SZUXT v Minister for Immigration
[2016] FCCA 2508
•30 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUXT v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2508 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal committed a jurisdictional error by assessing an application for protection on the ground that the applicant would live in Kabul and only occasionally seek to leave Kabul – whether the Tribunal misunderstood or misapplied the “real chance” test – whether Tribunal failed to take into account relevant considerations – whether Tribunal required to give notice to applicant that it may not accept an aspect of the applicant’s evidence – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.416(2), 425 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 Hamid Reza Jamal Jamalian Nejad v The Minister for Immigration & Multicultural Affairs [1997] FCA 1284; (1997) 79 FCR 153 Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 SZOBC v Minister for Immigration and Citizenship [2010] FCA 712 |
| Applicant: | SZUXT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2284 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr C Lenehan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2284 of 2014
| SZUXT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Afghanistan, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision by a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
An earlier decision of a differently constituted Tribunal (first Tribunal) affirming the delegate’s decision was quashed without contest after the Minister conceded the Tribunal had made a jurisdictional error. The jurisdictional error the Minister conceded the Tribunal made was the failure “to apply the real chance test in considering the applicant’s claim that the situation in Afghanistan would deteriorate with the pull out of NATO troops”.[1] That a previous decision of a differently constituted Tribunal was quashed is relevant to one of the grounds on which the applicant relies for challenging the Tribunal’s decision.
[1] CB278
Before I consider the grounds on which the applicant relies, it is necessary to set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.
Claims for protection
In his application for a Protection visa,[2] the applicant claimed as follows. He is a Hazara, and of the Shia religion. He was born in a village in the Jaghoori district of Ghazni province. When he was ten years old, he and his family moved to Iran as refugees because of the war between the Taliban and Hazaras. In 2007 the applicant and his father were deported from Iran, and for three months the applicant lived at a place between his village and Kabul.
[2] CB37-41
The applicant, but not his father, returned to Iran. When in Iran, the applicant’s uncle informed the applicant that his father had been killed by the Taliban. Additionally, when the applicant was in Iran, his brother returned to Afghanistan. The applicant’s brother intended to return to Iran to collect his wife and child, but the applicant’s brother has not been heard of since he left Iran.
The applicant was again deported from Iran in 2010. During the following year, the applicant lived between his village and Kabul. He began to build a home on land in Kabul the applicant’s father had bought. The applicant, however, did not complete the home before he left Afghanistan for Australia.
About seven to eight months after he returned from Iran to Afghanistan, four or five Taliban stopped the car in which the applicant was travelling from his village to Kabul. All passengers in the car were male Hazaras. The Taliban took the applicant and the other occupants to a house in a nearby village where they interrogated and beat them. The Taliban took away one of the men who worked for the Afghan government. The applicant believes the government employee is no longer alive. The Taliban allowed the other men to leave, although not without first warning them that it was their responsibility to have let the Taliban know there was a government worker among the men, and that the Taliban would kill the men if they saw them again.
After this incident, the applicant travelled to Kabul, and “gave up”. The incident with the Taliban reminded the applicant of what had happened to his father. The applicant understood he too could have been killed, and the he would most definitely be killed if he were to remain in Afghanistan. He then organised his journey to Australia.
The applicant, through his representative, claimed he feared persecution for reasons of his race, his religion, and his membership of two particular social groups, these being “physically identifiable Hazara Shia”, and “an asylum seeker returning from a western country”.[3]
[3] CB383, [2]
Tribunal’s decision
The Tribunal found that Kabul “is the place in Afghanistan with which [the applicant] has the strongest ties and that it is his ‘home area’ for the purposes of the assessment of his application”.[4] The Tribunal so concluded because the applicant left his village when he was aged 10 after which he had returned only for three brief visits; the applicant said he wanted to build a house on the land his father bought in Kabul, get married there, and pass the rest of his life there; and the applicant wanted to bring his mother, sisters and nephews to live in Kabul. Given its finding, the Tribunal was of the view that “[n]o question of relocation therefore arises in this review”.[5]
[4] CB397, [50]
[5] CB397, [50]
Although the Tribunal accepted insurgents continue to mount attacks in Kabul, it noted the Australian Department of Foreign Affairs and Trade (DFAT) had reported that Kabul was comparatively secure, and that sources consulted by the Danish Immigration Service that visited Kabul in February and March 2012 also agreed that “the security situation in Kabul was relatively good and stable”.[6] Further, although the Tribunal acknowledged the applicant had referred to reports and opinions suggesting the regime in Kabul might collapse on NATO’s withdrawal, the Tribunal did not accept, on the evidence that was before it, that the departure from Kabul of the international forces provide a substantial basis for a well-founded fear of persecution of the Shia Hazara community.[7]
[6] CB397. [51]
[7] CB398, [54]
