SZSRY v MIBP
[2013] FCCA 1284
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1284 |
| Catchwords: MIGRATION – Review of report and recommendation of Independent Protection Assessor – refusal of a protection visa – applicant claiming ethnic and religious persecution in Afghanistan – applicant disbelieved in critical respects – whether the Independent Protection Assessor erred in applying the complementary protection criterion considered. |
| Legislation: Judiciary Act 1903 (Cth), ss.39B |
| ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation; Binetter v Deputy Commissioner of Taxation (2011) 86 ALJR 4 Minister for Immigration v Yusuf (2001) 206 CLR 323 Stead v State Government Insurance Commission (1986) 161 CLR 141 Wu v Minister for Immigration (2002) 123 FCR 23 |
| Applicant: | SZSRY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 598 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 September 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
The Court declares that the report and recommendation of the Independent Protection Assessor made on 18 April 2012 was not made in accordance with law.
The first respondent is restrained by himself or by his Department, officers, delegates or agents from relying upon the report and recommendation of the Independent Protection Assessor.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 598 of 2013
| SZSRY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a report and recommendation of an Independent Protection Assessment Officer (Assessor). The report was completed on 18 April 2012. The Assessor found that the applicant did not meet either of the criteria for a protection visa set out in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
The following statement of background facts is derived from the submissions of the parties.
The applicant and his refugee claims
The applicant is a male citizen of Afghanistan born in 1989. A Shia Muslim by religion and a Hazara by ethnicity, he arrived in Australian territory at Christmas Island on 25 March 2011 as an “irregular maritime arrival”[1].
[1] court book (CB) 98.4, 185
On 30 March 2011 the applicant was interviewed by an officer of the Minister’s Department, during which he made refugee claims[2]. At that interview, the applicant stated that:
a)he was 22 years of age[3];
b)he was born in the Nikhta Village, Qarabagh District, Ghazni Province, Afghanistan[4];
c)he was of Hazara ethnicity, Islamic religion and spoke Hazaragi[5];
d)he worked as a tailor[6];
e)he had lived in Afghanistan until 2009, when he spent a year in Iran[7]. He also lived in Pakistan for two months[8].
[2] CB 9-31
[3] CB 1
[4] CB 1
[5] CB 1
[6] CB 5
[7] CB 4
[8] CB 22
During that interview, the applicant stated that[9]:
I had a problem in Afghanistan. I’ve been tortured by the Taliban. It started with my brother who had a car, during the election he used it. When the Taliban found out he was using it to help the government they took him and his car on the road to Ghazni… During the election he registered to carry boxes and people who worked for the election.
[9] CB 18
On 17 April 2011 the applicant made a formal request for a Protection Obligations Determination (POD) with the assistance of a migration agent[10]. As part of this process, the applicant’s advisors raised the following claims:
[10] CB 38-86
I left [Afghanistan] due to my life being in danger in Afghanistan because I am Hazara and Shia.[11]
…
I believe if I return to Afghanistan I have real chance of physical harm even being killed because of my perceived association with government and my race and religion being an Hazara and Shia.[12]
…
The government in Afghanistan cannot and is not willing to help. There is insecurity, lack of rule and long history of discrimination against us Hazaras. There are regular incidents happening and people of my ethnicity are being killed.[13]
[11] CB 80
[12] CB 81
[13] CB 81
…
I am not safe anywhere in Afghanistan. The Pashtuns and Taliban will find me and kill me. And I do not have any family ties and friends elsewhere. I will not be able to make a living and survive.[14]
[14] CB 82
The applicant also elaborated on his earlier refugee claims as follows[15]:
About 1.5 years ago, on 29 August 2009, there were presidential elections in Afghanistan. My brother had a car that he was plying as a taxi between Nighta and Ghazni. During election he started carrying election papers and people associated with the body conducting the elections. When elections were over after 4 days he was coming back from Ghazni his car was stopped by Talibn [sic]. They arrested him and took his car. The passengers were let off; they went to the village and informed our family that my brother was taken away. The village elders went to Pashtuns who had influence with Taliban to enquire about my brother and did not get any information. My village elders threatened them to stop water from Nighta to Shaerabad (inhabited by Pashtuns).
After 1 month of that incident a body of a Pashtun was found in our village Nighta. This person was the son of a Pashtun Fazal Mohammed. They blamed this on the people of Nighta. Fazal Mohammed thought it is done by me because my brother went missing and sought help from the Taliban. Fazal Mohammed told Taliban that because his brother went missing, [the Applicant] killed my son and we have to take revenge by killing him. I came to know of this from my village elders. I decided to leave the country to save my life. Also I was perceived to be associated with the government like my brother.
…
I believe if I return to Afghanistan I have real chance of physical harm even being killed because of my perceived association with government and my race and religion being Hazara and Shia.
[15] CB 80-81
Protection Obligations Determination
The applicant’s POD was concluded on 8 June 2011[16]. The evaluating officer was not satisfied that the applicant was a person to whom Australia owed protection obligations[17]. The applicant’s refugee claims were rejected on credibility grounds[18]. The officer also found, in the alternative, that the applicant could reasonably relocate within Afghanistan to avoid any feared harm[19].
[16] CB 111
[17] CB 111
[18] CB 109
[19] CB 110-111
On 15 June 2011 an officer of the Minister’s Department wrote to the applicant informing him of the negative POD outcome and notifying him that the matter had automatically been referred for an Independent Protection Assessment (IPA)[20].
