SZSTZ v Minister for Immigration
[2015] FCCA 93
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSTZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 93 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant fearing harm for various reasons, including that he delivered alcohol in Kabul – Tribunal accepting the fact of the employment but not the claimed past harm that resulted from it – whether the Tribunal overlooked an integer of the applicant’s claims, whether the Tribunal decision was unreasonable or whether the Tribunal erred in its consideration of the complementary protection criterion considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 414, 430 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v SZSNW [2014] FCAFC 145 Minister for Immigration v SZSWB [2014] FCAFC 106 Minister for Immigration v Yusuf (2001) 206 CLR 323 SZRZN v Minister for Immigration & Anor [2013] FCCA 510 |
| Applicant: | SZSTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 861 of 2013 |
| Judgment of: | Judge Driver |
| Hearing dates: | 19 December 2013, 1 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr P Knowles, Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari shall issue removing the record of the Tribunal’s decision made on 26 March 2013 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 861 of 2013
| SZSTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 26 March 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s outline of submissions filed on 28 November 2014.
The applicant was born in Kabul, Afghanistan in 1957 and lived there his entire life before coming to Australia. He arrived at Christmas Island on 6 May 2012 as an offshore entry person, having left Afghanistan in April 2012.
On 6 August 2012, the applicant was notified that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to “lift the bar” to permit him to lodge an application for a protection visa[1] and he lodged that application on that day[2].
[1] Court Book (CB) 28
[2] see CB 32-95: the applicant’s statement, where his claims are set out, is at CB 58-61
The applicant claimed to have been abducted and held captive by the Taliban for six nights in 2010. He considers that being Tajik played a role in that but he also believes that his imputed religious beliefs put him at risk. Specifically, he had worked as a truck driver delivering goods that include alcohol to shops since 2005 and he believes that the Taliban became aware of his dealings in alcohol and they believe that anyone associated with alcohol is an infidel and must be punished[3]. He also claims that a long-standing feud within his family led to his paternal cousin informing the Taliban of the nature of his work[4].
[3] see CB 58-59
[4] see CB 59-60
Following his abduction (from which he escaped after six days), he restricted his work to the Kabul area but continued to trade in alcohol. He stated that in 2011 he was informed by two shopkeepers to whom he delivered that the Taliban had approached them and asked about him and warned the shopkeepers that if he continued to deliver alcohol they would kill him or otherwise punish him. After hearing this, he went into hiding and started to make arrangements to leave the country which he did in April 2012.
The delegate who considered his application rejected his claim for protection on a number of bases. These included:
a)the delegate considered that given the “nature of the current security situation”, some of the harm the applicant feared arose from “situations of random violence” and thus was not “systematic and discriminatory”[5] (though the delegate appears to have found in the next paragraph that some of the harm was “systematic and discriminatory”);
b)the delegate did not accept that there was a real risk of significant harm due to the applicant’s race, religion or political opinion;
c)the delegate did not accept that the abduction occurred as claimed by the applicant;
d)in any event, in selling alcohol, the delegate determined that the applicant was breaching a law of general application: if he complied with the law of the country, he would not face harm.
[5] CB 109
The applicant sought review by the Tribunal on 13 November 2012[6]. He was represented and provided a detailed pre-hearing submission to the Tribunal from his representative on 23 January 2013[7].
[6] CB 118-123
[7] CB 148-163
Among the key points made in that submission, the applicant’s representative pointed out that the delegate had, in effect, overlooked a claim that the applicant was at risk of harm from the Taliban, ie, from a non-government body because it was the Taliban, rather than the government, who sought to harm those it considered infidels, including alcohol traders[8]. In other words, the applicant feared “extra-judicial punishment by the Taliban”.
[8] see CB 155
Further, in relation to the delegate’s finding that the applicant would not face harm if he complied with a “legitimate law of general application relating to alcohol”, the adviser also pointed out that the delegate had failed to consider the issue of proportionality which is necessary when determining whether the harm faced flowed from a law of general application[9].
[9] referring to the decision of the High Court in Applicant S v Minister for Immigration (2004) 217 CLR 387 at [44]): CB 155
The applicant’s adviser also provided specific country information in support of the applicant’s claim to fear harm as a failed asylum seeker returning from a western country, noting that returnees are targeted because they are seen as pro-Western and assumed to have converted to Christianity[10].