The Tribunal appears to have accepted that the applicant was stopped by the Taliban, as the applicant claimed; that he was searched; that there was a government employee among the passengers who were stopped by the Taliban, and that that person was taken away and not seen again; and that the applicant was interrogated and beaten. For reasons I explain later, it also appears the Tribunal accepted the Taliban gave the applicant the warning the applicant claimed in his statutory declaration the Taliban gave. The Tribunal, however, did not accept the evidence the applicant gave before the hearing that the Taliban had warned him that if he was going to be in contact with “those government officials again they would definitely harm him”; and the Tribunal did not accept that evidence because, on the account of the incident the applicant gave in his application for a Protection visa, had the Taliban believed the applicant was in contact with government officials, they would not have allowed the applicant to go.[8]
[8] CB398, [54]
The Tribunal was not satisfied there was a real chance the applicant would be targeted in Kabul either because of his previous encounter with the Taliban, or because of his connection with his father, brother, and brother-in-law.[9] The applicant did not suggest he had any problems in Kabul because of his relationship with his father, brother, and brother-in-law; and country information indicated that, while the Taliban had the means to target high profile people in Kabul, it would not be a high priority for the Taliban to track down low profile people.[10]
[9] CB398, [55]
[10] CB398, [55]
The Tribunal also was not satisfied there was a real chance the applicant will be targeted by the Taliban or any other insurgent groups in Kabul because he is a Hazara. The Tribunal relied on a DFAT report that stated insurgents, including the Taliban, generally do not target individuals solely on the basis of their ethnicity, and was unaware of any current targeting of Hazaras by the Taliban in Kabul.[11] Further, although it accepted there had been reports of violence between Hazaras and Kuchis, and between the Tajik and Hazara, all in Kabul, the Tribunal considered the chance of the applicant being caught up in ethnic clashes in Kabul to be remote.[12]
[11] CB398-399, [56]
[12] CB399, [57]
The Tribunal was not satisfied there is a real chance that, if he returns to Kabul now or in the foreseeable future, the applicant will face discrimination amounting to persecution “for reasons of his race as a Hazara in relation to matters such as employment and access to services”.[13] The Tribunal relied on a report prepared by DFAT which advised there have been very real changes in the treatment of minorities in Afghanistan in the past decade, and that Hazaras have become very active in Afghan society.[14] The Tribunal also relied on advice received from the US Embassy that discrimination against Hazaras is not a major systemic concern, and there is no evidence Hazaras are being persecuted on a consistent basis.[15]
[13] CB401, [62]
[14] CB401, [61]
[15] CB401, [62]
The Tribunal also was not satisfied there is a real chance the applicant will be prevented from practising his religion if he returns to Kabul now or in the reasonably foreseeable future.[16] The Tribunal accepted there were reports of attacks on Shia Muslims in Kabul in December 2011. The Tribunal, however, relied on a report prepared by the United States Commission on International Religious Freedom that Shia Muslims are generally able to perform their traditional public processions and rituals in Kabul without incident or hindrance.[17]
[16] CB401, [65]
[17] CB402, [65]
The Tribunal was not satisfied there is a real risk the applicant will be persecuted for reasons of his membership of the particular social group of Hazara Shias or as “physically identifiable Hazara Shia” if the applicant returns to Kabul now or in the foreseeable future.[18] The Tribunal relied on a DFAT report that indicated insurgents, including the Taliban, generally do not target individuals solely on the basis of their ethnicity, and on its finding that both ethnic clashes and incidents of sectarian violence are rare.[19]
[18] CB402, [66]
[19] CB402, [66]
As to the applicant’s claim based on his being an asylum seeker returning from a western country, the Tribunal was not satisfied the applicant faced a real risk of persecution on that count.[20] The Tribunal relied on advice from DFAT that people to whom it had spoken to do not believe that Hazaras will be targeted because they have sought asylum in Australia.[21]
[20] CB403, [68]
[21] CB403, [68]
Finally, the Tribunal considered the possibility of the applicant’s wanting to travel from Kabul to his village in Jaghori from time to time. While the Tribunal accepted that security on the road linking Kabul to Ghazni has deteriorated in the last two years, it accepted advice from DFAT that members of the Hazara community in Kabul commonly travel back and forward to their home villages in the Hazara district up to five times a year.[22]
[22] CB403-404, [69]
For these reasons, the Tribunal did not accept the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.[23] The Tribunal was also not satisfied 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 the applicant will suffer significant harm. The Tribunal referred to most of the matters on which it relied for not being satisfied the applicant had a well-founded fear of persecution.[24]
[23] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
[24] CB404-412, [72]-[94]
Ground 4
The amended application contains seven grounds, although the applicant does not press ground 5.
I will consider the grounds in the order in which counsel for the applicant addressed those grounds in his written submissions. The first is ground 4, which is as follows:
The Tribunal engaged in jurisdictional error by failing to understand and apply the correct law or by failing to ask itself the correct question.
Particulars
a.The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason in Kabul.
b.The Tribunal found that Kabul was the applicant’s home area and therefore no question of relocation arose.
c.In approaching the matter in this way, the Tribunal proceeded on the basis that the principle of internal relocation or analogous principles did not apply in respect of an applicant’s home area, thereby misunderstanding the applicable law: MIBP v SZSCA [2014] HCA 45 at [20] per French CJ, Hayne, Kiefel, Gageler and Keane JJ.
d.Further and in the alternative, as a consequence of its misunderstanding of the law, the Tribunal failed to ask itself whether the Applicant could reasonably be expected to remain in Kabul having regard to the particular circumstances of the Applicant: SZATV v MIAC (2007) 233 CLR 18 at [23]-[24]; MIBP v SZSCA [2014] 45 at [29]-[32], thereby failing to ask itself the correct question.
