SZTVL v Minister for Immigration
[2014] FCCA 2883
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2883 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal applied incorrect test in respect of the relocation principle – whether Tribunal failed to consider the full integers of the applicant’s claims – whether Tribunal failed to apply correct test for complementary protection – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2),46A, 425, 477 The Judiciary Act 1903 (Cth), s.44(1) |
| SZTVL v Minister for Immigration and Border Protection [2014] HCATrans 007 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 |
| Applicant: | SZTVL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 318 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 July 2014 |
| Date of Last Submission: | 29 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco with Mr T Little |
| Solicitors for the Applicant: | Stanford Lawyers |
| Solicitor for the Respondents: | Mr A Markus of Australian Government Solicitors |
ORDERS
The application made on 4 February 2014 and amended on 29 July 2014 is dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 318 of 2014
| SZTVL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a matter remitted to this Court by the High Court pursuant to s.44(1) of the Judiciary Act 1903 (Cth). The background can be derived from a bundle of relevant documents filed by the Minister and in evidence before the Court (“the Court Book” – “CB”) and the High Court transcripts of SZTVL v Minister for Immigration and Border Protection [2014] HCATrans 007 and SZTVL v Minister for Immigration and Border Protection [2014] HCATrans 010.
Background
The applicant is an Afghani citizen. He arrived in Australia by boat in December 2011. On 8 April 2012 the applicant was notified that the Minister had exercised his power pursuant to s.46A(2) of the Migration Act 1958 (Cth) (“the Act”) to permit him to lodge an application for a protection visa (CB 11).
The applicant made such an application on 15 April 2012 (CB 12 to CB 81). The applicant was refused a protection visa by the delegate of the Minister on 24 May 2012 (CB 203 to CB 215).
The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 31 May 2012 (CB 216 to CB 222). He was assisted by a registered migration agent and lawyer (CB 216). The Tribunal affirmed the delegate’s decision on 24 January 2013 (CB 327 to CB 351).
On 4 February 2014 the applicant filed an application in the High Court seeking certiorari and mandamus in relation to the Tribunal’s decision. On the same day he claimed injunctive relief to restrain the Minister from removing him from Australia pending the outcome of the proceedings. Her Honour, Bell J, granted the injunctive relief on 6 February 2014, extended the 35 day period applicable to the Tribunal’s decision (with reference to the time limit found in relation to this Court at s.477 of the Act) to 4 February 2014, and remitted the proceedings to this Court (see [2014] HCATrans 007 and [2014] HCATrans 10).
The Applicant’s Claims to Protection
The applicant’s claims to protection were initially set out in a written statement dated 9 April 2012 (CB 37 to CB 40). The applicant (who is 65 years of age) stated that he was born in Afghanistan and is a citizen of that, and no other, country. He is of Hazara ethnicity and a Shia Muslim, born and raised in Uruzgan Province in Afghanistan.
He left Afghanistan in 1986 and moved to Quetta in Pakistan because he feared harm from the Taliban after he refused to join them in their fight against the then pro-Soviet Union regime, the Khalq Party.
He feared harm from the Taliban, or Pashtuns, in Afghanistan because of his race and religion. He claimed that could not safely “relocate” to any part of Afghanistan, including Kabul. Nor was it reasonable to do so in terms of the high cost of living, his employment prospects, housing and lack of support.
The applicant also stated it was unsafe for him to remain in Pakistan because Hazaras and Shia Muslims are constantly attacked by “terrorists”, including an affiliate of the Taliban, Al Qaeda and Sunni extremists.
The applicant made additional claims before the Tribunal. These were included and presented in written submissions by the applicant’s representative on 18 July 2012 (CB 231 to CB 321), and in his evidence before the Tribunal on 3 August 2012 (CB 322 and see [54] at CB 338 to [78] at CB 342).
These were that he left Afghanistan (in 1986), not because of the Taliban, but because of the actions of a person called Sofi Muhammad Alim and that person’s son-in-law, who wanted the applicant’s land at a place named Badamzo. The applicant claimed they had killed two men working on the land and had threatened to kill him. The applicant also claimed these persons had joined the Taliban and had tracked him to Quetta where a number of attempts on his life were made.
