SZUHN v Minister for Immigration
[2016] FCCA 635
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUHN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 635 |
| Catchwords: MIGRATION – Judicial review – application for review of recommendation made by an independent protection assessor (IPA) that the applicant not be recognised as a person to whom Australia has protection obligations – whether IPA applied the correct legal test of “well-founded fear of being persecuted” – whether the IPA considered, in the sense of actively considering, evaluating, and weighing, country information that was reasonably relevant to whether the applicant had a well-founded fear of persecution – whether IPA assessed the applicant’s claim on the incorrect assumption that the applicant had to show that his membership of the group of returnees or failed asylum seekers was the sole reason for his having a well-founded fear of persecution – whether IPA considered claim based on the applicant’s being harmed because of his being a returnee or failed asylum seeker. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 91R(1)(a), 91R(1)(b), 91R(2) |
| Avon Downs Pty Limited v FCT (1949) 78 CLR 353 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 |
| Applicant: | SZUHN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 1215 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 February 2015 |
| Date of Last Submission: | 10 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp appeared with Ms E Yum |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the First Respondent: | Ms A Mitchelmore appeared with Mr R Davies |
| Solicitors for the First Respondent: | DLA Piper |
DECLARATION
The second respondent, in his capacity as Independent Protection Assessor, did not make his recommendation of 20 September 2012 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1215 of 2014
| SZUHN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Afghanistan, claims the second respondent (Assessor) made a number of legal errors when assessing whether the applicant should be recognised as a person in respect of whom Australia has protection obligations.
The applicant’s claims
The applicant’s claims for protection were as follows.[1] The applicant is a Hazari, and is of the Shi’a Muslim faith. He was born in a village in Nawur (or Nahor) district, Ghazni Province, and lived there until 2007.[2] From 2007 until 2011 the applicant lived in a town (Town) in Nawabad, also in Ghazni. He worked there as a teacher in a primary school.[3]
[1] CB96-98
[2] CB235, [25]
[3] CB235, [25]
In 2011 the Taliban issued a warning letter to the school. The school decided to continue operating. After about two weeks, however, the applicant, and two teachers who had come from the applicant’s village, decided to “go home”.
The two other teachers, on the one hand, and the applicant, on the other, commenced their journey to their village in different vehicles. When the applicant’s vehicle was close to a particular bazaar, the driver of the vehicle that was conveying the two teachers telephoned the driver that was conveying the applicant and stated that the Taliban had stopped them and captured the two teachers. The applicant’s driver decided not to go ahead, and the applicant “decided to go another way to Ghazni”.
When he arrived at his village, the applicant stayed at his home for two days. When he left his home to visit the mosque, the applicant was given a warning letter from the Taliban by a person whom the applicant only knew worked for the mosque. After he received the warning letter, the applicant fled to Kabul, where he stayed for six days. The applicant found a smuggler who arranged for the applicant to come to Australia.
The applicant claimed he feared harm would befall him if he were to return to Afghanistan because the Taliban had already threatened him because he worked for the government as a teacher. Before the Assessor, the applicant claimed he had a well-founded fear of being persecuted because of his being imputed with anti-Taliban and pro-government political opinions; and he claimed he would be imputed with such opinions because the applicant worked as a teacher for the government and ignored the threats made by the Taliban, because he was a Hazara and a Shia Muslim, because he was a member of a particular social group, namely failed asylum seekers, and because he was physically identifiable as a Hazara and a teacher.[4]
[4] CB143-147
The Assessor’s reasons
The Assessor accepted the applicant is a national of Afghanistan.[5] He did not make an express finding that the applicant is a Hazara, although the Assessor appears to have assumed the applicant is a Hazara. Although not clear, the Assessor may also have accepted, at least implicitly, that, after 2007, the applicant and his family moved to the Town.[6] The Assessor, however, found the applicant largely lived in his village for years before he departed Afghanistan.[7] The Assessor also found that in 2009 the applicant’s father moved to Kabul to find work there because he could not find work in the Town; that, in around 2009, the applicant worked as a teacher in his home village for a number of years; that in 2010 the applicant’s father was killed in Kabul; and that the applicant’s mother remained in the Town after the applicant returned to his home village.[8]
[5] CB265, [133]
[6] CB267, [145]
[7] CB266, [140]
[8] CB266-267, [140]-[145]
The Assessor, however, did not accept the applicant’s evidence that he had received a warning letter from the Taliban, or the applicant’s evidence about his travelling from the Town to his village with the other two teachers, or his evidence about the events the applicant claims occurred during that trip. The Assessor found the applicant’s account was “a later concoction”, and concluded the applicant was not a credible witness.[9] The applicant does not claim the Assessor arrived at these findings as a result of any error of law.
[9] CB269, [152]
The Assessor considered the applicant’s ability to return home, and the risks of harm, if any, he may encounter there. The Assessor considered that question after he set out in his reasons for decision various items of country information, to which I will refer later in these reasons. The Assessor found the applicant, being an Afghan citizen, would be able to apply and obtain travel documents in order to return to Afghanistan.[10] The Assessor also found that if the applicant made his way to Kabul, he would then be able to return to his home area in Nawur district by road, and that there is not more than a remote chance the applicant would face serious harm as a result of the insurgency or criminal elements while travelling to his home area.[11] The Assessor also found that the Nawur district is “relatively stable” and an “ICG [International Crisis Group] map does not identify Nawur district as an ‘insurgent dominated area’”.[12]
[10] CB270, [157]
[11] CB270, [158]
[12] CB270, [159]
The Assessor also considered the applicant’s claims that the Kuchi threatened his home area. The Assessor noted there were reports of Kuchi violence in some Nawur villages in June 2011, and that auxiliary forces had been dispatched to the area to bring the situation under control. The Assessor, however, did not accept that the applicant’s home area was under Kuchi control, or was threatened by Kuchi.[13] Finally, the Assessor was not satisfied the applicant would be persecuted or be exposed to a real risk of substantial harm because he was a failed asylum seeker,[14] or because he may be considered to be un-Islamic in his behaviour, or because of membership of a particular group – namely an asylum seeker, a physically identifiable Hazara or a teacher.[15]
[13] CB270, [161]
[14] CB270-271, [162]
[15] CB271, [165]
Grounds of application
Although the further amended application for review contains three grounds, counsel for the applicant, in his written submissions, arranged these into two. The first is a combination of grounds 1 and paragraph (b) of the particulars to ground 3 of the further amended application:
The assessor failed to assess whether the applicant had a well founded fear of persecution in the future as required by law.