In short, the applicant claims the Tribunal made the same error the High Court found the Tribunal made in Minister for Immigration and Border Protection v SZSCA.[25] Before I consider the parties’ competing submissions, it is necessary that I set out the High Court’s decision in SZSCA.
[25] [2014] HCA 45
In SZSCA the applicant was a citizen of Afghanistan of Hazara ethnicity from the Jaghori district in the Ghazni province. He and his family had lived in Kabul since 2007. The applicant previously worked as a jeweller, but in 2007 he became a self-employed truck driver transporting and delivering goods such as wood, animal skins, and food, between Kabul, Ghazni, and Jaghori. In 2011 the applicant began to transport building and construction materials between Kabul and Jaghori. The Tribunal accepted that the Taliban targeted and discouraged drivers carrying construction materials and that such persons may be imputed with a political opinion supportive of the Afghan government or non-governmental aid organisations. The Tribunal also found, however, that the applicant would not be obliged to travel between Kabul and Jaghori to make a living because he could find employment in Kabul making jewellery, as he had formerly done in Jaghori. A Judge of this Court found the Tribunal committed the same error the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[26] By a majority (Robertson and Griffiths JJ), the Full Federal Court also held the Tribunal made such an error.[27]
[26] [2003] HCA 71; (2003) 216 CLR 473
[27] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [62]
The High Court dismissed the appeal from the Full Federal Court, but not because the High Court agreed with the Full Federal Court that the Tribunal did not observe the principle stated in S395. The plurality found the Tribunal made an error because it did not appreciate there was before it an issue analogous to that of internal relocation:[28]
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
[28] [2014] HCA 45 at [29] (French CJ, Hayne, Kiefel and Keane JJ) (emphasis added)
The applicant submits the facts of the case before me are indistinguishable from those in SZSCA. In his written submissions,[29] the applicant submitted the High Court in SZSCA found that, although the applicant already lived in Kabul, it was still necessary to consider principles analogous to the internal relocation principle considered in SZATV v Minister for Immigration and Citizenship.[30] The applicant particularly relied on the following passage from SZSCA:[31]
Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.
[29] Applicant’s Outline of Submissions, 21.08.2015, [33]
[30] SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
[31] [2014] HCA 45 at [33] (French CJ, Hayne, Kiefel and Keane JJ)
The Minister, on the other hand, submits the applicant has not accurately stated the effect of the High Court’s decision in SZSCA. The Minister submits that what the plurality in SZSCA found triggered the Tribunal’s obligation to consider the reasonableness of the applicant in that case remaining in Kabul was not that the Tribunal found the applicant would be able to live in Kabul without having a well-founded fear of persecution; it was because the Tribunal assumed that the applicant would cease the occupation he was carrying on – driving trucks in and out of Kabul – and resume a different occupation for which the Tribunal found the applicant was qualified which would avoid the need for the applicant to travel in and out of Kabul.
I accept the Minister’s submissions. The error the plurality in SZSCA found the Tribunal made was that it assumed the applicant would alter his employment arrangements: the Tribunal assumed that, instead of pursuing his occupation of driving trucks, which involved the applicant moving in and out of Kabul, the applicant would remain in Kabul. That was an error because the Tribunal ought to have considered whether it was reasonable to expect the applicant to be confined in Kabul. The circumstances of the applicant in the case before me, however, are different. The Tribunal found the applicant wanted to build a house on land in Kabul that his father had bought, that he wanted to live in Kabul, and that he wanted to bring his mother and sister and nephew to live in Kabul. Unlike the applicant in SZSCA, the applicant in the case before me did not express a desire to live outside Kabul, and he did not claim he engaged in a pattern of living that involved him travelling in and out of Kabul which the Tribunal assumed or expected the applicant would cease. The Tribunal in the case before me did not, as did the Tribunal in SZSCA, assess the applicant’s claims on the basis that the applicant would need to alter any activity the applicant carried on while in Afghanistan or which the Tribunal found the applicant intended to carry on in Afghanistan. That intended activity included the applicant moving in and out of Kabul.
Ground 4, therefore, fails.
Ground 3
Ground 3 of the amended application is as follows:
The Tribunal engaged in jurisdictional error by failing to consider a claim, failing to take heed of the error identified in the orders quashing its earlier decision, or by failing to re-determine the matter in accordance with the law as ordered by the Court.
Particulars
a.The applicant had claimed that the situation in Afghanistan would deteriorate with the pull out of NATO troops.
b. In its decision of 28 June 2013 (CB255-275), the Tribunal differently constituted dealt with this claim by finding that it was unclear how the pull-out of troops would affect security in Kabul and whether any change would occur in the reasonably foreseeable future (at [85]) (Earlier Decision).
c. The Court quashed the Earlier Decision and directed the Tribunal to determine according to law the application for review to it with a note stating that the Minister conceded that the Tribunal had committed jurisdictional error by failing to apply the real chance test in considering the applicant’s claim that the situation in Afghanistan would deteriorate with the pull out of NATO troops (CB278).
d.In its decision the subject of the present application, the Tribunal dealt with this claim by finding that it would be mere speculation to find that there was a real chance that the departure of the international forces from Afghanistan would lead to a significant deterioration in the security situation in Afghanistan or in respect of the position of the Shia Hazara community in Kabul (at [53], [56], [70], [76], [79], [92]).
e. In the premises, the Tribunal’s approach in the decision the subject of the application is in substance identical to its approach in the Earlier Decision and the Tribunal accordingly engaged in the same jurisdictional error;
f. Further and in the alternative, the Tribunal:
i. failed to make it clear on the face of its reasons how it discharged its obligation to reconsider this matter according to law; and
ii. failed to take heed of the previous error and determine the matter in accordance with the law as it was directed to do by the Court; and
iii. accordingly, by virtue of the matters above, the Tribunal engaged in jurisdictional error: SZGUW v MIAC (2009) 108 ALD 108 per Jacobson J at [13]-[19] and [28].
