WZAPU v Minister for Immigration
[2013] FMCA 83
•19 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPU v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 83 |
| MIGRATION – Judicial review – independent merits review – whether reviewer asked the wrong question – whether well-founded fear of future persecution – whether failure to give proper, genuine and realistic consideration to merits of the case – whether jurisdictional or other legal or procedural error. |
| Migration Act 1958 (Cth), ss.5(1), 36(2), 46A(1) and (2), 476 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Craig v The State of South Australia (1989) 184 CLR 163 Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1; [2002] HCA 14 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 Plaintiff M61/2010E vCommonwealth of Australia& Ors (2010) 243 CLR 319; [2010] HCA 41 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1389 SZMDS v Minister for Immigration & Citizenship & Anor (2010) 243 CLR 611; [2010] HCA 16 SZQDZ & Ors v Minister for Immigration & Citizenship& Anor (2012) 200 FCR 207; [2012] FCAFC 26 WZAPN & Ors v Minister for Immigration & Anor (2012) 261 FLR 284; [2012] FMCA 235 |
| Applicant: | WZAPU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DEAN LETCHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 293 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 19 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr H H Jackson |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Ms L B Price |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 293 of 2011
| WZAPU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DEAN LETCHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Amended application
By an amended application[1] made under s.476 of the Migration Act 1958 (Cth),[2] and filed 22 May 2012 the applicant seeks:
a)a declaration that the recommendation of the Independent Merits Reviewer[3] was not made in accordance with law, by reason of the ground/s of the Application; and
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation.
[1] “Application”.
[2] “Migration Act”.
[3] “IMR Recommendation” and “IMR” respectively.
The Minister opposes the relief sought by the applicant.
The Application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[4]
[4] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.
An extension of time was also sought in the Application, but in light of the judgment of the Full Court of the Federal Court in SZQDZ & Ors v Minister for Immigration & Citizenship & Anor[5] an extension of time is unnecessary.
[5] (2012) 200 FCR 207 at 221 per Keane CJ, Rares and Perram JJ; [2012] FCAFC 26 at para.49 per Keane CJ, Rares and Perram JJ. See also WZAPN& Ors v Minister for Immigration & Anor (2012) 261 FLR 284; [2012] FMCA 235 at paras.2 and 20 per Lucev FM.
The grounds
There are two particularised grounds of the Application which are set out in full hereunder, followed by the parties’ submissions on, and the Court’s consideration of, each ground.
Background facts
The following are background facts in relation to the matter which are not controversial:
a)the applicant is an Afghan Hazara of the Shia faith, who was born and lived in Qarabagh in Ghazni province in Afghanistan;
b)on 24 April 2010, he was interviewed by an officer of the Department of Immigration and Citizenship[6] on Christmas Island and applied for asylum under administrative arrangements established by the Department and described by the High Court in Plaintiff M61;[7]
[6] “Department”.
[7] (2010) 243 CLR 319 at 342-345 and 351-352 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.38-52 and 73 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”).
c)the applicant satisfies the definition of an “offshore entry person” and is therefore prohibited from applying for a protection visa;[8]
d)section 46A(2) of the Migration Act provides the Minister with the power to “lift the bar” which is imposed by s.46A(1) of the Migration Act and which prohibits an “offshore entry person” from applying for a protection visa;
e)the administrative processes established “inform the Minister of matters that [are] relevant to the decision whether to exercise his statutory powers in favour of an offshore entry person”;[9]
f)under the arrangements in place, the applicant requested a Refugee Status Assessment.[10] Having considered the material provided by and on behalf of the applicant, the Minister’s delegate determined on 29 August 2010 that the applicant was “not a refugee”;[11]
g)the applicant requested an independent merits review of the RSA and a submission was made on behalf of the applicant by his then lawyers on 20 October 2011;[12] and
h)the IMR:
i)did not accept that the applicant faces ill treatment on his return to Afghanistan, or that his stated fears were well-founded within the meaning of the Refugee Convention;[13]
ii)found that the applicant did not meet the criterion for a protection visa in s.36(2) of the Migration Act; and
iii)recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[14]
[8] Migration Act, ss.5(1) and 46A(1).
