SZSZO v Minister for Immigration

[2014] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 242

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic, religious, political and particular social group persecution in Afghanistan – Tribunal finding that the applicant is not a refugee and that he does not qualify for complementary protection – whether the Tribunal erred in assessing the risk of harm to the applicant considered.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 36, 46A

Migration Amendment (Unauthorised Maritime Arrivals) Regulations 2013 (Cth)

Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v SZQRB [2013] FCAFC 33
Minister for Immigration v SZSCA [2013] FCAFC 155

Applicant: SZSZO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1433 of 2013

Judgment of: Judge Driver

Hearing date: 17 February 2014

Delivered at: Sydney

Delivered on: 28 April 2014

REPRESENTATION

Counsel for the Applicant: Mr J King

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. A writ of certiorari shall issue, removing the record of the Refugee Review Tribunal decision made on 28 May 2013 into this Court for the purpose of quashing it.

3. 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 1433 of 2013

SZSZO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 28 May 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is an “unauthorised maritime arrival” (UMA) within the meaning of the definition of that term in s.5AA of the Migration Act 1958 (Cth) (Migration Act), for the purposes of the Migration Amendment (Unauthorised Maritime Arrivals) Regulations 2013 (Cth) (UMA Regulations).  In an Application in a Case filed on 14 February 2014, the Minister applied to adjourn the proceedings until the determination by the High Court of Australia of proceedings Plaintiff S297/2013 v Minister for Immigration (S297/2013) and Plaintiff M150/2013 v Minister for Immigration (M150/2013).  I rejected that application at the trial of this matter on 17 February 2014 on the basis that the case was ready for trial and there was a reasonable likelihood of the status of the UMA Regulations being resolved in Parliament, or the High Court, in the near future.  I also permitted the applicant to rely upon an amended application filed on 23 January 2014 which added a prayer for declaratory relief in addition to relief in the form of constitutional writs.[1]

   [1] the UMA Regulations were disallowed in the Senate on 27 March 2014.  There is no continuing issue of any need for declaratory relief

3. The following statement of background facts is derived from the submissions of the parties.

4. The applicant is a citizen of Afghanistan. On 26 April 2012, he arrived in Australia. On 3 August 2012, he applied for a protection visa, following a decision of the Minister to lift the bar under s.46A(2) of the Migration Act.

5. In a statement accompanying his application,[2] the applicant stated that he is a Hazara male from the Jaghori District.  After spending a number of years working outside of Afghanistan to support the daughter of his sister who was deceased, the applicant returned to live in Afghanistan in 2011.  He claimed that his return was prompted by the disappearance of his father, who worked as a taxi driver between Kabul and Jaghori.  His father has not been seen since the time of his disappearance.

   [2] Court Book (CB) 58

6. The applicant commenced working as a taxi driver.  After a few months, a friend and fellow driver told the applicant that he had been stopped by members of the Taliban, who had shown him a photo of the applicant and asked if he knew him.  The applicant’s friend told him that the Taliban accused the person in the photo of holding anti-Taliban sentiments and working for the Afghan government. 

7. By letter dated 28 September 2012, a delegate of the Minster notified the applicant that his protection visa application had been refused.[3]

   [3] CB 58

8. In early November 2012, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[4] 

   [4] CB 109

9. On 19 March 2013, the applicant attended a hearing before the Tribunal.  Before the hearing, the applicant’s migration agent provided a lengthy submission to the Tribunal in which the agent submitted, among other things, that the applicant claimed to fear harm due to his membership of two social groups: persons who had departed Afghanistan illegally and lodged an application for asylum, and “Afghan taxi drivers”.[5]  In a submission provided to the Tribunal after the hearing, the applicant’s agent contended that should he be forced to return to Afghanistan, the applicant “would be compelled to return to his family home in Ab Borda, Jaghori and his occupation as a taxi driver”, which would take him along the treacherous roads in the Ghazni Province.[6] 

   [5] CB 151

   [6] CB 176

10. By letter dated 28 May 2013, the Tribunal notified the applicant of its decision of the same date to affirm the decision of the Minister’s delegate.[7] 