[10] see CB 156-157
The Tribunal’s decision
The Tribunal affirmed the decision of the delegate. At [53][11] the Tribunal set out a summary of the applicant’s claims. In the following paragraph, the Tribunal stated[12]:
The Tribunal accepts that independent country information consulted by it, including the country information referred to by the delegate and the country information produced and referred to by the applicant, supports in a general way the applicant’s claims about the insecurity in Afghanistan, the activities of the Taliban and anti Tajek groups in Afghanistan, including against those perceived to be infidels because they have dealings with alcohol, Taliban activity and enmity against Tajeks in the past, including in Kabul, and about the culture of revenge in Afghanistan. The Tribunal also accepts that there are some sources of country information that support in a general way that those with connections to the West, including those who left Afghanistan illegally and claimed asylum in the West, and returned to Afghanistan, are sometimes targeted for harm as the applicant claims.
[11] CB 192
[12] CB 192-193 at [54]
The Tribunal accepted the applicant’s evidence that he has worked in Kabul as he claims for many years (emphasis added)[13].
[13] see CB 193 at [59]
However, the Tribunal did not accept that the applicant had been stopped and detained by the Taliban for six days in 2010[14]. It did not consider that claim to be consistent with the fact that after that time he continued to live in Kabul and continued his work (albeit on a more limited basis).
[14] CB 194 at [60]-[62]
While the Tribunal accepted that there had been a family dispute involving the cousin some 25-30 years earlier, it did “not accept that the applicant left his country or fears to return there for that reason, or that there is a real chance or real risk that he will suffer harm amounting to serious harm or significant harm from his cousin” for the reason claimed[15].
[15] CB 194-195 at [63]
The Tribunal acknowledged that “there has been conflict and violence between the Taliban and other anti Tajek groups against the Tajeks in the past in Afghanistan and in Kabul” but did not accept that “there is a real chance or real risk that the applicant will be targeted for harm because he is Tajek and/or Sunni Muslim on his return to Kabul/Afghanistan”[16]. While the Tribunal also “accept[ed] that there is some country information which supports the claims that some returned asylum seekers from the West who left their country illegally are targeted for harm in Afghanistan/Kabul for the reasons that the applicant claims, the Tribunal [did] not accept that there is a real chance that this applicant will suffer harm amounting to serious harm in his country for this reason or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of this applicant being removed from Australia to a receiving country, Afghanistan, there is a real risk that he will suffer significant harm there for these reasons”.
[16] CB 195: [65]
At [67][17], the Tribunal concluded that in its view, there was no “plausible evidence” that the applicant had suffered persecution in Afghanistan or that he has a real chance of doing so, for any Convention reason. At [69][18], the Tribunal also stated that in its view, there were not “substantial grounds for believing that … there is a real risk he will suffer significant harm” for the purposes of the complementary protection provisions of the Migration Act[19] if removed from Australia.
[17] CB 195
[18] CB 195
[19] Section 36(2)(aa)
Thus the decision was affirmed.
The judicial review application
These proceedings began with a judicial review application filed on 24 April 2013. The applicant now relies upon an amended application filed on 4 July 2013. There are three grounds in that application:
GROUND ONE
In deciding to affirm the decision of the First Respondent, the Tribunal/Second Respondent committed an error of law amounting to a jurisdictional error by failing to carry out its statutory function to review the decision as required by s.414 of the Migration Act 1958.
Particulars
a) The Tribunal failed to address an integer of the Applicant’s claim, namely, that there was a real chance that the Applicant would be subject to [C]onvention-based persecution by reason of his involvement in the alcohol trade.
b) The Tribunal failed to address an integer of the Applicant’s claim, namely, that as a consequence of being removed from Australia, there was a real risk that the Applicant would suffer significant harm by reason of his involvement in the alcohol trade.
GROUND TWO
The Tribunal’s decision is vitiated by an absence of an evidence and intelligible justification for the rejection of the applicant’s claims, thus giving rise to jurisdictional error for “illogicality” or “unreasonableness”
Particulars
a) In accepting the country information and noting that it supported “in a general way the applicant’s claims”, including those relating to people who have dealings with alcohol (para 54), but rejecting the applicant’s claim that he would experience persecution because of his dealings with alcohol, without giving reasons for doing so, the Tribunal’s decision is characterised by arbitrariness, and is illogical and unreasonable; and
b) In accepting that country information supported by the applicant’s claim that “some returned asylum seekers from the West who left their country illegally are targeted for harm in Afghanistan/Kabul for the reasons the applicant claims” (see paras 66 and 54) but concluding, without giving reasons for doing so, that there was no real chance the applicant faced such harm, the Tribunal’s decision is characterised by arbitrariness and is thus illogical and unreasonable.