Further, the applicant claimed that if he were returned to Afghanistan he would be “persecuted” because he would be a failed asylum seeker and would be unable to access protection from the Afghan authorities. Even further, he would face significant threats, especially if he were forced to “relocate” to a refugee camp in Kabul.
The applicant claimed that relocation within Afghanistan was not reasonable or safe for him. First, he would be “persecuted” throughout Afghanistan because of his race and religion. Second, given his age and his responsibility for his wife and ten children, and his lack of family connections in Afghanistan, he would find it difficult to obtain employment given he was not educated and had only had experience in low-skilled jobs.
In written submissions filed in these proceedings, the Minister set out a summary of the Tribunal’s decision. I am satisfied that it is an accurate summary and I adopt it for the purposes of this judgment ([7] – [14] of the Minister’s written submissions):
“[7] On 24 January 2013 the Tribunal affirmed the decision of the delegate. The Tribunal accepted that there was a real chance the applicant would be persecuted because of his race if he returned to the Uruzgan Province. It identified the central issue on review as being whether it was reasonable in the sense of practicable for the applicant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. It concluded that it was reasonable for the applicant to relocate to Kabul.
[8] The Tribunal did not accept there was a real chance the applicant would be killed or otherwise persecuted by Sofi Muhammad Alim, his son-in-law or their associates (or by Taliban or Pashtun Taliban sympathisers) as a result of any enmity between them dating back to his departure from Afghanistan in 1986.
[9] Nor was the Tribunal satisfied on the basis of country information that there was a real chance the applicant would be harmed, killed or otherwise persecuted in Kabul, should he relocate there, because of clashes between Hazaras and Kuchis, insurgent attacks, or sectarian attacks on Shia Muslims.
[10] While the Tribunal accepted that some discrimination against Shia Hazaras continues in some parts of Afghanistan, it did not accept the applicant would be discriminated on the basis his race or religion in such a way or to such an extent as to amount to persecution for the purposes of the Refugees Convention if he settled in Kabul.
[11] While it accepted on the basis of an article referred to in the applicant’s submissions that some failed asylum seekers who have returned to Afghanistan from Australia have been killed, the Tribunal did not accept the applicant had a well-founded fear of persecution as a member of a particular social group of failed asylum seekers in Kabul. Nor did it accept there was a real chance that, for reasons of his race or religion, the Afghan authorities in Kabul would fail to protect the applicant from persecution which did not itself bear the necessary relationship with one of the Convention grounds.
[12] The Tribunal referred to country information from DFAT and the UNHCR which indicated that there is a cohesive Hazara community in Kabul, it is relatively easy for new arrivals to settle in the city, and ‘nuclear family units can subsist without family and community support in urban areas of Afghanistan with established infrastructure and under effective Government control’. Having regard to this information, the Tribunal rejected the applicant’s claim that it would be unreasonable to expect him to relocate to Kabul because he does not have family or social networks there.
[13] The Tribunal expressly considered the applicant’s age, lack of education, and employment history. It found that it was reasonable to expect that the applicant would be able to obtain employment and continue to support his family in Kabul. It concluded that the applicant did not have a well-founded fear of persecution on the basis of a Convention ground and it was reasonable in the sense of practicable for the applicant to relocate to Kabul to avoid the persecution which he fears in the Uruzgan Province.
[14] In relation to the applicant’s complementary protection claim, the Tribunal stated:
114. Having regard to my findings of fact above, I am satisfied that it would be reasonable for the applicant to relocate to Kabul where I considered that there would not be a real risk that he will suffer significant harm.
Before the Court
The applicant did not proceed on the five grounds of the application made on 4 February 2014. Leave was granted to the applicant at the hearing to proceed on the following grounds set out in an amended application and filed in Court:
“1. The RRT applied the incorrect test in respect of the relocation principle.
