SZSHK v Minister for Immigration
[2013] FCCA 605
•26 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHK v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 605 |
| Catchwords: MIGRATION – Application for review of decision of Independent Protection Assessor – whether assessor failed to consider claims made by the applicant in relation to complementary protection criterion – no legal error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 91R, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases cited: United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZSHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 2770 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 April 2013 |
| Date of Last Submission: | 16 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr PW Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr MJ Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 27 November 2012 and amended on 6 March 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2770 of 2012
| SZSHK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 27 November 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 6 March 2013, seeking review of the recommendation of Kerry-Anne Hartman, in her capacity as Independent Protection Assessor (“the assessor”), to the first respondent that the applicant not be recognised as someone to whom Australia had protection obligations under the Refugees Convention[1] and other relevant international treaties[2].
[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) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
[2] International Covenant on Civil and Political Rights, including the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
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; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“M61/M69”).
Relevant Background
The applicant is a citizen of Afghanistan (Court Book – “CB” – CB 1). He is of “Muslim Shia” religion and Hazara ethnicity (CB 1 and CB 66.3). The applicant arrived in Australia on 6 December 2011 ([2] at CB 176). He was classified as an “irregular maritime arrival” and his personal details were recorded in a “Biodata” form (CB 1 to CB 5).
On 12 March 2012 the applicant requested a Protection Obligations Determination (“POD”) of his claims to protection (CB 6 to CB 69, including attachments). The applicant’s claims to protection were set out in a Statutory Declaration, made by the applicant on 12 March 2012, attached to that POD request (CB 66 to CB 68).
Relevantly, the applicant put forward the following claims to protection:
1)His brother had, “about three years ago”, gone missing and he did not know what had “happened to him” (CB 66.5).
2)The area that the applicant lived in was “becoming more and more dangerous” (CB 66.6). In particular, the applicant claimed that the roads in his area were being “blocked” by Pashtuns and Kuchis, both of whom were being armed by the Taliban. The Hazaras were targeted on this road because the police would not protect them (CB 66.6). The applicant claimed that this targeting had happened about seven to eight months prior to him leaving Afghanistan (CB 67.1).
3)Further, that there were “conflicts” between Hazaras and Kuchis in the applicant’s area. The Kuchis, armed by the Taliban, would “steal [their] crops, kill and eat [their] livestock and destroy everything else” (CB 66.8).
4)
“Three months before leaving Afghanistan” (CB 67.2), the applicant had been forced by the Taliban to attend a mosque. He was told to change his religious beliefs and to fight with the Taliban. One week later, the Taliban returned and, again, forced him to attend their mosque (CB 67.3). The third time the Taliban came, the applicant ran away. He hid in his home for
“1-2 months”. He believed that, if they found him, the Taliban would kill him (CB 67.4).
5)The applicant feared harm from the Taliban and the Kuchis because of his Hazara ethnicity and Shia religion. He did not believe that the authorities in Afghanistan would protection him particularly as, at night, “the country becomes a lawless place ruled by the Taliban” (CB 67.8).
The applicant’s representative provided submissions in support of his request for a POD (CB 70 to CB 85).
On 6 April 2012 the applicant completed an “Irregular Maritime Arrival Entry Interview” (the “entry interview”) (CB 86 to CB 105). On 22 May 2012 a “Protection Obligations Evaluation Officer” (“the departmental officer”) found that the applicant was not a person to whom Australia owed protection obligations, either on a Refugees Convention basis or on complementary protection grounds (CB 109.4). [I note that the officer stated that the applicant had “attended a POD interview…on 15/03/2012” (CB 112.2). There is no record of that interview in the Court Book.]
The departmental officer accepted that “all events detailed by the [applicant] occurred exactly as he described” and that the events were largely a result of the applicant’s Hazara ethnicity and Shia Muslim religion (CB 112.9). However, the departmental officer found that while the applicant may have had a “real” fear of being killed, that fear was not well founded (CB 113.9). In particular, the departmental officer was not satisfied that the applicant was personally targeted with respect to incidents on the road (CB 114.3). Further, the departmental officer found that the applicant’s decision not to attend the mosque had occurred without incident and that the applicant would not face a real chance of harm as a result of his actions (CB 114.4).
The Assessment
The applicant’s POD was referred for Independent Protection Assessment (“IPA”) (CB 117).