Particulars
(a)Error in considering that:
(i)The applicant’s home area (Nawur District in Ghazni Province) was “relatively stable”;
(ii)Nawur District was not “insurgent dominated”;
(iii)Schools in Borjegai continued to operate, and
(iv)The applicant has not been persecuted in the past,
permitted a lawful finding that the applicant does not face a well founded fear of persecution for a Convention reason.
(b)The assessor examined the situation as it existed at the time of his decision and purported to extrapolate that situation into the future without reference to the fluidity of events in Afghanistan evident in the country information before him.
(c)Error in misinterpreting s.36 of the Migration Act by requiring a Convention reason to be the sole reason for persecution.
[3(b)]Failure to take into account the fluidity of the security situation in Afghanistan evident in information accessed by the assessor.
This ground claims the Assessor made two errors of law. The first is the Assessor did not assess whether the applicant had a well-founded fear of persecution in the manner required by law. The applicant submits that the Assessor’s error is manifested not by what he said – the applicant accepts the Assessor expressed the correct legal principles – but by what the Assessor did. Here, the applicant relies on two things. The first was the Assessor’s relying on the security situation in Nawur district being “relatively stable”, and the Nawur district not being identified as “insurgent dominated” for concluding the applicant does not have a well-founded fear of persecution. The second is what the applicant submits was the Assessor’s relying only on past and present facts as a basis for concluding the applicant did not have a well-founded fear of persecution in the reasonably foreseeable future.
The second error the applicant claims the Assessor made relates to the Assessor’s finding that reports showed that “‘failed’ asylum seekers/returnees from a Western country do not face persecution in Afghanistan for that reason alone”.[16] The applicant submits that this manifests the application by the Assessor of an erroneous understanding that membership of a social group must be the sole reason for a person’s having a well-founded fear of persecution before that person can be a “refugee” within the meaning of Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention).
[16] CB270-1, [162]
The second ground of application is a combination of grounds 2 and 3(a), and is as follows:
2.The assessor erred in failing to consider the totality of the applicant’s claims, or erred in his interpretation of the law, in considering whether the applicant may face persecution for a Convention reason, or serious harm pursuant to s.36(2AA).
Particulars
(a)In considering the applicant’s claims that he would be in danger as a returned asylum seeker, the assessor failed to consider whether he would be targeted as a returnee from a western country because of perceived wealth.
3.The assessor’s recommendation was affected by a breach or breaches of the requirements of procedural fairness in the course of evaluating the danger to the applicant of a return to Afghanistan.
Particulars
(a)Failure to consider information before him being that in a DFAT report of 3 February 2009 to the effect that returnees and deportees from Western countries have been targeted because of their perceived wealth (CB 256 [105]).
It will appear, therefore, that the applicant relies on the following four grounds for claiming the Assessor made errors of law in concluding Australia did not owe protection obligations to the applicant:
a)The Assessor’s relying on his findings that the security situation in Nawur district was relatively stable and was not “insurgent dominated”, manifests a misunderstanding by him of the correct legal tests he ought to have applied when considering whether the applicant had a well-founded fear of persecution.
b)The Assessor only relied on past and present facts to assess whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future without reference to country information that indicated the fluidity of the situation in Afghanistan. The Assessor, therefore, failed to consider according to law whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future.
c)The Assessor considered the applicant’s claim based on his being a failed asylum seeker on the erroneous premise that the applicant could succeed on that claim only if his being a failed asylum seeker was the sole reason for his having a well-founded fear of persecution for that reason.
d)There was a claim before the Assessor that the applicant feared he would be harmed because, as a returned refugee, the applicant would be perceived to have wealth, and the Assessor did not consider that claim.
Before I consider these claims, it would be useful to set out some of the principles I consider are relevant, particularly to determining the first two claims.
Legal principles
I begin with s.36(2)(a) of the Migration Act 1958 (Cth) (Act), as it operated when the applicant applied for protection.[17] (For ease of expression, I will refer to the Act as it then applied to the applicant in the present tense.) That paragraph identifies one criterion for the granting of a protection visa, namely, that the visa-applicant is “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. That draws attention to the definition of “refugee” contained in Art.1A(2) of the Refugees Convention. Under that definition, a refugee is a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[17] This part of the Act was amended by Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The amendments took effect on 18 April 2015. Item 28 of Schedule 5 provides that Part 2 applies in relation to an application for a protection visa that is made on or after the day “this item commences”. Under s.2 of the Act, Item 28 came into effect on the day after assent. The date of assent was 15 December 2014.
There are a number of matters to note about this definition. The first relates to the notion of “fear”. That is a central element of the definition; it is a person’s fear which must account for the person’s being outside his or her country of nationality or place of habitual residence, or which must account for the person’s unwillingness to return to his or her country of nationality or place of habitual residence. And there are two ordinary, though overlapping, meanings of “fear” that are relevant.[18] One is the “emotion of pain or uneasiness caused by the sense of impending danger”; the other is “a particular apprehension of some future evil”, an “[a]pprehensive feeling towards anything regarded as a source of danger, or towards a person regarded as able to inflict injury or punishment”.[19]
[18] J C Hathaway and M Foster The Law of Refugee States 2nd ed 2014 pages 105-106
[19] These are taken from the Oxford English Dictionary Online Edition
The second matter to note is the expression “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. This identifies the evil or danger the person who claims to be a “refugee” must fear. It is not necessary, however, that the person express the evil or danger he or she fears in the language of Art.1A(2) of the Refugees Convention. What is necessary is that the evils or dangers the person apprehends will occur to him or her, however expressed, are evils or dangers that may properly be characterised as amounting to persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Ultimately, that is a question of applying the correct construction of the expression “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” to the facts of a particular case.