Particulars
(i) The RRT failed to consider the reasonableness of the applicant re-locating to Kabul regarding contact with his family in Quetta and failed to considered the situation in Quetta and the reasonableness of his family relocating to Kabul from Quetta;
(ii) The RRT failed to consider the reasonableness of [the] applicant relocating to Kabul specifically after living 27 years in Quetta as opposed to relocating from within Afghanistan;
(iii) The RRT fell into jurisdictional error by erring in the construction and application of the legal test for relocation and thereby concluded that it would be reasonable for the Applicant to relocate to Kabul.
(2) The RRT failed to consider the full integers of the Applicant’s claims or in the alternative, failed to apply the correct test under the complementary protection provision.
Particulars
Having made the finding at paragraph [105] that ‘some failed asylum-seekers who have been returned to Afghanistan, voluntarily or involuntarily, have been killed’, the issue was then only dealt with under the Refugee Convention test and simply not considered under the complementary protection provision.”
[Errors in the original.]
Leave was also granted for the affidavit of Charles Frederick Stanford, solicitor, made on 13 May 2014 to be read into evidence (there was no objection from the Minister). This was said to annexe a “Record of Interview” of the applicant by the Tribunal. I understood this to be a transcript (“T”) of the hearing before the Tribunal conducted on 3 August 2012 in respect of which an invitation was issued pursuant to s.425 of the Act.
The issues raised in the amended application seek to attack the Tribunal’s application of the relocation principle in ground one, and the Tribunal’s claimed failure in relation to complementary protection in ground two. The applicant asked the Court to have regard to how the applicant’s arguments progressed before the High Court. In that regard I note that while there is some thematic overlap the grounds before the Court now are in a somewhat different form. Further, the oral submissions before the Court now appear to differ from the way the arguments progressed before the High Court. In any event, I ultimately understood the applicant’s reference to the High Court transcript before this Court to be for the purpose of providing context and background to the applicant’s arguments before this Court.
Consideration: Ground One
Ground one of the amended application asserts that the Tribunal applied the incorrect test in respect of the “relocation principle”.
The applicant submitted that the relevant test in relation to the consideration of the Refugees Convention principle of relocation to avoid harm involves a “two step” process. He said that the steps are to, first, determine whether there is a well-founded fear of persecution on return to the country of nationality and then, second, to ask whether it is reasonable in the circumstances to ask the applicant to relocate within the country of origin to avoid harm.
In his submissions, the applicant relied on what the majority of the High Court said in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”) at [24]:
“…What is ‘reasonable’ in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
Before this Court the applicant explained his position in relation to ground one as follows. The “risk of violence” remained an issue in relation to the “second prong” of the test referred to above. This meant that when the Tribunal came to consider the question of reasonableness of relocation, it should have considered the risk of violence in the context of the “alternative locations”. The complaint is that the Tribunal only considered this in relation to the “first part of the test”.
As stated above, before this Court, the applicant asked that the Court have regard to the High Court transcript. The request was, as best as I understood, put to provide a background understanding to the grounds of the amended application currently before the Court.
Plainly, there is some similarity between the grounds put in the original application to the High Court and the current amended application. However, the claimed reliance on this argument put before the High Court and the deletion of key elements underpinning those submissions was not explained before this Court.
For example, at ground five of the application before the High Court reference is made to the Tribunal’s claimed failure to take into account a relevant consideration in considering relocation. That relevant consideration was said to be that the Tribunal did not consider whether he would be denied civil, political and socio-economic rights by reason of his separation from his family (see further below at [31]).
The reference to those rights, in that specific form, does not appear in the amended application. Yet, the separation from family was argued, presumably in that context, given ground five, before the High Court. I note, in any event, that in SZATV at [25] the majority referred to what was said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 by Lord Hope of Craighead (at [45]) that, in effect, the Refugees Convention does not require relocation “… to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights”.
It is clear that, both before the High Court and this Court, the applicant sought to reply on SZATV. What was not made clear before this Court was the exact basis for that reliance.
At best, I understood it to be as follows. Before this Court the applicant referred to SZATV at [24] (see above). I understood that reference to be made for the purpose of supporting the applicant’s proposition before this Court that relocation must be found to be reasonable and practicable if the Tribunal were to conclude that there was no real risk of persecution in the country of claimed persecution as a whole. Further, that that assessment must depend upon and derive from the particular circumstances of the applicant.