On 12 July 2012 the applicant was interviewed by the assessor for the purpose of the IPA (CB 121 and [31] at CB 181).
On 8 August 2012 the assessor recommended to the first respondent that the applicant not be recognised as a person to whom Australia had protection obligations (CB 175, [148] at CB 200 and CB 201).
The assessor accepted that the applicant was a Hazara Shia ([100] at CB 194). Further, she accepted that Hazaras “have been subjected to violence and discrimination in the past” ([102] at CB 194). However, with reference to country information, the assessor did not accept that Hazaras were subject to persecution by the Taliban and the Pashtuns because of their race and religion ([108] at CB 195). In light of that country information, the assessor did not accept that the applicant would face a real chance of harm amounting to persecution, from either Pashtuns, the Taliban or the Afghani authorities, simply because of his race and ethnicity ([108] at CB 195).
With respect to the applicant’s individual circumstances (that is, being told to change his “religion” and to attend the Taliban’s mosque, and his flight and hiding) the assessor “did not find the [applicant] to be a truthful or credible witness” ([111] at CB 195). In particular, the assessor found that the applicant’s “story” as to how he escaped the Taliban was subject to “significant changes” ([112] at CB 195). The assessor did not accept the applicant’s explanation for those significant changes (that is, that he “forgot”) ([113] – [116] at CB 196). Further, the assessor found as “implausible” the applicant’s claim that the Taliban had asked him to fight with them ([117] at CB 197).
The assessor also found that the applicant’s claims about the situation for Hazaras in his area did not accord with country information and that that cast further doubt on the applicant’s credibility ([120] – [125] at CB 197).
The assessor accepted that, when travelling on the road back to his village, the applicant was robbed on one occasion and asked for money on another ([126] at CB 198). However, the assessor went on to find that “[g]iven the above country information I am not satisfied the [applicant] was specifically targeted or robbed by Taliban/Kuchis/Pashtuns because of his race, religion imputed political opinion or because the state would not protect him” ([127] at CB 198).
Even further, given the number of times the applicant had travelled from his village, and given that those trips were made without the applicant experiencing “serious harm”, and in light of country information, the assessor found the applicant’s claim to have “faced persecution by Taliban, Kuchis and Pashtuns when travelling” to not be credible ([126] – [127] at CB 198).
The assessor accepted that Kuchis “passed through” the applicant’s area, used the pastures for their cattle and, on one occasion, took some of the applicant’s animals ([133] at CB 198). However, she was not satisfied that, on that basis, the applicant faced a “real chance of serious harm, amounting to persecution for any Convention reason from Kuchis” ([133] at CB 199).
The assessor did not accept that, if he returned to Afghanistan, the applicant would face a “real chance of persecution” by reason of his being a failed asylum seeker returning from a Western country ([137] at CB 199 to [140] at CB 200).
Having addressed the applicant’s claims with respect to the Refugees Convention, the assessor proceeded to consider whether the applicant met the complementary protection criterion for the grant of a protection visa (s.36(2)(aa) of the Act, see [144] – [145] at CB 200). In relation to complementary protection, the statement of assessment records the following:
“[144] I have considered whether the [applicant] meets the alternative criterion in s.36(2)(aa).
[145] I did not find the [applicant] to be a truthful or credible witness. I do not accept that the Taliban asked him to fight against the Americans or change his religion. I do not accept that the [applicant] was targeted by the Taliban/ Kuchis/Pashtuns when travelling on the road from his village to Ghazni City. Given the country information and the [applicant’s] own experience I do not accept that there is a there is a real risk that he or she will suffer significant harm by Pashtuns/Taliban,/Kuchis in relation to his travel on the roads. I do not accept that all Hazaras are subjected to persecution by the Taliban and Pashtuns. I do not accept the [applicant] will be denied protection, detained arbitrarily or tortured by the authorities. I am not satisfied on the evidence before me that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal there is a real risk the [applicant] will suffer significant harm. I am not satisfied that the [applicant] is a person to whom Australia has protection obligations under s.36 (2) (aa).”
[Errors in the original.]
The Application to the Court
The grounds of the amended application to the Court are as follows:
“1. The Second Respondent failed to consider all the integers of the complementary protection claims and thereby made a jurisdictional error.
