WZARG v Minister for Immigration - [2013] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZARG v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 69

MIGRATION – IMR review – Afghan Hazari fears persecution arising out of acts of robbery at hands of Pashtun persons and subsequent visits by those persons to his business – reviewer regards reason for acts as non-Convention related – application of s.91R(1) of the Migration Act 1958 – judicial review refused.

Migration Act 1958 (Cth), ss.36(2), 46A, 91R & 476
1951 Convention Relating to the Status of Refugees and its 1967 Protocol

Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
DZABS v Minister for Immigration & Anor (2012) 261 FLR 447
Alami v Minister for Immigration & Anor [2011] FMCA 623
SZQGA v Minister for Immigration & Citizenship [2012] FCA 593
WZAPH v Minister for Immigration & Anor [2012] FMCA 773
MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99
Craig v The State of South Australia [1995] HCA 58
Minister for Immigration and Multicultural Affairs v Haji Ibraham [2000] HCA 55

Applicant:

WZARG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

J STRATHEARN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 183 of 2012

Judgment of:

Lindsay FM

Hearing date:

5 December 2012

Date of Last Submission:

5 December 2012

Delivered at:

Adelaide by telephone

Delivered on:

12 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr M.J. Feutrill

Solicitors for the Applicant:

Case for Refugees

Counsel for the Respondents:

Mr M.J. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for review filed on 1 August 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 183 of 2012

