SZQXW v Minister for Immigration
[2013] FMCA 10
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXW v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 10 |
| MIGRATION – Application for review of recommendation made by Independent Merits Reviewer – whether reviewer committed error as identified in MZYQU – error established – declaration made. |
| Migration Act 1958 (Cth), ss.91R, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). |
| Applicant: | SZQXW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MS KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2795 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 2 October 2012 |
| Date of Last Submission: | 29 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Clayton Utz |
THE COURT DECLARES THAT:
The recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the second respondent applying a wrong test in requiring that the economic and ethnic related difficulties which the applicant would face were he to be removed to Kabul would need to amount to serious harm in order that his relocation to Kabul would be unreasonable.
THE COURT ORDERS THAT:
The first respondent is restrained, by himself or his Department, officers, delegates or agents from relying upon the recommendation of the second respondent.
The first respondent pay the applicant’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2795 of 2011
| SZQXW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MS KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 7 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 2 October 2012, seeking review of the recommendation made by Ms Kerry-Anne Hartman in her capacity as Independent Merits Reviewer (“the reviewer”) to the Minister for Immigration and Citizenship (“the Minister”) that the applicant not be recognised as a person to whom Australia has protection obligations pursuant to the 1951 Convention relating to the Status of Refugees (“the Refugees Convention”), as amended by the 1967 Protocol relating to the Status of Refugees.[1]
[1] United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
The application to the Court also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14.
Background
The applicant is an Afghani national. He arrived at Christmas Island on 4 January 2010 (Court Book – “CB” – CB 81) and sought protection as a refugee.
The background to this claim was that he left Afghanistan in 1986 to look for work. His father was killed by the Taliban in 1997. The applicant and his father were of Hazara ethnicity and followed the Shia practice of Islam. After his father’s death, the applicant’s extended family moved to Pakistan. In 2009 his uncle and other relatives were killed.
The applicant claimed to fear returning to Afghanistan on the basis that he would be killed by the Taliban because “he is a Hazara and a Shia Muslim” (CB 81).
The applicant’s claims to protection were considered, and rejected, by a departmental officer (CB 92 to CB 95). That decision was considered by a reviewer (not the reviewer the subject of present consideration), however that reviewer’s recommendation was not considered by the Minister. The reason for this is not immediately apparent on the material before the Court.
However, and in any event, it is the subsequent recommendation of Ms Hartman that is before the Court. She relied on country information to find that neither Hazaras, nor Shias, were systematically persecuted in Afghanistan ([55] at CB 287). The reviewer also rejected that the applicant would suffer persecution for his opposition to the Taliban ([56] at CB 287 to CB 288), or as a failed asylum seeker ([68] at CB 291), or because of any imputation of religious conversion following his stay in Australia ([67] and [69] at CB 291).
It is important to note that the reviewer did not believe many aspects of the applicant’s evidence including, for example, aspects of the account of his father’s death.
However, the reviewer did accept that if the applicant were to return to his home area there was a real chance he would be persecuted “… because of his ethnicity and religion if he attempted to recover his father’s land and property…”. The reviewer found this fear of persecution to be localised ([66] at CB 291).
The reviewer then purported to consider whether it was reasonable for the applicant to relocate within Afghanistan. The reviewer found that: “… it is reasonable for the claimant to relocate to Kabul” ([78] at CB 294). It is this consideration, set out in her statement of reasons at [70] (at CB 292) to [77] (at CB 294), which is the focus of the Court’s current consideration.
Before the Court
At the hearing, before the Court, Mr C Jackson of counsel appeared for the applicant. Mr P Knowles of counsel appeared for the first respondent.
Application to the Court
Leave was granted for the applicant to proceed on his amended application. The sole ground of that amended application is formulated in the following terms:
“1. The Second Respondent failed to take into account relevant considerations, asked the wrong question, sidestepped the question to be addressed or misapplied the law to the facts, in determining the issue of the “relocation” to Kabul.
1.1 The Second Respondent failed to address the Applicant’s objection that the security and political situation was unstable and at risk of significant further deterioration, thus failing to address, and/or sidestepping some of the Applicant’s objections to relocation, and failing to apply the correct test in relation to relocation.
1.2 The Second Respondent applied the wrong test, and asked the wrong question, when he focused on the lack of differential risk for Hazaras, and did not correctly consider whether or not the threat of injury [or] indiscriminate violence, given the accepted significant number of terrorist attacks, made it unreasonable for the Applicant to relocate to Kabul.
1.3 The Second Respondent applied a wrong test in requiring that the economic and ethnic related difficulties which the Applicant would face were he to be removed to Kabul would need to amount to serious harm in order that his relocation to Kabul would be unreasonable.”
