SZQXB v Minister for Immigration
[2012] FMCA 270
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 270 |
| 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 failed to consider a claim, reached a conclusion without having made an essential intermediate factual finding and failed to reach a correct conclusion on the applicant’s claims. |
| Migration Act 1958, ss.5, 36, 46A, 91R, 195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 |
| Applicant: | SZQXB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J. BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2744 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 March 2012 |
| Date of Last Submission: | 23 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Piper Australia |
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 2744 of 2011
| SZQXB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| J. BARTLETT 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 21 July 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 6 November 2010 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”).
By letters dated 25 February 2011 and 9 March 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 21 November 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
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 M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49]. At the time of the RSA assessment and the review, the applicant was in immigration detention.
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.
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 at pages 127-141 of the Court Book which is exhibit A. 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 3 August 2010:
a)he was born in Bamiyan Province, Afghanistan, and is a Hazara Shia;
b)his family moved to Quetta in Pakistan when he was eight years old because their lives were in danger from Pashtuns and Kuchis. The Pashtuns and Kuchis did not want them to live in Afghanistan and told his father that they would kill him if he did not leave;
c)the security and police force in Afghanistan work for the Pashtun groups who are in power;
d)he was brought up in Pakistan and would not be accepted in his village in Afghanistan. Also, Pashtuns and other Hazaras would kill him if he returned to his village to prevent him from reclaiming his land; and
e)in recent years Hazaras have been targeted in Quetta by the BLA Nationalist Party, the Sipahe Sahuba and the Lashkeri Janghaui.
RSA application
In a statutory declaration declared on 6 November 2010 in support of his application for an RSA, the applicant also claimed that the Taliban might kill him if he returned to Afghanistan.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 11 October 2011 at which point he made the following additional claims:
a)his village in Afghanistan was not safe as it was surrounded by Pashtuns;
b)going from Kabul to Bamiyan meant passing through Taliban check points;
c)the Pashtuns – whether Kuchi, Taliban or Mujahedeen – forced taxes on people and used the farmlands for their cattle. They imposed threats on people and targeted Hazara Shias in particular;
d)he cannot return to Afghanistan as he has no family or friends there and no one to protect him;
e)he had a Pakistani accent and people in Afghanistan believed that Pakistanis had killed Afghans; and
f)the Taliban are now more mobilised and hold positions within the government and the police force and are able to target Hazara Shias.
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. That recommendation was based on the following findings and reasons:
a)the Reviewer assessed the applicant’s case for protection against Afghanistan as that was the country of his citizenship;
b)the Reviewer was not satisfied that the applicant would be seriously harmed if he returned to Bamiyan in the reasonably foreseeable future because of his Hazara race, his Shia religion or his membership of the particular social groups “Hazaras in Afghanistan”, “Hazara Shia returnees from Quetta” or “Afghan returnees”. The Reviewer noted that she had not been able to locate any independent information which indicated that returnees generally and/or those from Pakistan were at risk of targeted serious harm. Further, according to independent information which the Reviewer accepted, hundreds of thousands of citizens had returned to Afghanistan since the applicant’s departure in 1989;
c)the Reviewer found that the applicant would not face serious harm in Afghanistan because of his race and/or religion, noting that:
i)according to independent information, the severity and prevalence of ethically motivated harm against Hazara Shias had diminished markedly throughout Afghanistan since the overthrow of the Taliban and the government’s significant effort to ameliorate historic ethnic tensions;
ii)while Hazaras and/or Shias continued to experience some discrimination because of their race and/or religion, such discrimination no longer involved any of the type of serious harm set out in s.91R(2) of the Act; and
iii)non-state actors in control of areas that were not Hazara dominated targeted persons suspected of being supportive of the government and pro-military forces regardless of their ethnicity;
d)the Reviewer had not been able to locate any independent information supporting the applicant’s advisers’ assertions that the Taliban had an ongoing record of persecuting Hazara Shias because of their perceived alignment or support of the Afghan government or because of their perceived support of the ongoing presence of foreign troops in Afghanistan. In light of this and given its other findings, the Reviewer did not accept that the applicant would be imputed with any political opinions by anyone in Afghanistan, whether associated with his race and religion or for any other reason;
e)given these findings, the Reviewer did not accept that the applicant’s religion increased his risk of being targeted by the Taliban;
f)the Reviewer accepted the independent information which stated that Bamiyan was considered one of the safest regions in Afghanistan and that foreign organisations and aid groups were instituting a wide range of development programs for the population, of which Hazaras were the dominant ethnic group. The Reviewer also noted that the applicant did not fall within the United Nations High Commissioner for Refugees’ list of people who were at risk. Consequently, the Reviewer did not accept that the applicant would be systematically, discriminatorily and seriously harmed for a Convention reason by the Taliban, criminals or persons of other ethnic or religious groups (i.e. Pashtuns and Sunnis) were he to travel to Bamiyan or reside there. She also found that if the applicant’s vehicle was intercepted by the Taliban or criminals and he was asked to show his “taskera” and/or had a tax imposed because he was a Hazara Shia, such discriminatory treatment would not amount to serious harm;
g)in relation to the applicant’s claim that the Taliban had mobilised and were inside the government and the police force and were targeting Hazara Shias, the Reviewer found that there was no independent information to support this claim and she did not accept that the applicant was at risk of targeted Convention-related harm by the Afghan State or people working for it; and
h)the Reviewer found that if the applicant were threatened or harmed by people in his village because of an assumption that he had returned to reclaim his land, such action would be motivated by personal self-interest in maintaining undisputed ownership of the land. The Reviewer found that any such action would not be for a Convention reason.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings. However, by reason of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26, even if these proceedings were commenced out of what s.477 of the Act might consider to be the statutory time limit, there is no need for the Court to consider that provision as it does not apply in the present circumstances.