Particulars
That the second respondent failed to assess key integers of the applicant’s claims under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the applicant’s claims regarding the possibility of:
(a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or
(b) any threat to the livelihood of the applicant from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph 133 of the decision was dismissed at paragraph [133] on the limited basis of lack of ‘real chance of serious harm’ (as defined in s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.
2. The Second Respondent misconstrued and misapplied the complementary protection criterion of section 36(2)(aa) of the Act and thereby made a jurisdictional error.
Particulars
That the second respondent failed to apply the correct test at law pursuant to s36(2)(aa) of the Migration Act 1958 to the applicant’s claims, namely failing tro (sic) consider whether the applicant’s claims regarding the possibility of:
(a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or
(b) any threat to the livelihood of the applicant from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph 133 of the decision was dismissed at paragraph [133] on the limited basis of lack of ‘real chance of serious harm’ (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.
3. The Second Respondent failed to apply the criteria of degrading treatment and punishment to the applicant’s complementary protection claims and thereby has denied the applicant natural justice and procedural fairness.
4. The Second Respondent failed to take a relevant consideration into account under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the findings regarding the possibility of:
(a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or
(b) any threat to the livelihood of the applicant from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph 133 of the decision was dismissed at paragraph [133] on the limited basis of lack of ‘real chance of serious harm’ (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.”
[In written submissions, and before the Court, the applicant made clear that ground three of the amended application was not pressed – see further below.]
Before the Court
At the final hearing, Mr PW Bodisco of counsel appeared for the applicant. Mr MJ Smith of counsel appeared for the first respondent.
The Court had before it the Court Book, the applicant’s amended application and written submissions filed on behalf of the applicant and the first respondent. The applicant explained that he sought to press the amended application in the following way:
1)Ground four of the amended application was to be treated as ground one (“ground one”).
2)Ground one was to be treated as ground two (“ground two”).
3)The “existing” ground two was to be treated as ground three (“ground three”).
4)Ground three of the amended application was not pressed.
[There being no adverse response from the Minister, the hearing proceed on that basis. I will refer to the applicant’s grounds in this judgment in that fashion.]
The Parties Position in Relation to the Grounds
The applicant’s complaint centred on the assessor’s consideration of the applicant’s circumstances in the context of the complementary protection criterion as introduced into the Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth). In particular, whether the assessor had considered the applicant’s claims under the relevant test for complementary protection. That is, whether there were “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” (s.36(2)(aa) of the Act).
In particular, the applicant submitted that, having accepted that the applicant had once been robbed and once asked for money when travelling in and out of his village, the assessor failed to consider whether, if the applicant returned to Afghanistan, travelling in and out of his village would result in a real risk of the applicant suffering “significant harm” as defined in s.36(2)(aa) of the Act (“the travelling claim”). Further, with respect to the Kuchis, that the theft of the applicant’s land and cattle by the Kuchis could amount to “significant harm” (“the Kuchi claim”).
The applicant submitted that, in failing to consider these two claims in the context of complementary protection, the assessor failed to address relevant considerations and, in doing so, failed to discharge her function according to law. In the alternative, the applicant submitted that the assessor’s failure to consider these claims, where such matters were before the assessor, led to a constructive failure to exercise jurisdiction (with reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE (No.2)”) at [58] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) at [23], [26] – [27], [86] – [89]).
With respect to the applicant’s travelling claim, the Minister submitted that the applicant had failed to raise that claim in the context of complementary protection. Further, the Minister submitted that the assessor had considered the claim (albeit in the context in which it was raised) and, while she accepted the applicant had been both “mugged” and the subject of extortion once in the past, she found that the roads were now safe. That was a finding of fact and, while made in that part of her statement of assessment where she was considering protection in relation to the Refugees Convention, that finding of fact applied equally to complementary protection. That is, the assessor did not accept that the roads were unsafe any more and, as such, did not need to consider whether the applicant’s future travel on the roads posed a real risk of him suffering significant harm.
With respect to the applicant’s Kuchi claim, the Minister’s position was that the assessor had not dealt with that claim in relation to complementary protection as the applicant had not asserted that the matters relating to Kuchis would result in a real risk of him suffering significant harm. Rather, the applicant’s Kuchi claim was clearly, and squarely, raised in relation to the Refugees Convention. It was not a claim expressly made, nor clearly arising, with respect to complementary protection. That was said to be so in the context of the applicant’s representative providing to the assessor substantial and “thorough” written submissions which separately addressed the Refugees Convention and complementary protection criteria for granting a protection visa.