Particular Three to Ground One
The third particular to ground one explains the asserted error of the reviewer as being the application of the wrong legal test by the reviewer to parts of her consideration of the question of the reasonableness of relocation.
For the reasons that follow, I agree with the applicant that this is such a case. Given this, it is not necessary to consider particulars one and two, as the ground is made out with reference to particular three.
Just prior to the hearing, judgment in the matter of MZYQU v Minister for Immigration & Anor [2012] FCA 1032 (“MZYQU”) was handed down in the Federal Court. This was a matter on appeal from this Court involving a similar case of an Afghani national whose claims to protection were rejected by an Independent Merits Reviewer. The reviewer’s statement of reasons included consideration of relocation to Kabul ([26] of MZYQU per Dodds-Streeton J). The similarities in the factual account of that matter include that the applicant had left for Pakistan with his family some years earlier ([10] of MZYQU) and that his father had died, by gunfire, in Afghanistan ([19] of MZYQU).
Her Honour considered what the High Court relevantly said in SZATV v Minister for Immigration & Citizenship& Anor [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”). Two relevant principles emerged from that consideration. First, it is not an error of law for the administrative decision-maker to consider the test of “serious harm” as it arises under s.91R of the Act when considering the reasonableness of relocation.
Second, it is, however, an error for the decision-maker to consider any harm which is not “serious harm” as being irrelevant to the question of relocation. As Dodds-Streeton J said at [58] of MZYQU:
“The IMR did not, in my view, treat the question whether the appellant was at risk of serious harm as the sole determinant or test of the reasonableness of his relocation. Nevertheless, in my opinion, the IMR erred in that he treated any harm which was not ‘serious harm as required by s.91R(1)(b)’ as incapable of relevance to the reasonableness of relocation.”
In considering my judgment in the current case, I became aware of this authority. I gave the parties the opportunity to make further written submissions. Both the applicant and the respondent accepted that opportunity and filed supplementary written submissions on 23 October 2012 and 29 October 2012 respectively.
The applicant’s position is that what the Court said in MZYQU (at [41] – [62]) is “directly on point”. The Minister, essentially, agrees to some degree of relevance. However, he seeks to distinguish the current case from that of MZYQU on the basis that the reviewer in the current case did not confine her consideration of the reasonableness of relocation to “serious harm” as that term is understood pursuant to s.91R of the Act.
That is, that the reviewer considered the question of the reasonableness of relocation within the meaning of “serious harm” (not an error in itself) but also with reference to other matters of harm beyond that meaning. That is, the consideration was not confined to “serious harm”.
The question in the current case therefore is whether the reviewer treated “serious harm” as the only type of harm that could affect the reasonableness of relocation (see, in particular, MZYQU at [61]).
It must be said that the current reviewer’s statement of reasons does not as readily present itself as infected by the error identified by
Dodds-Streeton J in MZYQU. However, on balance and even after a “fair reading” of the record of recommendation, I am of the view that it does fall into legal error.
As stated elsewhere in this judgment, the reviewer’s consideration of relocation (under the heading of “Kabul”) is at [70] (at CB 292) to [77] (at CB 293). The following requires particular attention ([75] at CB 293):
“… I have considered the adviser’s submission that it would be economically unreasonably and ethnically unreasonable for the claimant to relocate to Kabul. The adviser referred to the lack of employment opportunities, high rent and poor services in Kabul. I accept that there are lack of employment opportunities, high rent and poor services in Kabul because of decades of conflict, a difficult security environment and large numbers of people returning to the city. There is no information before me to indicate that it is more difficult for Hazaras to find work or accommodation or obtain access to services. I am not satisfied that the economic difficulties the claimant may face on his return to Afghanistan amount to ‘serious harm’ within the meaning of s.91R. I am not satisfied that the economic difficulties the claimant may face in Kabul make is unreasonable for the claimant to live in Kabul.”
The Minister submits that the final two sentences demonstrate that while the reviewer considered “serious harm” within the meaning of s.91R of the Act, her consideration was not confined to this as she also considered the economic difficulties of living in Kabul generally.
I accept that with the various references in this part of the statement of reasons to “reasonable” or “not unreasonable” that the reviewer understood that the concept of reasonableness was relevant to her consideration of relocation.
The difficulty however is whether it can be said that the reviewer understood that whether it was reasonable for the applicant to relocate was limited to a consideration of reasonableness with reference only to “serious harm”.
The Minister’s submissions in relation to [75] (at CB 293) of the reviewer’s statement of reasons would have the last sentence read as being separate in focus and application to the penultimate sentence which precedes it. On balance, I do not read the sentence in that way. Particularly when read in context of the entire paragraph.