GROUND THREE
The Tribunal did not consider the Applicant’s claim for complementary protection separately from its consideration of the applicant’s claim for protection under the Refugees [C]onvention, thus failing to comply with its obligation under s.414 of the Act to review the decision and giving rise to jurisdictional error.
Particulars
a) While the Tribunal acknowledged its obligation to consider the claim for complementary protection, the Tribunal did not independently consider whether the applicant would be at real risk of significant harm were he to be removed from Australia, notwithstanding its acceptance of key aspects of the Applicant’s case and of the country information that was before it.
I have before me as evidence the court book in two volumes filed on 31 May 2013 and 6 December 2013[20].
[20] SCB
A transcript of the Tribunal hearing had been prepared on behalf of the applicant and verified by affidavit by Sophie Edington-Cheater made on 25 June 2013. The affidavit was read without objection, however it has no relevance to the issues in dispute.
Both the applicant and the Minister made written and oral submissions.
Consideration
Did the Tribunal fail to deal with an integer of the applicant’s claims?
The main focus of this ground is the failure on the part of the Tribunal to deal with the claim by the applicant that he would face either Convention based harm, or that if returned to Afghanistan, there were substantial grounds for believing that he was at real risk of significant harm on the basis of his history of being an alcohol trader.
The Tribunal rejected the applicant’s claim to have been kidnapped by the Taliban in 2010, effectively on the ground that it found it implausible that if that had happened, he would have continued to live in Kabul after he escaped. The Tribunal also did not accept that he was told by shopkeepers that the Taliban was targeting him in 2011, nor that his family received warning letters from the Taliban in 2012 after he had left the country.
However, those findings do not dispose of the applicant’s remaining claims: first, the claim based on his status as an alcohol trader and secondly, the claim based on his status as a returned asylum seeker from the west.
In relation to the alcohol trader claim, as I have noted, the Tribunal stated, at [59] that it “accepts the applicant’s evidence that he has worked in Kabul as he claims”. That evidence, which was accepted, was that he made his living selling and delivering alcohol. There is no finding of the Tribunal that questions the credibility of his claim to have been an alcohol trader. Thus, it is open to infer from [59] of the reasons that the Tribunal accepted that the applicant was a dealer in alcohol. The Tribunal also accepted[21] that the independent country information supports “the applicant’s claims about the … activities of the Taliban and the anti Tajek groups in Afghanistan, including against those perceived to be infidels because they have dealings with alcohol” (emphasis added). That country information included material referred to by the applicant’s adviser who noted[22] that the New York Times had reported on what was described as a “brazen attack” by the Taliban on tourists drinking alcohol in which a number were killed[23]. The adviser also noted that the delegate had acknowledged that there had been recent attacks in Kabul by the Taliban in relation to alcohol. The delegate’s response to this (as I have already noted) was to state that the applicant could avoid that harm by complying with a law of general application (and thus the delegate failed to acknowledge the fact that the harm feared included harm from the Taliban, ie extra-judicial and non-government harm).
[21] at [54]
[22] at CB 155
[23] see CB 155, footnote 57
The Tribunal appears to have dealt with the claim raised by the applicant about his role in the alcohol trade by finding that his claim about having been abducted was not accepted. The Refugees Convention does not look only to the past; it requires an assessment of future risk. The Tribunal was required to deal with the claim made that the applicant faced harm at the hands of the Taliban in the foreseeable future.
The applicant concedes that, while it is certainly the case that had the Tribunal found that the abduction had occurred in the past, the risk to him of future harm might have been considered greater[24]. It is not necessary, however, to a finding that there is a well-founded fear of persecution that the applicant demonstrate that he has been persecuted in the past as the High Court (Gummow and Hayne JJ) stated in Abebe v Commonwealth[25]:
[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.