I note that in written submissions the Minister contended that, even if an error of law was made out by the applicant, the Court should refuse to grant the relief sought because of the “unexplained delay” in the applicant coming to the Court (with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24 at [80], Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56] – [57] and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [28]). That delay was said to be “some three months” between the assessors’s recommendation “being communicated to the applicant” and him commencing proceedings in this Court. I note that, before the Court, no reference was made to this submission. In the circumstances, I saw this submission by the Minister as a “safety net” in the event that any of the grounds of the amended application were made out.
Consideration
The applicant’s three grounds make different assertions of jurisdictional error arising from two claims said to have been before the assessor. The first is the applicant’s claim in relation to robbery, and demands for money when travelling in and out of his village (the applicant’s travelling claim). The second claim is the threat to the applicant’s livelihood from the Kuchis, who stole his cattle and used his pastures (the Kuchi claim).
The applicant’s attack on the assessor’s reasoning has two complaints with various errors of law asserted as set out above (grounds one to three). Both complaints are directed to the complementary protection criterion set out at s.36(2)(aa) of the Act which relates to a “real risk that [the applicant] will suffer significant harm” on return to Afghanistan. The applicant relies on that part of the meaning of “significant harm” as set out at s.36(2A)(d) and (e) of the Act:
“…
(2A) A non-citizen will suffer significant harm if:
…
(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.”
[See also the definitions of “degrading treatment or punishment” and “cruel or inhuman treatment or punishment” at s.5 of the Act.]
The applicant submitted that these two claims were articulated in his Statutory Declaration of 12 March 2012 and therefore were before the assessor (CB 66 to CB 68). Relevantly, the applicant made clear in that Statutory Declaration that he feared harm from the Kuchis and when travelling in and out of his village (see in particular CB 67.6).
The assessor noted that, at the POD interview, the applicant “provided the following additional information at that interview” ([22] at CB 179 to [23] at CB 180):
“[22] ….
● Borgigay village is surrounded by mountains. The people in the valley are all Hazaras. There are no pashtuns in his area.
● He worked as a farmer in Borjigay for three to four months each year. The remaining eight months he worked as a welder in Ghazni City.
● Kuchis come to Nawur District in Spring because it is a good area for their animals. About three years ago the Kuchis stole animals from his family.
● Seven or eight months before he left Afghanistan he was travelling back to his village in a coach with 12 other Hazaras. The coach was stopped by Taliban or kuchis. When they got out of the coach they took their money and mobile phones.
● A few months before he left Afghanistan when he was working in his shop in Ghazni City people came to the shop and asked why he did not have a beard; told him they would teach him about Islam and asked him to fight against non Muslim people. The third time they came to take him to the mosque he said he would do Wozo (washing before prayer). He then ran out the back of his shop and hid. He hid for nine hours. None came looking for him. He returned to his village and then organised his trip to Australia.
[23] At his entry interview in response to the question why did you leave your country the [applicant] provided the following information:
I had a shop in Ghazni province in the old part of the city. While I was working in the shop the Taliban came from time to time to tell me to come with them and fight against Americans. Sometimes some of them would come and say I was insulting Islam because I was shaving my beard. Later they told me to convert to their religion because according to us you are a believer. The last time the Taliban came they said get ready I will teach you the ways of Islam how to become a Muslim like us. I said I will go and wash and then I ran away. I travelled to Borjegay, Nawur.
We had other problems with ‘nomads bothering us’. They came with their animals and ate the crops.”
[Emphasis in the original.]
Following that interview, the applicant’s representative, on 3 July 2012, made lengthy submissions on his behalf (CB 122 to CB 169). Importantly, in those submissions the applicant’s representative set out relevant background and the applicant’s factual claims (CB 124 to CB 125). The submissions then set out, separately, the applicant’s claims to persecution under the Refugees Convention (“serious harm”), and his claims to protection pursuant to the complementary protection provisions (“significant harm”) (CB 126 to CB 163 and CB 164 to CB 169, respectively).
Before the Court the applicant submitted that his representative linked the relevant factual assertions (the travelling claim and the Kuchi claim) specifically to the complementary protection criterion. That is, in addition to submitting that these claims were relevant to the Refugees Convention criterion.
