SZRCA v Minister for Immigration - [2012] FMCA 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCA v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 501

MIGRATION – Review of report and recommendation of an Independent Merits Reviewer – rejection of claims of ethnic and religious persecution in Afghanistan – applicant disbelieved in part – in other respects the applicant’s fears found not to be well-founded and that the applicant could relocate to Kabul – no legal error demonstrated.

Migration Act 1958 (Cth), ss.5, 46

Applicant WAEE v Minister for Immigration [2003] FCAFC 184
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Kioa v West (1985) 159 CLR 550
Minister for Immigration v SZQHH [2012] FCAFC 45
Minister for Immigration v SZMDS (2010) 240 CLR 611
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant:

SZRCA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DR PETER McDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 141 of 2012

Judgment of:

Driver FM

Hearing date:

12 June 2012

Delivered at:

Sydney

Delivered on:

12 June 2012

REPRESENTATION

The Applicant appeared in person via videolink

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

Minter Ellison

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application filed on 23 January 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 141 of 2012

SZRCA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR PETER McDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to restrain the Minister from relying upon the report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of an offshore entry person. The report was completed on 21 November 2011. It was notified to the applicant by letter dated 6 December 2011. The Reviewer recommended that the applicant be not recognised as a refugee under the Refugees Convention.
The following statement of background facts relating to the applicant’s claims for protection and the Reviewer’s consideration of them is derived from written submissions filed on behalf of the Minister.
On 13 March 2010, the applicant, a national of Afghanistan, arrived in Australia at Christmas Island[1]. By virtue of ss.5 and 46A of the Migration Act1958 (Cth) (the Migration Act), the applicant was deemed to be an offshore entry person and was prohibited from making a valid application for a protection visa. The applicant was held in immigration detention at the time when he lodged his application to the Court, but was subsequently transferred into community detention on 17 May 2012.
[1] court book (“CB”) 54
On 28 May 2010, the applicant requested a Refugee Status Assessment (RSA) on the basis that he claimed to have a well-founded fear of persecution from the Taliban in Afghanistan[2]. In particular, the applicant claimed that[3]:
[2] CB 23-66
[3] CB 62-65
a)he is an ethnic Hazara and a Shia Muslim and fears persecution if returned to Afghanistan because of his ethnicity and religion. The applicant was born and lived in a village in Oruzgan province;
b)in or about 1998, the applicant's father was shot and killed by the Taliban and his two brothers went missing, possibly kidnapped and killed by the Taliban. The applicant's father and two brothers were members of a Shia party (the Harekat Islami Party) fighting against the Soviet occupation of Afghanistan;
c)whilst the applicant lived in his village in Oruzgan province, the Taliban controlled the village by:
i)requiring each family in the village to pay money to the Taliban each month, or else their livestock or properties would be expropriated; and
ii)controlling the roads into the applicant's village, only allowing Pashtuns to pass through to supply food and materials at high prices;
d)the Taliban also stored weapons at the local mosque, with the members of the village accused of being infidels and prevented from praying at the mosque;
e)in or about 2009, the applicant and his brother were beaten by the Taliban and were given an ultimatum to either join the Taliban, leave the area or be killed by the Taliban;
f)the applicant's family subsequently left that area and travelled into the Quetta region of Pakistan. However, Hazara Shia are targeted in that region and the applicant and his family were constantly attacked. As a result, the applicant organised his travel to Australia;
g)the Taliban have accused Hazara Shia of working and supporting the foreign forces in Afghanistan and considered them to be infidels. Furthermore, there are no safe places in Afghanistan for Hazara Shia;
h)if returned to Afghanistan, the applicant will either be killed by the Taliban or will be forced to join the Taliban in fighting the foreign forces (in which he will be killed) and the Afghanistan Government cannot protect the applicant or his family; and
i)returned Hazara Shia asylum seekers are targeted and killed by the Taliban because they are believed to have a connection with foreign countries that bring foreigners into a Muslim land.