WZARG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J STRATHEARN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”), in which the applicant seeks orders by way of judicial review in relation to an Independent Merits Review (“IMR”) conducted to assist the Minister in determining whether or not Australia owes the applicant protection obligations, and, in particular, as to whether the bar referred to in s.46A of the Act should be lowered so as to permit the applicant to make his application. Prima facie, the applicant cannot make an application for a protection visa because he is an offshore entry person. He arrived at Christmas Island on 12 February 2011 and, upon his arrival, indicated his intention to seek protection obligations from Australia.
I had occasion to examine the nature of this Court’s jurisdiction in relation to such matters following the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. My consideration of the position that this Court was left in as a result of those decisions is to be found in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447.
It is the posited future reliance by the Minister upon the reviewer’s recommendation, which is the migration decision, that is the focus of the exercise of the Court’s jurisdiction in such matters. Prior to SZQDZ, cases such as the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 were good law in that the reviewer’s decisions themselves were regarded as migration decisions as that term is used in the Act, but SZQDZ determined that in fact the reviewer’s decision is not only not a decision under the Act; it is not a decision at all.
In any event, SZQDZ made plain, as I indicated, that it is the posited future reliance by the Minister upon the report which grounds the jurisdiction of the Court. For reasons that I also gave in DZABS, I regarded myself as being obliged to identify jurisdictional error before allowing the review in such cases.
However, on 7 June 2012 Barker J delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
I discussed the consequences of that decision for the exercise of this Court’s jurisdiction in matters such as the matter before me today in WZAPH v Minister for Immigration & Anor [2012] FMCA 773. I came to this conclusion at [48]:
In my view his Honour’s decision is authority for the proposition that in a review pursuant to s.476(1) relating to an IMR decision this Court does not need to identify a jurisdictional error in order to allow the review.
At [49] of the same decision I respectfully express my reservations in relation to that conclusion, but at [50] and [51] noted my duty to follow that decision, given that his Honour was sitting as a Court of Appeal from this Court, even if there is some degree of controversy attending whether I am bound by the doctrine of stare decisis in relation to decisions of single judges of the Federal Court where they are not sitting as a Court of Appeal.
In any event, as a result of those matters, the applicant in this case before me will be entitled to the relief that he seeks if he establishes legal error associated with the reliance upon the recommendation, whether that legal error is an error indicative of an excess or want of jurisdiction or not. The applicant will also be entitled to the relief claimed if he establishes that he was not accorded procedural fairness. So I will deal with the grounds he relies upon on the basis of the identification of legal error or a denial of procedural fairness as being sufficient to allow the review.
I proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, a decision which was delivered on 11 July 2012 and therefore after Barker J’s decision of SZQGA, continued to express the task of review in terms of identification of jurisdictional error (see [19] to [25] inclusive of the Full Court’s decision).
Of course, the principles relating to the identification of jurisdictional error identified in cases such as Craig v The State of South Australia [1995] HCA 58 will continue to be of relevance in determining whether reviews of this kind will be allowed.
Upon arrival in Australia the applicant submitted to an entry interview. He then made a request for a Protection Obligations Determination. When that was unsuccessful, he made his application for the IMR. At each stage of the process the applicant was assisted by a migration agent and, it should be noted that, at each stage of the process, his account of his experiences in Afghanistan, which were said to give rise to the fear of persecution for Convention grounds, was accepted as creditworthy.
Neither at the entry interview, nor at the Independent Protection Assessment stage, nor at the IMR stage, were there any adverse credit findings made in relation to the applicant’s account of his experiences.
The applicant was born in Afghanistan. He lived in Iran and Pakistan for periods of time, but returned to Afghanistan in 2004. He left Afghanistan on his own Afghanistan passport, issued in Kabul. He is of Hazara ethnicity and adheres to the Shia branch of the Muslim faith. It is plain from the accounts he has given at the various stages of this process that he lived principally in Kabul.
His claim is grounded upon his experiences in March 2010 in Kabul. He was driving his motor vehicle in a crowded area of Kabul when a vehicle from the opposite direction came toward him, and men wearing police security uniforms in the vehicle signalled him to stop. One of them drove off in their vehicle. The remaining persons came towards him. He says he was hit in the stomach with a gun. He was told that he would be killed. The three remaining persons then entered his vehicle and drove away with it.
The applicant reported the matter to the security police. He was taken to a police station. His vehicle was eventually located by the authorities and, when he subsequently went to collect it, he was informed that the vehicle had been used in the carrying out of a shooting, with the vehicle number having been reported to the police. He ultimately collected his vehicle from the police after he had secured what is described as a “guarantor letter”.
That is an expression that is used on a couple of occasions in the Reasons, and it is not entirely clear what is meant by that expression. A previous guarantor letter, that is, a letter from a different person, was in the vehicle when it was stolen from him. That is the first occasion it is used. The second occasion is when he secures another guarantor letter, to facilitate his collection of the vehicle from the police.
The police organised a line‑up of suspected persons, and the applicant identified two of the men in the line‑up as having been involved in the incident. Subsequently, and about three weeks after his having participated in the line‑up, he received a telephone call from his business partner to advise him that there were two Pashtuns who had attended his shop and who were asking for him. He asked for a description of the two Pashtuns, and he says that the description he was given by his partner was of two of the persons who had stolen his vehicle.
He says he never returned to the business premises from that point. He was told by his business partner that those same Pashtuns had attended at the shop approximately a month later, looking for him. The applicant formed the view that the Pashtuns were looking for him because they were angry and because they wanted to find him and kill him. He says that he left Kabul via a people smuggler, approximately five months later, and the account he gave was of living in hiding, as it were, in Kabul, for the period of time leading up to his departure.
He leaves behind in Kabul a wife and two children, and it has never been suggested by him, or by any of the family members with whom he has been in contact, that these Pashtun persons have visited his home.
During the course of the review, the reviewer considered a considerable quantity of country information. I do not propose to recite his account of that country information or his findings in relation to it, but they do not appear to be controversial matters. The findings about the generalised claim to refugee status are best summarised at paragraphs [147] to [153].
The Hazara population of Kabul is said to be about 25 per cent of the three and a half to four million people who live in Kabul. The key findings of the reviewer are those that are set out in [140] to [144], and I have already indicated that these findings are made against general acceptance of the fact that the applicant was telling the truth about his experiences. The reviewer accepted that the two Pashtuns identified by the claimant in the line‑up attended at the business premises for the purposes of seeking him out.
The reviewer accepts that the applicant withdrew from the business and never visited the premises again, and stayed in hiding, though at home, for a period of five months thereafter, because of his fear of these two Pashtuns. Consequently, the assessor finds at [142] that the applicant fears harm from the Pashtuns and their accomplices, and that such fear relates to the Pashtuns’ attempt to contact him after the claimant assisted the police to expose their criminal activity, for which they were punished.