[20] CB 94-95
Independent Protection Assessment process
On 14 October 2011 the applicant’s migration agent sent written submissions to the Department supporting the applicant’s refugee claims[21]. In particular, they stated:
[21] CB 114-131
At a recent conference with [the applicant], and in light of issues raised in the Refugee Status Assessment Record, [the applicant] offered the following comments:
– His family are still in Nighta village in Qarabagh,
– He has not spoken directly to his family for eighteen months. The Taliban have destroyed the telephone lines in the area.
– He stayed in Iran for one year in 2004/05. He left there because he was illegal and he had spent three months in a detention centre. He returned to Afghanistan because he had nowhere else to go. [He] had gone to Iran in the first place because it was unsafe in Afghanistan for Hazaras. He sought safety in Iran.
The summary of claims concluded as follows:
It is a very reasonable assumption that, as their power grows, the Taliban will revert to a wholesale targeting of Shia Hazaras. There is no reason why they wouldn’t and the past is the most likely indicator as to what will happen in the future when they regain control.
Often in the past Departmental Delegates have stated that, while an applicant has a subjective fear of returning to Afghanistan, they do not have a fear from an objective viewpoint. This view has largely been formed because of country information which indicated that things were looking promising for Hazaras in Afghanistan and that the Taliban were not and in the future were not likely to persecute Hazaras.
This optimism does not exist any longer and it is submitted that [the applicant] has a well founded fear of returning to Afghanistan both on a subjective and objective basis and the nexus to the Convention is his religion and ethnicity and also his imputed political opinion. (emphasis added)
On 23 December 2011 the Department wrote to the applicant’s migration agent inviting further submissions for the purposes of the IPA[22]. On 19 February 2012 the applicant’s agent provided a further written submission, which was in similar terms to the document of October 2011[23]. This submission included, along with the reiteration of the applicant’s claims already before the Assessor, extensive information regarding the general security situation in Afghanistan[24].
[22] CB 136
[23] CB 156-173
[24] CB 159
On 27 March 2012 the Department again wrote to the applicant’s migration agent, this time seeking specific information and submissions addressing the then recently commenced complementary protection provisions of the Migration Act[25]. On 4 April 2012 the applicant’s agent sought and was granted an extension of time in which to respond[26]. The applicant’s migration agent provided submissions addressing complementary protection on or shortly before 12 April 2012[27]:
Pursuant to Section 36(2)(aa) of the Migration Act we submit that [the applicant] is owed protection because there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.[28]
The Taliban, it is submitted, would readily pursue and kill [the applicant], not only to avenge the death of the Pashtun man, but also because he is Hazara, Shia.[29]
Country information supports that there is a low government presence in Ghazni. The International Crisis Group’s Asia report No 207-27th June 2011 stated that “The Taliban are the strongest insurgent group in the province with a near total control of Andar, Moquer, Qarabagh, Giro and Nawah districts.[30]
It is clear that [the applicant] could not expect protection from the Government in Afghanistan against the arbitrary attempts to kill him by the Taliban. There is ample country information which supports that the law enforcement/security situation throughout Afghanistan is worsening.[31]
[25] CB 174-7
[26] CB 178-179
[27] CB 180-181
[28] CB 180
[29] CB 180
[30] CB 180
[31] CG 181
Independent Protection Assessment decision
On 18 April 2012, the Assessor finalised the IPA and recommended that the applicant not be recognised as a person to whom Australia owes protection obligations[32].
[32] CB 218 [158]
Regarding the general situation in Afghanistan, the Assessor found at [134][33]:
While there is a general consensus that the security situation in Afghanistan remains highly unstable and that Ghazni province is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces; as put to the claimant, this situation is one which affects Hazaras and Pashtuns alike; and, as indicated in the 2010 UNHCR Guidelines, the main targets of the insurgency are not people of a particular ethnicity, but those seen to be in alliance with international forces or the government.
[33] CB 213
The Assessor made the following findings in the applicant’s favour:
a)the applicant was a citizen of Afghanistan, a Hazara and a Shia Muslim.[34]
b)Hazaras and Shia Muslims face discrimination and violence in Afghanistan at the hands of the majority Pashtun, because of their race and religion. During their time in power, the Taliban targeted Hazaras by reason of their race and religion. Many Hazaras regard the Pashtuns as being as much of a risk to them as the Taliban and often refer to “Pashtuns” and “the Taliban” interchangeably[35].
[34] CB 212 [125]-[126]
[35] CB 213 [132]
However, the Assessor made the following findings against the applicant’s claims:
a)Hazaras or Shia Muslims in Afghanistan do not face a real chance of harm amounting to persecution by Pashtuns in general or the Taliban in particular simply by reason of their ethnicity and/or religion, even in areas where they constitute a minority[36];
b)on the basis of gaps in the applicant’s knowledge, and country information as to the ease with which false documents can be obtained, the Assessor concluded that the applicant was not from the village or region he claimed[37];
c)as to the alleged kidnapping of the applicant’s brother, the Assessor found that, if the applicant indeed had a brother (a question the Assessor left open), it was plausible he might have been kidnapped; but the Assessor was not satisfied that any such brother was kidnapped by the Taliban in retaliation for participation in the election, as opposed to ordinary criminals for non-political reasons[38];
d)the Assessor was also not satisfied that a Pahstun was found dead in or near the applicant’s village or that the applicant had been accused of the murder and pursued by the boy’s relatives[39];
e)as a result, the Assessor was not satisfied that the applicant was ever targeted by the Taliban[40].
[36] CB 213 [133]
[37] CB 213 [138]
[38] CB 214 [139]-[141]
[39] CB 214-215 [139], [142]-[143]
[40] CB 215 [144]
Consequently, the Assessor found that the applicant did not have a well-founded fear of persecution for a Convention reason[41].