On 13 September 2010, the RSA officer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and that the Minister not lift the bar on the applicant making a valid application for a protection visa[4]. The applicant was notified of this recommendation by letter dated 13 September 2010[5].
[4] CB 68-80
[5] CB 67
On 22 September 2010, the applicant sought Independent Merits Review (IMR) of the RSA recommendation by the Reviewer[6].
[6] CB 88-93
By letter dated 24 September 2010, the applicant's representative provided written submissions to the Reviewer in support of the applicant's claims[7]. Those submissions repeated the applicant's claim that he feared persecution from the Taliban (and other extremist groups) in Afghanistan based on his ethnicity (Hazara) and religion (Shia), and added that the applicant also feared persecution because of his membership of a particular social group (Hazara) and/or his imputed political opinion (opposition to the Taliban)[8]. The submissions also claimed that the applicant would not be able to access effective protection if returned to Afghanistan and there was nowhere in Afghanistan to which that the applicant could reasonably be expected to relocate to avoid persecution[9].
[7] CB 94-123
[8] CB 99
[9] CB 122
By email of 21 April 2011, the applicant's representative provided further written submissions in support of the applicant's claims, relating to the current and future security situation in Afghanistan and the treatment of Hazara Shia by the Taliban[10].
[10] CB 124-151
On 30 April 2011, the applicant attended an interview before the Reviewer, with the assistance of a Hazaragi interpreter and his migration agent[11]. At that interview, the applicant further elaborated on his claim that he faced persecution in Afghanistan due to being an Hazara Shia and added that a person by the name of Ishmael (a Tajik) is a spy for the Taliban and knew that the applicant was in Australia[12].
[11] CB 227, [11]
[12] CB 227-228, [11]-[25]
By letter dated 22 September 2011, the applicant's representative provided additional country information in support of the applicant's claims[13].
[13] CB 152-221
The Reviewer conducted a further interview with the applicant on 30 September 2011, at which he gave the applicant an opportunity to respond to inconsistencies the Reviewer had identified in the applicant's claims and evidence[14] and to discuss country information[15].
[14] CB 229, [26]-[30]
[15] CB 230-231, [31]-[41]
The applicant's representative subsequently provided the following further documents in support of the applicant's claim:
a)by letter dated 5 October 2011, the representative provided a timeline detailing the events leading to the applicant's departure from Afghanistan[16];
b)by letter dated 17 October 2011[17]:
i)a letter of support from community elders of the Khas Urozghan district of Afghanistan confirming the client's alleged account of his experiences in Afghanistan (original in Dari and translated into English);
ii)a letter of support from residents of the Khas Urozghan district of Afghanistan the client's alleged account of the security situation in Afghanistan (original in Dari and translated into English); and
iii)Afghan identity documents of the applicant's father (both in Dari and English); and
c)by letter dated 4 November 2011[18], the representative provided a corrected English translation of the letter of support from residents of the Khas Urozghan district of Afghanistan the client's alleged account of the security situation in Afghanistan.
[16] Supplementary CB 1-2
[17] Supplementary CB 3-16
[18] Supplementary CB 17-18
On 21 November 2011, the Reviewer affirmed the RSA recommendation that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and that that Minister not lift the bar on the applicant making a valid protection visa[19]. The Reviewer notified the applicant of that recommendation by letter dated 6 December 2011[20].
[19] CB 224-241
[20] CB 222-223
The Reviewer did not accept that the applicant was a credible witness[21]. In reaching its recommendation, the Reviewer made the following findings:
[21] CB 232-233, [51]; CB 237, [73]; CB 238, [74]; CB 241, [95]
a)the Reviewer had concerns about the applicant's credibility as the applicant was not consistent in his claims of persecution on account of his religion[22]. The Reviewer found that the applicant gave conflicting accounts regarding whether or not he was prohibited from practising his faith at his local mosque in Afghanistan and that on his own evidence he was able to practise his religion at his local mosque[23];
[22] CB 232-233, [50] and [51]
[23] CB 232-233, [46]-[55]
b)the applicant did not suffer from significant financial hardship that threatened his ability to subsist[24].
c)there was no evidence to support the applicant's claim that his family's land had been expropriated[25], having regard to the applicant's conflicting accounts regarding that claim[26];
