SZSXE v Minister for Immigration and Anor
[2014] FCCA 579
•27 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 579 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Reviewer failed to give separate consideration to whether the applicant was entitled to protection under the complementary protection provisions of the Migration Act 1958 and had failed to consider a claim. |
| Legislation: Migration Act 1958, ss.36, 46A, 91R, 195A |
| Cases Cited: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 |
| Applicant: | SZSXE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1209 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 March 2014 |
| Date of Last Submission: | 13 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr W. Flynn with Mr P. Bodisco |
| Solicitor for the Applicant: | Michaela Byers |
| Counsel for the First Respondent: | Ms R. Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1209 of 2013
| SZSXE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 15 March 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 23 May 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 14 September 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. The applicant subsequently made a request for an independent merits review and on 30 November 2011 an independent merits reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That decision was quashed by consent on 1 June 2012 and the applicant was granted a fresh independent merits review. On 22 October 2012 the second respondent (“Reviewer”) also recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant has sought judicial review of that decision.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 4 to 14 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 12 April 2010:
a)he was a Tajik Sunni Muslim who had been born in Afghanistan;
b)on 19 July 2008 two would-be suicide bombers were arrested near his shop in Ghazni province. The arrest was broadcast in the news and the location of the arrest was published in a weekly newspaper on 25 July 2008;
c)ten days after the newspaper story someone from the group Mullah Gul Jan, a Taliban group, telephoned him and asked him for information about himself. A week later he received another telephone call from someone accusing him of working for “the foreign government”, of informing on the bombers and of aiding their arrest. The person said that the applicant would pay for what he had done;
d)in August 2008 he and his father were kidnapped by four men and taken to a house where an NGO driver, a television cameraman and an interpreter were also being held. He was interrogated and tortured by Mullah Gul Jan and saw his father and the cameraman beheaded. He was kept there for a month and a half;
e)he and the remaining two people were later taken to another location in Paktia province, which was directly to the east of Ghazni province, where they were tortured and where the interpreter died. He saw his captors preparing bombs and was kept there for four or five months;
f)he and the NGO driver begged to be released and the group agreed to release them if they agreed to drive a vehicle by a specified route to Kabul. He and the driver were taken to a place where they were to be equipped for their task. They were kept there for some days and during that time his captors began to trust him;
g)one day during ablutions before morning prayers he escaped by jumping over a wall, waiting for two hours in a hole in the snow, then walking to a town and catching a taxi to Kabul. He arrived in Kabul on 5 January 2009;
h)he left Kabul and located an aunt and her son-in-law in Ghazni and found out that the rest of his family was in Pakistan. He stayed in Ghazni in January and February 2009 before leaving for Pakistan; and
i)he could not return to Afghanistan because the people who had kidnapped him and killed his father knew that he had seen their faces and the Afghan government would not be able to protect him.
RSA application
In a statutory declaration declared on 23 May 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)he had received two telephone calls from followers of Mullah Gul Jan, the second one five days after the first;
b)if he returned to Afghanistan the Taliban might kill him because he is an ethnic Tajik and a Sunni Muslim, because of his perceived association with the government and because the Taliban would be concerned that he could divulge to the government the names of Taliban members and their organisational structure; and
c)he could not relocate in Afghanistan because as a Tajik he was distinguishable by his features and would be persecuted.
At his RSA interview the applicant also claimed that the Taliban suspected him of exposing the would-be bombers because he was a Tajik from Kabul and they assumed he held anti-Taliban sentiments. Further his shop had been the only one open at the time the bombers were caught and he had been displaying, along with a number of other shops, a poster denouncing suicide bomb attacks and urging people to telephone a police hotline to report any potential attacks.
First independent merits review
In a submission dated 24 September 2010 the applicant’s representatives submitted that country information indicated that there were Pashtun-Tajik sectarian disputes in some regions of Afghanistan which were fuelled by the weakness of the central government. It was submitted that the applicant could not relocate because country information indicated that there was rapid population growth and unemployment in Kabul and that security, employment levels and basic services there were poor.
The applicant’s representatives provided a further submission dated 14 April 2011 in which it was claimed that the applicant faced a real chance of persecution in Afghanistan if he was forced to return there after a failed asylum application.
At his hearing with the first independent merits reviewer the applicant produced the following untranslated documents:
a)an unsigned purported Taliban arrest order (warrant or fatwa) dated 27 June 2010 made out in the applicant’s name, which he claimed had been sent to his home in Afghanistan;
b)a letter bearing five stamps purporting to be from a “cultural union” confirming the Tribunal demand; and
c)another document discussing his escape from Paktia, which he claimed the Taliban had left for him at his home.
Relevantly, the applicant stated at his first independent merits review interview that he still had family living in his home in Afghanistan and that they had sent him a copy of a minute of a local community association in Ghazni.
