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AZABN v Minister for Immigration & Anor [2011] FMCA 809 (27 October 2011)
Last Updated: 4 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
AZABN v MINISTER FOR
IMMIGRATION & ANOR
|
[2011] FMCA 809
|
MIGRATION – Review of Independent Merits
Reviewer – off shore entry person – applicant Hazara Shia Afghani
–
applicant has fled from Qarabagh – IMR found applicant had well
founded fear of persecution in Qarabagh as a result of ethnic
and religious
background – consideration of whether reasonable for applicant to seek
refuge in another part of Afghanistan,
namely Kabul – what is reasonable
in the sense of being practical – jurisdictional error – whether IMR
asked correct
questions. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Second Respondent:
|
JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT
REVIEWER |
|
Delivered on:
|
27 October 2011
|
REPRESENTATION
Counsel for the
Applicant: |
Mr Hanna
|
Solicitors for the Applicant: |
Bourne Lawyers
|
Counsel for the Respondents: |
Mr d'Assumpcao
|
Solicitors for the Respondents: |
Australian Government Solicitor
|
ORDERS
(1) The time for making the application provided by
section 477(1) of the Migration Act 1958 (Cth) is extended up to and
including 8 April 2011.
(2) Application dismissed.
(3) Applicant to pay the First Respondent’s costs fixed in the sum of
$5,850.00.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
ADELAIDE
|
ADG 77 of
2011
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
JOHN BLOUNT IN HIS CAPACITY AS
INDEPENDENT REVIEWER
|
Second Respondent
REASONS FOR JUDGMENT
Introduction
- The
applicant is an offshore entry
person,[1] who arrived
at Christmas Island, by boat, on 2 April 2010. He is an Afghan by nationality;
of Hazara ethnicity; and a Shia Muslim.
- The
applicant was born in the Qarabagh District of Ghazni Province in Afghanistan,
where he lived until recently. The applicant left
Qarabagh at some time late in
2009.
- The
applicant claims that he left Qarabagh because of his fear that he would be
persecuted by members of the Taliban, as a consequence
of his religion and
ethnicity and because it would be perceived by them that he is a supporter of
the National Afghani Government,
to which the Taliban is opposed.
- The
applicant also claims that his background, as an Hazara and Shia, will leave him
liable to the real possibility of being subjected
to systematic persecution
throughout the whole of Afghanistan. As such, he seeks protection in Australia
and claims he cannot return
to Afghanistan because of a well founded fear of
persecution there.
- In
summary, the applicant claims to be entitled to the protection of Australia
because he is a refugee as defined by article 1A(2)
of the Refugees Convention
which defines a “refugee” as any person who:
- “...
owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular
social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear is
unwilling to
avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual
residence, is
unable or, owing to such fear, is unwilling to return to
it.”
- Australia
is a signatory to the Refugees Convention which, subject to some provisions in
the Migration Act 1958 (hereinafter referred to as “the
Act”), is part of the municipal law of this country.
- The
second respondent conducted an Independent Merits Review (hereinafter referred
to as the “IMR”) of the applicant’s
claims for protection. He
concluded that the applicant faced a small but real chance of suffering harm in
Qarabagh, from the Taliban,
because of his identity as an Hazara.
- However,
importantly in the context of this case, the first respondent did not consider
that the possibility of the applicant coming
to harm was generalised throughout
Afghanistan as a whole. As such, he considered it reasonable for the applicant
to seek protection
for himself in his country of origin by relocating to Kabul,
where many Hazaras live in apparent safety.
- As
such, the first respondent determined that Australia was not bound to offer the
applicant protection pursuant to its obligations
under the Refugees Convention.
The applicant seeks judicial review of this decision and contends that the
second respondent fell
into error in his conduct of the IMR to such an extent
that he exceeded the jurisdiction conferred upon him and accordingly his
decision
should be set aside and the Minister for Immigration be restrained from
relying on it in any way.
The framework leading to the IMR
- Christmas
Island is excised from the Australian migration zone.
As such, asylum
seekers who arrive there by boat are categorised as “offshore entry
persons”. Such persons are excluded from applying for protection
visas, via orthodox channels, to enable them to remain in Australia pursuant
to
the provision of the Refugee Convention.
- However,
pursuant to section 46A(2) of the Act, the first respondent is granted a
discretion to grant an offshore entry person such a visa if the Minister
“thinks that it is in the public interest to do so ...”.
- As
a result of this legislative discretion, invested in the Minister, an
administrative protocol was devised by the Department for
Immigration &
Citizenship (hereinafter referred to as “the Department”), which was
intended to provide specific advice
to the Minister as to whether
Australia’s protection obligations, under the Refugees Convention, were
engaged in the case of
each person who arrived in Australian territory at an
excised offshore place (such as Christmas Island) and claimed to be a refugee.
- This
protocol envisaged two distinct and independent steps. Firstly, each such
arrival would be subject to a Refugee Status Assessment
(“the RSA”)
by officers of the Department. Secondly, there would be an IMR of each such
Refugee Status Assessment.