The applicant’s first complaint relates to what is said to be the applicant’s claim, under the complementary protection criterion, that he would suffer significant harm if he returned to Afghanistan while travelling on the roads to and from his home province where he had been in the past, and would be in the future, subject to robbery and demands for money from the Taliban, the Pashtuns and Kuchis. That is, his travelling claim in the context of complementary protection.
The applicant says that the assessor’s consideration of this claim was “so bound up” with the Refugees Convention consideration that it cannot be said that it was also considered under the complementary protection criterion. This was said to be particularly so with reference to [123] (at CB 197) and [145] (at CB 200) of the assessor’s analysis.
1)Paragraph 123 (at CB 197) is as follows:
“At the interview the [applicant] claimed that although he had a house and land in Nawur he had a welding business in Ghazni city. He claimed that he had been travelling back and forth from his village to his business in Ghazni City for over ten years. During his frequent travels on the road from Nawur to Ghazni over this long period of time he claimed he was robbed on one occasion. He claimed the people who robbed him were Taliban and Kuchis but when I put to him the country information indicated he could have been robbed by criminals he claims ‘they may been robbers’. When I asked the [applicant] if this was the only incident that had happened to him while travelling in and out of his village to Ghazni he claimed that 2-3 years before he left Afghanistan a vehicle he had been travelling in was stopped by Talibs who asked for money.”
[Emphasis added.]
2)Further, [145] (at CB 200) provides:
“I did not find the [applicant] to be a truthful or credible witness. I do not accept that the Taliban asked him to fight against the Americans or change or his religion. I do not accept the [applicant] was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City. Given the country information and the [applicant]’s own experiences I do not accept that there is a real risk that he or she will suffer significant harm by Pashtuns/Taliban,/Kuchis in relation to his travel on the roads. I do not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. I do not accept the [applicant] will be denied protection, detained arbitrarily or tortured by the authorities. I am not satisfied on the evidence before me that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal there is a real risk that the [applicant] will suffer significant harm. I am not satisfied that the [applicant] is a person to whom Australia has protection obligations under s.36 (2) (aa).”
In short, the context of the assessor’s consideration at [123] (at CB 197) was the Refugees Convention. However, where the assessor considered complementary protection at [145] (at CB 200), there was no reference to the travelling claim.
Similarly, in relation to the applicant’s second complaint (the Kuchi claim) (see [24] above), the applicant submitted that that was dealt with only in the assessor’s reasoning relating to the Refugees Convention, not in relation to complementary protection.
The applicant referred the Court to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) and the Minister’s Second Reading Speech (24 February 2011) (which introduced the complementary protection criterion to the Act) to confirm his submission that the Refugees Convention criterion and complementary protection criterion in s.36(2) of the Act (that is, s.36(2)(a) and s.36(2)(aa)) are different and focussed on addressing different treaty obligations.
While that is the case, the relationship between the two (s.36(a) and (aa) of the Act) and, in particular, the order in which they are to be considered is important.
As I said in SZGIZ v Minister for Immigration [2013] FMCA 215 (at [120]), and in particular noting what is contained in the parentheses in s.36(2)(aa) of the Act, the obligation on the decision maker to consider the complementary protection criterion at s.36(2)(aa) of the Act (“significant harm”) is reliant on an applicant having been found to have applied for, and been refused, a protection visa on the Refugees Convention criterion at s.36(2)(a) of the Act (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [67] – [71] per Lander and Gordon JJ).
In light of this, and in terms of the order in which the Tribunal should approach its task, “priority” is given to s.36(2)(a) of the Act. To the extent therefore that the applicant’s attack now derives from the assessor giving some “priority”, in the sense of considering it first, to the Refugees Convention criterion, then any such implication cannot assist the applicant.
The questions raised by the grounds of the amended application are as follows. First, what were the relevant claims expressly made by the applicant, or clearly arising, in the circumstances presented, which required the assessor to consider them? This includes the context in which they were made (NABE(No.2) and authorities such as Dranichnikov at [24] to [34], SZQFC v Minister for Immigration and Citizenship [2012] FCA 409 at [36], [2012] FCA 409; 126 ALD 530 at 535 per Yates J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [24] per Jagot J, M61/69 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424 at [31] to [32] per Buchanan J; MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [141] to [145], 130 ALD 256 at 278-279 per Dodds-Streeton J).