The third matter to note is the nature of the evil or danger the person claiming to be a refugee apprehends will occur to him or her. Article 1A(2) of the Refugees Convention, as applied in Australia,[20] imposes a composite requirement. The harm the person fears must be serious harm; it must involve systematic and discriminatory conduct; and the serious harm the person fears will occur because of one or more “Convention reasons”, that is, for reasons of the person’s race, religion, nationality, membership of a particular social group, or political opinion.
[20] See s.91R(2) of the Migration Act 1958 (Cth) (Act) as it stood before 18 April 2015. See now s.5J(4) of the Act which is to the same effect.
The fourth matter is that the fear of serious harm the person holds must be “well-founded”. “Well-founded”, as it appears in “well-founded fear of being persecuted”, denotes reasons for holding a fear of being persecuted. Those reasons, however, “are not confined to those which induced” the refugee claimant’s fear.[21] Whether a person has a well-founded fear of persecution “requires an objective examination of the facts to determine whether the fear is justified”.[22] Thus, the requirement that there be a “well-founded” fear of being persecuted requires the identification, not only of the reasons for which a person claims he or she has a fear of being persecuted, but also the identification of facts on the basis of which it may be said there are reasons for the person holding that fear, whether or not those reasons are in the mind of the person claiming the fear. That point was made by Dawson J in Chan v Minister for Immigration and Ethnic Affairs:[23]
Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.
[21] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J)
[22] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J)
[23] (1989) 169 CLR 379 at 396
The fifth matter is an implication of the notion of “fear”. The serious harm the person fears will occur is something the person fears will occur in the future if the person returns to his or her country. That raises two questions. The first is: what is the required degree of probability that the feared serious harm will occur before the fear may be regarded as well founded? The second is: over what future period of time must the person have a well-founded fear that the serious harm will occur?
The first of these two questions has been authoritatively settled by two decisions of the High Court. The first is Chan v Minister for Immigration and Ethnic Affairs where Mason CJ said:[24]
But I prefer 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 . . . . 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. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[24] (1989) 169 CLR 379 at page 389. See also Toohey J at page 407 where his Honour said that the real chance test “gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”. See also McHugh J at page 429 where his Honour said: “As the U.S. Supreme Court pointed out in Cardoza-Fonseca an 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 fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”
This passage must be read against what the High Court said in Minister for Immigration and Ethnic Affairs v Guo:[25]
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error. . . . Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
[25] (1997) 191 CLR 559 at page 572-573
As for the future time over which the person must have a well-founded fear that serious harm will befall that person, the High Court, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, accepted that whether or not a person had a well-founded fear of persecution had to be assessed on the assumption that the person were to return to his or her country “at this time or within a reasonably foreseeable future”.[26]
[26] (1996) 185 CLR 259 at page 279
The final matter to note about the definition of “refugee” in Art.1A(2) of the Refugees Convention relates to the manner in which, and the materials on the basis of which, a claimed fear of persecution must be assessed. In Minister for Immigration and Border Protection v MZYTS the Full Federal Court succinctly stated that such assessment “involves a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”.[27] What is involved in such assessment was described in greater detail by Gummow and Hayne JJ in S395 v Minister for Immigration and Multicultural Affairs:[28]
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[27] [2013] FCAFC 114 at [33]
[28] (2013) 216 CLR 473 at [73]-[75]
The principles I have considered so far belong to what may be described as the substantive law of what is a “refugee” within the meaning of Art.1A(2) of the Refugees Convention, and how a claim a person is a “refugee” is to be determined. But there is another set of principles that must be considered; and these arise from the fact that the Act assigns the power to determine whether or not Australia owes a person protection, not to a court, but to the Minister,[29] or, where a valid application for review had been made before 16 December 2014, under s.412 of the Act, of the Refugee Review Tribunal as it stood before that date. In particular, whether or not Australia owes a person protection obligations under the Refugees Convention depends on whether the Minister is “satisfied” Australia owes such obligations. There are a number of principles to note.
[29] Which includes a delegate of the Minister of the Refugee review tribunal when considering an application for review made under s.412 of the Act.
The first is that the “satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned”.[30] That means that a:[31]
determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.
[30] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [37] (Gummow and Hayne JJ)
[31] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131]
The power to determine whether the Minister is satisfied a person is or is not a “refugee” is subject to a number of limitations. And that leads me to a second principle. When considering whether Australia owes a person protection obligations under the Refugees Convention, the Minister must have in mind, and must apply, the legal meaning of “refugee”, and the principles courts have held must be applied when assessing a claim that Australia owes protection obligations to a person. If the Minister does not apply the correct legal meaning and approach, the Minister will not have exercised the function the Act has conferred on him or her. That would be so because the Minister would have made a mistake of law of the nature Jordan CJ identified in Ex parte Hebburn Ltd; Re Kearsley Shire Council: [32]
I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction . . . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test”: Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [[1937] AC 898 at 917]; or to “misconceive its duty” or “not to apply itself to the question which the law prescribes”: The King v War Pensions Entitlement Appeal Tribunal [(1933) 50 CLR 228 at 242-3]; or “to misunderstand the nature of the opinion which it is to form”: The King v Connell [(1944) 69 CLR 407 at 432], in giving a decision to exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [[1910] 2 K B 165].