The intention being that there would be an
independent and arm’s length review of any decision made by Departmental
officers,
which was contrary to the applicant concerned.
- The
purpose of the IMR was to make a recommendation, to the Minister, about whether
Australia had protection obligations to any persons
claiming so. If the
reviewer concerned did conclude that Australia did owe a protection obligation
to any such claimant, advice
would be provided to the Minister in such terms so
that the discretion arising under section 46A(2) could be properly exercised.
- The
nature of the ministerial discretion, contained in section 46A(2) and the
constraints on its exercise, were considered by the High Court in Plaintiff
M61/2010E v Commonwealth of
Australia.[2] The
High Court concluded that those making inquiries, on which the Minister would
act, were bound to act according to law and afford
procedural fairness to the
persons potentially affected by the Minister’s decisions.
- In
addition, Plaintiff M61/2010E the High Court held that decisions in
respect of applications for protection visas, arising at the IMR stage, were
subject to judicial
review in the original jurisdiction of the High Court as a
consequence of paragraph 75(v) of the Constitution. This provision grants the
High Court original jurisdiction in all matters in which a writ of mandamus or
prohibition or an injunction
is sought against an officer of the
Commonwealth.
- In
his application filed 8 April 2011, the applicant seeks an injunction
restraining the first respondent from relying on the recommendation
of the IMR
in respect of his assessment that the applicant did not meet the criterion for a
protection visa provided by section 36(2) of the Act as a consequence of it
having been found that Australia did not owe the applicant any protection
obligations under the
Refugees Convention.
- The
Federal Magistrates Court’s jurisdiction to deal with applications for
judicial review in migration matters is founded on
section 476 of the Act.
Pursuant to this section, the court has the same original jurisdiction, in
relation to migration decisions,
as the High Court has under paragraph 75(v) of
the Constitution.
- However,
the Act prescribes a timeframe for the making of such applications. Pursuant to
section 477 the time for making such applications
is within 35 days of the
making of the decision, which is sought to be challenged.
- The
second respondent completed the IMR on 24 December 2010. The decision was
conveyed to the applicant under cover of a letter dated
17 January 2011.
In this letter, the applicant was informed of the implications arising for him
personally of the High Court’s
decision in Plaintiff M61/2010E in
respect of the possibility of him seeking judicial review of the IMR.
- Accordingly,
the application herein being commenced on 8 April 2011 is prima facie out of
time. Pursuant to section 477(2) of the
Act the Federal Magistrates Court may
extend the time period if it is satisfied that is necessary in the interests of
the administration
of justice to do so.
- The
applicant seeks such an extension of time. This application is opposed by the
first respondent. However, there is no issue between
the relevant parties that
the jurisdiction of this court has not been otherwise enlivened pursuant to the
provisions of section 476.
- The
grounds of the application rest on the applicant’s assertion that the
second respondent fell into jurisdictional error in
considering the legal
principles applicable to the determination of the issue of whether it was open
to him (the applicant) to live
in a part of Afghanistan other than Qarabagh,
particularly in Kabul.
- The
principle of law which it is asserted the second respondent has misconstrued or
misapplied can be summarised in the expression
“the principle of
internal relocation”. More fully, a person, though found to have a
well founded fear of persecution, as a result of his experience in one
particular
part of his country of origin, should nonetheless be excluded from
refugee status, because by reference to other relevant circumstances,
it would
not be unreasonable to expect him to seek refuge in another part of the same
country.
- In
particular, it is asserted that the IMR fell into jurisdictional error because
he failed to consider adequately the applicant’s
personal circumstances as
to whether it was or was not reasonable for him to relocate to a place within
his country of origin other
than Qarabagh and in so doing failed to properly
consider matters stipulated by the High Court in SZATV v Minister for
Immigration &
Anor.[3]
The evidence
a) The RSA
- In
his application for refugee status assessment dated 4 June 2010, which he
completed with the assistance of a migration agent, the
applicant stated that he
was twenty-five years of age and was born in Tamaki in the Qarabagh District of
Ghazni Province, Afghanistan.
He indicated that he was married but his wife
remained in Afghanistan. His only child was deceased.
- The
applicant indicated that he had been employed as a driver between 2003 and the
date of his departure from Afghanistan as a driver
in Tamaki. Prior to that
time, he had been employed as a tailor, also in Tamaki, for a period of around
eight years from 1995 onwards.
- The
applicant claimed his brother, whilst also working as a driver between Qarabagh
and Ghazni city, had been abducted by the Taliban
approximately one year earlier
and had not been heard of since. The brother had been working for an Afghani
government official.
- The
applicant claimed that he had sold his car to a Pashtun, who also drove the
Qarabagh to Ghazni city route. This person had defaulted
on the agreed payment
and when asked by the applicant for the sum due had threatened to kill him. The
applicant claims the person
concerned is involved with the Taliban.