[41] CB 216-217
As to complementary protection, the Assessor made the following findings[42]:
I have also considered whether the claimant meets the alternative criterion in s 36(2)(aa), including the submission by the claimant’s agent that there is a real risk that the claimant will suffer significant harm by being deprived of life should he be returned to Afghanistan. As indicated above, I am not satisfied that the claimant’s brother was kidnapped or killed for the reasons claimed; nor that [the] claimant was beaten or tortured by the Taliban, accused of killing a Pashtun or targeted by them, either to avenge the death of the Pashtun, by virtue of any government association, or as a Hazara Shi’a. Based on the claimant’s lack of credibility, I am not satisfied on the available evidence that any of the claimant’s claimed events in Afghanistan, in fact, occurred. In light of this, I am not satisfied on the evidence that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk that the claimant will suffer significant harm, having regard to the definitions in ss 5 and 36. I am, therefore, not satisfied that the claimant is a person to whom Australia has protection obligations under s 36(2)(aa). As I have found there is no real risk, it is unnecessary for me to consider s 36(2B). (emphasis added)
[42] CB 217 [155]
On 20 April 2012, the Department wrote to the applicant informing him of the IPA result[43].
[43] CB 182-3
The judicial review application
These proceedings began with a show cause application filed on 25 March 2013. The applicant now relies upon an amended application filed on 9 September 2013. The grounds in that application are:
1. That the Independent Protection Assessor failed to take a relevant consideration into account.
Particulars
The Independent Protection Assessor failed to take into account her own finding, at paragraph [134], that the security situation in Afghanistan remains highly unstable and that Ghazni province is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces, in the Independent [Protection Assessor’s] assessment of the Applicant’s claims under the complementary protection provisions.
2. That the Independent [Protection Assessor] failed to take a relevant consideration into account.
Particulars
The Independent Merits Reviewer failed to take into account relevant findings at paragraph [140] and [141] regarding the plausibility of the Applicant’s brother being kidnapped and killed in assessing the Applicant’s claim under the complementary protection provisions.
3. That the Independent Protection Assessor failed to apply the correct test in relation to the complementary protection provisions contained at section 36(2)(aa) of the Migration Act 1958.
4. That the Independent Protection Assessor erroneously failed to consider section 36(2B) of the Migration Act 1958.
I have before me as evidence the book of relevant documents filed on 3 May 2013 and the affidavit of Charles Frederick Stanford made on 19 August 2013, to which is annexed a transcript of the interview conducted with the applicant by the Assessor on 21 February 2012. The applicant pressed Grounds 1 and 3 at the trial of this matter. Ground 2 was not pressed. In the light of argument during the course of the trial of the matter, I permitted the applicant to add Ground 4 and the parties made additional written submissions in relation to that ground. Both parties made oral and written submissions in relation to Grounds 1 and 3.
Consideration
Offshore entry persons
As an “offshore entry person”, the applicant is barred by s.46A(1) of the Migration Act from applying for a visa, unless the Minister decides to lift that bar under s.46A(2). The Minister’s Department established the POD and IPA processes to assist the Minister in deciding whether to exercise this dispensing power. IPA reports are reviewable according to the principles laid down by the High Court in Plaintiff M61/2010E v Commonwealth[44], which dealt with the administrative predecessor to the POD and IPA processes. In summary, having announced that he would use those processes to consider whether to use his dispensing power to lift the bar on offshore entry persons applying for a visa, the Minister may only rely upon recommendations arising from those processes if they are made according to law.
[44] (2010) 243 CLR 319
Complementary protection
“Complementary protection” refers to Australia’s non-refoulement obligations arising from international treaties other than the Refugees Convention, especially the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). The Migration Amendment (Complementary Protection) Act 2011 (Cth) (Complementary Protection Act) amended the Migration Act to include criteria for protection visas that are consistent with Australia’s complementary protection obligations, especially in s.36 of the Migration Act, which now relevantly provides:
(2)A criterion for a protection visa is that the applicant for the visa is:
…
(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; or
…
(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.
These “complementary protection provisions” commenced on 24 March 2012, after the applicant’s IPA process had begun but before it was completed.
Grounds 1 and 3
Grounds 1 and 3 concern the correct test in law under the complementary protection provisions, and/or relevant considerations thereunder. Schedule 1 of the Complementary Protection Act, makes s.36(2)(aa) applicable to the definition of “protection obligations” for the purposes of the Migration Act in considering claims for protection made by the applicant on and after 24 March 2012.
Further, in Plaintiff M61 the High Court held that the decision to establish and implement the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) procedures was a decision by the Minister to consider whether to exercise s.46A or s.195A of the Migration Act in respect of any offshore entry person who made a claim that Australia owed that person protection obligations[45]. As one of the powers being considered was that pursuant to s.46A to lift the bar to allow offshore entrants to make an application for a protection visa the exercise of the power would be pointless unless the RSA and IMR processes were dealt with according to the relevant criteria and principles of the Migration Act, as construed and applied by the High Court of Australia[46].
[45] at [66]
[46] at [88]
In Plaintiff M61 the High Court found the RSA assessment and subsequent IMR review were subject to procedural fairness obligations as these processes extended the claimants’ period of detention. Hence the Court found the assessment and review must be procedurally fair and must address the relevant legal questions[47].
[47] at [77]
The applicant adopts the characterisation of the process established by the High Court in Plaintiff M61 at [38]-[52] and [73]. The applicant submits and I accept that the processes of assessment and subsequent review were undertaken by the Department in consequence of the Minister’s decision to consider the exercise of his powers under ss.46A and 195A of the Migration Act.
