SZTUI v Minister for Immigration

[2015] FCCA 1667

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1667

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal failed to apply the correct test or ask itself the correct question – Tribunal failed to ask itself whether the applicant as a member of a particular ethnic group faced harm and whether the applicant would in the reasonably foreseeable future face a risk of harm through discrimination – whether Tribunal failed to address applicant’s claims based on religion and imputed political opinion – whether Tribunal made findings in the absence of evidence – whether Tribunal failed to take into account relevant material – whether Tribunal considered the applicant’s claim that the applicant would face an increased risk of harm if returned to Afghanistan because of the withdrawal of international forces – jurisdictional error established.

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZSZO v Minister for Immigration & Border Protection [2014] FCCA 242

Applicant: SZTUI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 135 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 August 2014

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr P D Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The decision of the second respondent made on 19 December 2013 affirming the decision of the delegate of the first respondent made on 3 April 2013 not to grant the applicant a protection visa is quashed.

2. The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 3 April 2013 not to grant the applicant a protection visa.

3. The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 135 of 2014

SZTUI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Afghanistan, and a Hazara, claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. To appreciate the jurisdictional errors the applicant claims the Tribunal made, it will be necessary first to set out the claims for protection, and the Tribunal’s reasons for rejecting the applicant’s claims.

Applicant’s claims for protection

1. The applicant’s claims for protection, as set out in a statutory declaration he made in support of his application for a protection visa, were as follows. For about seven years the applicant’s brother owned a stationery shop in Afghanistan which sold school books.[1] While the applicant was in Iran, and as he was making plans to remain there, his mother informed the applicant by telephone that the Taliban had threatened the applicant’s brother, and that, when travelling to Kabul by taxi to obtain stock, the Taliban captured and executed the applicant’s brother.[2] The applicant returned to Afghanistan, and re-opened his brother’s bookshop.[3]

   [1] CB52, [8]

   [2] CB53, [8]

   [3] CB53, [10]

2. Having re-opened his brother’s bookshop, the applicant was required to travel to Kabul to collect stock and pay book distributors in Kabul. The applicant set off in a taxi with five other passengers.[4] After passing a checkpoint approximately ten minutes out of town, the Taliban stopped the taxi in Qala Khushk and, after discovering that two of the passengers worked for the Afghan authorities, the Taliban took these passengers out of the taxi and cut their throats.[5] The applicant and the other three occupants were then blindfolded, had their hands tied, beaten, forced into the Taliban’s vehicle, taken to another place, and then led into a room where they were threatened with death.[6] The applicant and the others, however, managed to escape.[7] After travelling through mountains, the applicant and the others reached Qashnia, a safe area.[8]

   [4] CB53, [10]

   [5] CB54, [12]

   [6] CB54, [12]-[13]

   [7] CB54, [13]

   [8] CB54, [13]

3. About four days after the applicant escaped the Taliban, a threatening night letter was put under the door of his family home, and also on the applicant’s brother’s shop door. The letter stated that if the applicant surrendered himself to the Taliban, all would be well, but if he did not, the applicant would be killed no matter where he would flee.[9] Some twenty-five days after the applicant escaped the Taliban, he decided to flee to Pakistan.[10]

   [9] CB54, [14]

   [10] CB54, [15]

4. The applicant claimed he feared that if he returned to Pakistan Pashtuns and the Taliban would kill him. That fear was based on the applicant’s brother’s having been killed, the applicant himself having been captured, the threatening night letter, and the Taliban’s strong network of informants.[11]

   [11] CB55, [19]

The Tribunal’s decision and reasons

1. The Tribunal found the applicant was not a witness of truth and, therefore, found that the applicant’s account of the events on which his protection claims are based was false.[12] First, before the Tribunal the applicant gave an account of how the Taliban killed the two passengers that was different from the account he gave in his statutory declaration.[13] Second, contrary to what he said in his statutory declaration, the applicant did not say before the Tribunal he was blindfolded by the Taliban at the time he was captured.[14] Third, the applicant gave inconsistent accounts of the purpose for which he said he had travelled to Kabul.[15]

   [12] CB225, [85]

   [13] CB221, [50]-[55]

   [14] CB222-223, [56]-[66]

   [15] CB223-224, [67]-[82]