[24] See for example Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [82] and see also the discussion by the High Court in Minister for Immigration v Guo of the relevance of events in the past to determining future risk: (1997) 191 CLR 559 at 574
[25] (1999) 197 CLR 510 at [192]
In DZADC v Minister for Immigration & Anor(No.2)[26], Raphael FM (as he then was), relying on Chan v Minister for Immigration[27] and Minister for Immigration v Wu Shan Liang[28] set aside a decision of an Independent Merits Reviewer on the basis of jurisdictional error where the Reviewer had failed to explain why a finding that nothing had happened in the past meant that nothing would happen in the future. His Honour said at [16]:
However, simply to make a finding about what occurred in the past is not enough to satisfy the real chance test as elaborated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. As the High Court opined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ, the essence of the real chance test propounded in Chan is the process of looking to the future. Such a process has not been effectively engaged in the present case. As a counterpoint, where a Tribunal finds that no past persecution has occurred, as the Reviewer found in this case, it is not then required to consider the claims of past persecution when considering the real chance test : MSXSA v Minister [2010] FCAFC 123. It follows that a finding as to past events alone will not satisfy the real chance test, and indeed, in MSXSA the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” (at [94]). In SBZF v Minister for Immigration and Citizenship [2008] FCA 1486, Lander J opined at [51]-[52]:
“However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.”
In my opinion, the same must be said of the present case. The Reviewer did not go the extra step of explaining why his finding that nothing had happened in the past meant that nothing would happen in the future.
[26] [2012] FMCA 778 (DZADC)
[27] (1989) 169 CLR 379
[28] (1996) 185 CLR 259
The applicant submits that precisely the same error has been made by the Tribunal in this case as was found to have been made by Raphael FM in DZADC. In this case, after finding the applicant’s claim to have been abducted and threatened not established, the Tribunal has not separately considered whether the established facts, namely that the applicant traded in alcohol and that, according to country information, the Taliban targets alcohol use and trading, give rise to a well-founded fear of persecution. In failing to consider whether the applicant was at risk of harm from the Taliban in that respect, the Tribunal has failed to carry out its review function.
Moreover, the applicant submits that, not only has the Tribunal not considered whether he is at risk from the Taliban in relation to his alcohol related activities, but it has also not considered the possibility that he is at risk of harm from the government as a consequence of that trade. The delegate referred in his reasons for decision to the government law passed in 2009 “Against Intoxicating Beverages and Narcotics” which targets merchants who will now face penalties of between 10 days and 20 years and may also face lashing (which applies to those who drink wine). The applicant submits that if that risk were established (consistently with the delegate’s reasons), then it would also have been incumbent on the Tribunal to consider the issue of proportionality when determining whether what the applicant faced was persecution on a Convention ground (religion) or rather a risk that flowed from the existence of a law of general application. The Tribunal did not consider at all what might occur to the applicant were he to return to Afghanistan and resume his prior career as a dealer in alcohol.
In that connection, this case can be distinguished from Minister for Immigration v SZSWB[29] on several bases. First, the Minister does not contend in this case that it was no part of the applicant’s claims that he would resume the trade on return to his home country. Secondly, even if the applicant did not resume the trade, he had been engaged for a significant period in the illegal and forbidden trade in the past which might still carry a risk of discovery.
[29] [2014] FCAFC 106
At [67][30], the Tribunal summed up its assessment by saying, among other things, that there is no plausible evidence that the applicant has a real chance of suffering persecution on any Convention ground “either now or in the reasonably foreseeable future”. The applicant contends that that mere reference to the future does not take the place of a “concrete” engagement with the claim made; specifically, that the applicant will be targeted by the Taliban (or alternatively), the subject of what may be a disproportionately harsh law concerning alcohol. The applicant contends that the Tribunal was required to assess that claim and consider whether there was in fact any such real chance (or real risk). It neither considered the claim in relation to the future by reference to the claim for a protection visa by reference to the Refugees Convention, nor did it consider whether by reason of his involvement in the alcohol trade, there was a real risk that the applicant would suffer significant harm. Thus the Tribunal also failed to consider that claim by reference to complementary protection (see the discussion in relation to Ground Three below).
[30] CB 195
By failing to consider any real chance of persecution or future risk of significant harm the Tribunal, in the applicant’s submission, has committed jurisdictional error and thus its decision should be set aside.
The Minister resists this ground on the factual basis that the applicant was not in fact found to have been involved in the alcohol trade.
All of the various ways in which the applicant puts ground one depend on the premise that the applicant was, in fact, involved in the distribution of alcohol. The applicant contends that the Tribunal accepted that he had been involved in the alcohol trade when, it held[31]:
The Tribunal also accepts the applicant’s evidence that he worked in Kabul as he claims for many years, initially running a shop … and then doing deliveries.
[31] CB 193 at [59]
The Minister submits that this finding should be understood, relevantly, as no more than a finding that the applicant worked in Kabul doing deliveries. It does not involve acceptance of the applicant’s claim to have delivered alcohol. Indeed, the Minister asserts that the Tribunal must be taken to have rejected the applicant’s claim to deliver alcohol.