In that light and referring specifically to the particulars of ground one, rather than what is pleaded in the ground itself, the complaint appears to be that the Tribunal failed to properly consider the reasonableness of relocation to Kabul because it failed to consider three matters arising from the applicant’s circumstances, as those matters are set out at each of particulars (i) and (ii) to ground one.
They are, first, contact with the applicant’s family in Quetta, and second their relocation to Kabul and the applicant’s relocation to Kabul after living in Quetta for 27 years, noting that Quetta is in a third country and relocation was not from within Afghanistan. Particular (iii) appears to be, in effect, no more than a restatement of the ground.
I agree with the Minister’s submissions that the two sets of particulars at (i) and (ii) do not appear to relate to the ground as stated. That ground asserts that the Tribunal applied the incorrect test as to relocation. The particulars (i) and (ii) appear to complain not that the Tribunal applied the incorrect test, but that in its assessment of the reasonableness of relocation, which is the “correct” test, the Tribunal failed to take into account relevant considerations arising from the applicant’s circumstances.
In this light, the submissions on relocation before the High Court involving the matter of “civil, political and socio-economic rights” are of no assistance to this Court in the disposition of the complaint in ground one, as best as it can be understood and as ultimately presented to this Court.
It should be noted at this point that before the High Court the applicant’s counsel (who did not appear before this Court) did raise the matter of the applicant’s family in Quetta and their relocation to Kabul. Her Honour understood the matter raised to be (SZTVL HCATrans 010):
“…you [the applicant’s counsel] assert in your submissions that the deficiency in reasons was the failure to consider the effect of relocation on the prospective reunion with the [applicant’s] wife, children and dependent nephew…”
I note, respectfully, that after hearing the submissions, the following exchange took place on this issue (SZTVL HCATrans 10):
“HER HONOUR: Well, Mr Prince, is there any basis for the conclusion, contrary to an inference in paragraph 110, that it was suggested that his circumstances relevantly included that the family could not travel from Quetta to Kabul?
MR PRINCE: First of all, that would be entering into a question of the merits of what might be the final outcome.
HER HONOUR: No, Mr Prince, it is not. What it is addressing is a consideration of whether it is apt to say that the Tribunal erred in the exercise of its jurisdiction because it failed to take into account the possible inability of the plaintiff to be reunited with his family in circumstances where one reads that the Tribunal - it has correctly put a submission advanced on his behalf at the hearing, looked at the reasonableness of family groups relocating in circumstances where they were without community support.”
In any event, I also respectfully note that the grant of the interim relief sought in the High Court was not based on this argument. Rather, as Her Honour said (SZTVL HCATrans 010):
“Yes, I understand. Thank you, Mr Markus. Mr Markus, my inclination is to think that Mr Prince has established a prima facie case in the sense of the likelihood of succeeding in relation to his challenge to the adequacy of the reasons of the Tribunal respecting the disposition of the complementary protection claim; alternatively, its disposition of the claim by reference to factual findings addressing the Refugees Convention claim.
In saying that, I am referring to the test for the purposes of the grant of the interim relief that is sought, and for obvious reasons it is preferable that I do not address in further detail the merits or otherwise of the claim. It is sufficient, having regard to the gravity of the issues, that, in my view, Mr Prince has made good his case for the grant of the interim relief, having regard to the principles to which I earlier referred. What is the submission, Mr Markus and Mr Prince, respecting the future conduct of the matter?”
Nonetheless, to the extent that the applicant’s submissions before the High Court on this point provide a coherent explanation of the applicant’s complaint in relation to ground one before this Court, I have had regard to those submissions.
What can also be added to the applicant’s complaint, although it derives from his written submissions, and was not satisfactorily explained before the Court, is that the Tribunal did not take into account, in its assessment of the reasonableness of relocation to Kabul, the risk to the applicant arising from the “generalised nature of violence” in Afghanistan. What that phrase means was not explained to the Court.