2. The Tribunal, nevertheless, found the applicant was a Hazara from the District of Jaghori where his immediate family lives.[16] It therefore made an “assessment of the risk for the applicant on return to Afghanistan” based on those aspects of the applicant’s evidence the Tribunal found credible.[17] First, the Tribunal found that the risk of the applicant suffering harm in the Jaghori district was remote because that district is controlled by Hazaras, and the Tribunal had before it only two substantiated reports of attacks against Hazaras.[18] Second, the Tribunal rejected the applicant’s claim that there have been increasing levels of ethnic-based violence against Hazaras because no country information was provided to the Tribunal to support that claim.[19] Third, in relation to the applicant’s claim that Hazaras are suffering discrimination, the Tribunal did not doubt that country information indicated that Hazaras suffer discrimination, but found that the situation for Hazaras “had improved since the fall of the Taliban and under the current Afghan government”.[20] Fourth, the Tribunal dismissed as speculative the submissions the applicant made about the security situation in Afghanistan deteriorating if, as planned, international forces were to leave Afghanistan.[21] Fifth, the Tribunal considered the applicant had a remote risk of suffering serious harm if he were to travel from Kabul to Jaghori on his return to Afghanistan.[22] Sixth, the Tribunal found it was highly speculative whether, when, and to what extent, the applicant would travel outside the district of Jaghori;[23] and that, in any event, the risk to the applicant suffering serious harm due to any need to travel to and outside the district of Jaghori is remote. That is so because “the main targets of harm on the roads are those associated with government or international military forces”, and there was a “prevalence of people being harmed in traffic accidents”.[24]

   [16] CB225, [90]

   [17] CB225, [91]

   [18] CB226, [97]

   [19] CB226-227, [100]

   [20] CB227, [101]

   [21] CB228, [113]

   [22] CB230, [131]

   [23] CB230, [132]

   [24] CB230, [133]

First ground of review – failure to apply correct test

1. The first ground of review contains particulars that identify three ways in which the applicant claims the Tribunal failed to apply the correct test. In his written submissions, however, the applicant identifies other errors that have not been particularised. The Minister has taken no point about the applicant relying on these additional alleged errors. I will address each of them.

“Persecution is not relative”

1. The first claimed error relates to the Tribunal’s reasons for not accepting the applicant’s claim that Hazaras face discrimination. The claimed error is that the Tribunal did not consider that claim by asking itself whether the applicant, as a member of a particular ethnic group, namely, Hazaras, faced harm, and would in the reasonably foreseeable future face a risk of harm through discrimination. The Tribunal, the applicant submits, instead considered whether the situation relating to Hazaras had improved over time. The applicant submits the error is manifested in the following passage from the Tribunal’s reasons:[25]

   In terms of (Shi’a) Hazaras suffering discrimination, country information mentioned earlier in this decision indicates that the position and situation for Hazaras had improved since the fall of the Taliban and under the current Afghan government. There were Hazaras in government; they were running businesses; there were Hazara newspapers and Hazara students achieved in education.

   At the hearing the Tribunal put this to the applicant and he said that these assertions were true to some extent but there were also people who wanted to stop Hazaras making progress. The Tribunal does not doubt that claim nor that Hazaras suffer discrimination but clearly their position has improved over recent years.

   [25] CB227, [101]–[102]

2. In his written submissions the Minister submits that, on a proper reading of this part of the Tribunal’s reasons, the Tribunal found that the country information on which it relied showed that matters had improved to such an extent that there was no significant risk of serious harm to the applicant because of discrimination.[26] The Minister further submits that the Tribunal accepted that some of the country information on which it relied pointed in a certain direction, but then assessed whether that discrimination “amounted to serious harm given the overall improvement in the situation for Hazaras in Afghanistan generally and in their own areas specifically”.[27]

   [26] First Respondent’s Outline of Submissions [17]

   [27] First Respondent’s Outline of Submissions [18]

3. The difficulty with the Minister’s submission, and the reasons I do not accept it, is that the Tribunal did not say that it did what the Minister submits the Tribunal did. All the Tribunal did was, first, to note it did not doubt that Hazaras faced discrimination and, second, to note that their position clearly had improved over recent years.

4. In oral submission, counsel for the Minister approached the matter in what he described as a slightly different way from the Minister’s written submissions.[28] Counsel submitted that the applicant’s approach was to impermissibly focus on very specific aspects of the Tribunal’s reasons, and in so doing, overlooked the “conceptual scheme that the tribunal adopted in this case”.[29] That conceptual scheme, counsel submitted, comprises of four limbs or aspects – the applicant’s claims of imputed political opinion, the situation in Jaghori, the risk of deterioration in the general security position after the withdrawal of international forces from Afghanistan, and, finally, the risk of travel to Jaghori.[30]

   [28] T23.5

   [29] T23.10

   [30] T23.25-T24.35

5. The difficulty with this claimed conceptual scheme is that, whether accurate or not, it does not respond to the claim that the Tribunal accepted was before it, and which it purported to address, namely, that the applicant would suffer persecution because he was a member of an ethnic group, Hazaras, who suffer discrimination.