    [7] CB 181

11. The Tribunal accepted the applicant’s account of his background and his work outside of Afghanistan.  It also accepted that he may have returned to Afghanistan in 2011 following his father’s disappearance.  However, it did not accept that the Taliban subsequently took any interest in the applicant, or that they had his photograph and were looking for him.[8]  The Tribunal found in this respect that he had given inconsistent evidence about the timing of the incident involving his friend.[9] 

    [8] at [12]

    [9] at [13], [16]

12. The Tribunal also had “serious concerns” about the applicant’s credibility,[10] noting that his evidence about the reasons for the Taliban’s interest in him had changed over time and finding that he had embellished his evidence to create an adverse profile.[11]  The Tribunal found that the applicant “was of no interest to the Taliban in the past and therefore he would not be of any interest to them now or in the reasonably foreseeable future for any of the reasons the applicant has speculated”.[12]

    [10] at [18]

    [11] at [17]-[18]

    [12] at [21]

13. The Tribunal next addressed the submissions of the applicant’s adviser in relation to the applicant’s claimed membership of a particular social group of taxi drivers.  The Tribunal stated in that context[13] that it accepted that occupation groups such as taxi drivers “may constitute a social group for the purposes of the Convention” (emphasis added).  However, on the facts of this case the Tribunal stated: 

    The Tribunal notes the adviser submitted the applicant’s father’s disappearance attests to the fact that taxi drivers face a well-founded fear of persecution for a Convention reason.  However, the Tribunal refers to the applicant’s evidence and the fact that he had no knowledge of what happened to his father, including whether he is alive or dead or the circumstances of his disappearance.  Therefore the Tribunal does not accept that the applicant’s father’s disappearance is attributable to his position as a taxi driver or membership of this particular social group and not to some other random or opportunistic act of violence. (Emphasis added)

    [13] at [22]

14. The Tribunal considered the further submission of the applicant’s adviser that the applicant would be “compelled to work as a taxi driver” on his return to Afghanistan.  The Tribunal rejected that factual contention, noting that the applicant had only just embarked upon that occupation and that he had been employed in other capacities in the past.[14]

    [14] at [23]

15. The Tribunal also rejected the proposition that the applicant had a subjective fear of harm because of his membership of a social group comprising persons who had departed Afghanistan illegally, fled to the West and applied for asylum.  However, and in any event, it found on the basis of independent country information that there was not a real chance that the applicant would face harm for that reason.[15]

    [15] at [31]

16. The Tribunal did not accept that the applicant would face persecution for reasons of his Hazara ethnicity or his Shia religion.[16]  Nor did it accept that any discriminatory treatment he faced in either capacity would constitute “serious harm”.[17]  Although there were security issues when travelling in Afghanistan, on the basis of the country information before it the Tribunal did not accept that there was a real chance that the applicant would face persecution for a Refugees Convention reason.[18]  In so far as the applicant’s adviser submitted that the situation in Afghanistan would deteriorate following the withdrawal of NATO forces in 2014, the Tribunal characterised that submission as speculative.

    [16] at [24], [28]-[30]

    [17] at [25]-[26]

    [18] at [27]

17. On the application of the complementary protection obligations, the Tribunal noted that the applicant had not claimed to have experienced any harm in the past for reasons of his ethnicity or religion, and referred to the country information about the (generally improved) situation for Hazara Shias, generally and in particular in the Jaghori district.[19]  In not accepting that the applicant “faces a real risk of significant harm”, the Tribunal accepted that the applicant may face “some degree of danger” travelling from Kabul to Jaghori, “given some routes may be unsafe or insecure”.  However, having regard to:

    a)the applicant’s own experiences travelling between Iran and Afghanistan on several occasions and working as a taxi driver for a period of months; and

    b)the fact that the applicant had not experienced any problems in the past and did not have any of the characteristics on the basis of which the country information indicated people were being targeted,

    the Tribunal found that there were “not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act”.[20]

    [19] at [38]

    [20] at [38]

The judicial review application

1. These proceedings began with a show cause application filed on 25 June 2013.  The applicant now relies upon his amended application filed on 23 January 2014.  There are two particularised grounds in that application:

   1. The Tribunal misconstrued or misapplied s.36(2B)(c) of the Act.

   Particulars

   a. The Tribunal accepted that “the applicant may face some degree of danger travelling from Kabul to Jaghori given some routers or parts of routes may be unsafe or insecure”: [38].

   b.    However, the Tribunal deemed there to be no real risk that the applicant would suffer significant harm on the basis that “no particular ethnic group is being targeted on roads in Afghanistan”: [38]

   2. The Tribunal misconstrued or misapplied the definition of “real risk”.

   Particulars

   a. The Tribunal accepted that “the applicant may face some degree of danger travelling from Kabul to Jaghori given some routes or parts of routes may be unsafe or insecure”: [38]

   c. However, the Tribunal there is not real risk that he will suffer significant harm because he does not have “any of the characteristics” of “the main targets on the roads”: [38].

2. I have before me as evidence the court book filed on 25 July 2013.  I also received affidavits made by the parties’ solicitors for the purposes of the Application in a Case.

Consideration

1. I will deal with the grounds in the amended application in reverse order.

Did the Tribunal err in applying the “real risk” test?

1. Counsel for the applicant addressed some relevant general principles in his written submissions. The “real risk” test for the complementary protection criterion in s.36(2)(aa) requires the same legal questions to be asked as the “real chance” test or “well-founded fear” test under s.36(2)(a) and the Refugees Convention.[21]

   [21] Minister for Immigration v SZQRB [2013] FCAFC 33 at [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J)

2. An orthodox application of the “real chance” test from Chan v Minister for Immigration[22] and Minister for Immigration v Guo[23] requires acceptance of the propositions that:

   a)“a fear can be well-founded without any certainty, or even probability, that it will be realised”;[24]

   b)“[a] ‘real chance’ … does not weigh the prospects of persecution”;[25]

   c)“a fear may be well-founded … even though persecution is unlikely to occur”;[26]

   d)“the applicant may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be … persecuted”;[27]

   e)“a far-fetched possibility of persecution must be excluded”.[28]

   [22] (1989) 169 CLR 379

   [23] (1997) 191 CLR 559

   [24] Chan at 407 (Toohey J)

   [25] Chan at 407 (Toohey J)

   [26] Chan at 429 (McHugh J)

   [27] Chan at 429 (McHugh J); Guo at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   [28] Chan at 429 (McHugh J)

3. In this case, the Tribunal’s findings of fact included the following:

   a)“The Tribunal accepts that there are security issues in travelling from Jaghori district to Ghazni City or Kabul and other areas of Afghanistan”;[29]

   b)“The Tribunal accepts the applicant may face some degree of danger travelling from Kabul to Jaghori given some routes or parts of routes may be unsafe or insecure”;[30]

   c)“the main targets on the roads in Ghazni, and nationally, were people with links to the government and international forces” (there were no findings about the possibility of harm to people who are not targeted);[31]

   d)“no particular ethnic group is being targeted on roads in Afghanistan and … the main targets on the roads in Ghazni, and nationally, are people employed by or with direct links to the Afghan Government or the international community regardless of ethnicity”;[32] and

   e)although the applicant’s claim to fear harm stemmed in part from his father’s unexplained disappearance while working as a taxi driver, “the Tribunal does not accept that the applicant’s father’s disappearance is attributable to his position as a taxi driver or membership of this particular social group and not to some other random or opportunistic act of violence”.[33]

   [29] CB 190 [27]

   [30] CB 193 [38]

   [31] CB 190 [27]

   [32] CB 193 [38]

   [33] CB 189 [22]

4. The applicant contends that, having regard to these factual findings, the Tribunal’s positive finding that the applicant may face “danger” necessarily involved more than only a “far-fetched” possibility of harm, with the result that the Tribunal erred in rejecting the applicant’s complementary protection claim.

5. The Minister contends that the applicant’s attempt to impugn the Tribunal’s conclusion involves a narrow reading of isolated passages in its reasons, as indicating a misapplication of the “real chance” test. However, the inquiry as to real risk cannot be divorced from the subject matter of the risk which, in the case of s.36(2)(aa), is significant harm as defined in s.36(2A). The real risk of such harm must be a necessary and foreseeable consequence of the applicant being removed to Afghanistan, and the Tribunal must have substantial grounds for believing in the existence of that risk. The Minister contends that it was well open to the Tribunal to find that the possibility of the applicant facing danger in travelling between Kabul and Jaghori did not provide substantial grounds for a belief that there was a real risk of significant harm befalling the applicant as a necessary and foreseeable consequence of his return to Afghanistan.