- It
is the applicant’s position that he is not secure in Qarabagh because of
the Taliban. In addition, he cannot travel between
Qarabagh and Ghazni city
because the surrounding areas are controlled by the Taliban. He believes the
civil authorities in Qarabagh
are either involved in the Taliban or are
powerless to protect him.
- For
these reasons, the applicant asserted he was compelled to leave Qarabagh. He
believes that he could be killed if he returns to
Tamaki. It is also his view
that he cannot relocate to any other Hazara area within Afghanistan.
- In
particular, the applicant contended that Kabul was too crowded and there was no
work there. He also asserted that, as a failed
asylum seeker, returning from a
western country, he was more likely to be targeted by the Taliban.
- The
Refugee Status Assessor accepted that there were dangers inherent in travelling
on roads in Ghazni Province, including towards
major cities such as Kabul and
Kandahar. However, based on country information available to him, she accepted
that most of the violence
perpetrated on these roads arose as a consequence of
opportunistic crime rather than systematic persecution of any particular ethnic
groups within the area concerned.
- The
RSA reviewer also found that there was no evidence to suggest that the applicant
had any political profile, either actual or imputed,
which was likely to draw
the adverse attention of the Taliban to him specifically. However, she also
accepted that discrimination
against Hazaras in Pashtun majority areas was
historically long-standing and accordingly she should exercise care in respect
of the
applicant’s claims.
- The
reviewer did not find the applicant’s evidence in respect of his dispute
with the person who allegedly owed him money to
be credible. As such, she
doubted that this incident was likely to raise his profile adversely with the
Taliban.
b) Further written submissions
- Following
the capital RSA process, the applicant, through the agency of his migration
agent, made further written submissions. It
was submitted that the Taliban
tactically intimidated Hazara Shias, who were perceived to support the Afghani
government on the road
between Qarabagh and Ghazni. As a consequence, the
applicant feared he would be sought out by the Taliban and killed, if he
returned
to Afghanistan.
- Material,
particularly from the UNHCR, was provided in respect of the viability of the
applicant relocating to Kabul. It was noted
that the traditional extended
family was the main protective factor for individuals in Afghanistan and, in the
absence of these structures,
it was difficult for an Afghani to lead “a
relatively normal life without undue hardship upon relocation ...”.
- It
was also submitted that the UNHCR had reported that economic and social
conditions had deteriorated in Kabul in the last two years
and, in this context,
internal flight for those subject to persecution was considered to be a
“reasonable alternative where protection is available from the
individuals own extended family, community or tribe in the area
of intended
relocation.”
- Information
was also provided from various news sources regarding insurgency attacks in
Kabul, which indicated the resurgence of the
Taliban. On the basis of this
country information, it was submitted that it was not reasonable for the
applicant to relocate to
Kabul given his fear of the Taliban.
- Submissions
were also made, on the basis of UNHCR guidelines, that the applicant was likely
to be the target of systematic violence
by anti-government groups as he would be
perceived as a supporter of the Afghani government and the international
intervention in
Afghanistan, particularly if he returned as a failed asylum
seeker. In support of this submission it was pointed out that:
- The Taliban
targeted Hazara Communities because of their perceived allegiance to the
government;
- The applicant
was likely to be personally targeted because of his previous activities;
- His brother had
already been kidnapped by the Taliban for alleged government support;
- The applicant
personally was under threat from a member of the Taliban, who had stolen money
from him as a result of the sale of the
motor car.
- A
detailed paper by Professor Maley was also provided, which dealt with the
position of the Hazara minority in Afghanistan in mid-2010.
Professor
Maley’s view is that the general situation in Afghanistan remains
“profoundly threatening”. He also noted that the Taliban
were active in parts of Ghazni. As a result, he opined that “no part
of Ghazni can realistically be considered safe for Hazaras, even in districts
where they might seem numerically predominant.”
c) The IMR
- The
applicant requested an independent merits review of the refugee status
assessment, which had been made on 4 June 2010. The second
respondent conducted
the IMR. As part of this process, he interviewed the applicant on 11 November
2010.
- In
the IMR, the second respondent summarised the material claims made by the
applicant throughout the assessment process, commencing
with his interview on
entry, which occurred on 8 May 2010. In this interview, the applicant asserted
that he had been harassed by
Taliban, when travelling from Qarabagh. He also
detailed his fear arising from the circumstances surrounding the sale of his
car.
He described the Taliban as “criminals”.
- The
second respondent then summarised the contents of the applicant’s
statutory declaration, which contained the information
about the abduction of
his brother by the Taliban on the road between Qarabagh and Ghazni.
- The
second respondent was also aware that the applicant had asserted that Shias in
his area had had problems practicing their religion
when the Taliban were
present, and in the past members of the Taliban had attacked a girls’
school in his village. As a result
he had said no one in the area of Tamaki
felt safe because of the Taliban’s presence in the area.