[9] SZQDZ FCR at 210 per Keane CJ, Rares and Perram JJ; FCAFC at para.9 per Keane CJ, Rares and Perram JJ.
[10] “RSA”.
[11] Court Book (“CB”) 91.
[12] CB 110-154 (“October 2011 Submission”).
[13] CB 163, IMR Recommendation at para.24.
[14] CB 163, IMR Recommendation at para.26.
Ground 1
Ground 1 is as follows:
1.The IMR asked itself the wrong questions. Rather than asking whether the plaintiff had a well founded fear of persecution based on a Convention reason, it asked whether or not the plaintiff had previously suffered the harm alleged;
i.The IMR made factual findings that the claimant has not suffered the past harm claimed.
ii.To the extent that the IMR also made findings as to the likelihood of future ill treatment, they are based on the findings as to whether past ill treatment was, in fact, suffered.
iii.The IMR makes no findings as to whether or not the claimant, as a Hazara and Shia, might have a well founded fear of persecution irrespective of whether he has suffered past ill treatment.
iv.The references in paragraphs [22] and [23] to lawlessness and civil war are to be understood by reference to the final statement in [23] that the nexus to that material (the country material) and the claim under consideration has not been established.
v.The IMR proceeded on the basis that, in order to demonstrate a well founded fear of persecution, it was necessary to demonstrate past ill treatment. In doing so, the reviewer asked himself the wrong question.
Applicant’s submissions
The applicant’s submissions in support of ground one are as follows:
a)the applicant relies on three Convention grounds for his claim – ethnicity, religion and imputed political belief. He is ethnically Hazara, a Shia Muslim and claims that his father was involved in or otherwise supported the Wah-e-dat political party;
b)all three claims are said to make him a target of the Taliban. The applicant says that he was targeted by the Taliban on two separate occasions, each of them during travels outside of the Jaghori district in which he lives;
c)the IMR Recommendation makes clear that IMR does not believe the applicant’s account of the two events. The IMR found, in effect, that neither of the two events occurred or that, if they did, then they occurred in a way which did not see the applicant targeted and persecuted by the Taliban;[15]
[15] CB 162-163, IMR Recommendation at paras.20 and 21.
d)the IMR relies upon that finding as the fundamental basis for finding that any fears that were held by the applicant were not well founded;
e)the adverse finding as to truthfulness and the finding that claims of past ill treatment did not occur are relevant to the question whether the applicant’s fears of persecution for a Convention reason are well founded, but they are not conclusive;
f)it is trite that all of the facts before the decision maker must be taken into account in coming to a decision.[16] It is, self-evidently, possible that a claimant may have a well-founded fear of persecution even if they have been untruthful and the claims they rely upon to found those fears did not occur;[17]
[16] Citing SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1389 at para.25 per Tamberlin J.
[17] Citing Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 578 per Gummow and Hayne JJ; [1999] HCA 14 at para.192 per Gummow and Hayne JJ (“Abebe”).
g)the relevant question for the IMR was whether the applicant has a well founded fear of future persecution for a Convention reason. Whether or not the applicant has suffered ill treatment in the past cannot answer that question, although it is relevant. The IMR Recommendation purports to address the relevant question;[18]
[18] CB 162-163, IMR Recommendation at paras.21, 22 and 23.
h)the IMR found that:
There is no independent supporting evidence to assist the claim of persecution by reason of race, religion, nationality, political opinions or social grouping. The claimant is Hazara and Shia and the Afghan state apparatus is poorly equipped to protect its citizens and minorities. I do not have presented to me by this claimant a credible account of well founded facts [sic – fears] based upon any Convention reasons. This is largely because the alleged foundation of such fears in this case is not credible. I am not satisfied that the incidents he described occurred…[19]
[19] CB 162-163, IMR Recommendation at para.21.
