SZREV v Minister for Immigration - [2012] FMCA 1047

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1047

MIGRATION – Review of decision of Independent Merits Reviewer – whether to grant an extension of time – whether Reviewer did not listen or pay attention to applicant’s claims – whether Reviewer’s decision affected by error of law.

Migration Act 1958 (Cth), ss.36(2), 91R(1)(b), 91R(2)

Applicant:

SZREV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 416 of 2012

Judgment of:

Raphael FM

Hearing date:

7 November 2012

Date of Last Submission:

7 November 2012

Delivered at:

Sydney

Delivered on:

7 November 2012

REPRESENTATION

For the Applicant:

In person via videolink from Adelaide

Counsel for the First Respondent:

Mr T Riley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 416 of 2012

SZREV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Afghanistan who arrived in Australia on 23 June 2010 as an undocumented boat arrival. On 12 November 2010 he made a request for a refugee status assessment. The assessor came to the conclusion that he was not a person to whom Australia owed protection obligations and so the applicant applied for an independent merits review of the decision of the assessor. The applicant was represented by a migration agent and was interviewed by the Reviewer who, on 19 December 2011, found that he did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth)[1]. The Reviewer recommended that he not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
[1] “Act”
The grounds upon which the applicant claimed that he was a refugee are set out helpfully at [65] [CB 339] where the Reviewer states:
“In assessing the applicant’s claims I have carefully considered and weighed a range of material from independent sources relating to the security situation in Afghanistan and the situation of Hazaras there, including that provided by the applicant and his advisor. According to the applicant, his advisor and arising from the information before me, the putative grounds upon which it is claimed that the applicant will be persecuted if he returns to Afghanistan are:
Race – Hazara
Religion –                  (i)     Shia Muslim
(ii)     Christian convert (imputed)
Political opinion (imputed) – arising from     (i)     his uncle’s past association with the Communist regime;
(ii)his Quetta speech/mixed language
(iii) his failed claim for asylum in Australia
(iv)his return from Australia
Particular Social Group (i)    Member of his uncle’s family”
The background to these claims is that the applicant was born in Afghanistan in 1978. He had two uncles, one of whom was killed approximately 25 years ago in Helmand by Pashtuns because of his family’s ownership of farming land. Another of his uncles was killed in 1996 in Jhagori by Pashtuns because it was claimed he was believed to be a communist having done some work of the government of the time. It was after this later event that the applicant and his family moved to Quetta in Pakistan.
The applicant claims that as a Hazara and a Shia he cannot return to Afghanistan because his life will be in danger from Pashtuns in Helmand province. The applicant also claims that he cannot return to Jhagori where they lived for some time because they have nothing left there and the accusation that his family are connected with the communists will still remain.
The applicant had the additional claims that I have set out above from [65] of the Reviewer’s reasons which include claims arising out of suspicions of him due to his Quetta speech and because of his coming to Australia and applying for asylum. In regard to the latter there was a claim that persons who do this are considered to be converts from the Muslim faith.
One matter that the applicant raised was that he could not return because he had no taskera and that was required for his children to attend school and for him to obtain housing and employment. The Reviewer considered the evidence put forward by the applicant in this regard, including the evidence in his original interview, and concluded at [62] [CB 338] that he did have a taskera but he had left it behind with his family in Quetta.
The Reviewer went into all the claims put forward by the applicant and dealt with them individually. She found that Hazaras or Shias did not face a real chance of harm amounting to persecution by non-state actors simply by reason of their ethnicity or religion. She found that whilst it was possible that the applicant would have to pay facilitation moneys in order to obtain some basic services this was not something that fell within the definition of “serious harm” under s.91R(2) of the Act and that any social discrimination that he might suffer would separately or cumulatively involve serious harm as qualified by sub-section 91R(1)(b) of the Act.
The Reviewer found that movement between Afghanistan and Pakistan, particularly between Jhagori and Quetta had been going on for many years and that since 2001 an estimated 2.4 million Afghans had repatriated from Pakistan. She found there was no evidence that any links exist between Afghans who speak with a Quetta accent or use mixed words and dialogues, including Urdu, Pashtu and English, are perceived as spies as alleged by the applicant. The Reviewer considered the claims arising out of the applicant being a failed asylum seeker deported from Australia:
“I note the material indicates that where the victim was subject to targeted harm, it was for reasons other than solely because of having unsuccessfully sought refugee asylum. ... The independent information also indicates some of the harms unsuccessful asylum claimants have experienced is due to suicide attacks and the bombings reflective of the general insecurity situation in Afghanistan. I do not accept the assertions that in the applicant’s circumstances, arising from his claims for asylum in Australia, he would be perceived as a spy and/or a collaborator and/or associated with a foreign nation such as Australia.” [74] [CB 341]
The Reviewer found that whilst it was possible that his uncle had been beaten and called a communist the most likely reason for his untimely death was his inefficiency as a shepherd and she found it implausible that if his uncle’s killers had wanted to locate any members of his family they would not have done so prior to 1997 when they had the means to do so:
“Nor do I accept that any members of his uncle’s family were of interest to members of Hezbe Islami at the time of, or after, his uncle’s death in 1996. As it is now approximately fifteen years since his uncle’s death, and based on the aforementioned matters, I do not accept that arising from his uncle’s past employment the applicant has or will be impeded as having any political opinion. I also find that there is not now and in the reasonably foreseeable future a real chance that the applicant will be persecuted either in Morgh Dolna or elsewhere because of his membership of the particular social group of his uncle’s family.” [76] [ CB 342]
On 27 February 2012 the applicant, who was then in detention in Curtin, filed an application for a review of the decision by this court. There were no grounds contained in that document but the applicant was represented by a Mr Gormly of counsel who appeared for him at a directions hearing. In June 2012 the applicant was moved by the department to South Australia but as he still appeared to have representation the case remained in this court. On 18 September 2012 the court was informed that Mr Gormly would no longer be representing the applicant and it was suggested that a further directions hearing be held in order to transfer the matter to South Australia.
However, the court declined to do this on the basis it was unlikely that the transfer would be of any benefit to the administration of justice. It did not appear from the papers the court had read that there were any grounds for impugning the decision of the Reviewer, Mr Gormly had filed no amended application suggesting any such grounds and the only benefit that transferring the matter to South Australia would achieve would be the extension of time before a decision was made. The court therefore arranged for the matter to be heard by way of video link to South Australia and that has occurred today with the applicant attended by an interpreter.
The applicant told me that his life was in danger in Afghanistan and that there was no security there. He told me that he had fled Afghanistan for Quetta in 1997 but that things had deteriorated in that city and he could not go back there. He told me that he had no representative to represent him and that he wished for more time to obtain further assistance. The court advised the applicant that it was not prepared to adjourn the matter and explained to him that the function of a court was not to reconsider the merits of his claim but to see whether or not the Reviewer had come to her decision in a lawful manner.
The applicant told me that he did not believe that the Reviewer was listening or placing enough attention to his claims. The court has the advantage of an affidavit sworn by Sue Archer and dated 18 September 2012 which contains a transcript of the interview. But there is nothing in this document, or in the Reviewer’s decision record, that indicates any lack of attention to any of the claims made by the applicant, all of which appear to me to have been considered in the thorough and non‑partisan manner that one would expect of an independent merits reviewer.
The absence of any indication of what might be considered to be an error that would lead this court to make a declaration of the type sought by the applicant and having read the decision record and heard the submissions of Mr Riley, I am unable to make such a finding and I must dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $6,471.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 13 November 2012