In his amended application, the applicant pleaded the following ground:
The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not address a claimed basis or integer for the applicant’s fear of persecution, that is that the reviewer did not consider the applicant’s claim of fear of persecution from the Kuchi.
That allegation was particularised as follows:
a.The claim was originally made in the applicant’s RSA Statement of Claims where the applicant claimed his family originally fled persecution from the Pashtun and Kuchi: CB 41;
b.At the RSA interview the applicant made claims that he “did not know what would happen to him at the hands of the Pashtun, Taliban or Kuchi” and that he feared “he will be killed by the Taliban, Kuchis and Pashtuns because he is a Hazara Shia”: CB 84;
c.In consideration of the applicant [sic] claims of fear of persecution as an Hazara Shia the reviewer did not make a finding on the applicant’s claim to fear the Kuchi but found that the applicant would not be harmed “by the Taliban, criminals or persons of other ethnic or religious groups (Pashtuns, Sunnis) … if he decides [scil: to] reside there” (in Bamiyan): IMR [52];
d.The reviewer made no finding that she regarded the Kuchi as a Pashtun ethnic group for the purposes of her finding in c. and gave no separate consideration to the Kuchis as a claimed agent of persecution: NABE v MIMIA (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55].
The allegation made in the amended application is that the Reviewer failed to a consider a clearly articulated allegation supported by evidence, namely, that he feared persecution by the Kuchis and that this was demonstrated by the Reviewer’s finding in para.52 of her decision where she said:
On the information before me I find in the reasonably foreseeable future [SZQXB] will not be systematically and discriminatorily seriously harmed by the Taliban, criminals or persons of other ethnic or religious groups (Pashtuns, Sunnis) during a return journey to Bamiyan and/or if he decides to reside there, for one or more Refugee Convention reasons of his Hazara race, Shia religion, and membership of the particular social groups of Hazaras in Afghanistan and/or Hazara Shia returnees from Quetta and/or Afghan returnees as set out in subsection 91R(1) of the Act. (emphasis in original)
A subsidiary allegation was that the Reviewer should have, but failed to make a finding that she regarded the Kuchi as a Pashtun ethnic group.
At the hearing of this application the applicant also submitted that the Reviewer had reached conclusions which were incorrect. In this regard, he referred to aspects of the factual allegations which he had advanced at the RSA and review stages.
Consideration
Although at various stages of his claim the applicant referred to “Pashtuns and Kuchis” as if they were different peoples, and presumably there is some distinction, it was not a distinction which invalidates the finding complained of. This is apparent when the material before the Reviewer is considered. For instance, in the applicant’s advisers’ written submissions of 7 September 2011, they refer to Kuchis as being Pashtun nomads. Further, the transcript of the applicant’s interview with the Reviewer records that the applicant himself spoke of being surrounded by “Kuchi Pashtun” and of there being groups of Mujahedeen “by the name of Kuchi Pashtun”.
The fact that the Kuchis were a subset of the Pashtun ethnic group was acknowledged by the Reviewer when, in her summary of the evidence before her, she said at para.29 of her reasons:
From what his father told him there was no Taliban at that time, only the Mujahadeen. The Pashtuns, whether they are Kuchi, Taliban or Mujahadeen, they force taxes on people and use the farmlands for their cattle. They impose threats on people, and Hazara Shia people are focused upon.
Consequently, when the Reviewer spoke of the applicant not being at risk of Convention-related harm by persons of the Pashtun ethnic group she should be understood to have used that as a term which included the Kuchis. Given the way that the applicant’s claim was advanced to the Reviewer, I conclude that she did not need to say anything more concerning Kuchis being Pashtuns.
For those reasons, I also find that the Reviewer did not fail to make a finding which addressed the applicant’s claims concerning the Kuchis.
In his submissions at the hearing of this application the applicant also, in essence, submitted that he met the Convention definition of refugee. He advanced various facts in support of that submission. However, as explained to the applicant at the hearing, the Court is not empowered to reconsider the Reviewer’s findings on the facts which he advanced in support of his claim to be a refugee. The Court’s role is limited to ensuring that the Reviewer’s review was procedurally fair and conducted by reference to the correct legal principles correctly applied.
Conclusion
I find that it has not been demonstrated that the Reviewer erred through procedural unfairness or by conducting a review which was not undertaken by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 April 2012
0