Proceedings before the Reviewer
At his interview with the Reviewer on 22 August 2012 the applicant produced:
a)a minute from a Community Foundation Council of Ghazni meeting held on 1 August 2008 noting that the applicant had complained to the council about being harassed and threatened by the Taliban;
b)a purported declaration (or internal notification) by the Taliban dated 29 January 2009 declaring the applicant to be a collaborator with “the puppet government and infidels” and calling for his re-capture;
c)a letter of support from the Afghan Community Support Organisation in Australia dated 15 August 2012;
d)an untranslated document which was interpreted at the Reviewer’s hearing as a statement from a Member of Parliament (“MP”) in Ghazni stating that the MP had made enquiries in the applicant’s area and had found all of the applicant’s assertions to be true.
The applicant made the following additional claims at the interview:
a)he was born in Kabul province and had lived there for nine years before moving with his family to Pakistan in 1994. His family returned to Afghanistan in 2003 and settled in Ghazni where his family’s ancestors had lived;
b)of the twenty-eight shops in the market where his family’s shop had been located, three or four had been run by Tajiks, two or three by Hazaras and the rest by Pashtuns. He had usually travelled to Kabul every one or two months to buy goods for the shop and on each occasion he stayed for a day;
c)he had been held by the Taliban for twenty days before being taken to Paktia province;
d)after his escape from the Taliban he had gone to Kabul and Pakistan but had not returned to Ghazni because he feared being re-arrested there. He had only made contact with his sister-in-law in January or February 2009, when he telephoned her, asking for money;
e)a friend had told him that most of his relatives, except his father’s cousins, had moved to Iran but he did not know when this had occurred. He had not had any contact with his father’s cousins since travelling to Australia. His family property near Ghazni city was probably vacant;
f)the warrant or fatwa was issued after he had not been seen for a long time. It had been sent to the local mosque and his friend had then sent it to him;
g)he had complained to the Community Foundation about the Taliban harassing him before they kidnapped him;
h)because his family had left Ghazni for Kabul, where he was born, his family had gained a reputation for being “Kabuli”. Some people thought that his family, through his father, still had contact with the pre-Taliban regime but his main problem was that the Taliban had his photograph and knew his face; and
i)he could not relocate to Kabul because he had no social network there. On the subject of complementary protection, he said that he was afraid to live in Kabul as hundreds of unreported kidnappings and killings occurred in Kabul. It would also be financially difficult for him to live there.
Following the hearing with the Reviewer the applicant’s adviser submitted a report dated 9 October 2012 from a psychologist who diagnosed the applicant with post-traumatic stress disorder and who expressed the opinion that that condition was consistent with the applicant’s claimed experiences in Afghanistan.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the Reviewer accepted that the applicant was an ethnic Tajik and a Sunni Muslim. He accepted that the applicant had lived in Kabul in his infancy, that he had moved to Pakistan with his family for the duration of the Taliban government and that his family had returned to Afghanistan and settled in Ghazni in 2002. However, the Reviewer did not accept that the applicant had been told by a friend that his family had fled to Iran after he left Afghanistan, finding that claim to be a late embellishment which gave rise to the applicant’s revised and inconsistent claim that his friend had retrieved the warrant from the local mosque. The Reviewer found that the applicant did not face a real chance of persecution in Afghanistan because he was a Tajik or a Sunni or for the cumulative reason of being a Sunni Tajik. He did not accept that the applicant faced a real chance of persecution due to past Tajik alignment with the Soviet occupation and gave little weight to the applicant’s suggestion that Tajiks in Kabul faced a risk of persecution;
b)the Reviewer did not accept that the purported Taliban warrant or fatwa was a genuine document. In this connection, it noted that the applicant had given inconsistent evidence about how he had obtained the warrant, first saying that it had been sent to his house before then saying that it had been collected by a friend at a local mosque. The Reviewer did not accept the applicant’s evidence that it was normal for the Taliban to send warrants to local mosques, finding that the Taliban had not had control over the area where the applicant lived and would not have been in a position to count on the local mosque to assist it in the manner claimed. It also noted that the letter had been addressed to Taliban fighters with a direction to deliver it to the applicant’s house. The Reviewer also found it incongruous that the Taliban’s “urgent and grave” order took eighteen months to issue. Additionally, based the contents of the purported internal Taliban communication, and on his finding about the warrant, the Reviewer also did not accept that the purported internal Taliban communication was a genuine document;
c)the Reviewer gave little weight to the remaining documents produced by the applicant, including the purported letter from the MP. He found that the Community Foundation minute, which stated that the applicant had reported to the council that he had been threatened by the Taliban, was dated 1 August 2008 whereas on the applicant’s evidence he had received the first telephone call from the Taliban ten days after the newspaper story, on 4 or 5 August 2008, and had been only been threatened in the second call received five days later;
