WZAQM v Minister for Immigration
[2013] FMCA 22
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAQM v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 22 |
| MIGRATION – Independent Merits Review recommends applicant not owed protection obligations – judicial review – review dismissed. |
| Migration Act 1958 (Cth), ss.91R, 474 & 476 |
| SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 73 ALD 321 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) (2004) 219 ALR 27 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 ABEBE v Commonwealth (1999) 197 CLR 510 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | WZAQM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER MCDERMOTT IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 34 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 31 August 2012 |
| Date of Last Submission: | 28 September 2012 |
| Delivered at: | Adelaide by telephone |
| Delivered on: | 22 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms McAulay |
| Solicitors for the Applicant: | Case for Refugees |
| Counsel for the Respondents: | Mr Hannan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application for review filed on 6 February 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 34 of 2012
| WZAQM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER MCDERMOTT IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (“the Act”). The applicant seeks an order by way of declaration that the recommendation of the Independent Protection Assessment Reviewer (“the Reviewer”) of 23 November 2011 was not made according to law and an injunction restraining the Minister from relying upon the recommendation of the Reviewer. The review is hereinafter referred to as the IMR.
The IMR followed upon the unfavourable determination made on 25 August 2010 of the Refugee Status Assessment (“RSA”) the applicant had requested.
This Court has a jurisdiction under s.476 of the Act in relation to “migration decisions”. Migration decisions are essentially privative clause decisions or purported privative clause decisions as referred to s.474 of the Act. In accordance with the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 I am to regard the posited future reliance by the Minister upon the Reviewer’s recommendation as being the migration decision which grounds the jurisdiction of this Court in applications such as the one before me.
Following the hearing of this matter on 31 August 2012 each of the parties filed supplementary written submissions in relation to the decision of Barker J in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
Those submissions indicate that the parties are agreed that this Court has jurisdiction to hear the application and that jurisdictional error need not be established for the applicant to obtain relief and I will proceed to determine this review on those bases.
Of course, the principles relating to the identification of jurisdictional error in cases such as Craig v State of South Australia [1995] HCA 58 will continue to be of assistance in determining reviews of this kind.
The applicant arrived at Christmas Island on 9 April 2010. He is an Afghan national. He is a Shia Muslim and he is a Hazara. The Reviewer accepted he was a citizen of Afghanistan and found that there was no evidence that he had the right to reside in any country other than Afghanistan. He is now 51 years of age. He claimed that between 1964 and 2008 he worked as a farmer in Wardak Province. Following what he claimed was his forced departure from that province and from 2008 until 2010 he worked as a fruit seller in Kabul.
He participated in an interview on 4 May 2010 with the assistance of an interpreter in his language. He provided a statutory declaration on 31 July 2010 in support of his request for a Refugee Status Assessment. He was interviewed for the purposes of that assessment. His migration agents provided a written submission on his behalf as part of the IMR process and he was interviewed during the course of the IMR.
His claim for refugee status relied in part upon his race and his religion and the fact that if he returned he would be perceived to have converted to Christianity and to have an imputed political opinion namely a perceived opposition to the Taliban.
Throughout the IMR process the applicant regarded the expression “Taliban” and “Kuchi” as interchangeable.
Insofar as his claim related to his personal experiences (as distinct from his general claim arising from his race and ethnicity or his sur place claims) it was based upon two events which led to his departure to Kabul, firstly, and then his departure from Afghanistan and his ultimate arrival in Australia.
In his interview on 4 May 2010 he gave an account of those events as follows:
(a)He said that in 2008 when he was farming in Medan Wardak Province approximately 15 Pashtun nomads came to his house and asked him to kill a sheep and make a meal. He did so. He and his brothers were then beaten up and asked to pay the Pashtun a large sum of money. They demanded possession of the applicant’s farm. Subsequently, Hazara troops arrived and a fight broke out and the Hazaras killed three Pashtuns. One of the persons who was killed had an uncle who was a Member of Parliament and a representative of the Pashtuns. During the course of the fight the Hazaras launched a rocket into the applicant’s home and killed his brother and a sister and blinded another sister and the house burnt to the ground. After he buried his siblings he managed to escape to Kabul. Raids by the Pashtuns on his farm happened regularly prior to this.
(b)When he moved to Kabul he set up a fruit selling business but some of the Pashtuns who had raided his farm found him there. They asked him if he was the man who had killed the sheep for them and he denied it. They threatened to return. The following day he watched from outside of the market and saw them again looking for him. The persons who were looking for him included troops associated with the nephew of the parliamentarian who was killed by the Hazara at the farm. They accused him of having called the Hazara troops to the farm. After he became aware of this, the applicant did not leave his home for ten days and was in hiding. Subsequently he contacted the smuggler and left the country.
In his statutory declaration the applicant said this about these two events:
(a)He gave an account of the events at the farm in 2008 consistent with that given in May 2010. He makes it clear that following his flight from his farm he remained in Kabul for approximately 18 months.