I accept that [59] of the Tribunal’s reasons cannot be read in isolation. Rather, the Tribunal’s reasons must be read as a whole[32].
[32] Baker v Minister for Immigration [2012] FCAFC 145 at [43]-[44] per curiam; Tewao v Minister for Immigration [2012] FCAFC 39 at [24]-[27] per curiam
The Tribunal rejected the applicant’s claim to have been targeted by the Taliban as a consequence of his claimed involvement in the alcohol trade[33]. The Minister submits that this should be understood as a rejection of the applicant’s claim to have been involved in the alcohol trade in light of the following circumstances:
a)the Tribunal accepted that country information indicated that those involved in the alcohol trade were at risk from the Taliban[34];
b)the Tribunal found that the applicant’s claims to have been detained by the Taliban in 2010, or informed that he was a Taliban target in 2011, or sent warning letters from the Taliban were invented to assist his visa application[35];
c)the Tribunal found that the applicant could not adequately explain, if he was the target of the Taliban for delivering alcohol, how he and his family continued to live in their family home in Kabul or how his children continued to attend school. Nor could the applicant explain how he managed to continue to distribute alcohol until 2012 as claimed notwithstanding the applicant’s acknowledgement that the Taliban was aware of his involvement in the distribution of alcohol[36]. These findings suggest that the Tribunal simply did not accept the applicant’s claim that he had in fact delivered alcohol;
d)unlike the delegate, the Tribunal did not consider whether or not the applicant was exposed to a risk of persecution from the Afghan state by reason of its laws restricting the distribution, sale and consumption of alcohol. The best explanation for the Tribunal’s approach is that consideration of this issue was unnecessary in light of the Tribunal’s rejection of the applicant’s claim to have distributed alcohol.
[33] CB 193 at [60]
[34] CB 192 at [54]
[35] CB 194 at [60]-[62]
[36] CB 194 at [61]-[62]
The Minister’s central proposition is that, having rejected the fundamental premise that the applicant had been involved in the alcohol trade, it was not necessary for the Tribunal to go on to consider the claim that such involvement could give rise to a real risk of serious harm (or significant harm)[37]. In the words of the Full Federal Court in WAEE at [47], the claim was already answered by being “subsumed in findings of greater generality”, or, alternatively, it rested upon a “factual premise” which had already “been rejected”.
[37] Applicant WAEE v Minister for Immigration (2004) 75 ALD 630 at [47] per curiam
I cannot accept the Minister’s primary submission that the Tribunal in its reasons rejected the applicant’s factual claim that he had been involved in the alcohol trade. The Tribunal’s reasoning is relevantly set out at [54]-[60] of its reasons[38] where the Tribunal said relevantly:
[38] CB 192-194
54 The Tribunal accepts that independent country information consulted by it, including the country information referred to by the delegate and the country information produced and referred to by the applicant, supports in a general way the applicant’s claims about the insecurity in Afghanistan, the activities of the Taliban and anti Tajek groups in Afghanistan, including against those perceived to be infidels because they have dealings with alcohol, Taliban activity and enmity against Tajeks in the past, including in Kabul, and about the culture of revenge in Afghanistan. The Tribunal also accepts that there are some sources of country information that support in a general way the applicant’s claims that those with connections to the West, including those who left Afghanistan illegally and claimed asylum in the West, and returned to Afghanistan, are sometimes targeted for harm in Afghanistan as the applicant claims. Clearly however in relation to section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country and/or, for the purposes of persecution for a Convention reason if he returns to his country and/or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant in question being removed from Australia to a receiving country, in this case Afghanistan, there is a real risk that he will suffer significant harm in that country.
55. The Tribunal accepts that the applicant is who he claims to be, that he is Tajek and Sunni Muslim and that he is a citizen of Afghanistan; copies of his taskera and his Afghan Driver’s Licence are on the departmental file.
…
59 The Tribunal also accepts the applicant’s evidence that he has worked in Kabul as he claims for many years, initially running a shop, which his brother still runs and where he (the applicant) worked until 2005, and then doing a delivery business. The Tribunal accepts and finds that the applicant was working doing deliveries to support his family just before he came to Australia and that he did this work until he sold his car which was about two months before he left his country to come to Australia in April 2012; this was the applicant’s oral evidence to the Tribunal.