To understand this ground, it is necessary to consider the case on which this ground relies, namely, SZGUW v Minister for Immigration & Citizenship.[32] That is a decision of Reeves J, not Jacobson J, as stated in the particulars to ground 3. The Tribunal in SZGUW considered an application for review that had been remitted to the Tribunal after Jacobson J, exercising the appellate jurisdiction of the Federal Court, quashed the decision of a differently constituted Tribunal affirming the decision of a delegate not to grant the applicant a Protection visa.[33] Jacobson J held that the differently constituted Tribunal failed to consider the applicant’s claims in their totality.[34] On remittal following Jacobson J’s orders, the Tribunal again affirmed the delegate’s decision. This Court rejected an application for judicial review of the Tribunal’s decision but, on appeal, Reeves J held the Tribunal did not appear to have had any regard to the rulings made by Jacobson J. Reeves J concluded:[35]
Having considered the third Tribunal decision carefully, I do not consider that the third Tribunal has clearly dealt with the unconsidered claims identified by Jacobson J in their full context. I therefore consider there is a strong inference that they have not been considered by the third Tribunal. It follows that I consider that the third Tribunal has not discharged its obligations to reconsider this matter according to law, specifically the law as ruled on by Jacobson J.
[32] SZGUW v Minister for Immigration & Citizenship [2009] FCA 321
[33] SZGUW v Minister for Immigration and Citizenship [2008] FCA 91
[34] SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [55]-[75]
[35] SZGUW v Minister for Immigration & Citizenship [2009] FCA 321 at [28]
The applicant submits that the Tribunal in the case before me did not take heed of the notation that formed part of the consent order by which the previous decision of the first Tribunal was quashed; and it did not do so because it in truth did not apply the “real chance” test.
The circumstances of this case are distinguishable from those in SZGUW. In SZGUW the matters Reeves J held the Tribunal failed to take into account were specific rulings a Judge of the Federal Court made about particular matters arising out of the applicant’s claims. That is to be contrasted with the notation that formed part of the order by which the first Tribunal’s decision in the matter before me was quashed. The notation simply states that the Tribunal failed “to apply the real chance test in considering the applicant’s claim that the situation in Afghanistan would deteriorate with the pull out of NATO troops”.[36] The Tribunal in the case before me did heed the notation that formed part of the order by which the previous decision of the Tribunal was quashed. The Tribunal appended to its reasons for decision a section titled “ATTACHMENT A – RELEVANT LAW” in which the Tribunal noted that the High Court in Chan v Minister for Immigration and Ethnic Affairs[37] said a fear will be “well-founded” if “there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons”.[38] The applicant’s real complaint is that, although the Tribunal stated the correct test, and thus heeded the need to identify and apply the correct test, it failed to apply the correct test. That is what the applicant claims in grounds 1 and 2 of the amended application. Whether or not, however, that submission is correct is to be made out by considering the Tribunal’s reasons.
[36] CB268
[37] [1989] HCA 62; (1989) 169 CLR 379
[38] CB416, [106]
Counsel for the applicant submitted that ground 3, although identified as a separate ground, “permits one to draw an inference which is an aid in drawing the error that has been alleged in grounds 1 and 2”.[39] As I have already noted, the Tribunal expressly referred to the “real chance test” and, to that extent, the Tribunal heeded the need to apply the correct law. Having gone so far, it is difficult to see what inference is available to be drawn from the notation that formed part of the order to quash the previous decision of the Tribunal. As the particulars to ground 3 themselves show, the matters on which the applicant relies for submitting it should be inferred the Tribunal did not in truth apply the real chance test are the Tribunal’s reasons themselves. Is that submission correct?
[39] T23.30
In his written submissions,[40] the applicant submits the Tribunal did not apply “the real chance test” because, at paragraphs 53 and 56 of its reasons for decision, the Tribunal relied on the same line of reasoning as the first Tribunal. The written submissions contain an error; the passage the applicant quotes in his written submissions, as being from the decision of the first Tribunal, is in fact a passage from the delegate’s decision.[41] That error was not corrected by counsel in his oral submissions. I therefore ignore the written submissions. That leads me to the particulars to ground 3.
