SZRVK v Minister for Immigration and Border Protection

[2013] FCA 1354

FEDERAL COURT OF AUSTRALIA

SZRVK v Minister for Immigration and Border Protection

[2013] FCA 1354

Citation:	SZRVK v Minister for Immigration and Border Protection [2013] FCA 1354
Appeal from:	SZRVK v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 965
Parties:	SZRVK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1695 of 2013
Judge:	RARES J
Date of judgment:	2 December 2013
Legislation:	Migration Act 1958 (Cth) s 36 1951 Convention Relating to the Status of Refugees Art 1A(2) 1967 Protocol Relating to the Status of Refugees Art I(2)
Date of hearing:	2 December 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	20
Counsel for the Applicant:	Mr J Young
Solicitor for the Applicant:	Dehsabzi Lawyers
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore Lawyers
The Second Respondent:	Filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1695 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRVK
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	2 DECEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

3.The first respondent's name be changed to “Minister for Immigration and Border Protection”.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1695 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRVK
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	2 DECEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court rejecting the appellant’s claim for constitutional writ relief:  SZRVK v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 965. In a reserved judgment, her Honour rejected the sole ground of the application put to her by counsel for the present appellant, namely that the Refugee Review Tribunal had made a jurisdictional error in its decision given on 23 August 2012 to affirm the Minister’s delegate’s decision not to grant him a protection visa because the Tribunal had excluded from its consideration, in relation to the claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth), the matters which the Tribunal had dealt with in relation to his protection claims made under s 36(2)(a) and Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by Art I(2) of the 1967 Protocol Relating to the Status of Refugees (Refugees Convention).

   The legislative scheme

2. The relevant provisions of the Act are as follows:

   “s 36    Protection  Visas
   …

   (2)       A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

   …

   (2A)     A non-citizen will suffer significant harm if:

   (a)       the non-citizen will be arbitrarily deprived of his or her life; or

   (b)       the death penalty will be carried out on the non-citizen; or

   (c)       the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.” 

   …

   (bold emphasis added)

3. Under Art 1A(2) of the Convention, as amended, Australia owes protection obligations to a person who satisfied the criterion that he or she:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   Background

4. The factual background is in a narrow compass.  The appellant arrived in Australia on 7 July 2007 on a passport issued in his own name with a prospective spouse visa that was valid until 11 March 2008.  His relationship with his visa sponsor broke down in September 2007 and on 7 March 2008 he lodged an application for a protection visa.  For reasons that are not explained it was only on 24 February 2012 that the Minister’s delegate refused that application.  The appellant subsequently lodged an application for review with the Tribunal. 

5. The appellant made a number of claims to the Tribunal.  It suffices to say that all of his claims were rejected by the Tribunal on the basis that it found him not to be credible, truthful or reliable as a witness, having regard to substantive inconsistencies, changes and shifts in his evidence throughout the process of progressing his visa application from first to last.

6. However, one matter remained which gives rise to the present controversy. That was a claim that, by reason of his having been outside of Afghanistan, and if his refugee claims were rejected, by returning there he would be at a real risk of serious harm, relevantly, for the purposes of s 36(2)(aa). The way in which the appellant had put his claims to the Tribunal was that that risk arose principally in the context of his claim for a protection visa. He raised such a risk on three different bases that the Tribunal discussed in each of [75], [76] and [77] of its reasons, each of which the Tribunal rejected. First, he contended that he was at risk as a failed asylum seeker returning to Afghanistan: [75]. Secondly, he put that he was at risk that he would be targeted by terrorist groups in Kabul because had he returned after spending considerable time in the West, regardless of whether or not he had unsuccessfully sought protection abroad: [76]. Thirdly, he claimed that he was at risk because he would be targeted by the Taliban since he did not have a beard and they would ask him why he did not pray: [77].

7. In discussing those bases, the Tribunal reviewed instances where individuals might be characterised as having been victim to the circumstances which the appellant claimed he feared.  The Tribunal dealt with those three particular claims for a protection visa in the following way.  It dealt with the first having identified advice from the United Kingdom Border Agency’s Appeals and Litigation Section that there was no specific information available in relation to reports of failed asylum seekers being targeted on their return to Afghanistan or of individuals being identified in the media ahead of their return.  The Tribunal was prepared to accept that there had been incidents in which persons who had returned to Afghanistan from Western countries had suffered harm in terrorist attacks in areas outside Kabul.  It then found:

   “However it is not clear whether these attacks were motivated by any knowledge that the victims had returned to Afghanistan from abroad, whether other factors were involved specific to the victims themselves or whether they were simply caught up in random violence.”