i)the first sentence is ambiguous, and has at least two possible interpretations;
j)one interpretation is that the IMR found that there is no evidence at all before him that Hazaras and Shias face persecution in Afghanistan;
k)that interpretation appears to be supported by the content of the IMR Recommendation, the effect of which is that any fear of harm from which the applicant suffers arises due to the general lawlessness of Afghanistan and the “general situation of virtual civil war”;[20]
l)if that interpretation is preferred, it is submitted that the IMR has not given genuine, proper and realistic consideration to the merits of the case because there was a significant amount of material before the IMR to the effect that Hazaras and Shias are persecuted for their race and religion. A finding that there is “no independent supporting evidence” could not be reached by someone who had given the merits of the case genuine, proper and realistic consideration. The point is developed in more detail below as Ground 2;
m)an alternative interpretation is that the sentence is intended to be limited to the claims of mistreatment by the applicant which the IMR found in the previous sub-paragraph to be unbelievable;
n)that is, the IMR found that, other than the applicant’s claims of past mis-treatment, there is no evidence before him that the applicant has been mistreated in the past;
o)the IMR found that the “country” information (which the IMR found was to the effect that the Afghan state is “poorly equipped” to protect its minorities) did not support the applicant’s case because of the failure of the applicant to demonstrate that he had suffered past ill-treatment meant that the country information lacked a nexus to the applicant;[21]
p)to proceed in that manner represents a jurisdictional error;
q)the IMR failed to ask whether the applicant faces a real risk of persecution. Instead, the IMR asked whether the applicant has been persecuted in the past. The IMR proceeded on the basis that, if there has been no past mistreatment, there can be no well founded fear of persecution;
r)the IMR has clearly “had regard to” or, at least, is aware of the content of, the country information. The conclusions in the IMR Report all support that view.[22] The IMR has, however, disregarded that material because he took the view that it was irrelevant to the applicant’s claim because the applicant is unable to demonstrate that he has been persecuted in the past;
s)to conclude that the country material is irrelevant or lacks a “nexus” to the applicant’s claim because the applicant’s claims of past ill-treatment are not made out is to substitute the true question – does the applicant suffer from a well-founded fear of persecution – with another, different question – was the applicant persecuted in the past? The two questions are related, but they are different.[23] The latter question is not the same as asking the former. The IMR asked itself the wrong question, which amounts to a jurisdictional error.[24]
[20] CB 163, IMR Recommendation at para.22.
[21] CB 162-163, IMR Recommendation at paras.21 and 23.
[22] CB 162-163, IMR Recommendation at paras.21, 23 and 25.
[23] Citing Abebe.
[24] Citing Craig v The State of South Australia (1989) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Minister’s submissions
In relation to ground 1 the Minister submits that:
a)the applicant contends that the IMR failed to ask whether the applicant had a well-founded fear of persecution for a Convention reason on return to Afghanistan;
b)in the Application this contention is put on the premise that:
i)the IMR proceeded on the basis that the applicant must demonstrate past ill treatment and the IMR’s findings as to the likelihood of future ill treatment are based on his actual findings that the applicant had not suffered harm in the past as he claimed; and
ii)the IMR makes no findings as to whether the applicant as a Haraza and Shia might have a well founded fear of persecution irrespective of whether he suffered ill treatment in the past.
c)it is common ground that proving persecution in the past is a relevant consideration but is not an essential step to demonstrating a well-founded fear of persecution.[25]. The IMR did not, however, reach his conclusion on the basis that persecution in the past was necessary. The premise on which the applicant’s contention is built is incorrect and is not supported by a fair reading of the IMR Recommendation;
[25] Citing Abebe CLR at 578 per Gummow and Hayne JJ; HCA at para.192 per Gummow and Hayne JJ.