The Tribunal’s reasoning

1. The Tribunal set out the relevant law in Attachment A to its decision record.[34]  As it there noted,[35] satisfaction of the criterion in s.36(2)(aa) requires the Minister to have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed, there is “a real risk that the non-citizen suffer significant harm”. As the Tribunal further noted, the term “significant harm” is “exhaustively defined in s.36(2A)”, while s.36(2B) sets out circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. Armed with an apparently correct understanding of the operation of the complementary protection criterion, the Tribunal then sought to apply it to the facts before it in relation to the applicant.

   [34] CB 195-197

   [35] at [56]

2. I agree with the applicant that the Tribunal fell into error in that regard.  The Tribunal’s critical reasoning is set out at [38]:[36]

   The Tribunal does not accept that if the applicant returns to his home in Jaghori district of Ghazni province, there is a real risk he will suffer significant harm because he is a Hazara or a Shia Muslim or any other reason.  The Tribunal notes the applicant has not claimed to have experienced any harm in the past for these reasons.  It also refers to the country information including information about the situation for Hazara Shias generally and particularly in Jaghori district, and does not accept the claim that the applicant faces a real risk of significant harm.  The Tribunal accepts the applicant may face some degree of danger travelling from Kabul to Jaghori given some routes or parts of routes may be unsafe or insecure.  However, the Tribunal notes the advice from DFAT, cited above, that no particular ethnic group is being targeted on roads in Afghanistan and that the main targets on the roads in Ghazni, and nationally, are people employed by or with direct links to the Afghan Government or the international community regardless of ethnicity or those carrying documentations which pointed to a connection with the government.  However, having regard to the applicant’s own experiences, travelling between Iran and Afghanistan on several occasions and working as a taxi driver for a period of months, and the fact it finds the applicant has not experienced any problems in the past and does not have any of the characteristics highlighted above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

   [36] CB 193

3. Having accepted that the applicant “may face some degree of danger travelling from Kabul to Jaghori”, the Tribunal then relied on the following to reject the applicant’s claim:

   a)“the applicant’s own experiences, travelling between Iran and Afghanistan on several occasions and working as a taxi driver for a period of months”, with the fact that “the applicant has not experienced any problems in the past”; and

   b)the applicant “does not have any of the characteristics highlighted above” (namely, the characteristics of the “main targets”).[37]

   [37] CB 193 [38]

4. Neither of these considerations, taken individually or together, was capable of excluding the real risk necessarily arising from the Tribunal’s finding that the applicant faced “danger”.

1. First, with respect to the absence of problems being experienced by the applicant in the past, the Tribunal pointed out elsewhere that the applicant’s “own experiences” as a taxi driver were limited to “a period of two to three months”.[38]

   [38] CB 189 [23]

2. In Guo, the High Court made the following observation about the assessment of past events in the context of the “real chance” test:[39]

   The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.

   [39] Guo at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

3. The “probability” of harm occurring in “a period of two to three months” either at all or with any “regularity” was so low as to be inconsequential.  On a proper application of the “real chance” test, the Tribunal’s observation about the applicant’s past could not have provided any “guide” to the Tribunal about whether the future “danger” faced by the applicant might give rise to future harm.  That is because the future was not a short closed period but an indefinite period.

4. Secondly, the question whether the applicant had “any of the characteristics” of the “main targets” was not the question presented by the applicant’s complementary protection claim, namely, whether the applicant faced a real chance of significant harm as a taxi driver irrespective of who might happen to be targeted.

5. Importantly, the applicant’s evidence of “roadside bombs” and “shooting attacks”[40] – which was not rejected – and the Tribunal’s findings that “no particular ethnic group is being targeted” and that the “main targets” were others,[41] pointed up the specific need to consider whether there was a risk of significant harm to drivers who were not targeted.  The Tribunal could not exclude a real chance of harm for the applicant without asking and answering that question.  It was clear on the evidence that other drivers using the same roads as the “main targets” might also be harmed by “roadside bombs” and “shooting attacks”, inadvertently or otherwise.