In support of these grounds, the applicant also notes the express undertaking made by the Assessor during the interview of the applicant and his advisor on 21 February 2012, where it was stated by the Assessor[48]:
MEMBER: I’ll be taking into account all the relevant information before me, including the records of your earlier interviews with the Department of Immigration, the various submissions that have been provided by you and your representative, and the information that you give me at … as evidence today.
[48] Transcript, page 3
The Assessor also acknowledged that she had received the applicant’s submissions[49]. It is therefore clear that the general claim advanced by the applicant in claiming to fear harm from the Taliban was before the Assessor, along with the evidence documenting this.
[49] Transcript, page 4
The applicant submits, and I accept, that the Assessor was required to correctly construe and consider claims (and component integers thereof) made by the applicant or apparent on the face of the material before her[50]. The obligation was not limited to procedural fairness in responding to expressly articulated claims but extended to reviewing the applicant’s claims following the POD on the basis of all the materials before her[51].
[50] Htun v Minister for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel J agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hayne J
[51] NABE v Minister for Immigration (No 2) [2004] HCA 62
In the present matter, the Assessor:
a)accepted that “the security situation in Afghanistan remains highly unstable and that Ghazni province is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces”, with at the same time finding that “this situation is one which affects Hazaras and Pushtuns alike”;[52]
b)accepted that it was “plausible that the claimant’s brother, if indeed he had one, may have been abducted and killed while driving passengers on the notoriously dangerous road between Qarabagh and Ghazni”, while at the same time finding that “I am not satisfied on the available evidence that four days after the election the claimant’s brother was kidnapped or killed by the Taliban, as opposed to criminals or a combination of both; and whether it was related to his alleged transporting of electoral material and personnel in the run up to the election or just one of the many such kidnappings that took place on the road”[53];
c)accepted that “during its time in power, the Taliban targeted Hazaras for reasons of their race and religion”[54]; and
d)accepted that the applicant “is a national of Afghanistan and of no other country”[55] and that “he is Hazara and a Shi’a, the religion of most Hazaras”[56].
[52] CB 213 [134]
[53] CB 214 [140]
[54] CB 213 [132]
[55] CB 212 [125]
[56] CB 212 [126]
In dealing with the above claims as they arose on the material, the Assessor applied the test under the Refugees Convention, as stated by the Assessor in her recitation of the test in the report preamble by reference to s.91R of the Migration Act[57]:
The persecution which the person fears must be for one or more of the reasons contained in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ refers to the motivation for inflicting persecution. A Convention reason must constitute the essential and significant motivation for the persecution feared, even if there are multiple motivations: s.91R(1)(a) of the Act.
[57] CB 186 [12]
It may be accepted that, as a general principle, complementary protection claims do not turn on the issues of the motivations of those who would persecute. In this sense, the Assessor is said to have effectively conflated the tests. Further, in dealing with the applicant’s claims under complementary protection, the Assessor is said to have confined her reasoning to credit findings relating to the well-founded fear of the applicant’s claims under complementary protection[58]. The applicant contends that the Assessor effectively imported the credibility findings, relevant to the applicant’s claims under the Refugees Convention, in her consideration of the applicant’s claims to complementary protection[59].
[58] CB 217 [155]
[59] CB 186 [14]
The applicant contends that, in so confining her consideration of the applicant’s claims to the credibility issues and by importing the requirement under s.91R of the Migration Act for the motivations of the persecutory agents, the Assessor has failed to apply the correct test to the claims advanced by the applicant. This amounts to a failure to complete the review process, despite the express undertaking that the Assessor would take into account all relevant information before her[60]. In this manner, the Assessor’s statements that she would so consider the material is said to have constituted an undertaking, relevant to the outcome of the hearing, that should have been observed[61].
[60] Transcript, page 3
[61] see Applicant NAFF of 2002 v Minister for Immigration & Anor [2004] HCA 62 as per Kirby J at [50]
Moreover, the applicant submits in the alternative that the applicant’s advisors squarely raised the general claim to fear significant harm at the hands of the Taliban on the basis that “Hazara Shias in Qarabagh/Ghazni generally face significant harm” in their letter dated 12 April 2012[62].
[62] CB 181
I am unpersuaded by those submissions of the applicant. I accept that the Assessor’s report and recommendation is amenable to review but I do not accept that Grounds 1 and 3 have been established. The dangers in Ghazni province identified by the Assessor at [134] of the IPA report are general in nature and “apply to Hazaras and Pashtuns alike”[63]. The only potential “specific circumstance” identified is that the main targets of the Taliban are “those seen to be in alliance with the international forces or the government.” The Assessor was clear at [141] that she was “not satisfied that [the brother’s] kidnapping had anything to do with any electoral involvement on his part”[64]. That eliminates the only specific basis on which the applicant might have been “seen to be in alliance with the international forces or the government”.
[63] see [15]
[64] see [17.c]
Contrary to the applicant’s written submissions, there is no evidence to suggest that the Assessor did not apply the correct test, at least in general terms.
To the extent that the Assessor relied, for the purposes of her complementary protection analysis, on other findings made earlier in her Refugees Convention analysis, those findings were as to whether the claimed events occurred at all, rather than the alleged motivations for them.
As the Assessor wrote at [155] of her report, in a passage specifically dealing with the complementary protection provisions:
Based on the claimant’s lack of credibility, I am not satisfied on the available evidence that any of the claimant’s claimed events in Afghanistan, in fact, occurred.
The Assessor was entitled to find, based upon her earlier factual findings in relation to the applicant’s claims to be a refugee, that the factual basis for his claim to complementary protection, based upon the applicant’s claims of past harm to him and his family, was not established to her satisfaction. I am fortified in that view by reference to the very recent decision of the Full Federal Court in SZSHK v Minister for Immigration[65] which dealt with similar grounds of review in a similar fact situation. However, there remained the question of whether the facts accepted or left open by the Assessor in relation to the general situation in Ghazni province supported the applicant’s claim to complementary protection.