8. The second claim was discussed by the Tribunal on the basis of information in a February 2009 report of the Department of Foreign Affairs and Trade.  That indicated that one returnee from Australia had been robbed and beaten, but that there was no information in the report to indicate whether that was more than a common criminal assault or that the victim was known to be a returnee by his assailants.  The report also mentioned a second returnee who had been injured in Kabul by enemies of his father, and a third who had been killed in a suicide attack.  The Tribunal found that there was:

   “no credible information in the sources consulted to suggest that returnees in Kabul are targeted for extortion because they are perceived to have money or because some have family members living overseas thereby generating perceptions of wealth.    Indeed, while in the statements submitted in support of his application for a protection visa the applicant referred to many hearsay stories, he did not claim that any of his relatives, including his siblings, who continue to reside in Kabul or the nearby areas, have been targeted for having relatives living overseas.”

9. The Tribunal also rejected the third claim for a protection visa.  It said that the appellant had claimed that when he visited in 2004 he had seen the Taliban giving people a hard time because of their beards.  But, it observed that his claim that the Taliban also gave people a hard time if they wanted to travel was based on what he had heard from other people, rather than on any first-hand information.  The Tribunal said that the appellant had not referred to his experiences during a second trip to Afghanistan and that it was not clear if what he claimed to have seen had occurred in Kabul.  It found that he had not pursued those claims at the hearing before it and he had not claimed that he was not a practicing Muslim or harboured strong objections on ideological or other grounds to beards or that he had to travel outside of Kabul.  It concluded that:

   “The Tribunal has found no credible information in the sources consulted to suggest that the Taliban have been subjecting the diverse population of Kabul to regular harassment on the grounds claimed by the applicant.”

10. The Tribunal summarised its findings in those three paragraphs ([75]-[77]) as follows:

    “78.On the basis of the evidence before it, the Tribunal does not accept that if the applicant were to return to Kabul or the surrounding areas, including Karizmir, there would be a real chance of him suffering serious harm because of his membership of the particular social group consisting of returnees who have spend considerable time in the West.  The Tribunal does not accept that there is a real chance that he would be targeted for the reason of having relatives living overseas.  The Tribunal does not accept that there is a real chance that the applicant will be subjected to regular and sustained acts of harassment by Taliban for the reasons he has provided.

    79.The Tribunal has considered the applicant’s claims relating to the general violence in Afghanistan.  In view of the Tribunal’s findings above, there is nothing more in the applicant’s circumstances to suggest that as a result of the ongoing conflict in Afghanistan he would be subjected to persecution for a Convention reason.  Having considered the totality of the applicant’s circumstances, the Tribunal is not satisfied the ongoing violence in Afghanistan gives rise to a real chance of persecution for a Convention reason in the applicant’s case.”  (emphasis added)

11. It concluded that it did not accept that the appellant had a well-founded fear of persecution for a Convention reason in Afghanistan.  Critically, the Tribunal then made the following findings:

    “81.The applicant has made no specific claims against the complementary protection criterion.  On the basis of the evidence available to it, other than the matters discussed and dealt with above, there is nothing before the Tribunal giving rise to believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.  With regard to the applicant’s fears of general violence, there was no other evidence before the Tribunal to suggest that the violence the applicant fears is faced by him personally.  The Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally.  The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.

    82.The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer “significant harm”, as that term is exhaustively defined in s 36(2A).” (italic and bold emphasis added)

    The appellant’s argument

12. The sentence that I have emphasised in italics in [81] of the Tribunal’s reasons formed the critical issue for her Honour and was also the foundation of the appeal before me.  The appellant argued below and before me that, by using the words “other than the matters discussed and dealt with above”, the Tribunal had removed from its consideration of the complementary protection claim its earlier consideration of its findings in relation to his Convention-based claims. He argued that the Tribunal had to consider specifically his claim for complementary protection founded as it was on the differently framed test in s 36(2)(aa).