(b)He gave an account of the approach of three Taliban or Kuchi at his fruit and vegetable market and of their accusing him of reporting them to the Hazara Army. He made an excuse about asking them to wait for change and escaped home. He feared for his life. He warned his son that if anyone approached him asking for him his son was to tell them that he was not his father. The three Taliban approached the son the next day and told the son that if they captured him they would kill him. They continued to approach his son over the next three to four days. He feared for his life and found a smuggler to assist him in leaving Afghanistan and he did so on 19 February 2010.
The Refugee Status Assessment record indicates that he gave a very similar account during that process as he had given in his statutory declaration. He was interviewed for the purposes of that assessment. The statutory declaration was provided for the purposes of that assessment.
In his interview with the Reviewer he provided the following information about these matters:
(a)He claimed that his home was destroyed by the Kuchi but otherwise his account was consistent with that given in the statutory declaration. (The statutory declaration does not address the issue of who destroyed the farm.) Ultimately, the Reviewer was prepared to accept that the home was destroyed in the clash between the claimant and the Kuchi.
(b)The applicant made it clear that he was not assaulted by the three Pashtuns who attended at his fruit stall. He said that following their attendance he then asked his son to attend his fruit stall for the next four days where he could watch his son and over that period his son was approached by the Taliban and a threat was made against his life. He said that the Taliban attended for the first time and then came two days after that and then four days after that. He said that on each of these days he was watching them at the market.
As far as the sur place claim regarding Christianity is concerned that is not referred to (unsurprisingly) in the May 2010 statement. It is not mentioned in the statutory declaration. It is referred to without discussion in the agent’s written submission. It is ultimately referred to in the IMR interview.
As far as the claim for imputed political opinion is concerned it is not specifically referred to in the May 2010 statement nor in the statutory declaration. It is referred to without discussion in the agent’s submission. It is not specifically referred to in the IMR interview save for the reference by the applicant to his being regarded as “some sort of spy” if he returns to Afghanistan.
I have referred to these aspects of the applicant’s claim because they are the matters that are relevant to the two grounds for review that are promoted.
The grounds are set forth in an Amended Application filed on 10 August 2012.
Ground one alleges a failure by the Reviewer to consider whether a claim advanced by the applicant gave rise to a claim to be a refugee. It is said that the Reviewer did not consider whether the applicant’s claim that he faced persecution at the hands of the Kuchi parliamentarian whose nephew had been killed in the 2008 incident led to the applicant having an entitlement for a protection visa. Concomitantly, it is said, the Reviewer failed to take into account relevant considerations of whether the applicant belonged to one of a number of social groups delineated in the applicant’s counsel’s submission which groups encompass the fear of persecution by the parliamentarian. There is no doubt that the fear of the parliamentarian has been referred to by the applicant throughout the process of his pursuit of a protection visa. It is referred to in his May 2010 interview; it is referred to in his statutory declaration; it is referred to in his RSA interview and during the course of the IMR reasons, the Reviewer notes this claim.
It can also be readily accepted that the fear of being killed by the parliamentarian (whose name is Naiemkham) or his brother, the father of the deceased Pashtun, is fear of persecution pursuant to the Convention and involves serious harm in terms of s.91R of the Act.
The applicant acknowledges that he did not expressly articulate a claim of fearing for his life as being a member of a particular social group. A failure to respond to a substantial clearly articulated argument relying upon established facts is a failure to accord natural justice (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 73 ALD 321).
Furthermore, as the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) (2004) 219 ALR 27 at [63] said:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.
The particular social group of which the applicant may be classed as a member could include that group constituted by a Hazara who was present when Naiemkham’s nephew was killed or a Hazara who was involved in a clash between Kuchi including the nephew in Wardak Province. The failure to deal with this aspect of the claim of the applicant is said to amount to jurisdictional error in two respects – as it relates to the actual persecution at the hands of Naiemkham, a failure to deal with an express claim; secondly, as it relates to the failure to deal with membership of the social group, on NABE principles.
The applicant’s contentions on all of these legal issues can be accepted. The difficulty is that the factual premises on which such a claim is rejected do not exist.
In ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at 641 the Full Court of the Federal Court said this at [47]:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In ABEBE v Commonwealth (1999) 197 CLR 510 two members of the majority, Gleeson CJ and McHugh J made these observations about a prosecutor’s account of the arrest of herself and her husband and consequential claims of detention and rape at [84] and [85]:
The Tribunal was unable to accept the prosecutor's account of her or her husband's arrest. Her answers to questions in relation to the husband and his present whereabouts were such that the Tribunal could not accept her account of his arrest. Given the inconsistencies and admitted lies in her various accounts, it is hardly surprising that the Tribunal was also unable to act on her evidence concerning her arrest. What was particularly telling against her was the statement to the South African authorities when she was applying for refugee status that she had never been arrested or detained. The Tribunal was not bound to accept the prosecutor's account of the alleged incidents. It was open to the Tribunal to find, as it did, that it could not rely on her evidence about her arrest and detention.
Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.
That part of the applicant’s account of his experiences at the farm and then at the market some 18 months later which involved the threat from the parliamentarian uncle of one of the persons killed at the farm is specifically noted by the Reviewer. Firstly, it is important to identify with as much precision as we can what the applicant’s account of this specific threat was. The May 2010 interview includes an assertion by the applicant that he has been accused by the parliamentarian uncle as bringing the Hazaras to the fight and that it is his fault that his nephew died. The applicant says that he will be killed if he goes back there. He says he will be killed by the man seeking revenge on him (CB 67). There is no identification at that point as so how these matters including the threat were conveyed to him but at CB 69 he makes it clear that the threat was conveyed by the “troops” of the parliamentarian who attended at the market. The statutory declaration notes that the nephew of Naiemkham was killed but the account given of the market incident does not specifically link the threats received to that person.
It is not a matter that is the subject of any discussion in the legal representative’s submission and it is not the subject of discussion at the IMR interview.
On the applicant’s account the threat on behalf of the parliamentarian is conveyed during the market incident.
The Reviewer unambiguously rejected the applicant’s account of the market incident. At [40] he notes that in the May 2010 interview no mention was made of a death threat from the Taliban or that the death threat was made to the son. At [45] he rejects as implausible the applicant’s account of exposing his son to the Taliban and observing the conduct of the Taliban towards him. At [48] and [49] the inconsistencies of his account of his response to the first presentation of the troops at the market is pointed out. The Reviewer says at [49]:
In view of this serious inconsistency I cannot accept the account of the claimant that the Taliban were searching for him at the marketplace. As I do not accept that the Taliban were searching the marketplace in the 3-4 days following the initial contact, I also do not accept that the Taliban there made a death threat against the claimant.
These findings, then, leave only the bare assertion that a parliamentarian’s nephew was killed in the 2008 farm incident. That assertion does not entail an obligation on the part of the Reviewer to analyse or construct a partly articulated claim of fear of persecution. The issue of the applicant being held responsible for the death of the nephew falls away as a consequence of the findings of the Reviewer. An alleged failure by the Reviewer to consider such a claim has become logically irrelevant in light of the findings.
Ground one is not made out.
Ground two alleges not a failure to consider a claim but a failure to give consideration to certain matters in reaching certain factual findings relating to the applicant’s fear that if he were to return to Afghanistan he would be accused of converting to Christianity. The claim is noted in the RSA interview (CB 116). It is not referred to in the statutory declaration. It is not referred to in the agent’s submissions. It was not referred to in the May 2010 interview. It is specifically raised by the Reviewer at the IMR interview. I set out the Reviewer’s account of this discussion in full. It appears at [25]:
In the submission of the claimant’s agent there is a statement that if the claimant was to be sent back to Afghanistan he would be accused of converting to Christianity. I accordingly asked him at the interview whether he “feared persecution because of a possible perception that you have converted to Christianity?” He replied: “no” to that question. He also remarked: “If I would be returned back to Afghanistan there would be concern that I have changed my religion or that I am some sort of spy”. I asked the claimant whether he had been in a Christian church; he replied that he had not. He stated that in Kabul he tried to practice his religion. He told me that he was a Muslim and not a Christian.
This matter is dealt with in the reasons at [53] and [54] as follows:
I am not satisfied that if the claimant was to be sent back to Afghanistan that he would be accused of converting to Christianity. He told me that he was a Muslim and not a Christian. He also told me that he has not been in a Christian church. He stated that in Kabul he tried to practice his religion. The claimant informed the RSA officer that he was not a Christian or involved in any Christian practice.
At the IMR interview the claimant remarked: “If I would be returned back to Afghanistan there would be concern that I have changed my religion or that I am some sort of spy.” I cannot accept that there would be any such concern. The claimant (in an email dated 23 May 2011 from the agent) remarked: “The community and the people who signed the letter do not know my whereabouts. Only my immediate family know …”. As his local community are unaware of the location of the claimant, it is not plausible that he would be accused of deserting his faith or being a spy if he returned to Afghanistan.
The applicant’s counsel, in reliance upon the High Court decision of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 submits that the Reviewer has failed to consider the matter from the perspective of what will be perceived to be the religious views of the applicant and instead focused on what his views actually are. I readily accept that what matters in giving consideration to a claim of this nature is the opinion or belief that will be imputed to the claimant by his or her persecutor. This matter was also emphasised in the subsequent High Court decision of Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 – 571.
But such an argument in my view could only be sustained if the only part of the findings that dealt with the issue was [53]. But it is not. [54] records the Reviewer’s rejection of the applicant’s contention that there would be a perception that he had changed his religion and that was because the claimant’s own case was that only his immediate family in Afghanistan know his whereabouts. The Reviewer’s conclusion that it is not plausible given the lack of information available to other persons, including the Taliban (if they were interested), that there would be any accusation made against the claimant of apostasy, is surely a sound conclusion.
Ground two is not made out.
These having been the only grounds of review, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 22 January 2013
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