[65] [2013] FCAFC 125
Subsection 36(2B)(c) of the Migration Act provides that the applicant will not be taken to face a real risk of significant harm if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. In other words, the applicant must face a real risk of significant harm in light of his specific circumstances. A general claim to fear harm, unrelated to the applicant’s specific circumstances, is insufficient to meet the requirements under the complementary protection provisions.
As noted above, the Assessor found that the kidnapping of the applicant’s brother, if it occurred at all, was an act of ordinary criminality unrelated to the applicant’s specific circumstances. Rather than being a “conflation” of the Refugees Convention and complementary protection tests as the applicant asserts, this might (to the extent that it called for an examination of the general security situation in Ghazni province) have been a straightforward application of the disqualifying provision that is s.36(2B)(c) of the Migration Act. The difficulty is, however, that the Assessor expressly disavowed consideration of that provision. That leaves the additional ground to be resolved.
The additional ground
In the additional ground the applicant contends that the Assessor erroneously failed to consider s.36(2B)(c) of the Migration Act.
The Assessor’s reasoning with respect to complementary protection is contained at paragraph [155] of her report[66]:
I have also considered whether the claimant meets the alternative criterion in s 36(2)(aa), including the submission by the claimant’s agent that there is a real risk that the claimant will suffer significant harm by being deprived of life should he be returned to Afghanistan. As indicated above, I am not satisfied that the claimant’s brother was kidnapped or killed for the reasons claimed; nor that [the] claimant was beaten or tortured by the Taliban, accused of killing a Pashtun or targeted by them, either to avenge the death of the Pashtun, by virtue of any government association, or as a Hazara Shi’a. Based on the claimant’s lack of credibility, I am not satisfied on the available evidence that any of the claimant’s claimed events in Afghanistan, in fact, occurred. In light of this, I am not satisfied on the evidence that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk that the claimant will suffer significant harm, having regard to the definitions in ss 5 and 36. I am, therefore, not satisfied that the claimant is a person to whom Australia has protection obligations under s 36(2)(aa). As I have found there is no real risk, it is unnecessary for me to consider s 36(2B). (emphasis added)
[66] CB 217; RS [14]
It is clear that this paragraph picks up and refers back to several findings made earlier by the Assessor in the context of her analysis of Australia’s obligations with respect to the applicant under the Refugees Convention. These findings included a rejection of the applicant’s claims of past harm, while accepting those of his citizenship, ethnicity and religion[67].
[67] RS [11]-[13]; CB 212-5
The Assessor also made findings, on the basis of country information, as to violence and instability in Afghanistan in general and the Ghazni province in particular[68]:
While there is a general consensus that the security situation in Afghanistan remains highly unstable and that Ghazni province is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces; as put to the claimant, this situation is one which affects Hazaras and Pashtuns alike; and, as indicated in the 2010 UNHCR Guidelines, the main targets of the insurgency are not people of a particular ethnicity, but those seen to be in alliance with international forces or the government.
[68] CB 213 [134]; RS [10]
The Assessor noted that the applicant claimed to be “from the Qarabagh district of Ghazni province”[69]. However, gaps in the applicant’s local knowledge led the Assessor to “conclude that the claimant is not from Nikhta village or [the] Qarabagh district at all”[70]. The Assessor made no express finding as to what part of Afghanistan the applicant was from, including whether or not he came from some other part of Ghazni province.
[69] CB 213 [135]
[70] CB 214 [138]; RS [12(2)]
It is clear from the discussion at the hearing that the new ground focusses on the disavowal of s.36(2B) in the final sentence of [155] of the Assessor’s report, combined with the country information as to general violence in Ghazni province[71]. Thus, in substance, the new ground amounts to an allegation that the Assessor failed to consider whether her findings as to the general situation in Ghazni province raised a “real risk” in terms of s.36(2)(aa) that was not disqualified by the terms of s.36(2B)(c).
[71] see [46]-[48] above
The Minister deals with the new ground in two ways. First, the Minister contends that, given the “comprehensive” rejection of the applicant’s credibility by the Assessor in relation to his home district, it is open to the Court to infer that the Assessor did not believe that the applicant was from Ghazni province at all. If so, then the country information as to the situation in Ghazni province would be irrelevant to the issue of complementary protection. Secondly, the Minister contends that if the Court is not minded to make that finding, the Minister concedes that the new ground comes into play because, if the country information raised relevant concerns about a real risk of significant harm, the Assessor was obliged to consider the application of s.36(2B)(c) of the Migration Act. However, the Minister submits that in those circumstances, given the findings already made by the Assessor, if she had considered the disqualification provision in s.36(2B)(c) the Assessor would inevitably have found that it applied and would have dismissed the applicant’s claims on that basis. In that event, the Assessor’s decision would not, in the Minister’s submission, be “affected” by legal error and thus judicial review would not be available. In the alternative, the Minister contends that relief should be denied on the discretionary basis that it would serve no practical purpose.
Counsel for the Minister has made useful submissions concerning the law bearing upon this issue, which I gratefully adopt. It has long been understood that a failure to take into account a required consideration will not justify judicial review if the “factor was so insignificant that failure to take it into account could not have materially affected the decision”[72]. In Lu v Minister for Immigration[73], Sackville J reviewed Peko-Wallsend and several other authorities on that issue and the cognate question of when a failure to accord procedural fairness will fall short of justifying judicial review[74]. His Honour came to the following conclusion at [64]:
It seems to me that the correct approach is that stated in Stead [(1986) 161 CLR 141] and adopted by the High Court in Aala [(2000) 204 CLR 82]. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker’s reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.