60 The Tribunal does not accept as true that the applicant was targeted for harm in his country including by the Taliban for the reasons that he claims, including because he is Tajek and because he has been delivering alcohol to shopkeepers and was/will be perceived as an infidel and anti Taliban for that reason. The Tribunal does not accept as true that the applicant was stopped and detained for six days by the Taliban/those associated with the Taliban when he was doing deliveries of goods in 2010, or that he was told by shopkeeper/s that the Taliban were targeting him in 2011, or that he was sent warning letters by the Taliban after he left his country in 2012, for the reasons that the applicant claims. The Tribunal considers that he has invented these claims to give him a better chance of getting a protection visa to stay in Australia.
In my view, on a fair reading, the Tribunal must be taken to have accepted that the applicant worked delivering alcohol in Kabul as he claimed. Having accepted at [55] that the applicant is a Tajik and having accepted at [59] that the applicant delivered alcohol, the Tribunal cannot be taken to have rejected both those claims or either of them at [60]. Plainly, the Tribunal did not accept the applicant’s claims of past harm in that employment or because he is a Tajik. It follows, in my view, that there is a critical problem in the Tribunal’s reasons in that it failed to engage in a forward looking assessment of the risk faced by the applicant should he return to Kabul and either once again engage in delivering alcohol, or be identified from his past involvement.
The Minister advances a secondary argument in order to avoid a conclusion of jurisdictional error. The argument is in two parts.
First, if, contrary to the Minister’s submissions, the Tribunal did accept that the applicant had delivered alcohol, it is not the case that the Tribunal failed to consider a claim (or an integer of a claim) arising from this fact. The Tribunal’s reasons at [60]-[62] expressly engage in various aspects the applicant’s claim to fear harm by reason of his claim to have delivered alcohol. The claim is also referred to at other parts of the Tribunal’s reasons[39]. Given the Tribunal expressly referred to the claim, the Court should not lightly infer that it failed to consider it[40].
[39] eg CB 187 at [23] and CB 190 at [42]
[40] WAEE at [47]
Secondly, the Minister submits that it is not correct that the Tribunal failed to consider the risk of harm the applicant may face in the future if returned to Afghanistan. The Tribunal’s reasons expressly assessed the applicant’s claims by reference to the risk of harm in the reasonably foreseeable future[41]. The fact that the Tribunal’s reasons focus predominantly on past events is wholly unexceptional. It merely reflects the manner in which the applicant’s claims were expressed and the fact that past events are indicative of the risk of future harm[42].
[41] CB 195 at [67]
[42] see Minister for Immigration v Guo (1997) 191 CLR 559 at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ
I accept the Minister’s contention that there was not a complete failure by the Tribunal to consider the applicant’s claim. The claim was considered and rejected in so far as it depended on the assertions of past harm.
As to the second limb, at [67] the Tribunal said:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in Afghanistan, or that he has a real chance of suffering persecution there, from the Taliban/Taliban supporters, anti Tajek insurgent groups, the government or from anyone else, because of his political opinion or imputed political opinion, because he is a member of a particular social group, because of his religion (including that he will be imputed to be an infidel) or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to his country.
That is a “rolled up” assessment and, as the Minister’s submissions note, focuses on the assertions of past harm. The Tribunal may have assumed that because the applicant had managed to avoid harm in delivering alcohol in the past he would be able to do so in the future. If that was the Tribunal’s reasoning then it needed it to be expressed. Such a fundamental assumption about the risk faced by the applicant cannot be left implicit. In my opinion, the Tribunal fell into the same error as was identified by the Full Federal Court in Minister for Immigration v MZYTS[43] at [46] and [62]. The Tribunal failed to complete the performance of its statutory task and hence there was a constructive failure of jurisdiction. For this reason, the applicant should receive the relief he seeks.
[43] (2013) 136 ALD 547; [2013] FCAFC 114
It is not strictly necessary to deal with the remaining grounds in the amended application but for completeness, I will do so.
Was the Tribunal’s decision unreasonable?
I agree in general terms with the Minister’s submissions on this issue.
The applicant alleges that the Tribunal’s findings in respect of the claims arising from the applicant’s involvement in the alcohol trade as well as his status as a failed asylum seeker were irrational and illogical.
The applicant, relying on the statement of Hayne, Kiefel and Bell JJ in Minister for Immigration v Li[44], asserts that a decision will be unreasonable where it lacks an evident and intelligible justification. There is room for debate as to whether this description of the threshold of unreasonableness differs from the Wednesbury standard of unreasonableness (ie a decision which is so unreasonable that no decision maker acting reasonably could have arrived at it)[45]. There is also room for debate as to whether the description of unreasonableness adopted by the majority in Li applies outside the context of the exercise of a discretionary power[46].