Second, what did the assessor relevantly consider, and how did she consider it with respect to s.36(2)(a) and (aa) of the Act?
I should note that the Minister’s submissions were not clear in one respect. First, the Minister agreed that the Kuchi claim was made by the applicant in relation to complementary protection. The Minister referred to CB 125.5 in support of this:
“Furthermore, the Applicant asserts there are conflicts with Kuchis in their area. The Kuchis are armed by the Taliban and they have no way to defend themselves. The Applicant states that they steal their crops, they kill and eat their livestock and destroy everything else. He adds that this makes it impossible to survive without growing their own stock and to travel to the other side of town to get supplies.”
However, the Minister then went on to say that, when regard was had to the applicant’s representative’s submissions to the assessor, that the applicant’s Kuchi claim was expressed as one of “greater generality”, rather than specifically targeted to complementary protection.
Whether or not the representative’s submission in this regard was an explanation of the applicant’s claim relating to Kuchis and put in a general, not a specific complementary protection, sense is, in my view, a misleading question to pose. In any event, in his oral submissions, the Minister said that “this is not just….a submission in respect of the complementary protection claims”. This allows that the applicant’s Kuchi claim was, at least in part, put in that context.
However, in contradiction to this position, the Minister also submitted that the Kuchi claim was made only in the context of the Refugees Convention. Specifically, that the applicant feared serious harm because of conflict with the Kuchis. In support of this, the Minister relied on the structure of the applicant’s representative’s written submissions to the assessor, and what was contained in each of the various sections of those submissions. The Minister argued that the Kuchi claim was not raised in that part of the representative’s written submissions dealing with complementary protection (CB 164 to CB 169).
Some care needs to be taken with relying on the structure of the representative’s written submissions as an indicator in this regard. For example, this can be seen with reference to the “Conclusion” (of the representative’s written submissions) at CB 169. Despite setting out specific matters relevant to complementary protection immediately above, the representative’s conclusion is directed exclusively to the Refugees Convention and is silent as to complementary protection.
Further, it can be said that the applicant’s representative was, at times, confused as to what was being submitted. For example, under the heading of “complementary protection” (CB 164) the representative’s written submissions state (CB 164.3):
“The Applicant’s claims for protection are based on the following types of serious harm:”
[Emphasis added.]
“Serious harm”, of course, relates to Refugees Convention persecution (as expanded in s.91R of the Act), not complementary protection, where the relevant standard is one of “significant harm” (with reference to s.36(2)(a) and (aa) of the Act).
Therefore, some care must be taken in relying on the headings and labels in the representative’s written submissions. The assessor’s obligation was to consider the applicant’s claims to protection, expressly made or clearly arising. In this regard, therefore, in understanding exactly what the applicant claimed and what ultimately survived before the assessor is of importance.
Therefore, the following consideration and discussion needs to be understood in the context that the expression of the applicant’s claims to protection were, essentially, as set out in his Statutory Declaration, his representative’s submissions, and what he told the assessor at the interview.
The applicant, relevantly, made an initial claim to fear harm (of an unspecified natured) from the Taliban and Kuchis (CB 67.6). His factual assertions certainly make reference to the dangers of travel on the roads in and out of his district and the threat from the Kuchis stealing livestock and crops (CB 66.7 to CB 66.8). That is, his travelling claim and his Kuchi claim.
I note that the POD decision does not advance the consideration here. Both sets of factual assertions are merely repeated in the POD decision ([2] and [3] at CB 112).
While acknowledging the difficulties with the representative’s submissions, I take the view that what is set out at CB 124, and especially CB 125, are the applicant’s factual assertions as to why he sought protection. What follows, beginning at CB 126, are the representative’s reasons as to why certain of these factual assertions reveal a real chance of “serious harm”, and from CB 164 (despite the mistaken reference to “serious harm” – see [50] – [51] above), why certain of the factual assertions reveal a real risk of “significant harm”. This also provides the basis for understanding the assessor’s analysis.
Before the Court the applicant focused on structures. The “structure” of his representative’s submissions” and the “structure”, in a general sense, of the assessor’s reasoning.
As set out above, the answer to the questions posed by the application to the Court (see [43] above), requires attention to two elements. The first is what the applicant claimed, either expressly or clearly arising, and the distinction between factual claims and submissions, or arguments, on the question of whether Australia owed protection to the applicant and the context of those claims.