d)the applicant's evidence that he lived in a Taliban controlled area and paid monthly taxes to them was inconsistent with “any notion that he faced harm for being a Hazara” and was inconsistent with his claim that he risked persecution as an individual or as a member of a particular social group. Together with the applicant's claim that the Taliban invited him to join the jihad, the Reviewer found that these matters were inconsistent with the applicant's claim that the Taliban would treat him as an infidel[27];
e)there was no proper basis for him to conclude that the applicant would be imputed with a political opinion of opposition to the Taliban[28], a claim which the Reviewer found was inconsistent with the alleged invitation given to him by the Taliban to join the jihad[29] and inconsistent with the applicant's profile as someone who has not been involved with any political group[30]. The Reviewer found that, based on the claims made by the applicant in his entry interview, none of his family members were members of a political party either[31];
f)the applicant was not at risk in his home village on account of his ethnicity and religion[32], having regard in particular to:
i)country information which suggested that “belonging to a minority ethnicity was not currently a major cause of flight” and which stated that “there was no evidence of a campaign by the insurgency to target Hazara”[33]; and
ii)the fact that the applicant “lived for some time in an area of Taliban rule, paid his taxes, and was able to save a substantial sum of money”[34]; and
g)there was no credible material that if the applicant returned to Afghanistan there would be a possible perception that he has converted to Christianity[35].
[24] CB 233, [55]
[25] CB 234-235, [61]
[26] CB 235, [62]; CB 237-238, [74]
[27] CB 235, [64]
[28] CB 235, [65]; CB 236, [66]
[29] CB 235, [64]
[30] CB 236, [67]
[31] CB 236, [67]
[32] CB 237, [73]
[33] CB 236, [70]
[34] CB 237, [73]
[35] CB 241, [94]
The Reviewer therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention[36].
[36] CB 241, [97]
These proceedings began with a judicial review application filed on 23 January 2012. The applicant continues to rely upon that application. It contains a single unparticularised assertion that the decision-maker erred at law. I gave directions in this matter on 15 February 2012. Those directions included the opportunity for the applicant to file and serve an amended and particularised application. He has not taken up that opportunity. I note, however, that the applicant was, for much of his time in Australia, detained in the remote Scherger Detention Centre. He has also not had the benefit of legal representation in these proceedings.
I have before me as evidence the court book filed on 6 March 2012 and a supplementary court book filed on 28 May 2012.
In the absence of particulars, the Minister, in his written submissions, has attempted to deal with possible issues of legal error. I agree with those submissions.
In my view, and consistently with the Minister’s submissions, the Reviewer did not commit a legal error in making his recommendation for the following reasons:
a)the Reviewer’s report demonstrates that the Reviewer understood the law relevant to the determination of a protection visa application and had regard to the criteria for a protection visa set out in the Migration Act, including whether the applicant had a well-founded fear of persecution for one of the Convention reasons[37];
[37] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [45]) [CB 225-226, [5]-[9]; CB 241, [95]-[96]
b)the Reviewer considered the applicant's individual claims and evidence against, as set out in:
i)his request for an RSA and his interview with the RSA officer[38];
ii)the written submissions made on the applicant's behalf by his representative of 24 September 2010, 21 April 2011, 22 September 2011, 5 October 2011, 17 October 2011 and 4 November 2011[39]; and
iii)his two interviews with the Reviewer[40].
c)the Reviewer’s finding that the applicant's claims were not credible and that country information did not support a conclusion that the applicant had a well-founded fear of persecution now or in the reasonably foreseeable future if returned to Afghanistan were open to the Reviewer for the reasons he gave[41] and hence not unreasonable in any relevant legal sense; and
d)the applicant was afforded procedural fairness in that:
i)he was given, and availed himself of the opportunity to give evidence and present submissions to the Reviewer;
ii)he was on notice from the RSA decision and from the questions asked of him at the IMR interviews as to the essential and significant issue relevant to the Reviewer’s report, being whether he was at risk of persecution on return to Afghanistan[42]; and
iii)the Reviewer gave the applicant an opportunity to comment on adverse country information that was credible, relevant and significant to the applicant's claim[43].