[40] Applicant’s Outline of Submissions, 21.08.2015, [36]-[40]
[41] The passage is quoted at Applicant’s Outline of Submissions, 21.08.2015, [36]. The passage is taken from the delegate’s decision at CB136.3
The ground on which the particulars rely for claiming the Tribunal did not apply the “real chance” test is that the Tribunal found it would be “mere speculation to find that there was a real chance that the departure of the international forces from Afghanistan would lead to a significant deterioration in the security situation in Afghanistan or in respect of the position of the Shia Hazara community in Kabul”. The reason the applicant claims this manifests a misunderstanding or misapplication of the “real chance” test is to be found in the applicant’s submissions in support of grounds 1 and 2.[42] In those submissions, the applicant quotes passages from the reasons for decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[43] and Minister for Immigration & Ethnic Affairs v Guo Wei Rong.[44] The applicant does so, principally for the purpose of drawing attention to the distinction between the word “speculation” as meaning “conjecture and surmise”, and “speculation” as meaning “making a finding as to whether or not an event might or might not occur in the future”.[45] The applicant submits the Tribunal used the word “speculation” in the latter sense and, for that reason, misunderstood and misapplied the “real chance” test.
[42] Applicant’s Outline of Submissions, 21.08.2015, [42]-[50]
[43] [1996] HCA 6; (1996) 185 CLR 259
[44] [1997] HCA 22; (1997) 191 CLR 559
[45] Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at page 572
The question, therefore, is whether the Tribunal proceeded on the basis that the determination of whether or not an event might or might not occur in the future was a matter calling for speculation, and therefore, a matter about which the Tribunal should or could not make a finding. In my opinion, the Tribunal did not proceed on that basis. It was well aware of the difference between conjecture and surmise, on the one part, and the need to be satisfied whether a future event might occur or not occur. That is evident in the following passage:[46]
As reflected in the submissions made by [the applicant’s] representatives, there is a vast amount of commentary on the future course of events in Afghanistan and the factors which may influence those events, including the departure of the international forces. As Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. I consider it that it would be mere speculation to find on the evidence before me that there is a real chance that the departure of the international forces from Afghanistan will lead to a significant deterioration in the position of the Shia Hazara community in Afghanistan generally or in Kabul in particular. I do not accept that the departure of the international forces provides a substantial basis for a well-founded fear persecution on the part of the Shia Hazara community. As I put to [the applicant], I do not accept on the evidence before me that there is a real chance that the security situation in Afghanistan will deteriorate or that the risk of harm and attacks from the Taliban will increase following the withdrawal of the international forces in such a way or to such an extent as to expose him to a real chance of persecution in Kabul.
[46] CB397, [53]
This passage demonstrates two things. First, the Tribunal correctly understood the “real chance” test; and, second, it applied, or at least purported to apply, the correct test. (I explain below why I also use the words “purported to apply”). The Tribunal asked itself the very question the test required it to ask, and it answered the question in the negative. If, in truth, the Tribunal laboured under the mistaken view that it could or should not attempt to make a finding about the happening or non-happening of a future event, it would have elected to make no finding about whether there was a real chance the security situation in Afghanistan would deteriorate or other consequences would occur following the withdrawal of international forces. But it did make a finding; the Tribunal found there was no real chance of persecution.
Finally, I refer to paragraph (f) of the particulars to ground 3. I do not accept the Tribunal failed to make clear on the face of its reasons how it discharged its obligation to reconsider this matter according to law, or that it failed to take heed of the first Tribunal’s previous error and determine the matter in accordance with the law as it was directed to do by the Court. As I have already concluded, the Tribunal correctly identified the law it was required to apply, and at the very least purported to apply that law.
Ground 3, therefore, fails.
Ground 1
In his written submissions, the applicant deals with grounds 1 and 2 together. The applicant there submits the Tribunal misunderstood and misapplied the “real chance” test because it used the word “speculation” to mean, not conjecture or surmise, but making a finding as to whether or not an event might or might not occur in the future. For reasons I have given, I do not accept the Tribunal applied “speculation” in this sense. I have also found the Tribunal at least purported to apply the correct test. I use the word “purported” because ground 1 appears to claim that, because of the matters the Tribunal accepted to be the case, it was not reasonably open to the Tribunal to find there was not a real chance the applicant would suffer substantial harm; and, for that reason, the Tribunal must have misunderstood or misapplied the “real chance” test.
That this is what the applicant appears to claim can be seen from ground 1, which is as follows:
The Tribunal misconstrued or misapplied the “real chance” test in respect of the applicant’s claims that he would be persecuted for a Convention reason if he returned to Afghanistan and in respect of his complementary protection claims.
Particulars
a. The Tribunal accepted:
i. that insurgents continue to mount attacks in the applicant’s home area of Kabul (at [50]-[51]; [73]-[74]) and that “there is a level of risk to all civilians in Afghanistan because of the general security situation in that country” (at [94]);
ii. that there have been a handful of incidents in which ethnic tensions have flared up into violence in Kabul (at [57],[80]);
iii. that there had been violent attacks on Shia Muslims in Kabul in recent years (at [65]; [88]); and
iv. that the applicant may wish to travel from Kabul to his village in Jaghori from time to time, that security on the road linking Kabul to Ghazni City “has deteriorated in the last two years” and that there is “a level of risk to all travellers on the roads in Afghanistan” (at [69]; [91]-[92]).
b. However, the Tribunal found that there was not a real chance that the applicant would be persecuted or suffer significant harm if he returned to Afghanistan on the basis of its apparent acceptance:
i. that the situation in Kabul was “relatively good and stable” and “comparatively secure” (at [51]; [74]);
ii. that discrimination against Hazaras is not “a major systemic concern” and that Hazaras are not being persecuted “on a consistent basis” (at [60]; [62]; [83]; [85]);
iii. that attacks against Shia Muslims were “rare” and Shia Muslims are “generally able to perform their traditional public processions and rituals in Kabul without incident or hindrance” (at [65]; [88]); and
iv. that “members of the Hazara community in Kabul commonly travel back and forward to their home villages in the Hazara districts up to five times a year” (at [69]; [91])
c. The Tribunal’s findings at (b)(i)-(iv) respectively did not answer the “real chance” test in relation to the findings at (a)(i)-(iv) respectively.