[32] (1947) 47 SR (NSW) 416 at page 420
A third principle is that, whether the Minister has applied the correct legal meaning of “refugee”, and has applied the correct approach to determining that question, does not necessarily turn on the expressions the Minister has used. It “is the reality, and not the appearances, which matters”.[33] Whether or not in a given case the Minister has in reality applied the correct legal meanings of “refugee” is usually determined by examining the reasons of the Minister or the Refugee Review Tribunal (RRT). One available means for inferring the Minister may not have applied the correct legal principles is that identified by Dixon J (as his Honour then was) in Avon Downs Pty Limited v FCT.[34] Speaking of a decision that was made by the Federal Commissioner of Taxation, his Honour said
If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough if you can see that in some way he must have failed in the discharge of his exact function according to law.
[33] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 (Kirby J)
[34] (1949) 78 CLR 353 at page 360
A fourth principle concerns what the Minister must do before it could be said the Minister has attained or has not attained the requisite state of satisfaction. The Full Federal Court considered that question in relation to the RRT in Minister for Immigration and Border Protection v MZYTS.[35] The Court said that:[36]
lawful formation of that state of satisfaction [under s.65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[35] [2013] FCAFC 114
[36] [2013] FCAFC 114 at [34]
The Full Federal Court further said that the RRT will not have properly attained the state of satisfaction if “the Tribunal did not assess in any real or active way” the applicant’s claim;[37] or if the Tribunal did not disclose any “consciousness of the contents” of the claim “as opposed to their existence”;[38] or if the Tribunal did not disclose “any evaluation” [39] of the material, or any “process of weighing evidence and preferring some over the other”.[40]
[37] [2013] FCAFC 114 at [39]
[38] [2013] FCAFC 114 at [41]
[39] [2013] FCAFC 114 at [45]
[40] [2013] FCAFC 114 at [50]
These principles have been stated in the context of judicial review of decisions made by the RRT. The principles nevertheless apply to an assessor, even though an assessor operates pursuant to “an administrative refugee status assessment process established by the Government for offshore entry persons”.[41] That is so because the assessor has embarked on his task for the purpose of informing the Minister of matters that were relevant to whether the Minister would exercise powers in favour of the applicant.[42] At any rate, the parties assumed that lawfulness of the Minister’s relying on the Assessor’s recommendation depended on the Assessor undertaking his task in the manner the RRT would have been required to undertake its tasks in determining whether the applicant was a “refugee” within the meaning of Art.1A(1) of the Refugees Convention.
[41] Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 at [7].
[42] Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [73]
First claim - Assessor’s reliance on “relative stability” and not “insurgent dominated”
The applicant submits the Assessor’s finding that the overall security situation in Nawur district is “relatively stable” indicates that the Assessor did not apply the correct legal test of well-founded fear of persecution because the finding implies some standard of comparison of stability which the Assessor did not identify.[43] The applicant further submits that the Assessor’s finding that Nawur district was not “insurgent dominated” does not identify the extent and effect of such insurgency in the Nawur district. Implicit in that submission is the additional submission that the Assessor’s finding did not exclude the presence of some insurgency in Nawur.
[43] Applicant’s Outline of Submissions [24]
The Minister submits, on the other hand, that the Assessor correctly identified the issue he had to address, namely, whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if the applicant returned to Nawur, and the Assessor answered that question by reference to what information was to hand about that district.[44] The Minister further submits that the Assessor’s findings that Nawur district is not “insurgent dominated” is at least a finding that the extent and effect of the insurgency in that district was not, in the opinion of the Assessor, sufficient to support a well-founded fear of persecution for a person in the applicant’s particular circumstances.
[44] First Respondent’s Outline of Submissions [20]
If the language in which the Assessor expresses his two findings is considered alone, there would be great force in the applicant’s submissions. This, to some extent, was implicitly accepted by the Minister; for the Minister’s counsel submitted it was necessary to have regard to the Assessor’s reasons and, in particular, to the country information to which the Assessor referred, and the manner in which the Assessor dealt with the country information to which he referred. Counsel for the Minister submitted that, if regard is had to those matters, I would not be satisfied that the Assessor did not apply the correct legal standards for determining whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if he returned to Nawur district.
Counsel for the applicant, on the other hand, also relies on the country information that was before the Assessor. Counsel particularly points to country information relevant to the assessment of the risk of future harm. Counsel submits the Assessor did not consider the country information in the manner the Full Federal Court in MZYTS held the RRT ought to consider claims. It is, therefore, necessary to identify the country information that was before the Assessor in relation to the applicant’s fear of being persecuted because of his Hazara ethnicity, and to which the Assessor referred. I will emphasise in bold those passages of the country information to which I intend to specifically refer later in these reasons.
Country information considered by, and which was before, the Assessor
The Assessor said he “had regard to country information specifically referred to and cited in the submissions provided” on behalf of the applicant and “cited in the” Protections Obligations Determination.[45] The Assessor, however, did not identify each piece of country information he considered. Instead, the Assessor identified a “concise selection of country information sources concerning Afghanistan”,[46] and then referred to various sources of country information, extensively setting out passages from those sources.
[45] CB249, [94]
[46] CB249, [94]
The first item of country information to which the Assessor referred is the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan dated 17 December 2010 (UNHCR Report).[47] The Assessor set out a passage from that publication which describes risk profiles. These include individuals associated with, or perceived to be supportive of, the Afghan Government, humanitarian workers and human rights activists, and “members of (minority) ethnic groups”. The passage also contains the following:
In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence.
[47] CB250-251, [95]
The second item of country information the Assessor sets out is another passage from the UNHCR Report that discusses risk profiles of minority ethnic groups. The passage the Assessor quotes includes the following:[48]
Marginalized during the Taliban rule, the Hazara community continues to face some degree of discrimination, despite significant efforts by the Government to address historical ethnic tensions. Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening. Although not able to launch widespread operations in Jaghori, there are some reports of Taliban attacks in the district.