- At
this stage, the second respondent also noted that the applicant had stated that
he could not relocate to any other Hazara areas
within Afghanistan. That in
particular, Kabul was too crowded and there was no work there. It was also
noted that the applicant
had raised concerns about his greater visibility as a
potential target for the Taliban because of his status as a failed asylum seeker
returning from a western country.
- In
interview, the second respondent canvassed the applicant’s various
experiences of alleged persecution with the applicant.
These included the
following:
- The threat from
the Pashtun purchaser of his car that he would be killed if he came back to ask
for the money owed to him;
- The credibility
of this threat given the Pashtun man asserted he worked for the Taliban;
- A further
altercation between him and the Pashtun in Ghazni city, which lead to a threat
from him by telephone that he (the applicant)
would be killed;
- The inability of
the civil authorities in either Ghazni or Qarabagh to protect him or provide
civil redress, particularly as district
officials in Qarabagh are Pashtuns who
work with the government during the day but support the Taliban at night;
- His missing
brother, who had worked as a driver for an MP from Ghazni;
- The applicant
had been stopped, robbed and beaten by the Taliban on two or three occasions in
his area;
- The Taliban
targeted Hazaras and Shias;
- There was a
Taliban base close to Tamaki and Hazaras were compelled to either work for the
Taliban or work held for ransom;
- Returnees from
Australia had been targeted and killed.
- The
second respondent also raised specifically with the applicant the question of
him possibly relocating to Kabul. The reviewer
indicated that he raised issues
in respect of the particular circumstances of the applicant’s claim of
persecution and what
was reasonable for him in practical terms. The
applicant’s response to these queries was summarised as
follows:
- “The
claimant stated that he is not able to relocate to Kabul. He does not have any
past or present ties in Kabul and no support
there. There continue to be
security incidents in Kabul and it is not safe there. The Kuchis have attacked
Hazaras in west Kabul.
Also, the Pashtun who has threatened him would be able
to find him anywhere in
Afghanistan.”[4]
- The
second respondent had regard to both the material submitted by the applicant
through his migration agent and other country information
available to him,
particularly from the Australian Department of Foreign Affairs and Trade. In
particular, he had reference to a
report emanating from the Australian Embassy
in Kabul entitled “Afghanistan: Situation of the Hazara
Minority” dated 21 February 2010.
- In
summary, this report provided the following information:
- Hazaras in
Afghanistan did not live in fear of violence or systemic persecution as they had
done under Taliban rule. As such Hazaras
had made real human rights advances in
recent years;
- However, Hazaras
within Afghanistan were a readily identifiable ethnic group and had historically
been subjected to severe persecution;
- UNHCR sources
indicated that there was no evidence of a campaign by the insurgency to target
Hazaras;
- The political
and security situation in Afghanistan remained fluid and therefore the current
situation where Hazaras were free from
persecution might not last indefinitely;
- Currently
Hazaras were not being persecuted on any consistent basis.
- The
second respondent also had access to a Department of Foreign Affairs & Trade
(DFAT) advice from the Australian Embassy in
Kabul dated 28 September 2010
in respect of the situation for Hazaras in Afghanistan and Pakistan. This noted
as follows:
- Security has
deteriorated in some Hazara areas in recent years;
- Hazara districts
in Ghazni Province are relatively stable;
- Travel is
dangerous for all ethnic groups, with Pashtuns and Hazaras limited in their
ability to move through locales dominated by
the other ethnic group;
- Movement between
Kabul and Ghazni had become increasingly challenging.
- In
respect of the situation for Hazara returnees, the second respondent quoted the
following passage from the DFAT report of 28 September
2010:
- “Conditions
facing Hazara returnees vary according to circumstance. Returning to their
areas of origin is more difficult if
they have been out of Afghanistan for years
and have no networks there. But interlocutors did not believe Hazaras would be
targeted
because they had sought asylum in the west. Whether returnees would
have a social network in Kabul if they moved there would depend
on which
province and district they came from, and the part of Kabul they were located
in. But there is cohesive Hazara community
in Kabul, and a Hazara human rights
contact assessed that it would be relatively easy for new arrivals to integrate
into the city
where they can move
freely.”[5]
- Finally,
the second respondent acknowledged that some country information regarding
Afghanistan, particularly in the press, was less
encouraging about the situation
for Hazaras and there had been reports of particular incidents involving them.
Reference was also
made to Professor Maley’s views, which the second
respondent indicated he had “carefully considered”.
- After
considering the material available to him, the second respondent was not
satisfied that the Taliban was now specifically targeting
Hazaras Shias on any
systematic or discriminatory basis. He did however accept that individual
Hazaras had been targeted as part
of the general insurgency in Afghanistan. As
such, he concluded that there was no general societal discrimination against
Hazaras
of sufficient severity as to amount to persecution with Convention
terms.
- In
this context, the second respondent turned to the applicant’s particular
claims of persecution. In this regard, he noted
that individual circumstances
pertaining to a Hazara Shia from Afghanistan could individually support a claim
for protection, notwithstanding
the absence of more generalised persecution for
Hazara Shias in Afghanistan.