6. This part of the applicant’s case for judicial review succeeds.

A real chance of persecution is not a remote fear

1. In his written submissions,[31] the applicant submits the Tribunal misunderstood the meaning of “real chance” of persecution as that expression was construed by Mason CJ and McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs.[32] The particular passage from Mason CJ’s judgment in Chan the applicant submits the Tribunal misunderstood is the following:[33]

   If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.

   And the passage from McHugh J’s judgment in Chan the applicant submits the Tribunal misunderstood is the following:[34]

   [A]n applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.

   [31] Applicant’s Outline of Submissions [23]-[28]

   [32] (1989) 169 CLR 379

   [33] (1989) 169 CLR 379 at page 389

   [34] (1989) 169 CLR 379 at page 429

2. The following is the passage from the Tribunal’s reasons for decision the applicant submits manifests the Tribunal’s misunderstanding:[35]

   While the Tribunal acknowledges there is risk for this applicant travelling from Kabul (the location at which he is most likely to re-enter Afghanistan) to return to the district of Jaghori, the Tribunal finds that the risk of him suffering serious harm is remote.

   [35] CB230, [131]. The emphasis is the applicant’s.

3. The applicant submits that if, as the Tribunal found, there was a risk of harm to the applicant, “it is clear that the fear is well founded”.[36] I do not accept that submission. It implies that any risk of harm constitutes a real chance of harm. That is not what the passages from Chan on which the applicant relies say. The passage from McHugh J’s judgment excludes a far-fetched possibility of harm as constituting a real chance of harm. And Mason CJ said he preferred to employ the expression “a real chance” “because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia”.[37] Further, Toohey J in Chan was in favour of the “real chance” test because it “does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”.[38]

   [36] Applicant’s Outline of Submissions [28]

   [37] (1989) 169 CLR 379 at page 389

   [38] (1989) 169 CLR 379 at page 407

4. This part of the applicant’s claim, therefore, fails.

Assessing risk of harm by reference to profile

1. The applicant submits that the Tribunal erred in concluding that the applicant faced a remote risk of harm if he were to travel in and out of Jaghori because the main targets on the roads are those associated with government or international military forces. The applicant submits the Tribunal made the same error Judge Driver found the Tribunal made in SZSZO v Minister for Immigration & Border Protection.[39]

   [39] [2014] FCCA 242

2. In SZSZO the Tribunal accepted the applicant in that case may have faced “some degree of danger” travelling from Kabul to Jaghori. The Tribunal, however, found the applicant did not face a real risk of suffering significant harm if he were to travel from Kabul to Jaghori for two reasons. First, there was country information that indicated that no particular ethnic group was targeted. The main targets on the roads were people employed by or with direct links to the Afghan government, and the applicant did not possess the characteristics of the persons who were targeted on the roads. Second, the Tribunal relied on the applicant’s own experiences of travelling between Iran and Afghanistan. Judge Driver concluded:[40]

   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”.

   [40] [2014] FCCA 242 at [29]

3. The decision in SZSZO is not authority for the proposition that, when determining if a person will be at risk of suffering harm, it is not open to the Tribunal to have regard to whether the person has the profile of persons which country information indicates are persons who are likely to be harmed. Judge Driver’s conclusion was based on the view that the Tribunal’s finding that the applicant in that case may face “danger” by travelling from Kabul to Jaghori was sufficient to demonstrate a real risk of harm, and that the applicant’s not sharing the profile of groups that are in fact targeted did not exclude the risk of the danger to which the Tribunal found the applicant was exposed.

4. The question, therefore, is whether the Tribunal, in the case before me, made a finding that was capable of excluding the applicant’s facing a real risk or a real chance of serious harm if he were to travel from Kabul to Jaghori. In my opinion, the Tribunal did. It found that although there was a risk the applicant would be harmed when travelling from Kabul to Jaghori, that risk was remote. I have already found that a finding to the effect that the risk of harm to the applicant was remote reflects a correct understanding of the “real chance” test laid down by Chan.