[48] CB251, [96]
The third and fourth items of country information the Assessor set out were two passages from the UNHCR report dealing with “generalized violence”. The first passage identifies particular districts, including “parts of Ghazni”, where the situation has reached such a high number of civilian casualties, frequency of security incidents, and number of persons displaced due to the armed conflict, that the situation “is recognized by UNHCR as one of generalized violence”.[49] The second passage deals with internal flight or relocation.[50]
[49] CB252, [97]
[50] CB252-253, [98]
The fifth item of country information the Assessor set out are extracts from a report dated 12 March 2012 prepared by the Department of Foreign Affairs and Trade titled “Afghanistan: Hazara Community Update” (DFAT report). The passage the Assessor quotes includes the following (emphasis added):[51]
[51] CB254, [99]
7. However, the Hazara community did not face systemic violence or an existential threat. Hazaras considering emigration engaged in lengthy and dynamic planning processes. Limited economic opportunities were the main driver for their outward migration. This also inhibited the number of returning refugees. . . . . Similarly, UNHCR did not regard minority ethnicity as a major cause of flight for displaced persons. UNHCR continued to believe countries should not give blanket consideration to claims made by particular ethnic groups from Afghanistan; claims should be assessed individually on their merits.
Provincial Update
8. Contacts saw the situation as largely unchanged in three predominantly Hazara provinces. . . .
9. Security in Ghazni (a mixed Hazara/Pashtun province) had deteriorated in the past six months. Currently the situation was stable – winter was traditionally a quieter period with less fighting – but violence would likely pick up in the spring. However, this applied across the province. Violence was not noticeably worse in the predominantly Hazara districts (Jaghatu, Nawr, Jaghori, Malistan).
A sixth item or class of items of country information to which the Assessor referred concerned Nawur district. The Assessor referred to a 2006 district plan for the district of “Nahor” (which the Assessor considered to be the same as “Nawur”) that contained a map of the district;[52] a 2000 Hazarajat study that included Nawur,[53] a 2009 United Nations Environment Programme report on pasture claims in Afghan communities that corroborated that information;[54] reports and maps identifying the location of the village in which the applicant claimed he was born;[55] and information relevant to determining whether a certain school was located in that village.[56]
[52] CB260, [118]
[53] CB260, [119]
[54] CB261, [120]
[55] CB261, [121]
[56] CB261-263, [122]-[126]
The seventh item or class of items of country information related to the security situation in the Nawur district itself. First, the Assessor referred to country information indicating “that the overall security situation in Nawur district is relatively stable”.[57] The country information on which the Assessor relied for that statement was a report dated 27 June 2011 issue by the International Crisis Group and to a publication titled “Ghazni Provincial Handbook: A Guide to the People and the Province”.[58] Second, the Assessor referred to “reports of security incidents which occurred in 2011”.[59] The Assessor identified each of those reports. The first is a report from Tolo TV News about a claim made by the Ghazni Provincial Council that the Kuchis, “in coordination with the Taliban” had set on fire nearly 27 villages in the Nawur district of the province. The report notes that the representative of Kuchis at the Provincial Council denied the claim, but also notes that “[m]eanwhile, provincial security officials have confirmed the incident, saying that auxiliary forces have been dispatched to the district to bring the situation under control”.[60] The second is a report dated 18 June 2011 about a Kuchi attack in Nawur.[61] The third is a report dated 6 January 2011 from Pajhwok Afghan News reporting the killing of three individuals during an operation in “Nawar district”.[62] The report noted conflicting information. It referred to foreign troops suspected of killing civilians and also that “NATO stated that insurgents were killed in Ghazni province as part of join operation with Afghan forces”..
[57] CB263, [127]
[58] CB263, [127], fn.33
[59] CB263, [127]
[60] CB263, [127]
[61] CB263, [128]
[62] CB263, [129]
The eighth item of country information is the following:[63]
On 27 June 2011, the International Crisis Group (ICG) released a report on the insurgency ‘stronghold in Afghanistan’s heartland which included a map of insurgent influence in provinces around Kabul. The ICG map does not identify Nawur district as an ‘insurgent dominated area’. Information from ICG is corroborated by a 2010 IDS International conflict map for Ghazni province which does not identify Nawur district as an area of conflict.
[63] CB264, [130]
The applicant provided country information to the Assessor which the Assessor did not set out in his reasons for decision. One item of information was an article written by Professor Maley titled “On the Position of Hazara Minority in Afghanistan” dated December 2010.[64] That report included the following passages (emphasis added):
Many asylum seekers in Australia have come from the province of Ghazni. The Taliban are now active in parts of Ghazni. . . . No part of Ghazni can realistically be considered safe for Hazaras, even in districts where they might seem numerically predominant. Most disturbingly, the June 2010 study by the Afghanistan Analysts Network warns of a risk to these areas: ‘The Taleban successfully have infiltrated Northern and Northeastern Afghanistan and destabilised certain areas, mainly in Kunduz province. Now, there are signs that they might attempt to push forward into mainly Hazara-settled areas [in] the central region.