- In
particular, he accepted that, for established historical reasons involving the
animosity held for Shias, Hazaras were more likely
to come to the adverse
attention of insurgency groups such as the Taliban.
- From
interview, the applicant was assessed as being generally credible. His account
of his brother’s targeting was accepted.
It was also accepted, in general
terms, that the applicant had been involved in altercation with a Pashtun person
in respect of
the debt arising from the sale of his motor car. However, it was
not accepted that the applicant had been individually targeted
by the Taliban
because of the incident.
- Rather,
it was assessed that the Pashtun had been “playing the Taliban card in
order to intimidate the claimant into dropping his attempts to recover the
debt.” As such, it was found that there was no real chance that the
Pashtun person was in fact involved with the Taliban as claimed and
accordingly
the applicant’s fear of harm from this person did not arise as a result of
a Refugee Convention reason.
- In
respect of the applicant’s more generalised claims about his vulnerability
to Taliban activity in the area of Qarabagh, the
second respondent found as
follows:
- “The
reviewer accepts that the claimant faces a small but real chance of harm in
Qarabagh district from the Taliban, not personally
targeted, but in which his
identity as an Hazara may be a sufficiently significant and essential factor as
to bring the reason within
the purview of s.91R of the Migration Act. However,
the reviewer does not accept that this is the situation throughout Afghanistan,
including in Kabul. The evidence does
not suggest that the Taliban is
specifically targeting Hazaras in Kabul in a systematic and discriminatory
manner.”[6]
- Accordingly,
the second respondent found that the applicant met the criteria required to
satisfy refugee status, under the convention,
because of the risk he might be
subject to persecution, in Qarabagh, because of his ethnic identity as a Hazara.
Thereafter, the
focus of the second respondent’s considerations shifted to
the question of whether it was reasonable for the applicant to seek
a safe haven
for himself in Kabul.
- In
regards to this specific issue, the question posed by the second respondent was
as follows:
- “Whether
in all the circumstances it is reasonable for the claimant to relocate to
Kabul.”
- In
respect of this issue, the second respondent found as follows:
- “The
claimant has worked as a tailor and a driver, skills readily transferable to an
urban environment. Ghazni province is
relatively close and directly accessible
from Kabul and there is no doubt that among the million Hazaras in Kabul there
would be
Hazaras from the claimant’s own province and district. His
situation is not the same as a person whose working life has been
spent on a
remote
farm.”[7]
- In
reaching this conclusion, the second respondent attached weight to the DFAT
advice of 28 September 2010, to which reference has
been made above, which
indicated there is a cohesive Hazara community in Kabul, into which returnees
could potentially integrate,
depending on which province of Afghanistan they
came from and which part of Kabul they moved to.
- The
second respondent accepted that there had been continuing security incidents in
Kabul but found that these had been directed against
foreigners and public
figures. As such, given that Kabul was a city of several million, he assessed
the potential risk of harm to
any individual as being extremely small.
- As
a result of these matters, the second respondent found that the totality of the
circumstances surrounding the applicant were such
that although he might be
constrained from returning to Qarabagh, he would be able to live in Kabul. It
was further found that no
credible evidence was available to satisfy the
reviewer that Afghani returnees from the west (or Australia in particular) were
liable
to persecution by reason of their returnee status perse.
- In
this regard, reliance was placed on the views of Professor Maley and Dr
Goodhand, which indicated that individual returnees who
had been absent from
Afghanistan for lengthy periods of time or who had adopted westernised habits or
modified their religious views
might, for those reasons, attract adverse
attention. However, the second respondent found that this was not the
applicant’s
situation.
- For
these reasons, the second respondent found as follows:
- “On
the evidence before me, and having considered the matters raised both separately
and cumulatively, I find that the claimant
does not have a well-founded fear of
persecution in Afghanistan for a Convention reason and that he does not satisfy
the definition
of a
refugee.”[8]
- Given
that the IMR found that the applicant had a well founded fear of persecution in
Qarabagh, it is submitted on his behalf that
the second respondent fell into
jurisdictional error in respect of how he construed the considerations relevant
to whether it was
subjectively reasonable, in the sense of practicable, for the
applicant to avail himself of internal state protection in Kabul, as
opposed to
Qarabagh.
Submissions
- This
case was heard immediately following the matter of AZABO v Minister for
Immigration &
Anor.[9] The same
counsel was involved on behalf of the applicant and first respondent
respectively in each of the matters. In addition,
there were broad similarities
between the circumstances of the applicants concerned. Both were offshore entry
persons and both were
Hazara Shias of Afghani nationality.
- More
importantly, both applicants sought Australia’s protection on the basis of
a well founded fear of persecution in Afghanistan
on account of their religion
and ethnicity. In the former case, as in this matter, it was found that the
applicant had a well founded
fear of persecution, in his home province of
Kandahar.