Second, and an equally critical element, is what the assessor considered, and how she considered it. It is here that the applicant’s, it must be said, lack of focus on the assessor’s actual reasoning, rather than labels or “headings”, reveals the flaw in his argument.
The applicant says that the assessor failed to deal with certain claims. On at least a fair reading of her statement of assessment, I do not agree. The assessor’s “Findings and Reasons” commence at [96] (at CB 194).
The assessor set out her understanding of the factual assertions made by the applicant (and by his representative) ([98] – [99] at CB 194). The assessor accepted certain factual assertions made by the applicant ([100] at CB 194 to [102] at CB 194). However, the assessor preferred country information to the representative’s assertion as to the situation between Hazaras and the Taliban and Pashtuns (including that the Kuchis are “Pashtun nomads”) ([102] – [107] at CB 195). The assessor did not accept that Hazaras face persecution from the Taliban and Pashtuns ([108] at CB 195). This was plainly put in the context of the Refugees Convention and dealt with the applicant’s claim to fear persecution because of his ethnicity and religion.
The assessor then turned to consider the applicant’s individual factual assertions as to what he said had actually happened to him in Afghanistan ([109] – [110] at CB 195).
In relation to those factual assertions, the assessor found that the applicant was not a truthful, nor credible, witness ([111] at CB 195). What followed were the assessor’s reasons for that finding ([112] at CB 195 to [126] at CB 198). It is important to note that the assessor’s rejection of much of the applicant’s factual account was not dependent on any Refugees Convention concept. It simply followed from the assessor’s analysis of the applicant’s evidence and relevant country information.
At [127] (at CB 198), the assessor analysed the applicant’s claim to fear serious harm and found, amongst other things, that the applicant’s claim to fear persecution for reason of his travelling claim was not credible. The factual element here was repeated in a specific complementary protection context at [145] (at CB 200).
The assessor then turned to consider the applicant’s Kuchi claim ([128] at CB 199). With reference to country information, the assessor accepted some of the applicant’s factual assertions in regard to this claim. Specifically, she accepted that the Kuchis passed through the applicant’s area, used the pastures for their cattle and, on occasion, took some of the applicant’s animals ([133] at CB 198). However, the assessor was not satisfied that that amounted to persecution for any Refugees Convention reason ([129] – [ 133] at CB 198).
The assessor then considered whether the applicant could return to his village. This was not necessarily done in the context specifically of the travelling claim or the Kuchi claim, but directed to whether the applicant would be safe in his village and the surrounding district. The assessor’s analysis of this claim was done in the context of the consideration of “serious harm” and was, therefore, in relation to the Refugees Convention ([134] – [135] at CB 199). The assessor found that there was not a real chance that serious harm would befall the applicant.
The assessor then turned to consider other claims, relating to serious harm, made by both the applicant and his representative on his behalf. None of these claims assisted the applicant. It is relevant to note that one of these matters also involved travel in and out of his district (see [136] at CB 199 and then [137] – [140] at CB 199).
The assessor concluded this part of her analysis with a conclusion relevant to s.36(2)(a) of the Act (the Refugees Convention)
([141] – [143] at CB 200).
The assessor then turned to specifically consider s.36(2)(aa) of the Act ([144] at CB 200). Her consideration in relation to the complementary protection criterion of the Act is set out at [145] (at CB 200), the paragraph relied on by the applicant now (see as set out at [36](2) above).
However, what the applicant has overlooked in his submissions before the Court is the significance of the first sentence of [145] (at CB 200): “I did not find the [applicant] to be a truthful or credible witness”.
This, on at least a fair reading, refers the assessor’s analysis in this section back to her earlier finding in relation to the applicant’s credibility. That credibility finding and the factual findings which informed it, as set out above, was squarely derived from factual assertions made by the applicant involving, relevantly, the Kuchis, and travel to and from his village (see at [64] – [65] above).
As set out above, the assessor’s rejection of the applicant’s relevant factual assertions was not dependent on any Refugees Convention “context” as the applicant now asserts. The assessor’s analysis was based on the applicant’s own evidence and country information. She did not believe the applicant, and she gave cogent reasons for this which were probative of what was before her.