At [143] and consistent with the applicant’s evidence, the reviewer finds that, subsequent to the incident, there have not been specific threats made to the claimant, directly or indirectly, whether through his partner or anyone else. The reviewer put to the applicant during the course of his interview, and expresses the conclusion in his report, that the applicant’s experience was the result of what is described as “mere criminal activity”; the “mere” not being an index of the personal insignificance of the incident but of the fact that it was not Convention related. The key passage is that which appears at [144]:
The assessor finds based on the evidence available that the claimant’s fear of harm at the hands of the Pashtuns or their accomplices is related to reasons of random criminal activity by them, was not systematic or discriminatory conduct, and the essential and significant reason is not for any Convention related motivation. As such the assessor finds that there is not a real chance of harm at the hands of the Pashtuns or their accomplices for a Convention reason now or in the reasonably foreseeable future.
The reviewer explained why he took the view that the fear related to random criminal activity rather than being Convention related at [135] and [136]:
135. The assessor considered the location, circumstances and time of evening of the incident, the unlikely scenario of persons identifying the claimant’s ethnicity in those conditions, the absence of any verbal indication by his assailants of him being targeted due to ethnicity or treated more harshly due to ethnicity, the criminal use to which his vehicle was put thus reinforcing a criminal motive, the apparent retrieval of the vehicle intact, and the eventual return of his vehicle to him via the police.
136. Further the assessor noted country information set out above about the high incidence of criminal activity in Kabul.
At [137] the reviewer adumbrates the key conclusion which is set out above at [23]:
137. Based on the foregoing, the assessor finds that the incident was the result of a random act by criminal persons of Pashtun background toward the claimant, and he was not targeted for harm in this incident on the basis of his ethnicity, and was not treated more harshly if the assailants identified him as being a Hazara.
There are two grounds of review, although, as the applicant’s counsel acknowledged, both grounds spring from the same well.
The first ground, in respect of which there are three sub‑grounds, contends that the reviewer did not carry out his assessment of whether Australia owed the applicant protection obligations according to law.
The second ground is a contention that procedural fairness was not afforded the applicant, because of the way in which the reviewer misunderstood or misconceived his obligations under ss.36(2) and 91R of the Act.
The first ground relates to what is said to be the misapplication of the criteria referred to in s.91R(1) of the Act.
Section 91R(1) of the Act provides:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
The first complaint is that the reviewer conflated the finding relating to the selection of the applicant as the victim of the theft of the vehicle (which I will hereafter describe as “the first incident”. I will describe the visiting by the Pashtuns to the business as “the second incident”) with the subsequent efforts of the Pashtuns to locate the applicant. It is said that the latter can only be regarded as systematic and discriminatory. It certainly is the case in the passages set out above the reviewer focuses upon the first and not the second incident.
But it is inevitable that once the first incident has occurred that the second incident will happen to the same victim. There will be no supervening reason for the choice of victim in the second incident. The choice of the victim in the second incident will be non-random in the sense that the victim has been singled out for a visit from other people in Kabul but it will also be non-random in the sense that it is a consequence of his initial random selection as a victim of criminal activity in the first incident. In other words, the Pashtuns having randomly selected him as their victim in the first incident they are bound to select him as the victim for the follow-up conduct of the second incident. They will hardly take the trouble to visit someone to silence them who will not be able to put them at risk of arrest or imprisonment by co-operating with the police or reporting the matter to the police.
Secondly, there is said to have been a conflation by the reviewer of the Pashtuns’ motivation for the first incident (simple theft) with their motivation for causing him serious harm on account of his informing on them.
It is not clear that the reviewer is only referring to the first incident in [144] but even if that were the case, we should not regard that as surprising if we bear in mind that the second incident was entailed by the first incident. There is an artificiality in quarantining the two incidents in suggesting that one was criminally motivated and the other Convention motivated. The applicant had given evidence that Pashtuns commit crimes against Hazaras with impunity and that his being Hazara would be motive enough for the Pashtuns to want to kill him. But the matters referred to by the reviewer as set out by me in [24] hereof ground the finding that the first incident was criminally motivated and thereafter it is entirely reasonable to infer that the visits to silence or frighten the applicant that followed are still a function of that criminal behaviour or such behaviour coupled with the Pashtuns fear of being prosecuted and a desire to punish the person who reported it. It does not mean that the fact that the applicant was a Hazara was irrelevant but it is certainly reasonable for the reviewer to take the view that the continuing link with the original criminal conduct was the essential and significant reason for the persecution.
In a valid claim for a protection visa there may be multiple essential and significant reasons, as contended by the applicant’s counsel, but they must be Convention reasons. The reviewer was entitled to take the view that what might be described as Pashtun antipathy to a Hazara was not an essential and significant reason for the persecution.
The reviewer is not open to criticism in my view for not explicating the legal tests for either the “systematic and discriminatory limb” or the “essential and significant reason limb” of s.91R(1) of the Act as long as the relevant criteria have been considered, and in my view they have been. The legal test is specifically identified at [144].
The complaint the applicant makes that during the course of the interview the reviewer put to the applicant only the reviewer’s concerns about the random criminal nature of the first incident rather than the subsequent visit does not have any substance in my view for the reasons I have already identified. The visits to the home were seen by the reviewer (in my view, reasonably) as having been entailed by the random criminal act constituted by the seizure of the vehicle.
It was the applicant who conflated his generalised fear of discrimination by Pashtuns with his specific experiences in relation to the incidents in question. It may be quite reasonable for him to do so but in applying the criteria described in the Convention and in the Act to the claim the reviewer was entitled to distinguish the general from the specific claims. I am not satisfied that the reviewer overlooked the general claims.
In particular I am not satisfied that in applying s.91R(1) criteria the review miscarried in any way or that the wrong legal test was applied or the wrong questions asked.
Section 91R(1)(a) of the Act requires an evaluation of the specific reason or reasons for persecution referred to in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Pursuant to that Article the applicant must have a well founded fear of being persecuted but it must also be for one or more of the reasons identified in the Article namely; race, religion, nationality, political opinion or membership of a particular social group. The sub-section requires an evaluation of whether one or more of those reasons is the essential and significant reason for the persecution. Necessarily that involves an examination of why it is that the persecutors have been motivated to persecute the applicant. That exercise is of a different kind than the exercise required to be undertaken pursuant to sub-sections (b) and (c) which each involve an evaluation of the persecution itself rather than the reasons for persecution – whether the persecution involved serious harm to the applicant ((b)) and whether the persecution involved systematic and discriminatory conduct ((c)).