- However,
in the former case, the IMR concerned found that, as in the current matter, it
was open to the applicant concerned to relocate
to Kabul, where it was
considered he would have a save haven available to him amongst the Hazara
community in that city.
- Accordingly,
both cases turned on what has been categorised as the internal relocation
principle, which has been incorporated into
Australian domestic refugee law as a
result of the High Court’s decision in SZATV v Minister for Immigration
& Citizenship &
Anor.[10]
- In
all these circumstances, it was agreed between Mr Hanna, counsel for the
applicant and Mr d’Assumpcao, counsel for the first
respondent that the
court should adopt the submissions made on behalf of their respective clients in
AZABO in the current case. I acceded to this joint application given
that in each case it was contended the IMR had fallen into the same
jurisdictional error, regarding internal relocation.
- In
summary, the applicant submitted that time should be extended in his case to
allow judicial review of the decision of the second
respondent because the
procedure arising following the decision in Plaintiff M61/2010E was a
novel one. In addition, in an affidavit deposed by him and filed on 8 April
2011, he deposed that he had been in immigration
detention since his arrival in
Australia and so had difficulty in accessing legal advice.
- In
those circumstances, it was submitted that there was little prejudice to the
first respondent and accordingly it was in the interests
of the administration
of justice that an order be made extending time for the lodging of his
application for judicial review pursuant
to section 476 of the Migration
Act.
- In
terms of the internal relocation principle, it was submitted that, although the
principle was clearly incorporated into Australian
law, the majority exposition
of it, as expressed in SZATV, was circuitous. There being a level of
illogicality in it being found that a claimant satisfied the Convention
criterion of having
a well founded fear of persecution, which had rightly caused
the applicant concerned to leave his country of origin but the fear
in question
was not well founded when applied to another part of the country concerned,
particularly if the applicant in question
did not have a specific connection
with that part of the country.
- Accordingly,
it was contended that, after a relevant decision maker had considered the
objective circumstances, which had led to the
claimant in questions flight from
his country of origin and objectively what level of protection was available to
such an applicant
at the place from which he had fled before the decision maker
turned to the question of how, in subjective and practical terms, the
applicant
in question could transport himself from the location from where he had fled to
the alleged safe haven and support and
maintain himself there.
- In
the alternative, it was submitted on behalf of the applicant that the second
respondent had failed to properly consider the reasonable
internal relocation
test and had failed to properly consider the issues pertaining to the
reasonableness of the applicant relocating
his place of residence to Kabul. In
particular, it was submitted that:
- “The
IMR failed to consider the reasonableness of travel from the Applicant’s
home to Kabul;
- The IMR
failed to inquire of the Applicant how dangerous it might be to travel from his
home to Kabul;
- The IMR
failed to consider how the Applicant would sustain himself in Kabul;
- The IMR
failed to inquire of the Applicant how the Applicant would sustain himself in
Kabul;
- The IMR
failed to consider the Applicant’s personal circumstances when
contemplating his survival in Kabul;
- The IMR
failed to consider whether the State agencies of Afghanistan could
‘protect’ the Applicant in Kabul in the event
his persecutors
pursued him there;
- The IMR
failed to consider the likelihood of future persecution of the Applicant and his
ethnic group in Kabul.”
In failing to properly
consider these matters, it was submitted that the second respondent had fallen
into jurisdictional error.
- Counsel
for the first respondent was opposed to there being any extension of time in
this matter on the basis that the applicant’s
case disclosed no
jurisdictional error and accordingly it was not in the interests of the
administration of justice for time to be
extended. However, counsel for each of
the parties agreed that the substantive issues in the case should be ventilated
fully prior
to a definitive decision in respect of the time limit issue.
- Counsel
for the first respondent submitted that the IMR had correctly applied the test
of what was reasonable in respect of internal
relocation provided by the High
Court in SZATV. In that case the majority, (Gummow, Hayne & Crennan
JJ) said as follows:
- “What
is "reasonable", in the sense of "practicable", must depend upon the particular
circumstances of the applicant for refugee
status and the impact upon that
person of relocation of the place of residence within the country of
nationality.”[11]
- Counsel
for the first respondent submitted that what is reasonable, in the sense of
being practicable, so far as internal relocation
is considered, is a factual
matter dependant upon the particular circumstances of the applicant and the
impact upon him of relocation
of his place of residence within his country of
nationality.
- In
addition, counsel for the first respondent submitted that the degree of
specificity with which a decision maker was required to
inquire into the
reasonableness of a claimant for protection being able to access safe haven in
another part of his country of origin
depended on the nature of the case
presented by the applicant in question and the issues raised by him.
- In
particular, Mr d’Assumpcao pointed to the fact that it was not reasonable
to expect a decision maker to consider issues which
had not been specifically
raised by the applicant in question. In particular, it was submitted that it
was not necessary for a decision
maker to go ‘the extra step”
in respect of assessing issues of practicality, such as travel between the point
of flight and the proposed safe haven location,
if these matters had not been
specifically raised.
