WZARU v Minister for Immigration

[2013] FCCA 1513

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZARU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1513

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal had evidence to justify findings – whether Tribunal erred in consideration of applicant’s potential risks in travel in Afghanistan – no jurisdictional error found. 

Legislation:  
Migration Act 1958

Applicant: WZARU

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File Number: PEG 265 of 2012

Judgment of: Judge Burchardt

Hearing date: 24 July 2013

Date of Last Submission: 24 July 2013

Delivered at: Melbourne (via video link to Perth)

Delivered on: 8 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Carter

Solicitors for the Applicant: CASE for Refugee

Counsel for the First Respondent: Mr MacIver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 265 of 2012

WZARU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 25 September 2012, by which the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. 

2. The applicant’s Substituted Amended Application filed 1 March 2013 lists two grounds of application.  The first ground essentially relates to the findings the Tribunal made about what the applicant would do if he were to return to Afghanistan by way of employment and whether such employment would expose him to risk of persecution.  The second ground relates to the findings the Tribunal made about the applicant’s capacity to return to his home near Jaghori and whether or not this likewise constituted jurisdictional error. 

3. For the reasons that follow, I do not think that the Tribunal fell into error, and it follows that the application must be dismissed. 

Ground 1 - In finding (at paragraph 115 of its reasons for decision) that the applicant did not need to travel on insecure roads linking Jaghori to the Kabul-to-Kandahar Highway to earn a livelihood (because a secure alternative route was available), the second respondent fell into jurisdictional error in that:

a.there was no evidentiary basis for that finding because:

i.no finding was made as to how the applicant would earn a livelihood if he were to return to Afghanistan;

ii.no finding was made as to the applicant’s need to travel for such a livelihood;

iii.no finding was made that the secure alternative route could be used for such livelihood;

b.the second respondent asked the wrong question, namely whether the applicant could avoid persecution in respect of travel associated with his livelihood, rather than whether the applicant had a well-founded fear of persecution in respect of travel associated with his livelihood.

1. Despite the way the ground of review is expressed, in both the applicant’s written Outline of Submissions and in the oral submissions made to the Court, the matter was presented very much on the footing that the Tribunal’s decision that the applicant would not need to travel on insecure roads linking Jaghori to the Kabul-to-Kandahar Highway had no evidentiary basis.  The aspect of ground 1b was traversed only briefly at paragraph 14 of the written submissions and was not given any emphasis at all in oral submissions. 

2. In order to understand the Tribunal’s finding about the applicant’s future employment, it is appropriate to look at what was before the Tribunal in this regard and what the Tribunal actually said.  In the applicant’s Statutory Declaration declared 8 April 2012 (CB27-30) the applicant said relevantly:

   “5.    I am married to (omitted) (she is my second wife).  We have x [child/children] together.  I have x [child/children] from a previous marriage; my first wife was named (omitted).  My father is approximately 76 years of age; my mother passed away in 1987 from natural causes.  My father, wife and all my children live in (omitted), Afghanistan.

   6.    I am responsible for all of the above family members as well as my sister-in-law, whose husband (my brother (omitted)) has been missing since approximately 2007/2008. …”

3. The applicant went on to depose to having worked illegally in Iran for five years, to have returned to Afghanistan, and at paragraph 18 (CB28) he deposed:

   “As I owned a grocery shop, I needed to travel around once a month to Ghazni City in order to purchase stock.  I was stopped and hassled by the Taliban during many of these trips because of my Hazara ethnicity and Shia religion.”

4. The applicant went on to depose to two occasions in 2011 when he had been on one occasion beaten and abused, and on the latter occasion a convoy of which he was a part was shot at by the Taliban. 

5. At paragraph 11 (CB161) as part of a substantial submission lodged by the applicant’s agent, the agent asserted:

   “Mr (applicant’s) work running a grocery store in Jaghori requires him to travel to Ghazni city on a monthly basis to purchase stock.  He has been stopped and physically abused a number of times en route to Ghazni city.”

6. Before coming to the transcript of the hearing before the Tribunal, it is appropriate to record some other matters set out in the Tribunal’s decision.  At CB280 paragraph 23, the Tribunal recorded under the heading “The applicant’s evidence at the Departmental interview”:

   “The applicant was interviewed by the primary decision-maker in relation to his application on 14 April 2012.  The applicant confirmed that he had had a grocery shop in Afghanistan from 1375 in the Afghan calendar (1996) until he had left the previous year.  He confirmed that before that he had worked in construction with his cousin in Iran and before that he had helped his father on the farm in Afghanistan and had also worked as a shepherd.  He said that he had rented his shop in Afghanistan.  He said that he had sold all the goods he had had before he had left Afghanistan. …”

7. Under the same heading at paragraph 29 (CB281), the following is recorded:

   “The applicant said that he was in contact with his father.  He said that they spoke three times a week.  He said that his father looked after the few sheep they had on their farm. …”

8. At paragraph 31, the following is recorded:

   “… She put to the applicant that Hazara districts including Jaghatu, Jaghori, Malistan and Nawur were relatively stable compared to Pashtun districts.  The applicant said that this was right – it was peaceful in the area – but in order to put food on the table or to feed the family someone needed to work, someone needed to travel outside, and it was dangerous on the road.  It was not possible.”