The applicant’s written submissions do not address this ground; nor did counsel in his oral submissions. Not surprisingly, the Minister also did not address this ground.
What ground 1 appears to claim is that the findings in particulars (a)(i)-(iv) – which, presumably, are findings on which it was reasonably open to the Tribunal to find the applicant faced a real chance of persecution – could not be negatived by the Tribunal’s findings at particulars (b)(i)-(iv). If that is what the applicant intends to say, the claim appears to be one of irrationality or unreasonableness. In my opinion, however, it was reasonably open to the Tribunal to rely on the findings referred to in particulars (b)(i)-(iv) to find the applicant did not face a real chance of persecution, notwithstanding the findings referred to in particulars (a)(i)-(iv). That there may exist isolated incidents of violence, or that the applicant is likely occasionally to leave Kabul and face some risk in doing so, does not necessarily compel the conclusion the applicant faced a real chance of persecution. Nor does it afford a basis for inferring the Tribunal applied an incorrect understanding of the “real chance” test, or misapplied a correct understanding of that test.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The Tribunal failed to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in ss 36(2)(a) and 36(2)(aa).
Particulars
a. The applicant submitted that there was a real chance that he would be subjected to persecution or significant harm upon the withdrawal of international troops from Afghanistan.
b. The Tribunal accepted that “there was a vast amount of commentary on the future course of events in Afghanistan and the factors that may influence those events, including the departure of the international forces” (at [53]; [76]).
c. However, the Tribunal failed to assess or determine what would happen to persons such as the applicant upon international troops withdrawing completely from Afghanistan.
d. As such, the Tribunal’s finding that “it would be mere speculation” to find that there is a real chance that the departure of the international forces from Afghanistan will lead to a significant deterioration in the security situation in Afghanistan or in the position of the Shia Hazara community in Kabul (at [53]; [56]; [70]; [76], [79]; [92]) was affected by jurisdictional error.
As with ground 1, the applicant’s written submissions do not address ground 2, and nor did counsel for the applicant. The Minister, therefore, also did not address this ground.
The ground cannot be made out. The Tribunal did reach a relevant state of satisfaction – namely, non-satisfaction. The Tribunal concluded it did not “accept on the evidence before [it] that there is a real chance that the security situation in Afghanistan will deteriorate or that the risk of harm and attacks from the Taliban will increase following the withdrawal of the international forces in such a way or to such an extent as to expose him to a real chance of persecution”.[47] And the Tribunal arrived at its non-satisfaction after it considered the material that was before it that was relevant to this issue.
[47] CB398, [53]
Ground 2, therefore, also fails.
Ground 6
Ground 6 is as follows:
The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration.
Particulars
a. The Tribunal, in finding that the applicant did not face a real chance of persecution or significant harm by the Taliban or Pashtun and that there were no particular factors that would increase the risk of the applicant being harmed on the roads (CB403[69]-[70]) and CB411[91]-[92]) was not conscious of and failed to consider the following relevant considerations:
i.the Tribunal had previously accepted this claim in the Earlier Decision on the basis of country information identified by it (see in particular CB267[61]-[67]) and it further accepted that Hazaras were treated more violently and at more risk of death when involved in confrontations with the Taliban compared to other ethnic groups;
ii. the DFAT Thematic Report for Hazaras in Afghanistan and Pakistan (CB358-375), which the Tribunal was bound to take into account, stated that Hazaras were perceived to be affiliated with either the Government or international community (who were at risk of violence perpetrated by insurgents on roads in Afghanistan).
This ground identifies two matters which the applicant submits were considerations the Tribunal was required, but failed to take into account. The first is the first Tribunal’s having accepted that Hazaras were treated more violently and were at more risk of death when involved in confrontations with the Taliban compared with other ethnic groups. The second matter the applicant claims the Tribunal failed to take into account is the following passage from a report headed “DFAT Thematic Report Hazaras in Afghanistan and Pakistan”:[48]
DFAT assesses that individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents. Due to the improvements in the situation of the Hazara community since 2001, Hazaras are widely perceived to be affiliated with both the Government and the international community. Many Hazaras have expressed concern that they are targeted by insurgents as a result of this perception . . .
[48] CB368, [nn]; Applicant’s Outline of Submissions, 21.08.2015, [58]
The applicant submits the Tribunal did not display a consciousness of these matters, and the matters “bore directly upon, and went against, the Tribunal’s finding as to whether the Applicant had a profile that would increase his risk on the roads”.[49]
[49] Applicant’s Outline of Submissions, 21.08.2015, [60(b)]
As to the first of the two matters the applicant submits the Tribunal was bound, but failed to take into account, the only authority on which the applicant relies is the decision of Jagot J in SZSSY v Minister for Immigration and Border Protection.[50] In that case, Jagot J found the Tribunal made a jurisdictional error by not taking into account findings the Tribunal itself had made. As stated in the applicant’s written submissions, however, the Federal Court in SZSSY found the Tribunal made a jurisdictional error by failing to consider the implications of its own findings.[51] That, however, is not what the applicant claims the Tribunal in the case before me did. The complaint is that the Tribunal failed to take into account a finding made by the first Tribunal.