d)the applicant’s claim was put in the following terms:
The applicant’s ethnicity is Hazara and he is a Shia Muslim and fears death owing to the hatred of the Taliban. … [The Taliban] are powerful and kill Hazaras and members of the Shia Muslim faith in Afghanistan. … The Taliban do not accept Hazaras. … Hazaras are a targeted and vulnerable minority group without access to police protection. … The Taliban are widespread throughout Afghanistan. They have regained their stronghold and continue to dominate the country. The Afghan authorities cannot provide protection for ethnic Hazaras.[26]
[26] CB 112-113.
e)country information was cited in support of this claim. The applicant also put forward two incidents of Taliban threats and harassment said to be directed at him individually while travelling in Ghazni province in the company of others;[27]
[27] CB 112-113.
f)the applicant did not claim that as an Hazara and Shia he has a well-founded fear of being persecuted by the Taliban and that such persecution of the applicant will be condoned and protection withheld by the State of Afghanistan, that is, a claim based on the Khawar principle.[28] The applicant’s claim is a generic claim that he is a Hazara and Shia and the Afghan State cannot protect the Hazara Shia minority from the Taliban. This is the claim and the evidence which the IMR deals with;[29]
[28] Citing Minister for Immigration & Multicultural Affairs v Khawar& Ors (2002) 210 CLR 1; [2002] HCA 14 (“Khawar”).
[29] CB161-163, IMR Recommendation at paragraphs 16 and 21 to 24.
g)in his Statement of Reasons the IMR stated:
I do not accept that the claimant has a fear of a real chance of serious harm amounting to persecution of himself occasioned by the facts he alleges or for any other set of facts which would show the reasons to be race, religion, nationality, social grouping or political opinion;[30]
h)the IMR reached this point by setting out the applicant’s evidence of the two incidents in the past and the IMR’s assessment of that evidence,[31] including the IMR’s statement, that the applicant’s written submission stated these two incidents briefly and relied mainly on the poor security situation in Afghanistan generally and the past repression of Hazaras without special reference to the position of the applicant;[32]
i)the IMR states that he told the applicant he had difficulty in accepting as truthful the applicant’s evidence of previous incidents of alleged ill treatment by the Taliban.[33] The IMR sets out a number of things about the two incidents that were unexplained, among them, why the Taliban were interested in singling out the applicant among others when the applicant had no obvious political or social prominence;[34]
j)from that point the IMR Recommendation might fairly be précised as follows:
i)the statements in paragraphs 21, 22 and 23[35] are reasonably described as the IMR applying to the evidence the principle that general hostilities within a State, together with the limited capacity of the State to prevent and protect its citizens against those hostilities, does not of itself constitute persecution of the applicant.[36] There must be elements of deliberation and intent by the State to withhold protection from the applicant. Alternatively, if the prospective harm comes from a private group like the Taliban and the State is willing but unable to protect the applicant from that group, it is necessary for the applicant to show some fact or circumstance by which it can be seen that there is a real chance that the applicant will be a victim of the group or that a very high percentage of others in the same group and in similar circumstances to the applicant are persecuted. Consequently, the IMR’s failure to accept the evidence of the two incidents in the past and the general nature of the country information provided by the applicant, including the more recent information that the security situation in Ghazni might deteriorate, was a reasonable basis upon which it was open to the IMR to find that the applicant had not established a well-founded fear of persecution and the necessary Convention nexus; and
ii)the first sentence of paragraph 24 has two limbs. [37] The first limb comes immediately after the IMR’s comments at paragraphs 22 and 23 and addresses the IMR’s non-acceptance that the applicant faces ill treatment on return to Afghanistan. The second limb addresses the IMR’s rejection of the claims of real harm in the past. It is clear the IMR has addressed well founded fear of persecution by considering and making findings and conclusions on past events and the foreseeable future; and
k)the IMR applied the principles in Minister for Immigration & Ethnic Affairs v Guo & Anor[38] as to the meaning of a well-founded fear of persecution. The IMR looked for evidence before him that indicated a real ground for believing that the applicant is at risk of persecution as a Hazara and Shia on return to Afghanistan, but was not satisfied that the evidence before him provided such an indication. Conjecture, surmise, assumption and speculation from the materials provided by the applicant are not permissible for that purpose.