The starting point for current purposes must be what was relevantly said in SZATV. I respectfully understand that to be that relocation to another part of the country of claimed persecution must be reasonable and practicable and this depends upon the particular circumstances of the applicant and the impact of relocation on him (see SZATV
at [23] – [25] per Gummow, Hayne and Crennan JJ and [105] per Callinan J and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 442 per Black CJ and at 451 per Beaumont J).The applicant’s case before the Court now can be understood as saying that the Tribunal failed to properly consider certain elements arising from the applicant’s circumstances as presented, such that it did not properly consider the question of whether relocation of the applicant to Kabul was reasonable in the sense explained in SZATV. Those matters are at particulars (i) and (ii) (see [15] above).
These elements are:
1)Contact with the family in Quetta.
2)Move of family from Quetta to Kabul.
3)The applicant’s relocation to Kabul after living in Quetta for 27 years.
In his submissions before the Court, the applicant did not refer to the evidence before the Court to establish where, or how, these matters could be said to be a part of the applicant’s circumstances as presented to the Tribunal.
In any event, the matter of relocation to Kabul was raised by the applicant in the statement attached to his application for the protection visa (see [30] at CB 38). The Tribunal’s reporting of this in its decision record was accurate ([22] at CB 332). There is nothing in that statement that relates to his wife and children, nor the matter of his having lived in Quetta for 27 years. That is, the particulars to the ground before the Court.
The matter of relocation to Kabul was discussed at the interview with the delegate on 15 April 2012 (see in particular CB 211.3). The Tribunal again accurately reported on this ([27] at CB 332 to CB 333). Again there is no reference to the matters in the particulars.
In written submissions to the Minister’s department from the applicant’s representative on 15 April 2012, various comprehensive references were made to the cost of living, employment and access to healthcare in Kabul (see variously at CB 182 to CB 187, CB 194.6 and CB 202). Again the Tribunal accurately reflected the thrust of these submissions ([30] at CB 333). No reference to the matters in the particulars was made in these submissions.
On 18 July 2012, the applicant’s representative made lengthy written submissions to the Tribunal (CB 231 to CB 321). The Tribunal comprehensively reported on this in its decision record ([31] at CB 333 to [53] at CB 337 to CB 338). Some references to relocation were made. In relation to his nuclear family, the submission was, as stated above, that he was responsible for his wife and ten children, and that he would be persecuted throughout Afghanistan, including in Kabul (CB 236 and CB 237). The Tribunal reported on this ([37] – [38] at CB 334 to CB 335), and noted country information submitted on the matter of relocation ([40] – [41] at CB 335). For the reasons set out below, it is important to note that through attachments to the applicant’s written submissions to the Tribunal, the representative addressed the matter of women and children in Afghanistan (CB 286 to CB 299). The Tribunal noted this in its decision record ([47] at CB 336).
The issue of relocation in general, and relocation specifically to Kabul, was raised at the hearing ([62] – [73] at CB 339 to CB 342). The applicant’s representative made oral submissions on the matter of relocation ([74] ‑ [77] at CB 342 and T14).
Relevant to the matters in the particulars, the representative argued that the applicant had been absent from Afghanistan for 25 years, he would “require significant financial resources to support his entire family in Kabul” ([74] at CB 342) and that it was not reasonable for family groups to relocate because it would be “extremely difficult…in the absence of the support networks” ([75] at CB 342).
I agree with the Minister that on the evidence, what was said by the applicant, and put on his behalf by his representative, was not that he would be separated from his family, but that it would be unreasonable for them to relocate to Kabul given the difficulties involved.
The Tribunal addressed this, and the matter of his return to Kabul after a long absence from Afghanistan (see [109] – [111] at CB 350). The Tribunal gave reasons as to why it would be reasonable for the applicant, and his family, to relocate to Kabul. These findings were open to the Tribunal on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
On the evidence before the Court, it cannot be said that the Tribunal failed to consider these matters in the sense explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1. Further, the Tribunal considered all of the applicant’s objections to relocation. Nor is there anything in the Tribunal’s decision record to base a claim that the Tribunal applied the incorrect test as to relocation. As set out above, other than the reference to the reasonableness, and the claimed failure in that regard, the applicant has not satisfactorily explained where or how this misapplication was said to have taken place. The Tribunal’s decision record reveals that the Tribunal understood and applied the correct test. Ground one is not made out.