[50] [2014] FCA 1144
[51] Applicant’s Outline of Submissions, 21.08.2015, [55]
The Tribunal was not required to take into account the previous findings of the first Tribunal. First, as accepted by the applicant, the Tribunal was bound to consider the matter for itself. Second, the applicant has not identified any provision of the Migration Act 1958 (Cth) (Act) from which it could be inferred that the Tribunal was bound to treat its previous determinations as relevant considerations. Third, the applicant’s submission ignores s.416(2) of the Act which provides that where a further application is made to the Tribunal, the Tribunal, in considering the further application, is not required to consider any information considered in the earlier application and “may have regard to, and take to be correct, any decision that a review body has made about or because of that information”. ”. This provision has been held to be permissive. For example, in Hamid Reza Jamal Jamalian Nejad v The Minister for Immigration & Multicultural Affairs, Beaumont J said:[52]
As I reads 416(c)and (d), whether taken literally or purposively or both, the provision places no obligation upon the Tribunal to accept, or not to accept, the conclusion or the process of reasoning, in whole or in part, of the previous decision. By the same token, in a proper case, the Tribunal is to be at liberty to adopt or accept the conclusion, or the process of reasoning, in whole or in part.
[52] [1997] FCA 1284; (1997) 79 FCR 153 at 158
As for the second matter the applicant submits the Tribunal was bound to take into account, the Minister makes two submissions. First the Tribunal was aware of the DFAT report, because it referred to it in three footnotes.[53] Second, the applicant only quotes a selective portion of the report and that, when the other contents of the report are taken into account, the passage on which the applicant relies cannot reasonably be said to bear directly against the Tribunal’s findings[54] that locals with ties to the province and knowledge of the area, including Hazaras, are generally able to travel between Ghazni City and the Hazara districts without incident and that thousands of vehicles use the road daily.[55]
[53] First Respondent Outline of Submissions, 28.08.2015, [53]. The Tribunal referred to the report at footnotes 19, 23, and 28 of its reasons (CB397, CB399, and CB401).
[54] At CB403, [69]
[55] First Respondent Outline of Submissions, 28.08.2015, [55]
I accept the Minister’s submissions. The passage from the DFAT report on which the applicant relies ends with the words “(see ‘Violence’, below)”. Later in the report, there is a heading “Travel Security Afghanistan”[56] which contains the a number of paragraphs, including the following:[57]
x. Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on the roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.
y. Hazara MPs and several credible civil society contacts have told DFAT that ‘dozens’ of Hazaras were killed on roads to and from Hazarajat in 2013. However, DFAT has no reliable evidence to indicate that insurgents disproportionately target Hazaras on roads in Afghanistan. Hazaras are often the main travellers on roads to Hazarajat, so higher numbers of victims could also reflect the higher volume of traffic.
[56] CB371
[57] CB372
This report could not reasonably be taken to go against the conclusions the Tribunal reached about the risk to Hazaras of road travel. As submitted by the Minister,[58] the DFAT report does not say Hazaras are harmed for the reason of perceived affiliation with the government or international community alone. The report states that, because Hazaras are imputed with such affiliation, those who do have such affiliations tend to take precautions to ensure they are not identified to have such affiliation. As the Minister also submits, the applicant did not claim he had any affiliation with the government or with the international community.
[58] First Respondent Outline of Submissions, 28.08.2015, [56]
In those circumstances, therefore, I am not prepared to find the Tribunal was not aware of, and did not consider the passage from the DFAT thematic report the applicant submits the Tribunal did not consider.
Ground 6, therefore, fails.
Ground 7
Ground 7 is as follows:
The Tribunal engaged in jurisdictional error by failing to comply with s 425 of the Act.
Particulars
a. An issue arising before the Tribunal was that the Tribunal did not accept the applicant’s claim to have received a warning in terms as claimed by the applicant (CB398[54]);
b. This was not an issue before the delegate or the Tribunal as previously constituted.
c. The Tribunal failed to identify this issue to the applicant so as to provide him with an opportunity to give evidence and present arguments in relation to it.
The applicant relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[59] The applicant particularly relies on a passage from that cases which includes the following:[60]
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[59] [2006] HCA 63; (2006) 228 CLR 152
[60] [2006] HCA 63; (2006) 228 CLR 152 at [35]
The first task is to identify the specific evidence of a threat the applicant says the Tribunal did not accept. That is to be determined from the proper construction of the following passage from the Tribunal’s reasons (emphasis added):[61]
In the statutory declaration accompanying his original application he said that the Taliban had threatened to kill him and his fellow travellers if they saw them again. At the hearing before me he claimed that the Taliban had warned him that if he was going to be in contact with those government officials again they would definitely harm him. I do not accept that the Taliban gave him a warning in those terms because I consider that if the Taliban had believed that he had been in contact with government officials they would not have allowed him to go . . .