[30] CB 163, IMR Recommendation at para.25 (Minister’s underlining).
[31] CB 159-162, IMR Recommendation at paras.6-20.
[32] CB 161-162, IMR Recommendation at para.16.
[33] CB 162, IMR Recommendation at para.18.
[34] CB 162, IMR Recommendation at para.17.
[35] CB 162-163.
[36] Citing Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1.
[37] CB 163.
[38] (1997) 191 CLR 559 at 571-572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ.
Consideration of ground 1
The applicant levels no criticism against the IMR’s adverse findings as to the applicant’s credibility in relation to the two particular incidents said to found the applicant’s well-founded fear of persecution. The applicant argues, however, that the IMR did not consider, as he was required to do, whether the applicant had a well-founded fear of future persecution, and, therefore, asked himself the wrong question, that is, whether the applicant had been persecuted in the past, and not whether he had a well-founded fear of future persecution.
The relevant law is not in dispute and both parties accept that proof of past persecution, or not, is a relevant consideration, but not an essential step in establishing a well-founded fear of persecution.[39]
[39] Abebe CLR at 578 per Gummow and Hayne JJ; HCA at para.192 per Gummow and Hayne JJ.
The first sentence of paragraph 21 of the IMR Recommendation is not, as was submitted by the applicant, ambiguous. To reiterate that sentence reads:
There is no independent supporting evidence to assist the claim of persecution by reason of race, religion, nationality political opinions or social grouping.[40]
[40] CB 162, IMR Recommendation at para.21.
The sentence is not ambiguous – it relates directly to “the claim” as made by the applicant, and indicates that there is no independent supporting evidence of persecution for any of the Convention reasons in relation to “the claim”. It is also necessary to read the sentence, not alone and with an eye focussed on error, but in its proper context.[41] It is clear that it is speaking of “the claim” made by “the claimant”, and whether the claims made found a fear of persecution which has a Convention nexus. Indeed, the first sentence of paragraph 21 of the IMR Recommendation sets out the Convention reasons for persecution, and two sentences further on reference is then made to there being “… [no] credible account of well founded facts [sic – fears] based upon any Convention reasons.”[42] That this is directly related to the evidence of this applicant – “the claimant” as the IMR calls him – is further made clear in the next paragraph, paragraph 22 of the IMR Recommendation by the sentence:
The harm must be related to one or more of five Convention reasons … and must relate in some way to the individual.[43]
[41] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS v Minister for Immigration & Citizenship & Anor (2010) 243 CLR 611 at 623-624 per Gummow ACJ and Kiefel J, at 634 per Heydon J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J; at per Heydon J.
[42] CB 162-163 at para.21.
[43] CB 163, IMR Recommendation at para.22.
The applicant also argues that one interpretation open on the allegedly ambiguous first sentence of paragraph 21 of the IMR Recommendation is that the IMR found no evidence at all that Hazaras and Shias faced persecution in Afghanistan, and that that interpretation is supported by the reference in the IMR Recommendation to the applicant’s fear of harm arising from general lawlessness, and the general situation of civil war, in Afghanistan.
The reference to the general situation and the “virtual civil war” in Afghanistan is, however, directly related to, and juxtaposed with, the position of an individual applicant for refugee status in the same sentence, and in the next sentence following on from the reference to “virtual civil war”. The IMR then makes the point that:
a)fear of a “general situation of virtual civil war” does not entitle a person to be classified as a refugee; and
b)the harm must be related to one of the Convention reasons, and must relate to the individual.
A Convention nexus with the alleged fear of persecution must be established, and what the IMR did was to consider the general situation in Afghanistan and say that, in this case, the general situation gave rise to no Convention nexus in respect of the applicant. That approach was entirely proper, and exhibits no jurisdictional error.