d)the Reviewer accepted the applicant’s evidence about the ethnicity of the shop owners in the bazaar and the capture of the two suicide bombers. However, it found that the applicant and his father had not played a role in the capture and did not accept that the precise spot were the bombers were found had led the Taliban to the applicant, his father or their shop. The Reviewer found the applicant’s suggestions as to why the Taliban might have considered him complicit in the detection of the bombers to be bald speculation. He did not accept that the Taliban had linked the applicant to the foiling of the bombers or that they had interrogated him over the telephone. The Reviewer found it far-fetched that the applicant had ignored the telephone calls he claimed to have received from the Taliban and continued to operate his shop, noting that his later evidence of having reported the threats to the local community foundation was somewhat inconsistent with that account;
e)the Reviewer found that it was plausible that the Taliban had kidnapped people in retaliation for the arrest of the bombers. He found that the applicant’s account of his arrest was consistent and detailed and concluded that he should not give too much weight to the applicant’s attempts to embellish it. The Reviewer therefore found that the applicant and his father had been kidnapped by the Taliban but did not accept that that was due to the Taliban viewing them as government collaborators. He found that it was more likely that they had been in the wrong place at the wrong time and had simply been abducted off the street in the evening. Whilst accepting the applicant’s account of his kidnap, his father’s beheading, his bargaining with his captors to allow him to live and his escape from the Taliban, the Reviewer found that the applicant had tried to strengthen the imputed political opinion aspect of his story to give it more Convention-related relevance. The Reviewer also did not accept that the Taliban had issued a notice referring to the applicant as a collaborator with the “puppet government” or had issued an urgent warrant relating to him;
f)the Reviewer noted that the applicant had raised his claim that the Taliban had a photograph of him at a late stage in his visa application process. The Reviewer formed the impression that that claim was improvised. In any event, the Reviewer found that even if the Taliban had taken the applicant’s photograph, he gave that claim little weight due to the date, location and context of the photo and was not satisfied that the applicant was, or would have gone on to be, a person of significant interest to the Taliban;
g)the Reviewer gave little weight to the applicant’s claim that the general security situation in Kabul was inadequately reported. He found that the chances of the applicant being traced individually by the Taliban would be very remote if he returned to Afghanistan, particularly if he returned to Kabul whence he originated, where he had resided for a number of months in 2009, where he had social and professional contacts and where there was a substantial population of Tajiks. In those circumstances, the Reviewer did not accept that the applicant’s claims of what had happened to him in Afghanistan would give rise to a real chance of him being persecuted there; and
h)the Reviewer noted that the applicant had not provided evidence to support his claim that failed asylum seekers returning from abroad were persecuted in Afghanistan. He found that the applicant’s submissions were essentially that the Afghan government could not guarantee the safety of all its citizens at all times but that those submissions did not satisfactorily argue that the safety of returnees, including failed asylum seekers, would be different from that of the general population. Even taking into account the applicant’s cumulative characteristics, such as his ethnicity, religion, periods of absence from Kabul and Afghanistan, the past support by Tajiks for Communists and the occupying Soviets and his post–traumatic stress disorder symptoms, the Reviewer was not satisfied that there was a real chance that the applicant would face persecution in Afghanistan as a returning failed asylum seeker.
Proceedings in this Court
In his further amended application the applicant alleged:
1.The Second Respondent applied the wrong test under section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a)In dealing with the applicant’s claim under section 36(2)(aa) of the Migration Act, the Second Respondent focused on the non-systematic or targeted nature of the threat posed to him by the Taliban and the motivations of those findings [recte: inflicting] the persecution – namely, whether the Second Respondent could accept that the applicant was of significant ongoing interest to the Taliban.
b)In doing so, the Second Respondent conflated the test under section 36(1)(a) with the test under section 36(2)(aa) by:
i) importing the statutory language of section 91R(1)(c) of the Migration Act into the statutory test under complementary protection; and
ii) importing the statutory language of section 91R(1)(a) and the test under the Refugee Convention into the statutory test under complementary protection, drawing into the test under complementary the requirement for the motivation for inflicting persecution.
Failure to apply complementary protection test
As noted earlier, the Reviewer concluded that the applicant’s circumstances did not engage Australia’s protection obligations, whether under the Convention or under the complementary protection provisions of s.36(2)(aa) of the Act. Section 36(2) relevantly provides:
36 Protection visas
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
The applicant alleged that rather than considering the criteria in para.(a) and the criteria in para.(aa) individually, the Reviewer simply applied to his complementary protection claims the reasoning he had employed in respect of his Convention-based claims, notwithstanding that the two tests were different. In particular, the applicant submitted that the Reviewer:
… imported the test for persecution from section 91R(1)(a) and (c) of the Act, which confines the application of the Refugee Convention to matters where the motivations of the persecutors are the “essential and significant” reasons for the persecution [s91R(1)(a)] and the persecution involves “systematic and discriminatory conduct” [s91R(1)(c)]
and that:
… by relying upon those issues relating to the motivation so the persecutors – namely his targeting by the Taliban and its “significant ongoing interest” in the Applicant, the IMR has imported the components of the test relating to the Refugee Convention into its dealings with the Applicant’s claims under complementary protection.