It is clear that, at [75] (at CB 293) of the statement of reasons, the reviewer attempted to deal with various economic difficulties which the applicant’s adviser had submitted made it unreasonable for the applicant to relocate to Kabul. I accept that here the reviewer acknowledged, by implication, that the relevant test was one of reasonableness. However, I cannot accept that the expression in the last sentence can be seen as separate from what precedes it.
The reviewer acknowledged the applicant’s adviser’s submissions that it would be “economically unreasonable” for the applicant to relocate. For that matter, she also acknowledged that the submissions included that it was “ethnically unreasonable”, although that seems to have been already fully addressed in the previous paragraph (see at [74] at CB 293).
In any event, the adviser referred to a lack of employment opportunities, high rent and poor services as being elements in this “economic” consideration. The reviewer accepted that there were a “lack of employment opportunities, high rents and poor services in Kabul” (CB 293). She gave reasons for that acceptance. The reviewer then dealt with the “ethnic” component by saying that there was no information before her to indicate that Hazaras faced greater difficulties than other ethnicities.
However, the penultimate sentence, in my view, makes it clear that both the reviewer’s factual “acceptance” of the economic difficulties and the rejection of the proposition that it would not be reasonable for the applicant to relocate to Kabul in these circumstances, was predicated on an understanding that the articulation of the economic difficulties faced did not assist the applicant because they did not amount to “serious harm”. The last sentence (in the reasoning extracted above) therefore must be read as a rejection of the applicant’s proposition that it was unreasonable to relocate, such rejection being on the basis that the economic difficulty did not amount to “serious harm”.
In my view, there is no further consideration of the reasonableness of relocation in light of the stated economic difficulties in any context beyond that of “serious harm”. That is, the very error identified in MZYQU.
I am strengthened in this view of the reading of this part of the reviewer’s statement of reasons by the repeated use elsewhere under the heading of “Kabul” of “real chance of persecution” ([73] at CB 292 and [74] at CB 293) as opposed to the “reasonableness” of relocation as used in [76] and [77] (at CB 293), each dealing with different considerations of the applicant’s circumstances.
A preliminary note must be made that the heading used in this part of the reviewer’s statement of reasons is “Kabul” and not “Relocation”. However, in context, that is what this part of the record relates to. As set out above, previously at [66] (at CB 290) of the statement of reasons, the reviewer came to the view that the applicant would suffer persecutory harm if he were to return to his local area. The reviewer said that she therefore considered whether relocation within Afghanistan was reasonable. No other heading in her statement of reasons, or any other part of that document, contains such consideration. The section headed “Kabul” (containing [70] at CB 292 to [80] at CB 294) remains the only candidate in this regard. Immediately under this heading, at [70] (at CB 292), the reviewer states:
“On return to Afghanistan the claimant would find himself in Kabul…”
At other parts under this heading, the reviewer considered the applicant’s claims that he would be at risk because his daughters had been educated ([73] at CB 292) and because of his ethnicity and religion ([74] at CB 293). At both parts, the reference to a “real chance of persecution” strengthens the view that the reviewer considered these elements in the context of relocation with the test of persecution, as set out in s.91R of the Act, in mind. That section defines, or limits, “persecution” for the purposes of the Act to the matters set out there.
It may be argued that the reviewer at both [73] (at CB 292) and [74] (at CB 293) was concerned with dealing with the claim to fear persecution, rather than the question of the reasonableness of relocation. On balance, I do not agree. In addition to the matters set out at [32] to [33] above, it was always open to the reviewer to have put these matters under a separate heading.
I am further strengthened in this view by the specific reference in [74] to “if he returns to Kabul” and the reference to “… Kabul’s schools and universities are accessible to women” ([73] at CB 292). In context, these are reference to the situation in Kabul should the applicant return to Afghanistan and “relocate” there, away from his home area.
What remains, therefore, is that under the effective heading of relocation, the reviewer in two other instances (to that set out at [75] (at CB 293) of the statement of reasons) also restricted the matter of the reasonableness of relocation to “serious harm” (persecution) only.
It is the case that at other points of the reviewer’s consideration of the issue of relocation the limitation identified above does not appear (see [76] and [77] at CB 293). However this does not assist in overcoming that error in the parts that it does.
I should note that the Minister’s position was also that, even if the reviewer had assessed the reasonableness of relocation by reference only to “serious harm”, this would not involve legal error. The Minister makes reference in this regard to Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440, as quoted with approval in SZATV at [19] per Gummow, Hayne and Crennan JJ.
In may be that the Minister might be able to raise some argument here, However it is an argument against the reasoning in MZYQU and, therefore, as the Minister also acknowledges, it is not an argument to be entertained now by this Court. This Court, obviously, is bound by MZYQU.
Conclusion
The error asserted in ground one, particular three is made out. I can see no reason to refuse the relief the applicant seeks. I will make the appropriate orders.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 22 January 2013
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
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