[38] CB 226, [10(a)] and [10(b)]
[39] CB 226-227, [10(c)]
[40] CB 227-229, [11]-[30]
[41] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647-648 per Crennan and Bell JJ
[42] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-91; SZBEL v Minister for Immigration (2006) 231 ALR 592 at 602
[43] CB 230-231, [31]-[41] (Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; Kioa v West (1985) 159 CLR 550 per Brennan J; Minister for Immigration v SZQHH [2012] FCAFC 45
In his oral submissions today, the applicant has raised a number of concerns. His first concern is that there was a misunderstanding at the hearing conducted by the Reviewer concerning his ability to practice his religion. The applicant asserts that at the hearing, in response to a question from the Reviewer, he said that he did pray at his local mosque. He was intending, by that response, to refer to the period before the arrival of the Taliban. There is no evidence of any confusion or misunderstanding at the hearing conducted by the Reviewer. However, even if there was, counsel for the Minister pointed out in his oral submissions that on 5 October 2011, the applicant’s solicitors wrote to the Reviewer providing what is described as a timeline of key events[44]. Relevantly, that document states:
During Taliban occupancy, the local population was banned from praying in their local mosque. The Taliban used the local mosque as an arms cache, meeting place and checkpoint. The local community, including our client made contributions towards the mosque. Further, our client continued to pray at the Banaapaan mosque.
[44] Supplementary CB 1-2
The Reviewer was entitled to rely upon that statement as he did at [52] and [53] of his reasons[45]. At [54] of his reasons[46], the Reviewer also notes that the new assertion was inconsistent with the statement made by the claimant before the RSA Officer that he was unable to practise his religion and was effectively told by the Taliban that he was not welcome in the mosque. The Reviewer noted that it was difficult to reconcile the applicant’s assertion before the RSA officer with his claims at the initial IMR interview, that he was in the mosque when the Taliban made an announcement that the people should join them.
[45] CB 233
[46] CB 233
The applicant asserts before me that the Reviewer misunderstood his position and that he was only in the mosque at the time of the Taliban’s announcement because he was ordered to be there. There is, however, no evidence of a misunderstanding on the part of the Reviewer. The Reviewer was entitled to reach the conclusion he did at [54] of his reasons.
The applicant was also concerned at what he described as a mistranslation of a document submitted on his behalf to the Reviewer. The document is reproduced in the Dari original on page 4 of the supplementary court book and the English translation is reproduced on page 5. The applicant submits that the English translation is wrong in that it refers to his brother, rather than him, as the person who was captured by the Taliban in the Surkhee area of Pollan. The applicant’s assertion of mistranslation was confirmed by the interpreter before me today. However, nothing turns on that mistranslation because, as was pointed out by counsel for the Minister, it was corrected by the applicant’s solicitors. On 4 November 2011, the applicant’s solicitors wrote to the Reviewer drawing his attention to the error in translation and providing a corrected translation.
The Reviewer dealt with that issue at [89]-[91] of his reasons[47]. Ultimately, however, the mistranslation did not figure in the outcome of the matter before the Reviewer. Those determinative reasons are set out at [92] and [93] of the Reviewer’s report[48]. No issue has been raised about those reasons. It follows that no legal error flowed from the mistake in translation of the document originally.
[47] CB 240
[48] CB 240-241

The applicant also disagrees with the Reviewer’s reasoning concerning the risk he currently faces in his home area of Afghanistan. Further, he disagrees with the Reviewer’s finding on his capacity to relocate to Kabul. However, that disagreement simply goes to the merits of the Reviewer’s report and recommendation.
The applicant has not established any legal error in the Reviewer’s report and recommendation or the process followed by him.
I will therefore order that the application filed on 23 January 2012 be dismissed.
In consequence of the dismissal of application, the Minister seeks an order for costs fixed in the amount of $6,240. The amount sought was the amount prescribed under the Federal Magistrates Court scale prior to the most recent increase in the scale amounts. The applicant indicated that he understood the position on costs which had previously been explained to him by me.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,240.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 15 June 2012