[64] CB104-109
Although the Assessor did not set out any passages from this report, he did refer to the report.[65]
[65] CB251, [96]
Other country information that was before the Assessor includes the following:
a)a report from the Age newspaper on 29 May 2010 which, among other things, quotes the regional head of the United Nations refugee agency stating that “we have never said there has been any improvement in Afghanistan, and the situation remains fluid and complex”;[66]
b)a report from the “hazarapeople” website which referred to Edmund Rice Centre studies conducted since 2001 showing that “some returnees from Australia and their children were killed upon return and many today live with the well-founded fear of the very persecution they sought to escape”, and that “[l]ast June in Uruzgan province . . . 11 Hazaras were decapitated”;[67]
c)a report from the ABC published on 15 November 2011 stating, among other things, that “Afghanistan’s security situation has gradually worsened over the past few years”, that the reporter’s “own research on the situation of Hazaras on the ground in Afghanistan and Pakistan last year shows the opposite to the government’s advice that Hazaras are safe”, that in 2010 “Hazaras became politically marginalised in the Afghan government”, that since 2004 “the Kuchis, mainly Pashtun pastoralists, have attacked Hazara areas” and that the “Afghan government has failed to protect Hazaras against the Kuchi attacks”, and that the “worst threats come from the Taliban” with “increased Taliban activities in Afghanistan” posing “serious threats to the lives, security and freedom of Hazaras”;[68]
d)reports of attacks on, and abductions and killing of teachers by the Taliban;[69]
e)an article by a PhD candidate at the University of New England which referred to, among other things, failures of security “directly affecting Hazara-populated regions within Ghazni, Oruzgan and Maidan Wardak provinces”, that “[a]nalysts deemed Ghazni to be ‘among the most volatile provinces in southern Afghanistan”, and that the Taliban “have distributed ‘night letters’, a method of intimidation, to districts within Ghazni province”;[70]
f)a 2009 report from the United States Department of State, of Democracy, Human Right and Labour, updated online on 11 March 2010, which stated, among other things, that “ethnic tensions between” Hazaras and Pashtuns were reported in Ghazni province, fueled by conflicts over grazing rights, especially in the high passes in Jaghato, Nawur, and Kwaja Omari”;[71] and
g)a number of other reports, including a report published on 18 June 2010 in the Afghan Analysis Network which stated, among other things, that the Taliban had successfully infiltrated northern and north-eastern Afghanistan and “[n]ow, there are signs that they might attempt to push forward into mainly Hazara-settled areas [in] the central region”.[72]
[66] CB151-152
[67] CB165-166
[68] CB167-168
[69] CB174-179
[70] CB188
[71] CB191
[72] CB200
Did the Assessor not apply the correct test and approach?
The Minister correctly submits that the Assessor correctly identified the issue he had to address, namely, whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if the applicant returned to Nawur.[73] That does not necessarily mean, however, that the Assessor answered that question by applying the correct legal standard of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future. The Assessor answered that question by relying on two findings, the first of which was that the “overall security situation in Nawur district is relatively stable”, and the second of which was that “an ICG map” did not identify “Nawur district as an ‘insurgent dominated area’”.[74] The question is whether the Assessor’s use of these words, in the context of his decision as a whole, manifests an incorrect understanding of the task the Assessor had to undertake in determining whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if he were to return to Nawur district. I first consider the first of the two findings.
[73] CB271, [164], [166]
[74] CB270, [159]
The Assessor assessed the extent of the security situation in Nawur district by reference to the security situation in another area or other areas of Afghanistan. That is apparent in the Assessor’s use of the word “relatively”. That, however, reveals a potential difficulty. That the security situation in Nawur district is stable relative to the security situation in other areas does not necessarily mean the security situation in Nawur is stable to an extent that would preclude the conclusion that Hazaras or teachers did not have a well-founded fear of persecution in the reasonably foreseeable future. That is so even though the Assessor acknowledged “the caution that the insurgency have targeted government employees, including teachers”.[75] This may indicate that the Assessor, when considering whether the applicant had a well-founded fear of persecution, did not address whether there was a substantial basis for concluding that the applicant would suffer serious harm in the reasonably foreseeable future if he were to return to Nawur district. For reasons that will appear shortly, I do not need to decide whether I should infer from the Assessor’s findings of relative stability that he did not address the question the Assessor ought to have addressed.
[75] CB270, [159]
There are potential difficulties with the second finding on which the Assessor relied. Read alone, the words the Assessor used do not exclude the possibility there may be areas in Nawur district which is not dominated by insurgency but in which there may nevertheless be some insurgent activity. The possibility remains that the position in Nawur district is such as would justify a finding that the applicant had a well-founded fear of persecution if he returned to that district; and the Assessor’s not considering whether there was any such insurgency may indicate he did not consider whether there was a substantial basis for concluding that the applicant would suffer serious harm in the reasonably foreseeable future if he were to return to Nawur district.
It may be, however, that the Assessor’s words “insurgent dominated” should be read together with the passage from the Assessor’s reasons where he first refers to the ICG map. The Assessor there said that “[i]nformation from ICG is corroborated by a 2010 IDS International conflict map for Ghazni province which does not identify Nawur district as an area of conflict”.[76] It may be, therefore, that the Assessor equated “insurgent dominated” with “conflict” so that the Assessor’s finding is not there are no areas in Nawur district that are “insurgent dominated”, but there are no areas in which there is a conflict. Again, for reasons that will become apparent shortly, there is no need for me to determine whether this was the Assessor’s intended meaning and, if not, whether that would afford a basis for inferring the Assessor did not address the question he ought to have addressed.
[76] CB264, [130]
Whether or not the words the Assessor used to express his findings indicated he misunderstood the question he ought to have addressed must, as the Minister submitted, be considered in the light of the Assessor’s reasons as a whole, and in particular, the country information the Assessor set out in his reasons for decision. As I have already noted, the Minister submits the Assessor addressed the correct question, and he answered that question by reference to what information was to hand about that district.[77] I do not, however, accept that the Assessor answered that question by reference to the information that was at hand if, by that, the Minister intends to submit that the Assessor arrived at that answer by considering the country information in the manner discussed by the Full Federal Court in MZYTS.
[77] First Respondent’s Outline of Submissions [20]
The first of the Assessor’s two findings appears to have been, and I find was, taken directly from two sources, namely a report dated 27 June 2011 titled “Insurgency in Afghanistan’s Heartland” issued by International Crisis Group (ICG report), and the publication titled Ghazni Provincial Handbook: A Guide to the People and the Province”.[78] The second finding was taken from the ICG map. In other words, the two findings on which the Assessor relied for concluding the applicant did have a well-founded fear of persecution in Nawur district reflected the adoption by the Assessor of two items of information contained in two reports. But this was not the only country information relating to Nawur district, or which could reasonably have been regarded as relevant to the current or future security situation in Nawur district, that was before the Assessor or to which the Assessor referred.