5. This part of the applicant’s case, therefore, also fails.

Failure to consider applicant’s position in the reasonably foreseeable future

1. The applicant submits that the Tribunal failed to consider his claimed fear by reference to the reasonably foreseeable future. The applicant submits the Tribunal failed to do so in two respects. The first relates to the applicant’s claim based on discrimination. The applicant submits the Tribunal only considered that the position regarding Hazaras had improved in recent years. Given that I have already found that the Tribunal only considered that question, it necessarily follows the Tribunal did not consider whether the applicant, a Hazara, will suffer discrimination in the reasonably foreseeable future. This part of the applicant’s claim, therefore, succeeds.

2. The second respect in which the applicant submits the Tribunal failed to consider whether the applicant had a well-founded fear of harm in the reasonably foreseeable future relates to the Tribunal’s treatment of country information relating to the withdrawal of foreign troops from Afghanistan:[41]

   The Tribunal has carefully considered the submissions and country information put forward about what could happen in Afghanistan if international forces are to withdraw as planned. However, the Tribunal finds these predictions to be highly speculative and the Tribunal must also consider the degree to which Hazaras have advanced in Afghanistan since the fall of the Taliban as discussed above.

   [41] CB228, [113]

3. The applicant submits the Tribunal found it too difficult to assess the position in the reasonably foreseeable future and for that reason failed to undertake its statutory task.

4. The applicant’s submission implicitly assumes that a stated inability by the Tribunal to assess what may occur in the reasonably foreseeable future necessarily manifests a failure to undertake the required statutory task. That assumption is incorrect. A finding that it is not possible to make a finding about what may occur in the reasonably foreseeable future is a finding that is available to be made by a Tribunal if, on the material that is before the Tribunal, such finding is reasonably open to it. Thus, if it was reasonably open to the Tribunal to find that the predictions about what could happen in Afghanistan if international forces are withdrawn as planned were highly speculative, the Tribunal made no jurisdictional error by so finding. The Tribunal, therefore, made no jurisdictional error by finding it could not rely on such predictions in assessing what would occur in the reasonably foreseeable future.

1. This part of the applicant’s case, therefore, fails.

Ground 2 – failure to deal with claim based on religion and imputed political opinion

1. Ground 2 of the application claims the Tribunal failed to deal with that part of the applicant’s claim that he had a well-founded fear of persecution by reason of an imputed adverse political opinion. In his written submissions, the applicant submits that the Tribunal also failed to deal with the applicant’s claim based on his religion.[42] The applicant submits the Tribunal only dealt with the applicant’s claims based on his ethnicity.

   [42] Applicant’s Outline of Submissions [39]-[40]

2. The applicant, through his legal advisers, claimed the applicant was at risk of persecution due to a number of factors, two of which he identified as the applicant’s “ethnicity as Hazara” and the applicant’s “religion as Shia Muslim”.[43] In support of those factors, the applicant’s legal advisors relied on matters that did not overlap.[44] The Tribunal, therefore, was required to deal distinctly with the applicant’s claims to the extent they were based on his being a Hazara, and also to the extent they were based on his being a Shia Muslim.

   [43] CB164

   [44] CB152-156

3. The Minister submits the Tribunal’s conclusion that expressly referred to the applicant’s being a Hazara subsumed the applicant’s claims based on religion. I do not accept the Minister’s submission. As I have already noted, the applicant submitted matters that related to the applicant being a Shia Muslim which were separate from the matters on which the applicant relied in support of his claim based on his being a Hazara.[45]

   [45] CB155-156

4. The applicant also submits that the Tribunal failed to consider the applicant’s claim based on imputed political opinion. I disagree. The applicant’s claim based on imputed political opinion was based on the applicant’s having taken over his brother’s bookshop. That claim was considered and rejected by the Tribunal.[46]

   [46] CB226, [93]

5. This part of the applicant’s case, therefore succeeds.

Ground 3 – no evidence

1. This ground relates to the following findings (emphasis added):[47]

   [123] The Tribunal acknowledges statements in the country information that, understandably, Hazaras (and no doubt the rest of the population) are anxious about travel on roads. The Tribunal also acknowledges the risk that in any attack on a vehicle or a person on these roads ethnicity could be a factor that places a person at risk along with the perception that Hazaras are affiliated with the government or international forces.

   [124] However, country information also has consistently indicated that it is those people actually affiliated with the government or international forces who are prime targets for violence in Afghanistan. In its most recent report DFAT stated that insurgents including the Taliban do not generally target individuals solely on the basis of ethnicity. Up until its report of 2 July 2013 DFAT has consistently stated that there is no targeting of any particular ethnic group on the roads as such.