The assessor did not need to repeat her analysis of the applicant’s credibility at [145] (at CB 200) in relation to complementary protection. The reference to her not finding the applicant to be a credible witness, in context, could only be a reference to those factual matters set out above as they related to her assessment. This reference was sufficient to “incorporate” the assessor’s credibility finding and her rejection of the applicant’s factual claims into her consideration of the complementary protection criterion.
Further, it is important to note the relationship between the applicant’s initial Statutory Declaration and the representative’s submissions. Before the Court, the applicant submitted that the general reference at the end of the representative’s written submissions, linking the applicant’s claims as explained in the representative’s submissions to his initial Statutory Declaration, appearing as it does under the heading of “complementary protection”, meant that the applicant’s expressed fear of harm from Kuchis is linked to complementary protection (CB 67.6).
However, the representative’s submissions, when arguing that the applicant met the complementary protection criterion, make no specific reference to the applicant’s Kuchi claim. The representative’s submissions are long and detailed.
While regard must be had to the entire presentation of the applicant’s arguments by his representative, the basis for the representative’s argument before the assessor that the applicant met the “significant harm” criterion, is the absence of state protection (CB 164) in circumstances where the authorities and the Taliban would carry out torture and kill Hazaras and Shias (CB 164 to CB 167). Further, that the applicant would also be at risk because he would be a returnee from a Western country (CB 168). Even further, he would suffer degrading treatment and punishment from the Taliban because he would be unable to travel freely (CB 168).
This is precisely what the assessor dealt with at [145] (at CB 200). There was no claim by the applicant (or his representative) expressly made, nor clearly arising, to say that he feared significant harm from the Kuchis in relation to livestock and such as to require the assessor to address it in the way the applicant now says she was. Attempts to argue to the contrary now do not rise to reveal a claim expressly made or clearly arising.
This view of the applicant’s claims and evidence, and my conclusion that it was reasonably open to the assessor to take the view of the shape and extent of these claims that she did, can be supported, further, in light of the following.
First, before the Court the applicant has not pointed to any evidence to contradict the assessor’s understanding that, before the departmental officer, the applicant’s position in relation to complementary protection, as explained by his representatives, was ([30] at CB 181):
“Complementary protection
[30] The [applicant]’s adviser also made a number of submissions in relation to the complimentary (sic) protection criterion summarised below:
● The routes to and from Ghazni are insecure and the [applicant] will suffer significant harm from cruel and inhumane treatment or punishment by the Taliban.
● If the applicant returned to Afghanistan his identity and whereabouts will become known to the Taliban and Pashtuns and he will be subject to degrading treatment and punishment.”
Second, the applicant has not put evidence before the Court to challenge the assessor’s account of the POD interview with the departmental officer. Nor does he even submit that the assessor’s account of the POD interview is in error (see [31] at CB 181 to [83] at CB 188). The assessor’s analysis is consistent with how the applicant, and his representative, presented the applicant’s claims to the departmental officer. No argument to the contrary was put before the Court.
As set out at [29] above, the applicants three grounds arose out of two claims (the travelling claim and the Kuchi claim). In light of the above and turning specifically to each of the grounds, the following can be said about the amended application to the Court.
Ground one asserts a failure on the part of the assessor to take a relevant consideration into account in relation to s.36(2)(aa) of the Act. That is the Kuchi claim and the travelling claim. That ground, for the reasons set out above, is not made out. The assessor specifically took into account the travelling claim when considering s.36(2)(aa) (as it was put and explained to her by the applicant and his representative). Further, she was not required to relevantly deal with the Kuchi threat to livestock and the like, beyond the way that she did.
Ground two, similarly, is not made out. When considering the complementary protection criterion, the assessor considered all integers of the applicant’s claims that were expressly made and clearly arising in the context of complementary protection. Ground two is not made out.
Ground three asserts a failure to apply the correct test in relation to s.36(2)(aa) of the Act to considering the Kuchi claim and the travelling claim. The applicant’s submissions before the Court did not focus on any misapplication of the correct test as such. Rather, the applicant’s attack focused on the argument of a failure to take into account integers of the applicant’s claims. In that sense, ground three was no different to ground two and fails for the same reason as set out above in relation to ground two. In any event, there is nothing before the Court to show that the assessor misunderstood, or misapplied, the correct test as required by s.36(2)(aa) of the Act.
Conclusion
In all, none of the applicant’s grounds are made out. In the circumstances, it is appropriate that the application, as amended, be dismissed. I will make an order accordingly.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 26 June 2013
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