[78] CB263, [127], fn.33
There was country information before the Assessor which I have emphasised in bold in the passages I quoted earlier in these reasons that could reasonably have suggested to the Assessor that the security situation in Nawur district is not relatively stable or free of conflict or which would not in the reasonably foreseeable future remain relatively stable or free of conflict (Competing Country Information). There is nothing in the Assessor’s reasons, however, that indicates the Assessor assessed “in any real or active way”[79] whether it should accept the country information it adopted having regard to the Competing Country Information. The Assessor’s reasons do not disclose “any evaluation”[80] of the Competing Country Information, or any “process of weighing” all country information including the Competing Country Information, that could reasonably have been regarded relevant to the current or future security situation in Nawur district “preferring some” country information “over . . . other” country information.[81] The Assessor adopted two items of information without considering, in the sense required by MZYTS, whether it should do so in the light of other apparently relevant information that potentially pointed to a different conclusion. The Assessor did not, therefore, consider, in the sense discussed in MZYTS, the applicant’s claims that he had a well-founded fear of being persecuted in the reasonably foreseeable future.
[79] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [39]
[80] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [45]
[81] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [50]
Conclusion
My conclusions on this part of the applicant’s case, therefore, are as follows. Whether the Assessor’s findings that the “overall security situation in Nawur district is relatively stable” and that “an ICG map” did not identify “Nawur district as an ‘insurgent dominated area’” disclose a misunderstanding by the Assessor of the tasks he ought to have undertaken when determining whether the applicant had a well-founded fear of persecution if he returned to Nawur must be determined by reference to the Assessor’s reasons as a whole, and to the country information to which the Assessor referred in his reasons. When that is done, it is apparent that the Assessor did not actively consider, evaluate, and weigh in the sense required by MZYTS all the country information before the Assessor that could reasonably have been regarded as relevant to the question of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future. For that reason, the Assessor did not do what he ought to have done when considering whether Australia owed the applicant protection obligations and, therefore, made an error of law.
These conclusions do not directly reflect the ground on which the applicant relied. The conclusions, however, address the issues that arose out of the submissions that were made in relation to this part of the applicant’s case. It was necessary to consider the Assessor’s reasons for decision, and in particular, his reference to and use of country information. Further, counsel for the applicant did rely on MZYTS. In any event, my conclusions in this part of my reasons for judgment are in substance dispositive of the second ground on which the applicant relies.
This part of the applicant’s claims, therefore, succeeds.
Failure to consider harm in the reasonably foreseeable future
In substance, the applicant claims the Assessor made an error of law because he considered the situation in Nawur district as it stood at the time of the Assessor’s decision and “purported to extrapolate that situation into the future” without having regard to the country information that indicated the fluidity of events in Afghanistan.
The Minister submits the Assessor undertook the predictive exercise the High Court described in Guo. The Minister relies on the Assessor’s referring to different sources of country information.[82] The difficulty with the Minister’s submission, however, is that, as I have already found, the two findings on the basis of which the Assessor concluded the applicant did not have a well-founded fear of persecution reflected the Assessor’s adoption of two items of information from two sources of country information; the Assessor did not make those findings as a result of its evaluating and weighing country information that could reasonably have been regarded as pointing to different conclusions to those the Assessor adopted. For that reason, it cannot be said the Assessor considered, in the sense required by MZYTS, country information relevant to assessing the risk of harm in the reasonably foreseeable future.
[82] First Respondent’s Outline of Submissions [22]
The Minister relied on the decision of Flick J in SZQXE v Minister for Immigration and Citizenship.[83] In that case an Independent Merits Reviewer (IMR) acknowledged there was some information “that paint[s] a difficult picture in terms of the safety of Hazaras in all parts of Ghazni” but nevertheless gave “preference to the weight and authority of sources such as DFAT and the UNHCR”.[84] It was submitted by the protection visa applicant in that case that, nevertheless, the IMR did not consider the “reasonably foreseeable future”. Flick J rejected that submission:[85]
. . . . the analysis undertaken by the Independent Merits Reviewer does in fact expose a genuine assessment of the events as they may ultimately unfold in “the reasonably foreseeable future”. Based upon the information that was before the Reviewer, that was a finding open to him. To attempt to challenge that finding would be an impermissible intrusion into the factual merits of the case . . ..
The simple fact is that the Independent Merits Reviewer did consider the circumstances as they may develop in Afghanistan in the future.
[83] [2012] FCA 1292
[84] [2012] FCA 1292 at [11]
[85] [2012] FCA 1292 at [15], [16]
The reasoning of the IMR in SZQXE is distinguishable from the reasoning of the Assessor in the case before me in that the IMR expressly referred to country information that potentially was contrary to the information the IMR preferred. I do not need to determine, however, whether that distinction is material. What is of significance is that, at the time Flick J determined SZQXE, the Full Federal Court had not handed down its decision in MZYTS. The question, therefore, did not arise in that case, as it has in this case, whether, in the sense discussed in MZYTS, the IMR evaluated and weighed the country information which the IMR decided not to accept against the country information the IMR did accept. SZQXE, therefore, does not assist the Minister’s case.
This part of the applicant’s claims, therefore, also succeeds.
Did the Assessor assume that being a failed asylum seeker should be the sole reason for fearing persecution?
The applicant submits the Assessor considered the applicant’s claim based on his being a failed asylum seeker on the erroneous premise that the applicant could succeed on that claim only if his being a failed asylum seeker was the sole reason for his having a well-founded fear of persecution for that reason. The applicant relies on the following passage from the Assessor’s reasons:[86]
Reports show ‘failed’ asylum seekers/returnees from a Western country do not face persecution in Afghanistan for that reason alone.