   [47] CB229, [123]-[124]

2. The applicant submits there was no country information to the effect that it was only those people who were actually affiliated with the government or international forces that were “prime targets” for violence in Afghanistan.[48] That is not correct. The Tribunal referred to a report prepared by the DFAT in November 2012 which stated that “[c]ontacts unanimously agreed the main targets on the roads in Ghazni, and nationally, were people employed by or with direct links to the Afghan Government or international community – regardless of ethnicity”.[49]

   [48] Applicant’s Outline of Submissions [55]

   [49] CB219, [41]

3. The applicant also submits that the Tribunal’s findings were inconsistent with a further DFAT report, one which it prepared in July 2013.[50] That report states that dozens of Hazaras have been killed on the roads in 2013, that it “remains extremely difficult to state with any degree of certainty that the victims’ ethnicity was the prime criteria for targeting”, that Hazaras are often the main travellers on these roads, that many Hazaras “are (or are perceived to be) affiliated with the [sic] either the central government or international military forces and this [was] possibly a contributing factor as well”, and that confirmation of the level of this threat “is difficult”.

   [50] CB219

4. I do not accept the Tribunal’s findings are inconsistent with the July 2013 DFAT report. That report makes no particular assertion of fact concerning Hazaras. It goes no further than suggesting that Hazaras being, or being perceived to be, affiliated with the central government or with international forces was a possible contributing factor to the high numbers of Hazaras that were killed on the roads in 2013. The Tribunal did not reject the possibility that Hazaras were at risk of being harmed on the roads; the Tribunal accepted there was such a risk. It acknowledged “the risk that in any attack on a vehicle or a person on these roads ethnicity could be a factor that places a person at risk along with the perception that Hazaras are affiliated with the government or international forces”.[51] The Tribunal, however, was not satisfied that the risk of harm to which it acknowledged Hazaras were exposed when travelling on the roads was sufficient to render the risk of harm to which the applicant would be exposed as other than remote.[52] In my opinion, it was reasonably open to the Tribunal to make that finding.

   [51] CB229, [123]

   [52] CB230, [131]-[133]

5. The applicant, therefore, does not succeed on ground 3.

Ground 4 – failure to take into account relevant material

1. The applicant submits the Tribunal ignored or did not deal with or failed to take into account the following two matters:

   a)the DFAT report to which I have already referred and in particular the statement “[m]any Hazaras are (or are perceived to be) affiliated with either the central government or international forces”; and

   b)the Tribunal’s own finding that it acknowledged “the risk that in any attack on a vehicle or a person on these roads ethnicity could be a factor that places a person at risk along with the perception that Hazaras are affiliated with the government or international forces”.

2. I do not accept these submissions. As I have already found, the Tribunal did take into account country information – and in particular the July 2013 DFAT report – that referred to the possibility of Hazaras being affiliated, or being perceived to be affiliated, with the central government or international forces as being a contributing factor to the high number of Hazaras being killed on the roads. The Tribunal was not satisfied, however, that that rendered the risk of harm to the applicant when travelling on the roads to be other than remote.

3. The applicant, therefore, does not succeed on ground 4.

Ground 5 – failure to consider claim

1. The applicant submits the Tribunal failed to engage with the applicant’s claim that the applicant, if returned to Afghanistan, would face an increased risk of harm because of the withdrawal of international forces. The applicant submitted the Tribunal did not assess in any real or meaningful way this claim. It simply dismissed the claimed risk of harm as speculative.

2. This is an inaccurate description of what the Tribunal did. The Tribunal identified the country information on which the applicant relied,[53] it acknowledged the potential for increased ethnic-based violence and harm to Hazaras that would result,[54] and then gave a number of reasons why it did not accept the applicant’s claims based on the withdrawal of international forces. The Tribunal relied on country information that indicated Jaghori has remained stable,[55] that the position of Hazaras has improved since the fall of the Taliban,[56] and that leaders in Jaghori had been able to negotiate and deal with the Taliban when the Taliban were formerly in power.[57]

   [53] CB227-228, [106]-[109]

   [54] CB228, [110]

   [55] CB228, [111]

   [56] CB228, [113]

   [57] CB228, [114]

3. The applicant, therefore, does not succeed on ground 5.

Disposition

1. The applicant has succeeded on some of his grounds. That means that I propose to order that the Tribunal’s decision be quashed, and that it decide the applicant’s claims for protection according to law. I also propose to order that the Minister pay the applicant’s costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 19 June 2015