Consideration: Ground Two
Ground two asserts that the Tribunal failed to consider the full integers of the applicant’s claims as against the complementary protection criterion or, in the alternative, failed to apply the “correct”, relevant test.
The particular to the ground explains that the Tribunal found that “some asylum seekers who have been returned to Afghanistan, voluntarily or involuntarily, have been killed”. The Tribunal only dealt with this issue under the Refugees Convention criterion (s.36(2)(a) of the Act), and not the complementary protection criterion (s.36(2)(aa) of the Act).
Before this Court, the applicant referred to the Tribunal’s decision record at [105] (at CB 349) and [114] (at CB 351) (see also
[103] – [104] at CB 348 to CB 349):
“[105] The third of the news reports quotes Phil Glendenning of the Edmund Rice Centre as stating that his research found that 11 failed asylum-seekers who had returned voluntarily to Afghanistan in the past seven years had been killed, including some Hazaras, and that he suspected that the true figure was higher. I accept that some failed asylum-seekers who have returned to Afghanistan, voluntarily or involuntarily, have been killed. However the news report which the applicant’s representatives quoted does not establish that the failed asylum-seekers in question were killed for reasons of their membership of the particular social group of failed asylum-seekers or for reasons of any political opinion imputed to them as a result of their having sought asylum. I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted because he has applied unsuccessfully for protection in Australia if he settles in Kabul now or in the reasonably foreseeable future.
…
[114] Having regard to my findings of fact above, I am satisfied that it would be reasonable for the applicant to relocate to Kabul where I consider that there would not be a real risk that he will suffer significant harm. Having regard to my findings of fact above, I do not accept that there are 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are 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.”
In short, the submission was that the Tribunal accepted that failed asylum seekers have been killed on return to Afghanistan and did so because of the specific country information presented by the applicant’s representative, including the quote from Mr Glendenning. It dealt with this matter in the context of the Refugees Convention as shown by the references to membership of a particular social group and imputed political opinion. Both of which are concepts inherent in the definition of a “refugee”.
The applicant’s complaint, however, is that when it then came to consider the separate complementary protection criterion, the Tribunal simply referred to “…my findings of fact above…” without setting out a separate analysis focussed on the criterion at s.36(2)(aa) of the Act.
I respectfully understood this part of the applicant’s case to draw on the description of the Tribunal’s presentation of its analysis given by Bell J ([2010] HCATrans 010):
“In dealing with the complementary protection claim the Tribunal referred globally to its findings of fact…”
Before this Court the applicant made plain that his attack was not necessarily on the brevity of the Tribunal’s exposition of its consideration of the complementary protection criterion (see NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303). The applicant submitted that in making specific reference to the “findings above”, the Tribunal incorporated these findings into its analysis of the complementary protection consideration.
In particular, that those findings were, in relevant part, made with reference to the two Refugees Convention concepts set out above. Therefore, the Tribunal fell into jurisdictional error because it imported those concepts into the complementary protection consideration and confused the two separate tests relating to each of the Refugees Convention criterion and the complementary protection criterion.
Before the Court, the applicant relied on SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”) at [97] per Judge Driver for the proposition that the Tribunal in the current case fell into the same error as the relevant decision-maker in SZSFK.
In that case Judge Driver drew an inference from the particular circumstances before him that the relevant decision maker made “…no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa)” of the Act (SZSFK at [90]). The Court found “problematic” the Tribunal’s use of certain Refugees Convention related terminology without distinction when the decision maker came to consider complementary protection (SZSFK at [97]).
I agree with the Minister that that inference is not available in the current circumstances. First, to the extent that the applicant relies on the “confusion” found to have been created by the Tribunal in SZSFK at [97] by the “use of the language drawn from an irrelevant [to the complementary protection criterion] provision” of the Act. That is not apparent here.
To the contrary, the Tribunal set out in its decision record its understanding of the two separate “tests” and used language appropriate to each (see [4] at CB 328 to [14] at CB 331 and then [15] at CB 331). Further, and importantly, at [114] (at CB 351), under the heading of “Complementary Protection” the Tribunal used language statutorily appropriate to s.36(2)(aa), and not s.36(2)(a), of the Act.