[72] Minister for Indigenous Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J)
[73] (2004) 141 FCR 346
[74] Stead v State Government Insurance Commission (1986) 161CLR 141 at 145, 147 (Mason, Wilson, Brennan, Deane and Dawson JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [3]-[4] (Gleeson CJ), [51]-[52], [59]-[60], [80](Gaudron and Gummow JJ), [80]; Wu v Minister for Immigration (2002) 123 FCR 23 at [38]-[40] (Sackville J); Dagli v Minister for Immigration (2003) 133 FCR 541 at [92] (Lee, Goldberg and Weinberg JJ); Naidu v Minister for Immigration [2004] FCAFC 184 at [44] (Beaumont, Conti and Crennan JJ); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 260 (Griffiths LJ); Hanks v Minister for Housing and Local Government [1963] 1 QB 999 at 1020 (Megaw LJ)
Black CJ agreed with this analysis and adopted a similar approach at [7], [29] and [31]-[32]; as did Sundberg J at [104]. This analysis has been confirmed by more recent Full Courts in VAAD v Minister for Immigration[75]; Lansen v Minister for Environment and Heritage[76]; and House v Defence Force Retirement and Death Benefits Authority[77].
[75] [2005] FCAFC 117 at [77]-[83] (Hill, Sundberg and Stone JJ)
[76] (2008) 174 FCR 14 at [90]-[125] (Moore and Lander JJ), [299]-[307] (Tamberlin J)
[77] (2011) 193 FCR 112 at [16]-[32] (Greenwood J), [133]-[135] (Gilmore J), [168], [173]-[174] (Logan J)
When the issue of inevitability was raised in oral argument, I asked whether these considerations go to whether the impugned decision has been affected by legal error, or merely whether the Court should withhold relief in the exercise of its discretion. While this question has been the subject of some uncertainty in the authorities[78]; it was addressed explicitly by Moore and Lander JJ in Lansen (above)[79]:
[124]Similar considerations apply when the Court is exercising jurisdiction under s 39B of the Judiciary Act. If the Court concludes that the relevant decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account but the relevant consideration was so insignificant that it could not have materially affected the decision-maker’s decision, the application for the issue of the constitutional writs must be dismissed. If on the other hand the Court concludes that the decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account and the consideration was not so insignificant that the failure to take it into account could not have materially affected the decision-maker’s decision, the applicant seeking relief under s 39B will be entitled to the issue of the constitutional writs subject to the exercise of the Court’s discretion in that regard. The Court will exercise its discretion in accordance with the principles in the cases to which reference has been made: Ross-Jones [1984] HCA 82; 156 CLR 185; Ex parte Aala [2000] HCA 57; 204 CLR 82.
[125]It follows, therefore, that the question of materiality as explained by Mason J in Peko-Wallsend [1986] HCA 40; 162 CLR 24 is relevant in a consideration as to whether or not error has been demonstrated on the part of the decision-maker rather than on the exercise by the Court of its discretion in relation to the relief which might be granted under s 16(1) of the ADJR Act or the issue of the constitutional writs under s 39B of the Judiciary Act.
[78] See, eg ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation; Binetter v Deputy Commissioner of Taxation (2011) 86 ALJR 4 at [47] (Heydon J)
[79] The approach of Moore and Lander JJ in Lansen is also consistent with the well-established propositions that (a) “a decision does not ‘involve’ an error of law for the purposes of s.5(1)(f) of the ADJR Act unless the error is material to the decision in the sense that but for the error the decision might have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 (Mason CJ)”: Lu (2004) 141 FCR 346 at [49] (Sackville J); and (b) for the constitutional writs to be available a decision must be “affected” by jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow, and Hayne JJ)
The Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth) is effectively identical to s.476 of the Migration Act, which is the source of this Court’s jurisdiction in this case.
Consequently, I accept that the new ground must fail if:
a)on the proper construction of s.36(2B)(c); and
b)given the findings already made by the Assessor,
the applicant’s complementary protection case on the basis of the situation in Ghazni would inevitably have fallen within the disqualifying provision in s.36(2B)(c).
Proper construction of s.36(2B)(c)
On the issue of the proper construction of s.36(2B)(c) of the Migration Act, the applicant at the hearing referred to and adopted what was said at 30-32 of the Complementary Protection Training Manual (2012), written by Professor Jane McAdam and Mr Matthew Albert (training manual).
The training manual was commissioned by the Refugee Review Tribunal and was prepared between the passing of the Migration Amendment (Complementary Protection) Act 2011 (Cth) and the commencement of the complementary protection provisions introduced by that Act. The Minister’s position is that the manual has no greater status than that of a textbook or journal article by learned authors. The manual does not represent the Minister’s or the Government’s position on the interpretation of the complementary protection provisions in the Migration Act, or on the interpretation of international law. While the manual’s focus on the ways in which foreign and international legal systems have approached similar issues is a useful contribution to the literature[80], it must be applied with care because there are important legislative differences between different countries’ provisions relating to complementary protection (or its equivalent name in other jurisdictions).
[80] see the manual at 10-12
At 30-32 the authors of the training manual survey some of the international and comparative jurisprudence on “general risk” exceptions to complementary protection or its equivalents. It can be seen from this survey that different legal systems adopt different approaches to their complementary protection obligations at different times[81]. Those different approaches are expressed through and influenced by the particular legislative language chosen in each jurisdiction; just as Australia’s approach is reflected in the particular language of s.36(2B)(c). It is notable that nowhere in the discussion at 30-32 do the authors quote or analyse the particular terms of s.36(2B)(c) or compare them to the precise terms used by the foreign legal systems discussed.