The above approach by the IMR does not amount to a failure to consider material related to the persecution of Hazaras and Shias on the basis of their race and religion, insofar as that is part of the general situation in Afghanistan. Moreover, it cannot be said that the IMR failed to consider that material. For example, at paragraph 23 of the IMR Recommendation the IMR refers to:
a)the view of Thomas Rutting;[44] and
b)the known views of Professor William Maley,[45]
as set out in the applicant's submission.
[44] “Rutting Report”.
[45] “Maley Report”.
When one examines that material one finds that:
a)the Rutting Report (the report was written in June 2010) indicates that:
i)the local population of this important Hazara area are afraid of a repetition of the Taliban blockade of the Hazarajat in the late 1990s;[46]
[46] CB 126.
ii)the possibility of Taliban influence extending into mainly Hazara populated areas in the north and north-east of Afghanistan;[47]
[47] CB 126.
iii)the Taliban have, at least officially, moderated their position vis-à-vis the Shia community, and indicated that sectarian bias would not be tolerated;[48] and
[48] CB 127.
iv)there had been sporadic Taliban attacks in areas peripheral to the Hazarajat in recent months;[49] and
[49] CB 127 and 125.
b)the Maley Report specifically considers the position of Hazaras in Afghanistan in the context of historical discrimination and persecution,[50] and indicates that:
i)the “general situation in Afghanistan remains profoundly threatening”;[51]
ii)there has been a deterioration in the security situation in Afghanistan in 2009, and an expansion into areas previously considered stable, making 2009 the worst year for civilian fatalities since 2001;[52]
iii)there is little reason to be confident that the general situation in Afghanistan will take a turn for the better in the foreseeable future;[53]
iv)reference to durable security in Afghanistan is contradicted by Taliban activity and the most recent Australian travel advice with respect to Afghanistan;[54]
v)the scale of persecution and abuse of power in Afghanistan tends to be under-reported, and that poses a problem for assessment of the general situation for Hazaras;[55]
vi)the position of Hazaras as an overwhelmingly Shia non-Pashtun minority makes them an easy target for the overwhelmingly Pashtun Taliban seeking to rebuild support from Sunni Pashtun groups, such as the Kuchis;[56]
vii)the Taliban are now active in parts of Ghazni Province, and that no part of Ghazni can be considered safe for Hazaras even in districts where they might seem numerically predominant;[57] and
viii)the fears of the Hazaras are aggravated by the suggestions from both Afghanistan and the West that reconciliation with the Taliban is required, and the Hazara may be anticipatory refugees in the same sense as persons fleeing Nazi Germany in the 1930s.[58]
[50] CB 131.
[51] CB 129.
[52] CB 130.
[53] CB 131.
[54] CB 131.
[55] CB 132.
[56] CB 132.
[57] CB 132-133.
[58] CB 133.
Patently, the materials which the IMR expressly refers to as having been considered, refer to the position of Hazaras and Shias, and in respect of that material the IMR concludes that:
… the nexus between that material and the claim … has not been established.[59]
[59] CB 163 at para.23.
Quite properly, the IMR has considered whether the available country information has a nexus which means that the applicant himself has a well-founded fear of persecution, and found that not to be the case. The IMR Recommendation also sets out the fact that the IMR has considered all of the available information including the information provided by or on behalf of the applicant.[60]
[60] CB 158, IMR Recommendation at para.2.
The applicant suggests that the IMR considered the wrong question because he disregarded the country material, and thereby did not ask the right question about, and therefore did not consider, the applicant’s future fear of persecution.
An examination of the “Conclusion” in the IMR Recommendation demonstrates that the IMR did consider possible future persecution of the applicant. The IMR accepted a submission made by the applicant that “the general security situation” in Ghazni “might deteriorate”,[61] and did so by reference to the Austrian Red Cross Accord UNHCR Response, the Rutting Report and the Maley Report, all of which dealt with possible future deterioration in the general security situation within Afghanistan, and in particular, in Ghazni. But, once again, the applicant’s difficulty was that he was able to establish no nexus between that country information and the claim that he made.
[61] CB 163 at para.23.
