: 24 September 2012