[61] CB398, [54]
In my opinion, what the Tribunal did not accept was not the warning the applicant claimed in his statutory declaration he received from the Taliban. Rather, the Tribunal did not accept the applicant received the warning he claimed at the Tribunal hearing he received, namely, that if he was going to be in contact with those government officials again they would definitely harm him. The Tribunal did not say it did not accept the applicant did not receive any warning; the Tribunal found the applicant did not receive a warning “in those terms”. The passage from the Tribunal’s reasons indicates the applicant had given evidence of warnings expressed in two terms; one that the applicant would be killed if the Taliban were to see the applicant and his fellow travellers again; the other the applicant would definitely be harmed if the applicant was going to be in contact with “those government officials”. Given that the warning the applicant had given evidence were expressed in two different terms, the Tribunal’s not accepting the applicant was given a warning “in those terms” indicates the Tribunal did not accept one of the two terms in which the applicant claimed the warning was given. And it is clear that the terms of the warning the Tribunal did not accept the Taliban gave were the terms of the warning about which the applicant gave evidence before the Tribunal.
If, as I have found, the Tribunal’s finding is restricted to not accepting the applicant received a warning to the effect of the warning he claimed at the hearing before the Tribunal he received, it follows that the applicant could not reasonably have expected there would be no issue about the Tribunal’s accepting his evidence. That is so because the applicant did not in his statutory declaration say he received a warning in the terms of the warning he told the Tribunal he received; and there is nothing to suggest the applicant gave such evidence before the delegate or the first Tribunal.
The applicant, however, submits he did give evidence before the first Tribunal that in substance reflects the evidence he gave to the Tribunal. As recorded in the first Tribunal’s reasons for decision, the applicant gave evidence to the first Tribunal that the “Taliban told him that if they saw him again or they saw him with a government worker he would definitely be killed”.[62] The submission, as I understood it, was that the first Tribunal in effect accepted the applicant’s evidence and, therefore, the Tribunal was obliged to inform the applicant that the Tribunal might not accept the applicant’s evidence.
[62] CB261, [34]
The Minister makes two submissions. First, he submits that the reasoning in SZBEL does not apply to findings of previous Tribunals. Although counsel for the applicant referred me to SZHKA v Minister for Immigration and Citizenship,[63] that case goes nowhere near supporting the proposition that an applicant is entitled to assume that a Tribunal to which an application for review has been remitted for consideration will accept those aspects of an applicant’s claim which the former Tribunal accepted. In my opinion, an applicant is not entitled to proceed on any such assumption, and for this reason, ground 7 fails.
[63] [2008] FCAFC 138 particularly at [7]
The second submission the Minister makes is that the reasoning in SZBEL does not apply where there has been a shift in the applicant’s evidence. The Minister relies on the reasoning of Nicholas J in SZOBC v Minister for Immigration and Citizenship.[64] The Minister particularly relies on Nicholas J’s noting that a decision-maker is required to advise of any adverse conclusion “which would not obviously be open on the known material”,[65] and his Honour’s concluding that this would not apply to evidence that significantly shifted over time. The Minister submits that the applicant’s evidence did shift significantly. Although I am satisfied that the applicant’s evidence about the nature of the warning he was given had shifted somewhat, I am not satisfied the shift was significant.
[64] [2010] FCA 712
[65] [2010] FCA 712 at [23]
And this leads me to consider what the consequence would have been if, contrary to my conclusions, the Tribunal was required, but failed, to give the applicant notice that it may not accept the evidence he gave at the hearing about the warning he received from the Taliban. In my opinion, there would have been no consequence. Whether the warning the applicant received was in the terms stated in the applicant’s statutory declaration, or in the terms the applicant gave to the first Tribunal, or in the terms he gave to the Tribunal, could not have made any difference to the Tribunal’s decision. The Tribunal appears to have accepted the applicant was stopped by the Taliban, and was beaten and given a warning by them; the terms of the warning the applicant gave did not form any part of the Tribunal’s reasoning; and there is no suggestion the applicant intended contacting government officials.
There is one final matter to note. There is in evidence a transcript of the hearing before the Tribunal. Towards the end of the hearing, the following occurred:[66]
[66] Affidavit of A Hatte, 12.12.2014; Annexure A, page 27
MEMBER . . . But before we do that, I just want to make sure that you understand what I’ve said. And, and that there’s nothing more that you want to say in relation to these matters.
INTERPRETER: So, um, I do have, um, things to, um, say and mention, but I have previously told them, uh, said all those things … and, um, have mentioned. It’s about the Taliban warned me that “If you are gonna be in contact with those government officials again, um, um, we will definitely harm you.” So, do I have to explain all these again?
MEMBER: Well, you, you don’t have to mention things that you’ve mentioned before, Mr [applicant]. Um, but if there’s anything new that you want to mention, you’re certain, certainly welcome to mention it.
INTERPRETER: No, there is nothing new, thank you.
This exchange indicates the applicant did not assume the Tribunal accepted or would accept the applicant’s evidence about the warning the Taliban gave him. Had the applicant held such assumption, he would not have asked whether he had to explain again what he believed he had previously said. Further, the Tribunal invited the applicant to mention “anything new” to which the applicant said there was nothing new to add. This indicates two things. First, the Tribunal gave the applicant an opportunity to say anything further he wished to say about the warning the Taliban gave him. Second, even if this was insufficient to discharge any obligation under s.425 of the Act, such failure could not have made any difference because the applicant said he had nothing new to add.
Ground 7, therefore, also fails.
Disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 30 September 2016
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