That the IMR was looking forward is also revealed by his statement that he did not accept that the applicant faced ill-treatment “should he return to Afghanistan”.[62] Obviously, the IMR turned his mind to what would happen if the applicant returned to Afghanistan, in the future, but again, was unable to find a Convention reason nexus. Interestingly, in the same sentence he refers to past fears, thereby juxtaposing those past fears against the future situation, and demonstrating that he had turned his mind to what might happen to the applicant in the future. In a significant sentence he then goes on to indicate that he does not believe that the applicant “faced or faces the harm that he alleges”.[63] It is obvious that on the one hand the IMR is considering the past (“faced”) and on the other hand the future (“faces”) in relation to the situation in Afghanistan faced by the applicant when he was there in the past, and should he return in the future.
[62] CB 163 at para.24.
[63] CB 163, IMR Recommendation at para.24.
In short, it is apparent that the IMR does not necessarily take issue with the fact that the applicant suffers a fear of persecution if returned to Afghanistan, it is just that that fear of persecution has no Convention nexus, and therefore the applicant cannot be a refugee.
The IMR has, therefore, considered the right question: namely, whether the applicant has a well-founded fear of harm due to persecution for a Convention reason in the future if returned to Afghanistan.
For those reasons, ground 1 is not established, and must fail.
Ground 2
Ground 2 is as follows:
2.The IMR failed to give proper, genuine and realistic consideration to the merits of the case;
i.The reviewer found that the applicant was a Hazara and a Shia.
ii.The reviewer found that the Afghan state apparatus is poorly equipped to protect its minorities.
iii.The reviewer had before him extensive evidence supporting the proposition that Hazaras and Shias suffer persecution for their race and religion.
iv.The reviewer failed to give that material proper, genuine or realistic consideration.
v.Rather, the reviewer proceeded on the basis that the failure by the applicant to demonstrate past ill treatment meant that the country material was relevant only to demonstrate that Afghanistan suffers from lawlessness and a general state of civil war.
Applicant’s submissions
The applicant submits that:
a)the IMR failed to give the merits of the applicant’s claim genuine, proper and realistic consideration;[64]
[64] Citing Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J (“Khan”); Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164 at 175-176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.26-30 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”).
b)having reached the conclusion that the applicant had not been ill-treated in the past, the IMR failed to properly consider the objective country information put before him by the applicant with a view to determining whether it supported the applicant’s claim of a well founded fear of persecution on grounds of race, religion and imputed political beliefs;
c)the IMR clearly read at least some of the material put to him, and did so with sufficient diligence to conclude that the “Afghan state apparatus is poorly equipped to protect its … minorities”.[65] The IMR found, however, that the material was irrelevant to the applicant’s claim because the lack of prior ill-treatment meant that there was no “nexus” between the material and the applicant’s claim;[66]
d)the IMR has not given proper genuine and realistic consideration to the merits of the applicant’s claim because he has been side-tracked by the question whether or not the applicant suffered previous ill-treatment;
e)even if the applicant did not suffer previous ill-treatment, it was necessary for the IMR to give proper, genuine and realistic consideration to all of the material;
f)whether or not the applicant suffered previous ill treatment is not conclusive of the question as to whether or not the applicant has a well founded fear of persecution for a Convention reason;[67]
g)it is necessary for the decision maker to consider all of the information before it and determine the relevant question;
h)that question has two elements to it: a subjective and an objective element;[68]
i)at no stage does the IMR find that the applicant does not have a subjective fear of persecution for a Convention reason. Indeed, the IMR Recommendation suggests that the IMR accepts that the applicant does have a subjective fear, but the IMR found that there is no objective basis for those fears, stating “his stated fears are not well founded...”;[69]
j)the basis for that finding is that the applicant did not give a “truthful account which could support a claim of fears of real harm in the past”;[70] and
k)the question whether there is an objective basis for fears of persecution was not answered by simply stating that the applicant has not suffered ill treatment in the past. That question required the IMR to give a proper, genuine and realistic consideration to the material before him to determine whether any subjective fears, whether implied, assumed or expressly found, are well-founded. That did not happen because the IMR proceeded on the basis that no such consideration was required because his finding that the applicant had not suffered past ill treatment concluded the matter.