The respondent’s counsel argued that the criticism by the applicant of the way in which the reviewer undertook the exercise pursuant to sub-section (1)(a) was misconceived in that the applicant was arguing that the inquiry should be into the claimant’s fear and not the reason for the persecution but I did not understand the applicant’s argument to be cast in that way. The applicant argued that the essential and significant reason for the persecution was the applicant’s ethnicity and religion. I do not think that criticism can be made out but it was a criticism that was appropriately directed to the relevant criteria. The submission that the reviewer was distracted by concepts of motivation rather than looking for the reasons for the persecution could not be sustained in my view. To identify a motivation is to identify a reason. Persecution will be Convention-related if it is Convention-motivated or stimulated. To ask what motivated or motivates persecution is to ask what is the reason for or what accounts for the persecution.
Similarly, the applicant’s contention that the reviewer failed to consider there may be more than one essential and significant reason for the persecution was a contention directed at the persecution itself and not the applicant’s fear. That is how I understood the argument to be put. However, I did not consider the argument made out.
Finally, I should note that I also understood the applicant’s argument about the reviewer’s finding that the conduct complained of was not systematic and discriminatory was directed towards the reviewer’s findings about the persecution and not the applicant’s fear of being persecuted as the respondent’s counsel claimed but, again, for reasons I have given I do not consider that criticism to be made out. It can readily be accepted that fear of a single act of persecution carried out for a Convention reason is sufficient to satisfy the definition of persecution found in the Convention and in the Act. The persecution must be systematic and discriminatory, however, and not random. That “random” is antonymous to “systematic” was recognised before the introduction of s.91R(1)(c) of the Act by McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibraham [2000] HCA 55 at [99]:
Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of co-ordinated acts directed at him or her which can be said to be not isolated but systematic” (101). The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution (102) if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.
But here the reviewer is satisfied the persecution is random. Even though the reviewer recognises that the applicant’s fear relates significantly to the events constituted by the second incident, yet that incident still has the same random character as the first incident.
The second ground of review is based upon the same criticisms but suggests that the misunderstanding of the relevant legal tests and the asking of the wrong questions and the failure to address the applicant’s claims as they were articulated by him amounted to a denial of procedural fairness.
Errors of the kind referred to in the preceding paragraph can properly be regarded as failures to accord procedural fairness (see Plaintiff M61/2010 at [90]).
The procedural fairness argument is augmented by a submission that these failures led in turn to a failure to consider whether there was a real chance that the applicant would be persecuted for a Convention reason in the future. But in finding the past conduct of the Pashtuns to have been explained by non-Convention reasons, the reviewer was entitled to consider, as set out at [44], that there was not a real chance of persecution at the hands of the Pashtuns in the future for a Convention reason.
For the Reasons I gave in relation to ground one, this ground is not made out.
No ground having been made out, the review is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 12 February 2013