[44] (2013) 297 ALR 225 at [76]
[45] cf Li at [28] per French CJ and at [108] per Gageler J
[46] See Minister for Immigration v SZSNW [2014] FCAFC 145
However, it is not necessary to address those matters in this case. It is sufficient to note that the test of unreasonableness is stringent. An unreasonable decision is akin to a decision which is “illogical”, “irrational”, “clearly unjust” “arbitrary” or “unjust”. An unreasonable decision is one which is not open on the evidence before the Tribunal[47].
[47] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [129]-[130]
The claim that the Tribunal’s finding in respect of the risk of harm arising from the applicant’s involvement in the alcohol trade was unreasonable may be dealt with simply. If it had been accepted that the Tribunal rejected the factual claim that the applicant was involved in the distribution of alcohol, the rejection of the applicant’s claim to fear harm by reason of his involvement in this activity could not be considered unreasonable. On the contrary, in light of the hypothetical factual finding, it would have been the only conclusion available to the Tribunal. Conversely, where, as here, the Tribunal has not completed its statutory function of review, because of a constructive failure of jurisdiction, it would seem premature to venture an assessment of the reasonableness of the incomplete exercise of jurisdiction. That, in my opinion, is sufficient to dispose of this ground. In case I am wrong in that opinion, however, I have considered the issue in more detail.
The Tribunal’s conclusion in respect of the failed asylum claim is found in [66] of its reasons[48]. The applicant is correct to note that the Tribunal accepted that there was some country information which supports the claim that some returned asylum seekers are targeted for harm in Afghanistan. The applicant is also correct to note that the Tribunal’s reference to “this applicant” implies that the Tribunal found there was something distinct about the applicant which meant that he would not face the risk of harm faced by returnees described in the country information. Finally, the applicant is correct to note that the Tribunal did not articulate any reason why the applicant’s case differed from the position of returned asylum seekers referred to in the country information[49].
[48] CB 195
[49] see applicant’s submissions at [32]-[33]
However, putting to one side my finding in respect of Ground One, the Tribunal’s failure to fully articulate its findings is, at most, a failure to comply with its obligations under s.430 of the Migration Act. Such a failure does not amount to a jurisdictional error[50].
[50] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69] and [75] per McHugh, Gummow and Hayne JJ
The question in issue therefore is whether the conclusion was reasonably open to the Tribunal. For the reasons expressed below, in this case, it was open to find that the circumstances of the applicant placed him outside the class of returned asylum seekers which the country information suggested may face a risk of harm upon return to Afghanistan.
Reading the Tribunal’s reasons as a whole, the reference to country information at [66] must be taken to be a reference to the country information cited at [49]. That country information suggested that the groups most vulnerable upon return to Afghanistan include single women, minors and those suffering severe mental or physical illness[51]. Other potentially vulnerable groups include those associated with the international community and Christian converts[52]. Given that the applicant did not fall within any of these at risk categories, consistently with the country information before it, it was open for the Tribunal to find that the applicant was not at risk of serious harm (or significant harm) by reason of his status as a failed asylum seeker.
[51] see Home Office UK Border Agency: Afghanistan Country of Origin Report, 11 October 2011 at [34.06]) (SCB at 6)
[52] RRT Case No. 1002233 [2010] RRTA 588, referenced at footnote 35 in UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan; NM (Christian Converts) CG [2009] UKAIT 00045, 13 November 2009 referenced at footnote 113 of the UNHCR guidelines) (SCB at 18 and SCB at 28)
The Minister concedes that the Tribunal did not express its reasons in the manner set out above at [58]. In my opinion, this reflects the failure by the Tribunal to complete its review function. In cases where it is alleged that the Tribunal failed to take account of a particular consideration, there are difficulties involved in going beyond the Tribunal’s expressed reasons[53]. However, the same difficulties do not arise in the context of review for unreasonableness because the focus of the Court’s inquiry is generally the Tribunal’s conclusion rather than the reasons for that conclusion[54]. That is, the question is whether any decision maker (rather than the particular decision maker in question) could have arrived at the same decision. For the reasons expressed above, on the country information available, it would have been open for a hypothetical Tribunal to arrive at the same conclusion which this Tribunal did, if it had completed its function of review.
[53] see generally Salahuddin v Minister for Immigration [2013] FCAFC 141 at [21]
[54] Li at [76] and [85] per Hayne, Kiefel and Bell JJ
Ground 3 – did the Tribunal err in considering the claimed complementary protection?