[65] CB 162-163, IMR Recommendation at para.21.
[66] CB 162 and 163, IMR Recommendation at paras.21 and 23.
[67] Citing Abebe CLR at 578 per Gummow and Hayne JJ; HCA at para.192 per Gummow and Hayne JJ.
[68] Citing Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 423-429 per McHugh J.
[69] CB 163, IMR Recommendation at para.24.
[70] CB 163, IMR Recommendation at para.24.
Minister’s submissions
The Minister submits that:
a)the applicant contends that the IMR failed to give proper, genuine or realistic consideration to material before him “supporting the proposition that Hazaras and Shias suffer persecution for their race and religion”, and proceeded on the basis that “failure by the applicant to demonstrate past ill treatment meant that the country material was relevant only to demonstrate that Afghanistan suffers from lawlessness and a general state of civil war”.[71]
b)the applicant relies on the phrase adopted in Khan, and the requirement for a decision-maker to give proper, genuine and realistic consideration to the merits of the case.[72] This phrase was discussed by the High Court in SZJSS.[73] The High Court cited Khan and the origin of the phrase in a judicial review ground applied in a case of an inflexible application of policy. It is clear from the High Court’s discussion and conclusion in SZJSS that this phrase is not a basis for disagreeing with the assessment of factual matters and engaging in impermissible merits review;[74]
c)considered as a whole, no part of the IMR Recommendation is indicative of perfunctory consideration by the IMR. On the contrary, the IMR gave the merits of the application proper, genuine and realistic consideration;[75]
d)the IMR did take into account the country information, and the weight which he decided to give to that information was a matter of fact and within his jurisdiction; and
e)while the IMR might have expressed his reasons differently, his approach to the evidence and his findings were orthodox and he did not misdirect himself in applying the law. It was open to the IMR to conclude from the applicant’s evidence of past incidents with the Taliban in Afghanistan, and from all the country information before him, that the evidence did not provide adequate support for a claim that the applicant had a well-founded fear that he would face persecution in Afghanistan as an Hazara and Shia, and that accordingly the necessary Convention nexus was present.
[71] Ground 2 iii and v.
[72] Citing Khan at 292 per Gummow J.
[73] Citing SZJSS CLR at 168-169, 173, 175, 176 and 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.7, 21, 22, 26, 29, 30, 32 and 34 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[74] Citing SZJSS CLR at 174-177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.26-36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[75] Citing Khan at 292 per Gummow J.
Consideration of ground 2
For reasons set out above in relation to ground 1 the Court has concluded that the IMR took into account possible future persecution of the applicant should he return to Afghanistan by reference to country information cited to the IMR by the applicant. Specifically, the IMR did not limit himself to a conclusion that past ill treatment meant that the applicant could not establish the necessary Convention nexus for possible future ill treatment resulting in a fear of harm giving rise to a well-founded fear of persecution. Rather, the IMR took into account not just past events, but also the current position in Afghanistan and extrapolated that in to the future to determine whether or not it was likely that the applicant would suffer harm if returned to Afghanistan.
The weight to be given to the country information was a matter for the IMR. The IMR might have expressed itself more expansively, but, for reasons set out above, it is nevertheless apparent that it did consider the country information relied upon by the applicant to argue that there was a well-founded fear of future persecution. The evaluation of that issue was, however, a matter for the IMR, and it having referred to, and clearly weighed that material, it has given it proper, genuine and realistic consideration. In the circumstances, there is no jurisdictional error, or other legal or procedural error.[76]
[76] SZJSS CLR at 177-178 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.35-36 and 39 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Ground 2 has, therefore, not been made out.
Conclusion and order
The Court has concluded that the applicant has failed to make out either of the grounds of his application. It follows that the application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 19 February 2013
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