[81] The European Union, for example, requires a “serious and individual threat” with the exception that “[r]isks to which a population of a country or a section of a population is generally exposed” as not normally constituting an “individual threat” – though recent European Court of Justice decisions have moderated this with a more flexible approach in the case of very high levels of indiscriminate violence such that “the less the person is able to show that he is individually affected, the more violence must be serious and indiscriminate”: see the training manual at 31. The Canadian legal system appears to take a far more liberal approach: see at 32
At 32 the authors of the training manual advocate for the relevant test to be “whether the applicant faces a real risk of any proscribed forms of harm, irrespective of whether it is individually targeted”. The Minister submits, with respect, that in addition to advocating for just one of several different views taken by different foreign and international legal systems, this approach ignores the language of s.36(2B)(c), which explicitly requires more than a risk “faced by the population generally”. The Minister contends that to adopt the test advocated in the training manual would be to ignore the explicit legislative requirement in s.36(2B)(c) that the risk be “faced by the non-citizen personally”. (emphasis added)
Section 36(2B)(c) of the Migration Act provides that the applicant will not be taken to face a real risk of significant harm if the Minister is satisfied that the risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Minister submits that this means that the applicant must face a real risk of significant harm in light of his specific circumstances. Thus, contrary to the written and oral submissions made on behalf of the applicant, a general claim to fear harm, unrelated to the applicant’s specific circumstances, would be insufficient to meet the requirements under the complementary protection provisions. However, that submission by the Minister, with respect, begs the question: can a risk of generalised violence be a circumstance specific to an individual faced by him or her personally?
A claim left unresolved
The dangers in the Ghazni province identified by the Assessor at [134] of her report are general in nature and “apply to Hazaras and Pashtuns alike”[82]. The Minister submits that the only potential “specific circumstance” identified is that the main targets of the Taliban are “those seen to be in alliance with the international forces or the government”[83]. The Minister submits further that the only basis on which the applicant might have been “seen to be in alliance with the international forces or the government” was the claim that his brother had assisted with the elections; but the Assessor was clear at [141] of her report that she was “not satisfied that [the brother’s] kidnapping had anything to do with any electoral involvement on his part”[84]. The Minister submits that, if the brother was kidnapped as a random act of banditry, rather than for perceived support for the elections, there is no reason to think that the applicant is in any specific danger.
[82] see [48]. The Assessor also found that Hazaras and Shia Muslims in Afghanistan do not face a real chance of harm simply by virtue of their ethnicity and/or religion, even in areas where they constitute a minority (RS [12(a)]; CB 213 [133])
[83] ibid
[84] RS [12(3)]; CB 213
The Minister submits that, in the light of these findings, the applicant was not deprived of the possibility of a different outcome. Had the Assessor applied s.36(2B)(c), it follows from the findings she did make that she would inevitably have found that any “real risk is one faced by the population of the country generally and is not faced by the [applicant] personally”. The Minister’s submission is a forceful one but, on balance, I reject it for the following reasons.
The new ground turns on the following:
a)the express disavowal of s.36(2B) of the Migration Act in the final sentence of [155] in the report of the Assessor[85];
b)the acceptance by the Assessor of the security situation in Afghanistan in general (“highly unstable”) and Ghazni province in particular (“most volatile in the country”)[86];
c)the acceptance by the Assessor of the “plausibility” that the applicant's older brother “may have been abducted and killed while driving passengers on the notoriously dangerous road between Qarabagh and Ghazni”[87];
d)the finding by the Assessor that the applicant “is a national of Afghanistan and of no other country”[88];
e)the finding by the Assessor “that he is a Hazara and a Shi’a, the religion of most Hazaras”[89];
f)the acceptance by the Assessor of “the history of discrimination and violence suffered by Hazaras and Shi'a in Afghanistan because of their race and religion and the ongoing mistrust between Hazaras and the majority ethnic group, the Pashtuns, based, in part, on the animosity of the Pashtuns towards the Shi'a belief of most Hazaras”[90];
g)the acceptance by the Assessor that “during its time in power, the Taliban targeted Hazaras for reasons of their race and religion”[91].
[85] CB 217
[86] CB 213 at [134]
[87] CB 214 at [140]
[88] CB 212 at [125]
[89] CB 212 at [126]
[90] CB 213 at [132]
[91] CB 213 at [132]
It is true that the Assessor made no express finding as to what part of Afghanistan the applicant was from. In this respect, the conclusion made regarding the origins of the applicant was confined to the finding that “the claimant is not from Nikhta village or Qarabagh district”[92].
[92] CB 214 at [138]
The new ground therefore is interrelated to the evidence and submissions ventilated by the applicant at the IPA interview, which the applicant continues to rely upon.
I accept the applicant’s submission that the Assessor, in failing to consider whether her findings as to the situation of violence experienced by people of Hazara ethnicity in the Ghazni province could constitute a “real risk” of significant harm, failed to consider s.36(2B)(c), and in so doing, deprived the applicant of the possibility of a successful outcome by the Assessor’s failure to observe the requirements of the statute.
There is no doubt that the applicant made a general claim to fear harm from the Taliban on the basis of his Hazara ethnicity and Shia religion which was squarely and repeatedly raised. An example includes CB 80-82, where the applicant stated:
I left [Afghanistan] due to my life being in danger in Afghanistan because I am Hazara and Shia.[93]
...
I believe if I return to Afghanistan I have real chance of physical harm even being killed because of my perceived association with government and my race and religion being an Hazara and Shia.[94]
...
The government in Afghanistan cannot and is not willing to help. There is insecurity, lack of rule and long history of discrimination against us Hazaras. There are regular incidents happening and people of my ethnicity are being killed.[95]
[93] CB 80
[94] CB 81
[95] CB 81
...