- On
behalf of the Minister it was submitted that the Independent Merits Reviewer had
expressly considered the applicant’s particular
circumstances together
with the impact relocation to Kabul would have on him personally by reference to
the issues specifically raised
with him, namely his integration into an urban
area such as Kabul; the adaptability of his previous work skills to such an
environment;
and the level of security he would have in the city.
- As
such, it was submitted that the second respondent had asked himself the correct
question and on the basis of the answers available
to him it was open for him to
conclude the applicant could reasonably relocate to Kabul, which was a location
within Afghanistan
where he would not face an appreciable risk of persecution on
a Convention ground.
Legal Principles
- An
error which goes to the jurisdiction of an administrative body was described in
these terms by the High Court in Minister for Immigration & Multicultural
Affairs v
Yusuf:[12]
- “What
is important, however, is that identifying a wrong issue, asking a wrong
question, ignoring relevant material or relying
on irrelevant material in a way
that affects the exercise of power is to make an error of law. Further, doing so
results in the decision-maker
exceeding the authority or powers given by the
relevant statute. In other words, if an error of those types is made, the
decision-maker
did not have authority to make the decision that was made; he or
she did not have jurisdiction to make it.”
- This
hearing is directed towards the legality of the IMR’s decision not its
merits. It is the role of the decision maker alone
to make the necessary
findings of fact on which his decision is predicated, from the evidence which
was properly available to him.
It is not the function of this court to
substitute its own findings of fact in respect of that
evidence.[13]
- The
principle of internal relocation is predicated on the basis that it is not
reasonable for the nation signatories to the Refugees
Convention to be required
to offer protection to the sufferers of persecution, if safety is available to
such persons, within their
country of origin, through the agency of their own
state.
- The
principle of internal relocation has been adopted into Australian domestic
refugee law. In Randhawa v Minister for Immigration Black CJ said as
follows:
- “Although
it is true that the Convention definition of refugee does not refer to parts or
regions of a country, that provides
no warrant for construing the definition so
that it would give refugee status to those who, although having a well-founded
fear of
persecution in their home region, could nevertheless avail themselves of
the real protection of their country of nationality elsewhere
within that
country. The focus of the Convention definition is not upon the protection that
the country of nationality might be able
to provide in some particular region,
but upon a more general notion of protection by that country. If it were
otherwise, the anomalous
situation would exist that the international community
would be under an obligation to provide protection outside the borders of
the
country of nationality even though real protection could be found within those
borders.”[14]
- In
SZATV v Minister for Immigration and Citizenship the High Court
stipulated that the test for relocation is whether it is practicable in the
particular circumstances of the particular
applicant. The answer to that
question in turn depends upon the framework set out by the particular objections
raised to the
relocation.[15]
- In
Randhawa, Black CJ agreed that the question, which a decision maker, in
respect of refugee status should ask of himself, was whether the
applicant’s
“fear was well founded in relation to his country of
nationality, not simply the region in which he lived.” However an
important gloss was applied to this consideration. Black CJ considered that,
given the humanitarian aims of the Convention,
this question was not to be
approached in “a narrow way”. This is the basis of the
practicality test, so far as intra country relocation is concerned.
- In
particular, in the case concerned, Black CJ said as follows:
- “This
further question is an important one because notwithstanding that real
protection from persecution may be available elsewhere
within the country of
nationality, a person's fear of persecution in relation to that country will
remain well-founded with respect
to the country as a whole if, as a practical
matter, the part of the country in which protection is available is not
reasonably accessible
to that person. In the context of refugee law the
practical realities facing a person who claims to be a refugee must be carefully
considered.”
- Also
in Randhawa, Beaumont J said as follows:
- “...if
relocation is, in the particular circumstances, an unreasonable option, it
should not be taken into account as an answer
to a claim of
persecution.”[16]
His
Honour categorised this consideration as being a question of fact to be
determined within the particular context of the case concerned.
- Randhawa
was approved by the High Court in SZATV. The latter case was
concerned with a claimant for refugee status who was a Ukrainian national. He
had worked, as a journalist, in an area which suffered
from corruption at the
local level from its regional government. The applicant had been critical of
the regional government in his
journalistic work.
- At
the administrative level it had been accepted that as a consequence of his work
the applicant had been subjected to a systematic
campaign of harassment by the
authorities concerned. However, importantly, it had also been accepted that
this level of persecution
was localised to the applicant’s region of the
Ukraine and it would be reasonable for the applicant to relocate to another
part
of the country, particularly Kiev.
- In
this context, the majority of the High Court (Gummow, Hayne and Crennan JJ)
formulated the considerations relevant to whether a
putative relocation to a
place within a claimant’s country of origin was reasonable. It was held
that it was a question of
practicality depending on the particular
circumstances of the applicant...and the impact upon that person of such a
relocation.
- The
High Court considered that this question had been misconceived by the initial
decision maker in SZATV because it was implicit in the decision concerned
that the claimant was expected to move out of his home region of Ukraine and
both
change his occupation and reduce his political profile, which would nullify
any risk of further mistreatment.