    The trial judge’s decision

13. Her Honour rejected the appellant’s construction of the language used by the Tribunal in [81] of its reasons.  Her Honour did not accept that on a fair reading of the Tribunal’s decision record it had excluded from its consideration of the claim for complementary protection what it had considered earlier in relation to his claims under the Convention.  She held that the Tribunal had made a clear finding that it did not accept that the appellant was at risk as a returnee from a Western country.  She found it had also made clear findings that he was not at risk for any Convention reason.  Her Honour found that, in context, the Tribunal’s statement “other than the matters discussed and dealt with above” in [81] of its reasons meant that the appellant had made no specific or separate claims in support of his complementary protection claim and on the basis of the evidence available to the Tribunal there was no other evidence to suggest that he may have been entitled to complementary protection.  She said that a fair reading of the Tribunal’s words, in context, made it clear that it was simply saying that there was no evidence before it to support complementary protection, none had been provided by the appellant and there was no other evidence, other than that concerning his claims for a protection visa with which it had already dealt and made findings.  She observed that the Tribunal’s decision record and findings should be read fairly and not with an eye keenly focused on error.  Accordingly, her Honour dismissed the application.

    The appellant’s submissions on appeal

14. In substance, the appellant advanced, as I have said, the same arguments before me as before her Honour.  He contended that the Tribunal had substantively failed to address whether there was a real risk that he would suffer significant harm because he had been outside Afghanistan for a long time.  He argued that this raised a different question to a claim for a protection visa, where the issue is whether he had a well-founded fear of persecution for one of the Convention reasons, and that when considering the claim for complementary protection under s 36(2)(aa), it was not necessary to show that the real risk concerned had been due to any motivation of any person from whom the significant harm might be thought to come.

15. He argued that the Tribunal, having made findings that some returned asylum seekers had, in fact, suffered incidents of serious harm in Afghanistan, it was incumbent on the Tribunal to determine whether the appellant faced such a risk separately and apart from its consideration of his Convention based claims and that the passage complained of in [81] of its reasons demonstrated that it had not attended to that function.

    Consideration

16. I reject that argument.  In my opinion, the way in which the appellant put his claims to the Tribunal indicated that there had to be some connecting factor between what he said was the real risk that he would suffer significant harm as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan.  Each of the connecting factors to which he pointed was considered by the Tribunal and rejected as being insufficient to demonstrate that he had a well-founded fear of persecution, that is, that there was a real chance that he would be persecuted for a Convention reason were he to return to Afghanistan.

17. The Tribunal rejected each of the three bases on which the appellant had put his claims that he was at risk of suffering persecution (and so, serious harm) by reason of his being returned to Afghanistan after a considerable time away.  The Tribunal had dealt with each of the relevant connecting factors that the appellant had advanced as being a basis on which it could be satisfied that any of those factors justified the grant of a protection visa.  That left nothing to be revisited in the areas that had already been dealt with by the Tribunal when it came to consider his claim to a complementary protection visa beyond the Tribunal saying what it said in the passage complained of.

18. The Tribunal then went on to consider, for the purposes of s 36(2B)(c), the appellant’s claim to fear general violence, that is, that he was someone who if returned to Afghanistan, would be subjected to instances of the attacks which the Tribunal had found not to be persecutory. The Tribunal found that it was not satisfied that, there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of his being returned to Afghanistan. It found that, as it stated in [81], there was no other evidence before it to suggest that the violence he feared was faced by him personally. The Tribunal made a positive finding that it was satisfied that the violence the appellant feared was faced by the population generally and not by him personally, and for that reason he could not make out a claim to complementary protection because of the operation of s 36(2B)(c), which excluded such a risk from the statutory criteria for a risk of significant harm.

19. In my opinion, the Tribunal performed its statutory task of considering the appellant’s entitlement to complementary protection and made no jurisdictional error in rejecting that claim as shown in the reasons that it gave.  The Tribunal carefully and appropriately considered each of the appellant’s claims.

    Conclusion

1. The reasoning of the trial judge was correct and no error has been shown in it.  As she found, the reasons of an administrative decision-maker must not be construed minutely and finely with an eye keenly attuned to the perception of error and that they must be read as being meant to inform.  I am not satisfied that any jurisdictional error has been demonstrated.  For these reasons, the appeal must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        12 December 2013