[86] CB270-271
The applicant submits that this misstates the causal connection between a Convention reason and the feared harm. The connection is stated in s.91R(1)(a) of the Act to be the “essential and significant reason”. The Minister, on the other hand, submits that this passage does not manifest an incorrect understanding by the Assessor of the necessary causal connection between a Convention reason and the claimed fear of harm. The Minister submits that the passage is a repetition of country information. The Minister also submits that it should not be inferred that the Assessor was unaware of the test specified in s.91R(1)(b) of the Act because the Assessor referred to this provision at the beginning of his reasons, noting that a “Convention reason or reasons must constitute the essential and significant motivation for the persecution feared, even if there are multiple motivations”. The Minister submits that the applicant’s claim is similar to the claim made and rejected in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[87] There, in circumstances where the delegates started and finished with the correct test, the High Court held that it was “[t]oo long a leap” to conclude the delegates applied an incorrect test only on the basis of “some phraseology”.[88] Before I consider the competing submissions, it would be useful to identify the country information to which the Assessor referred.
[87] (1996) 185 CLR 259
[88] (1996) 185 CLR 259 at 271 and 280
The Assessor referred to a number of items of country information. The first are reports dated 5 November 2010 and 11 October 2011 from the United Kingdom Home Office, United Kingdom Border Agency (UKBA) which, the Assessor noted, do not refer to returnees being adversely targeted by non-State agents or government authorities.[89] Second, there is a later advice sourced from the UKBA dated 16 January 2012 which refers to a source not having received reports from persons who had returned to Afghanistan from the United Kingdom that they had been targeted for being supporters of the West or for having adopted Western life styles or behaviours.[90] The third item is an article published by ABC News in February 2011 which stated that “Afghan government officials admit they can’t guarantee the safety of those returned to Afghanistan”.[91] The Assessor noted that the report did not indicate “deported Afghans are attacked solely on the basis of being (failed) asylum seekers”.[92] Fourth, the Assessor refers to the UNHCR report that discusses voluntary returns “but does not suggest returnees are targeted for that reason alone”.[93] Fifth, the Assessor refers to a DFAT report issued in 2010 which stated that “The Hazara” indicated “that contacts in Afghanistan did not believe Hazaras would be targeted because they had sought asylum in the West”.[94] Sixth, the Assessor referred to the superseded July 2009 UNHCR report which indicated there had been “isolated incidences of harm to deportees”.[95] Seventh, the Assessor referred to a 3 February 2009 DFAT report which indicated there “have been several cases of returnees and deportees coming from western European countries being targeted by state and non-state agents of persecution in Kabul and its suburban areas”.[96] The report also noted that:[97]
returning Afghans cannot stay in areas controlled by anti-government elements “as they would be targeted primarily as a result of their residence in a western country”. Returnees would be approached for a ‘financial contribution’ to the jihad, and returnees are more likely to be accused of spying for foreign troops.
[89] CB254-255, [100]
[90] CB255, [100]
[91] CB255, [101]
[92] CB255, [101]
[93] CB255, [102]
[94] CB255, [103]
[95] CB256, [104]
[96] CB256, [105]
[97] CB256, [105]
Finally, the Assessor referred to two academics who had noted the potential adverse treatment of returnees to Afghanistan where they had become Westernised, atheist, or un-Islamic in their practices.[98]
[98] CB256, [106]
I do not agree with the Minister’s submission that the passage on which the applicant relies is “no more than a summary of what the country information that the Assessor has reviewed says on the subject of failed asylum seekers”.[99] The country information to which the Assessor referred does not appear to contain any such statement. The passage on which the applicant relies is a restatement of observations the Assessor made in relation to two sources of country information.
[99] First Respondent’s Outline of Submissions [26]
I do not, however, agree with the applicant’s submission that the passage manifests a belief or assumption that, to succeed in a claim that he had a well-founded fear of persecution because he was a failed asylum seeker or returnee it was necessary for the applicant to show that his being a failed asylum seeker was the sole reason for his having a well-founded fear of persecution. The Assessor simply found that the country information showed that failed asylum seekers or returnees do not have a well-founded fear of persecution, only because they are failed asylum seekers or returnees. It does not imply, as the applicant in effect submits it implies, a finding that members of such group have a well-founded fear of being persecuted because of their membership of the group, but that fear is not the sole reason for their fear of being persecuted.
This part of the applicant’s claims, therefore, fails.
Failure to consider claim
The applicant submits there was before the Assessor a claim that the returnees from Western countries had been targeted by state and non-state agents in and around Kabul, but the Assessor failed to consider that claim.
There was country information – in particular, the 3 February 2009 DFAT report to which I have referred – which indicates returnees from Western countries had been targeted by state and non-state agents in and around Kabul. The Assessor, however, does not appear to have considered that information. Counsel for the Minister submits the Assessor did have regard to the information, although counsel accepts the information did not feature in the Assessor’s assessment of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future. Counsel for the Minister, however, submits it is not surprising the information did not feature in the Assessor’s assessment, because the information applied to limited areas in Afghanistan.
In my opinion, the Assessor ought reasonably to have considered the DFAT report which indicated returnees from Western countries had been targeted by state and non-state agents in and around Kabul. The Assessor ought to have considered that information when considering how the applicant could return to Nawur district The Assessor found that if the applicant made his way to Kabul, he would then be able to return to his home area in Nawur district by road Given the information contained in the DFAT report, and given that the applicant would have had to spend some time in Kabul before he would undertake his journey to Nawur district, the Assessor ought reasonably to have considered the period during which the applicant was likely to stay in Kabul before embarking on his journey to Nawur district and the Assessor ought to have assessed whether the applicant would face harm of the sort and for the reasons referred to in the DFAT report while the applicant remained in Kabul. The Assessor, however, did not consider that question. He only considered the question of whether the applicant would suffer harm during his journey to Nawur district.
This part of the applicant’s claims, therefore, also succeeds.
Conclusion and disposition
The applicant has succeeded on three of his grounds. I propose, therefore, to make a declaration that the Assessor did not make his recommendation according to law.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 24 March 2016
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