The transcript of the proceeding

1. The transcript of the proceeding is annexed to the affidavit of Tannaz Pasha affirmed 18 February 2013.  At T-8, the following is recorded:

GS	(The Tribunal Member): You say that after you returned to your village you had a grocery shop?
A	(The Applicant): Yes.
GS	When did you establish that business?
A	In 2001.
GS	What had you been doing before then?
A	Before that I was at home and help my father.

1. At T-9, the applicant confirmed that the first time he had any problems with the Taliban was in April 2011, and there was a further problem in July 2011.  

2. At T-11, the following exchange took place:

GS	What do you think you would do for living if you were to go back to your village?
A	So I think this 99%.  I put my life in this 99% that only one person was chose to and come to Australia and then I arrive here but if I lost this chance there is no hope, there is no.

1. At T-12, following the exchange about the availability of a secure alternative between Kabul and Jaghori rather than the insecure routes to the Kabul-to-Kandahar Highway, the following exchange took place:

GS	… if I accept your evidence you no longer have your shop.  So you won’t have to travel to Ghazni to buy supplies any more.
A	As I said before my life is at risk there as I have mentioned.  Otherwise I have a good life very quiet there so once I feel safe I feel that’s why I took 99% risk and I escape from that area from the Taliban in that that forced me to leave that area.

Then, further down on the same page:

GS	As I’ve indicated to you (Applicant) in looking at your situation if you go back to Afghanistan I’m taking into account the fact that you’ve sold your shop so you won’t need to travel on these roads any more.
A	This is the chance for me that I come here to Australia.  I explained my situation.  I explained the things that I suffer and the problems that I had so now that this is a but I need you to and Australia to have me.

1. At T-13 to 14, the following is recorded:

Rep	(Applicant’s representative): I was only going to suggest that given that he would because he sold the shop it would be what he would do in order to make an income if he were to return.
GS	I have asked you that question already twice Mr (Applicant) but if you want to say anything about what you would do if go back to Afghanistan you’re welcome to do so.
A	I understand that I just mentioned is that I have one chance to stay alive that I come here.  If you return me in Afghanistan it means I have no chance to live and I will lost my life in my homeland.
GS	Do you want to take that further?
A	No.

1. It should be noted that the Tribunal paraphrased these exchanges in my view reasonably fairly in its account of the applicant’s evidence at the hearing as set out at paragraphs 75-97 of the decision (CB290-295).  I accept the submission from the applicant that the Tribunal appears to have accepted that the applicant had operated his grocery business from 2001 onwards. 

2. Under the headings “Findings and Reasons” at paragraphs 98-128 (CB295-302) the Tribunal set out its “Conclusions”.  The Tribunal did not accept some of the matters the applicant had asserted, and I have not dealt with these aspects of the case as they have not featured in this Application for Review.  Relevantly, the Tribunal accepted at paragraph 106 (CB297) that the applicant had established a grocery shop in 2001 and that he used to travel to Ghazni to purchase goods to sell in the shop.  I note that the Tribunal seems to me accurately to record the applicant’s concession that he had had no difficulties with the Taliban until the incident in April 2011. 

3. At paragraph 108 (CB297-298), the Tribunal accepted the applicant’s evidence that he had sold his grocery shop business before he left Afghanistan to come to Australia.  The Tribunal said at paragraph 108:

   “… At the hearing before me, when I asked him what he thought he would do for a living if he returned to his village in Afghanistan now, he said that if he lost the chance of remaining in Australia there would be no hope for him.  When I asked him again at the suggestion of his representative he repeated that he had had one chance to survive by coming here.  He said that if he returned to Afghanistan it would mean that he would have no chance to live.  As I put to the applicant, I consider that the fact that he has sold his shop is relevant to the review because he will no longer have to travel to the city of Ghazni to buy supplies.  The applicant said that before he had established his grocery shop he had been helping his father.  I do not accept on the evidence before me that the applicant will have to travel outside the Jaghori district on a regular basis in order to earn a livelihood.”

4. Put shortly, the applicant’s counsel’s submission was that this finding, which was determinative of this aspect of the matter, was simply not open on the evidence.  The matters going to support that proposition are at paragraph 9 of the applicant’s Outline of Submissions, where a detailed analysis of the evidence is set out.  .

5. At paragraph 10, the applicant’s written submissions assert that the evidence above (that is to say, the evidence in paragraph 9) “is to the effect that if the applicant returned to his village, he would need to travel regularly outside Jaghori to earn a livelihood buying and selling goods in order to support his family, whether or not he resumed his occupation running a grocery store”.

6. I accept the applicant’s submission that the finding about paragraph 108 set out above was critical to the finding that the applicant would not have to travel on the insecure roads he had previously been required to use. 