   [40] CB 176-177

   [41] CB 193 [38]

6. Indeed, the Tribunal expressly recognised that possibility in relation to the disappearance of the applicant’s father, which the Tribunal found may have been caused by “some other random or opportunistic act of violence” not targeted at taxi drivers.[42]  That finding strengthened the applicant’s complementary protection claim.  The Tribunal did not consider that possibility for the applicant.

   [42] CB 189 [22]

7. In the absence of any consideration of that possibility, the Tribunal’s finding that the applicant may face “danger” was sufficient to demonstrate a real risk of harm. That, of course, would not be the end of the Tribunal’s inquiry. It would then have to consider the application of the limitation provisions in s.36(2B) of the Migration Act. An issue of particular importance in the present case would be whether the real risk faced by the applicant was one faced by the population of Afghanistan generally and not one faced by him personally. The Tribunal did not reach that stage of consideration because it artificially confined its inquiry on the question of whether the applicant faced a real risk of significant harm as a general proposition, and thereby fell into jurisdictional error.

Did the Tribunal err in construing or applying s.36(2B)?

1. There is a disconnection between this ground of review and the applicant’s submissions on it.  This probably became lost in the distraction provided by the UMA Regulations.  I accept the applicant’s contention in general terms that the Tribunal also erred in rejecting the applicant’s claims on the basis that he would be able to change his occupation on his return to Afghanistan.

2. In Minister for Immigration v SZSCA[43], the Full Federal Court held that the relevant principles are:

   a)the Tribunal cannot require an asylum seeker to behave in a particular manner; but

   b)it is permissible for the Tribunal to conclude that an asylum seeker would not in fact behave in a particular manner upon his or her return.[44]

   [43] [2013] FCAFC 155

   [44] Minister for Immigration v SZSCA [2013] FCAFC 155 at [61] (Robertson and Griffiths JJ)

3. The Full Federal Court held that the Tribunal in that case had committed a jurisdictional error “when it embarked upon a chain of reasoning … that the [claimant] could avoid persecution if he were to change his occupation and work as a jeweller in Kabul”.[45]  The Tribunal in substance made the same error in this case.

   [45] at [62]

4. The Tribunal’s findings included the following:

   a)“The Tribunal does not accept that … the applicant was compelled to work as a taxi driver in the past or that if he returns to Afghanistan he would be required to resume this particular occupation”; and

   b)“therefore” the applicant did not face a real chance of persecution.[46]

   [46] CB 189 [23]

5. It was no doubt open to the Tribunal to find that the applicant was not in fact a member of the particular social group of taxi drivers as he claimed, or that, although he had been a member, he would not rejoin that group in Afghanistan if he returned there.  However, the Tribunal did not make either of those findings.  There being no finding by the Tribunal that the applicant would in fact cease to be a taxi driver on his return, it follows, in my view, that the Tribunal committed error in dealing with the applicant’s particular social group claim.

6. If those findings had been also relied upon by the Tribunal to reject the applicant’s complementary protection claim, the Tribunal may have further erred in its construction or application of s.36(2B). The Tribunal referred to s.36(2B) in its statement of the applicable law.[47]  The tests in that section do not permit the Tribunal to reason in a manner contrary to the principles set out in SZSCA at least to the extent that such reasoning could be relevant to consideration of complementary protection.[48]

   [47] CB 197

   [48] the Full Federal Court in SZSCA was not considering the issue of complementary protection: see at [92]-[95] per Robertson and Griffiths JJ

7. However, as I have already found, the Tribunal did not clearly, and in terms of the statutory provisions, address s.36(2B) because its consideration miscarried in relation to the general issue of “real risk”. The Tribunal’s error in relation to this ground clearly bore upon its consideration of the applicant’s claims to refugee status, but that has not been put in issue in the amended application. In the circumstances, I cannot find that this ground has been established in the terms that have been advanced.

8. In view of the success of the applicant in respect of the second ground, he should receive the relief that he seeks. 

9. I will hear the parties as to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 April 2014