There are two problems in the Tribunal’s treatment of the applicant’s complementary protection claim. The first is the brevity of its consideration and the second is its factual findings.
The Tribunal expressed its conclusion that the applicant did not satisfy s.36(2)(aa) at [69] and [71] of its reasons[55]. However, contrary to the applicant’s written submissions at [42], these paragraphs of the Tribunal’s reasons do not represent the full extent of the Tribunal’s engagement with s.36(2)(aa).
[55] CB 195
The Tribunal’s consideration of the applicant’s complementary protection claims, must be understood in light of the factual basis of those claims. The applicant’s complementary protection claims arose from identical facts to those which gave rise to his refugee claims[56]. Consistently with the authorities cited above to the effect that the Tribunal’s reasons must be read as a whole, the Tribunal’s factual findings at [55]-[66] must be understood as engaging with both the refugee and the complementary protection claims. That this is the case is especially clear from the Tribunal’s reasoning with respect to the applicant’s claims to fear harm as a result of a family dispute and as a failed asylum seeker[57]. The Tribunal’s findings in respect of these claims expressly invokes the language of both s.36(2)(a) and s.36(2)(aa). Accordingly, it is not correct to assert that the Tribunal failed to engage with the complementary protection criterion. Rather, the Tribunal’s factual findings relate to both the refugee and complementary protection criteria.
[56] CB 161 at [77] and CB 163 at [85]
[57] CB 194-195 at [63] and [66]
The Minister submits that even if the Tribunal’s consideration of the applicant’s complementary protection was limited to that set out in [69] and [71] of its reasons, no error would be demonstrated.
In SZSFK v Minister for Immigration[58], I considered a case where the Tribunal gave very brief reasons for dismissing claims for complementary protection. I found, at [97], this was an error because:
a)the Tribunal’s reference to the absence of “systematic” harm suggested that the Tribunal may have misconstrued the test applicable under s.36(2)(aa); and
b)the Tribunal’s findings in respect of the refugee claims were not sufficient to deal with the complementary protection claims in circumstances where the Tribunal had accepted the applicant was harmed but that such harm did not have a Convention nexus.
[58] [2013] FCCA 7
The decision in SZSFK was distinguished by Judge Raphael in SZRZN v Minister for Immigration & Anor [2013] FCCA 510. His Honour held at [27]:
It is my view that the instant case can be distinguished from SZSFK because the factual finding made by the Tribunal in respect of the cause of the applicant’s beating was clearly a personal matter that only had the most tenuous links to the Convention. The possibility of the harm reoccurring was considered in detail. It was dismissed for reasons of lack of Convention nexus upon the basis of evidence given at the hearing. The assessment of that evidence left the Tribunal in little doubt that no harm would come to the applicant should he be returned to Jordan. This finding has already been used by me to indicate a consideration of both the test under s. 36(a) and 36(2)(aa). Whilst I agree with Judge Driver that more should be done by these Tribunals to indicate they have clearly made a determination upon the evidence in relation to s.36(2)(aa) by reference to that sub-section’s specific tests, I believe that in this case the failure is more one of form than one of substance.
Thus, where the Tribunal makes findings in respect of an applicant’s refugee claims which undermine the factual basis for any complementary protection claims, it is not necessary for the Tribunal to repeat its findings when considering the same facts which are said to give rise to claims for complementary protection.
The applicant’s submissions indicate that this ground is principally directed at the Tribunal’s alleged failure to consider complementary protection claims arising from the applicant’s involvement in the delivery of alcohol. The Minister contends that, for the reasons stated in respect of Ground One, the factual premise upon which this claim depended (ie that the applicant in fact delivered alcohol) was not accepted by the Tribunal. In the Minister’s submission it therefore follows that it was unnecessary for the Tribunal to give detailed consideration to the question of whether, hypothetically, a person who did deliver alcohol would be at risk of significant harm for the purposes of s.36(2)(aa).
I have rejected that submission by the Minister in relation to Ground One. The Tribunal accepted that the applicant had been involved in the delivery of alcohol. Accordingly, this case cannot be distinguished from SZSFK on the same basis as Judge Raphael distinguished that decision in SZRZN. Because the Tribunal did not complete its review of the applicant’s claims in relation to the Refugees Convention, it cannot be taken to have completed its review of the applicant’s claims to complementary protection.
It follows, in my view, that the third ground has been made out.
Conclusion
I will grant the relief sought in the application.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 February 2015
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