7. The difficulty is, that notwithstanding the matters set out in paragraph 9 of the applicant’s written submissions, they do not, when properly analysed in the context of the evidence actually before the Tribunal, produce the conclusion contended for.  In fact, the Tribunal’s observation that the applicant sold his grocery store and would not be continuing to travel as a result was plainly correct on the facts, as far as they went.  The applicant expressly said he had sold his grocery store. 

8. What was not immediately open on those facts was the conclusion that the applicant would not need to travel in the future.  However, this requires an analysis of the material before the Tribunal, which I have set out in some detail above.  It should be noted that it was always for the applicant to make his case.  He was given no less than three opportunities to respond to a direct question as to what he would do if he returned to his original place of residence in Jaghori.  In effect, the applicant refused to answer that question, but merely said that his position would be hopeless were he to return. 

9. Any failure, in respect of the evidentiary background, arose out of the applicant’s refusal to respond.  In fact, the evidence showed that the applicant had worked in Iran, and upon return to Afghanistan, had assisted his father.  Given the father’s age, and given that the family was subsisting in Afghanistan, the Tribunal’s finding that the applicant would continue to assist his father was, in my view, reasonably open to it, notwithstanding that the evidence was sparse. 

10. In my view, while it is certainly the case that the evidence upon which the Tribunal arrived at the conclusion it did was relatively limited, this limitation arose solely from the applicant’s election not to put evidence before the Tribunal.  The evidence referred to in paragraph 9 of the applicant’s written submissions ignores the fact that the applicant had sold his shop, and the fact that he did not say – although he clearly could have – that he would propose to re-establish some similar venture, were he to return. 

11. Given the view that I take of this aspect of the matter, it is not necessary to deal with the submissions of the first respondent that even if the Tribunal erred in finding that the applicant would not need to travel on insecure roads to earn a livelihood, such was an error of fact, which would not give rise to jurisdictional error. 

12. The second part of ground 1, as I say, was only briefly referred to in the written submissions, and not, so far as I can recall, at all in the oral submissions.  It is, of its nature, closely interrelated with ground 2.  It is certainly the case that the Tribunal analysed the various ways of getting to Jaghori at, inter alia, paragraphs 112-114 (CB298-299).  This analysis was taking place in the context of consideration of a number of issues. 

13. Put shortly, I think that the Tribunal was merely applying its mind to whether or not the applicant faced a real chance of persecution for a Convention reason if he returned home.  On reading the Tribunal’s decision fairly and as a whole, the Tribunal was not saying that the applicant had to avoid persecution in respect of travel associated with his livelihood.  Rather, it was considering whether the applicant would, in the circumstances that the Tribunal found (namely, that he would not need to travel to earn his livelihood), face a real chance of persecution. 

Ground 2 - In finding (at paragraph 115 of its reasons for decision) that the applicant did not need to travel on insecure roads linking Jaghori to the Kabul-to-Kandahar Highway to return to his home in the Jaghori district (because a secure alternative route was available), the second respondent fell into jurisdictional error by asking the wrong question, namely whether the applicant could avoid persecution in respect of travel associated with his return home, rather than whether the applicant had a well-founded fear of persecution in respect of travel associated with his return home.

1. Here, what was submitted was that the Tribunal’s discussion of alternative routes, and the findings set out at paragraph 115 (CB299) involved an impermissible approach.  It is appropriate to set out paragraph 115 in full:

   “The applicant agreed that Jaghori was safe, that people were going to school and that they had a better life.  He referred again to the lack of security on the roads linking Jaghori to the Kabul to Kandahar Highway but for the reasons given above I do not accept that the applicant will need to travel on these roads to return to his home in the Jaghori district nor do I accept that he will now need to travel on these roads in order to earn a livelihood.  I accept that the Taliban have the capacity to carry out raids in the Jaghori district as they did when they attacked the home of the local police chief in Angori in June 2007 but for the reasons given above I do not accept that the applicant has been directly threatened by the Taliban in the past nor do I accept that there is a real chance that he will be singled out to be persecuted by the Taliban if he returns to his home in the Jaghori district of Ghazni province now or in the reasonably foreseeable future.”

2. I note again that the Tribunal made an express finding that the applicant would not need to travel to earn his livelihood, and it is not necessary to repeat that aspect of the matter further.  What the Tribunal was turning its mind to in my opinion, as the first respondent submits, was whether the applicant would face persecution on a Convention ground if he returned to Afghanistan.  Given that the applicant would clearly have to get from Kabul to where he lived, the Tribunal’s finding, to the extent that it made it, that it would be open to him to return via the longer route through Bamiyan, seems to me to have been entirely permissible.  I do not think that the Tribunal fell into jurisdictional error in this regard. 

Conclusion

1. For the above reasons, the applicant’s criticisms of the Tribunal’s decision are not, in my view, made out and it follows that the application must be dismissed with costs. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  8 October 2013