I am not safe anywhere in Afghanistan. The Pashtuns and Taliban will find me and kill me. And I do not have any family ties and friends elsewhere. I will not be able to make a living and survive.[96]
[96] CB 82
This general claim survives the adverse credit findings specific to the applicant’s personal history in Afghanistan.
In my view, it is implicit in the Assessor’s reasoning that the Assessor accepted that the applicant is from Ghazni province:
a)the inference to the contrary urged upon the Court by the Minister is not inevitable in the circumstances, particularly where the Assessor has made findings as to the plausibility of the applicant's brother having been abducted on the road between Qarabagh and Ghazni;
b)the Minister’s argument is tantamount to an attempt to use a hypothetical outcome to justify a failure to observe the requirements of the statute; or as Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex Parte Aala[97] at [59]:
The concern is with observance of fair [or more generally, lawful] decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.
c)the Assessor’s practice of dealing with the complementary protection issues in a self-contained manner at [155] and by referring to findings “indicated above”, supports the inference that the Assessor has acted on the premise that the cited country information was relevant to the applicant's complementary protection claim;
[97] (2000) 204 CLR 82
In the circumstances, I accept the applicant’s submission that, as the country information as to the situation in Ghazni province was treated as relevant to the applicant's complementary protection claim, the new ground certainly arises.
I also accept that, in the circumstances of the present case, the failure of the Assessor to apply the correct test has deprived the applicant the possibility of a successful outcome. These circumstances include the accepted volatility and instability in the country of origin, the insurgent capabilities of the Taliban and the reliance by the Assessor on reports as old as three years.
Further:
a)crucial to the Assessor’s reasoning was her reliance upon now dated “independent information”, “including the UNHCR Guidelines of December 2010”, to reject the proposition that “Hazaras or Shi'a in Afghanistan face a real chance of harm amounting to persecution by non-state actors (Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and/or religion, even in areas where they constitute a minority”[98]; and
b)as noted in the Assessor’s own findings and reasons, the findings involve a security situation which is “highly unstable” and that the situation in the Ghazni province “is one of the most volatile in the country, with attacks by insurgents against civilian targets, government representatives and international forces”[99].
[98] CB 213 at [133]
[99] CB 213 at [134]
The training manual provides some useful guidance. In particular:
a)the authors note and indeed emphasise the legislative differences between different countries' provisions throughout their analysis;
b)as the authors note, the restrictive interpretation favoured by the Minister is predicated on exceptionality of harm in a manner which runs counter to the principles of humanitarian law; and
c)even if the section excludes the risk of harm that is not personally faced by an applicant, and is not specifically directed at him or her, it leaves open the possibility that an applicant may fear harm directed specifically at members of a class of persons which includes him or her and, as a member of that class, he may face that harm personally;
Given the breadth of the findings made by the Assessor in respect of the applicant’s ethnicity, religion, the insurgent capabilities of the Taliban, the history of harm experienced by Hazaras in Afghanistan, and the country information about the risks peculiar to Ghazni province, the applicant was entitled to expect that his claims would be considered as a member of a class discernible from the rest of the population of Afghanistan.
I will not withhold relief in the exercise of discretion. Accepting that the discretionary issues remain extant and that the test is whether the applicant has been deprived of the possibility of a successful outcome by the Assessor’s failure to observe the requirements of the statute[100], or alternatively that the factor will not justify judicial review if the “factor was so insignificant that failure to take it into account could not have materially affected the decision”[101], I accept the applicant’s submission that:
a)the test poses a low threshold for the applicant in the circumstances, noting the question is not whether the Assessor would probably have reached the same result even if the omitted consideration had been taken into account[102];
b)there are very limited bases on the material before the Court in the present matter to discern the Assessor’s approach to the exercise of the particular statutory power with respect to s.36(2B)(c) given the express disavowal, the novel nature of the section and the breadth of findings favourable to the applicant; and
c)an available approach would be to follow the training manual which would favour the applicant.
[100] Lu v Minister for Immigration (2004) 141 FCR 346 per Sackville J at [64]
[101] Minister for Indigenous Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J
[102] ibid at [64]
I accept that, notwithstanding the credit findings that were adverse to the applicant's case, it nevertheless cannot be predicted that these findings would inevitably have led to an adverse result in these circumstances.
Conclusion
In summary, I find that the Assessor made no finding that the applicant was not from Ghazni province, and I am willing to infer from the Assessor’s report and recommendation as a whole that she proceeded on the basis that he was from Ghazni province. There was country information before the Assessor which pointed clearly to the poor security situation in Ghazni province. Indeed at [134][103] the Tribunal found that Ghazni province is one of the most volatile in the country with attacks by insurgents against civilian targets, government representatives and international forces. The situation is one which apparently affects Hazaras and Pastuns alike. It was apparent, therefore, that the risk facing the applicant in Ghazni province was one of violence not personally directed to him as an individual but nevertheless a risk of being caught up in violence directed towards people in the province which included the applicant.
[103] ibid
The Assessor needed to consider whether the applicant faced a risk of harm which was greater than that faced by the people of Afghanistan generally. The answer to that question is not inevitably in the negative. It was, in my view, open to the Assessor to consider whether the risk faced by a Hazara Shi’a resident of Ghazni province was greater than that faced by the population of Afghanistan generally, including residents in other provinces in Afghanistan. If the risk facing the applicant in Ghazni province was greater than the risk facing residents of other provinces, the Assessor would need to consider whether that risk could be said to be personal to the applicant (as a resident of an especially violent province).
The Assessor failed to engage in the required consideration and accordingly, the applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 December 2013
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