A distinction is to be drawn between a reviewer’s reliance on the evidence before him or her when considering whether the criteria of a test or tests have been satisfied and a reviewer applying reasoning relevant to one test to a different test without discrimination and without giving independent consideration to the requirements of the second test. The relevant question is not whether the Reviewer drew on the same body of evidence to resolve more than one question but whether he:
… specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that [he] did not accept the [applicant’s] claim. (SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [35]).
In this case, when considering the complementary protection criteria the Reviewer set out a long summary of the facts he had earlier found when considering the Convention criteria. He had already observed at para.130 of his reasons that the applicant’s
… claims for complementary protection rely on the same facts and claimed circumstances as appear in his claims for protection as a refugee.
Given that the Reviewer had only one body of evidence and claims, it is unsurprising and unexceptionable that his factual findings regarding those allegations would not differ according to whichever of the relevant s.36 tests he was considering. If he was discharging his duties properly, the Reviewer could hardly be expected to make inconsistent findings on the same evidence in different parts of his reasons. It is important to note in this connection that, subject to the second issue raised by the applicant in this proceeding and considered below at [27] – [29], the applicant did not suggest that the Reviewer had not considered all the evidence before him which was relevant to whether the applicant satisfied the test for protection on complementary protection grounds or that the Reviewer had not considered all his claims relevant to that question
The critical issue is whether the Reviewer applied the complementary protection tests to the facts he found. In my view he did – his reasons expressly record that the matters he found had been proved did not persuade him that the applicant met the criteria for the grant of a protection visa on complementary protection grounds.
Further, the Reviewer’s conclusion that the Taliban did not have a “significant ongoing interest” in the applicant was not a finding which was derived from or dependent on the Convention tests. Specifically, it was not concerned with the motivation for the Taliban’s attitude towards the applicant as the applicant contended. It was no more than a finding that, contrary to the applicant’s central claim, the Taliban lacked a real interest in him. Moreover, it was a conclusion which, once drawn, the Reviewer properly went on to consider further, first in the context of the applicant’s Convention claims and then in the context of his complementary protection claims.
The applicant also submitted that:
… the necessary inference from the findings regarding those occasional attacks on government and foreign institutions and the threat they pose to the population generally is that there remains in Kabul a “real chance” that the Applicant would face significant harm as a necessary and foreseeable consequence of residing there.
However, the Reviewer found otherwise. In paras.132 and 133 of his reasons, the Reviewer referred to attacks occurring in Kabul but nevertheless concluded that the applicant would not suffer significant harm in Afghanistan, which must be taken to include implicit reference to the only two locations which the Reviewer discussed in his reasons, Ghazni and Kabul. The applicant also did not explain how, in light of the terms of s.36(2B)(c), a generalised risk of harm could engage Australia’s complementary protection obligations. That paragraph provides:
(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:
…
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
This aspect of the applicant’s allegations identifies no error on the Reviewer’s part.
Failure to consider claim
The applicant also submitted that the Reviewer had failed to consider a claim which he had not articulated but which had nevertheless arisen tolerably clearly on the materials before the Reviewer. He submitted in that regard that it was open to the Reviewer to infer that his claim was not limited to a fear of the Taliban. In support of that submission the applicant referred to the following passage in his adviser’s written submissions to the Reviewer dated 24 September 2010:
The overwhelming majority of the independent information that we have cited above indicates that people who are perceived to oppose the Taleban: (i) continue to be the subjected to physical violence and serious discrimination in Afghanistan by groups such as the Taleban; and (ii) that the security situation in Afghanistan is deteriorating, the inference being that the risk of our client being persecuted because of his ethnicity, religion or his imputed political opinion in the reasonably foreseeable future is likely to increase.
As can be seen, that passage does not support the submission.
In any event, if such a claim was intended, it should have been advanced clearly to the Reviewer. In the circumstances of this matter the Reviewer was under no obligation to identify any claim not clearly articulated or identified by the applicant; as the applicant was represented by professional advisers, the Reviewer was entitled to assume that the claims which the applicant wished to press were the ones which were expressly articulated by him and his advisers and that none were left to be inferred: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]. The Reviewer did not err by not considering a claim which was not clearly articulated or identified by the applicant.
Conclusion
For these reasons, I find that the Reviewer’s decision was not procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 27 March 2014
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