Second, the applicant relies on the Tribunal’s reference at [114] (at CB 351) to its “findings of fact above”. In this regard, as I said in SZRZM v Minister for Immigration & Anor [2013] FCCA 2018 at [104] – [105]:
“[104] … it is available to the decision maker to apply findings of fact made in the Refugees Convention assessment to the complementary protection assessment. (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) at [55] – [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).
[105] However, in my respectful view, the import of what was said in SZSFK (and SZSGA) is to provide a caution that those factual findings, if these are to be relied upon subsequently in the complementary protection assessment, must derive from the facts presented, and be free in the initial assessment of Refugees Convention concepts such as “serious harm” or “persecution” not found in the complementary protection suite of relevant elements (SZSGA at [55] – [56] per Robertson J).”
Third, this directs attention to the Tribunal’s relevant “findings of fact above” (as stated at [114] at CB 351). This reference includes, but is not limited to, what is set out at [105] (at CB 349). Dealing first with what is set out at that part of its decision record the Tribunal was addressing the matter of the reasonableness of relocation to Kabul of a failed asylum seeker. The Tribunal’s analysis and findings can be summarised as follows.
The Tribunal accepted that the applicant would be returning to Afghanistan as a failed asylum seeker ([103] at CB 348). The Tribunal had regard to relevant country information that since 2002 “…more than five million refugees have returned to Afghanistan” ([103] at CB 348).
The Tribunal then turned to consider country information provided by the applicant’s representative ([104] at CB 348 to CB 349). One of these pieces of information contained quotes from Mr Glendenning reporting on his research that 11 failed asylum seekers “who had returned voluntarily to Afghanistan in the past seven years had been killed…” ([105] at CB 349). The Tribunal found that, in the context of the Refugees Convention, the representative’s quotes did not establish that this was because they were members of a particular social group, or because of impugned political opinion ([105] at CB 349). Plainly, at this part of the decision record, the Tribunal was addressing specific claims made on the applicant’s behalf by his representative.
When regard is had to the representative’s submissions, and the material referred to in those submissions, it is clear the context of what is impugned at [105] (at CB 349) was that the applicant claimed, through his representative, that there was evidence to suggest that returnees to Afghanistan, from Australia, as failed asylum seekers, were harmed for that reason. That is, as returnee failed asylum seekers.
On any plain reading of the Tribunal’s decision record, the context in which this particular submission was put to the Tribunal, was that such failed asylum seekers formed a particular social group, or would have imputed individually to them some political opinion by reason of being returnee failed asylum seekers.
That is, the context in which this submission was put. The Tribunal’s analysis shows that this was what it addressed ([105] at CB 349). The Tribunal did not accept on the evidence before it that there was a real chance that the applicant would be “persecuted” if he settled in Kabul as a returned failed asylum seeker as the applicant and his representative claimed. That was the extent of the applicant’s claims in this regard. That is, the applicant did not make, on what is before the Court, a claim that he would suffer significant harm, in the complementary protection context, as a failed asylum seeker.
Fourth, I have regard to the synchronicity between the words “reasonable for the applicant to relocate to Kabul” as it appears at the first and second lines of [114] (at CB 351) and “reasonable to expect him to settle in Kabul”, as it appears at [107] (at CB 349) and “…it would be unreasonable to expect the applicant to relocate” at it appears at [108] (at CB 349 to CB 350).
This synchronicity allows a strong inference to be drawn that when the Tribunal came to consider the matter of relocation to Kabul in the context of complementary protection criterion, the reference to “my findings of fact above” (as stated at [114] at CB 351) relate to those findings at [107] – [108] (at CB 349 to CB 350) which were concerned, specifically with the question of the reasonableness of relocation to Kabul, and the applicant’s submissions as to why it would be unreasonable to expect him to so relocate. These findings of fact (at [107] – [108] at CB 350) were not dependent on, or informed by, any Refugees Convention concepts.
In all ground two is not made out.
Conclusion
In all, no jurisdictional error arises from the grounds of the application. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 10 December 2014
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