- The
High Court regarded this conclusion as being a direction to the applicant to
move elsewhere in Ukraine and live
“discreetly”.[17]
In so doing the decision maker had “sidestepped” a proper
consideration of what was a reasonable relocation, given the particular
significance to the applicant of being able to express
his political opinions
through his work as a
journalist.[18]
- Kirby
J, in a separate judgement, said as follows:
- “To
consider what it is reasonable for the refugee applicant to do by way of
internal relocation is not to hypothesise supposedly
reasonable conduct such as
"living discreetly". This was rejected in S395.
The supposed possibility of relocation will not detract from a "well-founded
fear of persecution", if otherwise established, where
any such relocation would,
in all the circumstances, be unreasonable. It will be unreasonable where to
propound it amounts to an
affront to any of the specified Refugees
Convention-based grounds of persecution, which it is the object of the Refugees
Convention
to prevent, discourage and redress
(119).”[19]
- Kirby
J considered that the formulation by the initial decision maker displayed a
clear error in its understanding of the purpose
of the Refugees Convention
because it had contemplated it to be a reasonable adjustment for the applicant
concerned to move within
Ukraine and upon relocation sacrifice his entitlement
to freedom of political expression.
- The
High Court returned to the issue of internal relocation in SZFDV v Minister
for Immigration & Citizenship &
Anor.[20] The
case concerned a claimant for protection, who had worked at a mill in a region
of Tamil Nadu (a state of India). He had been
an elected union official at the
mill, which had been closed. The applicant believed that the owners of the mill
held him responsible
for its closure and as a result had arranged for him to be
targeted by representatives of an opposing political party to his (the
Communist
Party). The case turned upon the reasonableness of the applicant relocating to
another state within India, namely Kerala.
- The
majority of the court (once again Gummow, Hayne & Crennan JJ) reiterated the
ratio of SZATV that a claimant’s fear of persecution would not be
“well founded” if such applicant could relocate to a region
within his country of origin and so would be outside the purview of the
Refugee’s
Convention.
- In
the case, the majority specified that the formulation in SZATV was to be
regarded as:
- “...
a general proposition to be applied to the circumstances of the particular case,
it may be reasonable for the applicant
for a protection visa to relocate in the
country of nationality to a region where objectively, there is no appreciable
risk of the
occurrence of the feared persecution.”
- In
applying this test to the circumstances of the particular applicant concerned,
the majority of the court considered that the original
tribunal had not fallen
into error. The court was satisfied that the decision maker had specifically
considered the question of
whether a relocation to Kerala, a state adjoining
Tamil Nadu, which had a relatively large Tamil speaking population and where the
Communist Party, to which the applicant claimed to belong, had a significant
presence, would involve an abnegation of the applicant’s
entitlement to
express his political views.
- Accordingly,
the High Court confirmed that it was open, on the evidence available to it, to
conclude that it was objectively safe
for the applicant concerned to relocate to
Kerala and accordingly it would not be unreasonable to expect him to do so.
- In
dissent, Kirby J took a different view of the facts and particularly whether it
was reasonable for the applicant to move to another
part of India. His Honour
said as follows:
- “This
was not a hypothetical or theoretical problem in the case which the appellant
propounded. Relocating from Tamil Nadu
to Kerala is not the same thing as
relocating from Victoria to Tasmania or relocating within Ukraine. The
appellant's family, upbringing,
language, culture, cuisine, tradition, friends,
political colleagues and other links were all with the Tamil speaking people in
the
State of Tamil Nadu. The postulate that the appellant would move to a
significantly different linguistic, cultural, political and
familial environment
of Kerala, simply because it is within the country of his nationality, portrays
not only a naïve ignorance
of the diversity of India but also a failure to
address the relocation test in the correct way, as explained in
SZATV.”[21]
- Plaintiff
M13-2011 v Minster for Immigration &
Citizenship[22]
was a decision arising from the High Court’s original jurisdiction, which
was determined by a single Justice of the Court (Hayne
J). The case post-dated
SZATV. The applicant was a female of Malaysian nationality, who was a
Hindu and Tamil. She had become pregnant by a Muslim man, whilst
unmarried.
- In
Plaintiff M13-2011 the initial decision maker had not objectively
considered what was practicable for the applicant concerned. This was self
evident
because no detail was provided as to where it was expected the applicant
would relocate and accordingly there had been no assessment
of whether there was
an appreciable risk of a reoccurrence of the feared persecution. Accordingly,
the decision maker concerned
had fallen into jurisdictional error.
- It
had been accepted by the primary decision maker that the applicant’s
personal circumstances rendered her liable to persecution
by elements of her
local community, as a result of her personal circumstances – being an
unmarried mother, who had changed
her faith. It was also found that there was a
real chance of her being persecuted, as a consequence of her religion, if she
returned
to Malaysia.
- However,
although there was no evidence available to the primary decision maker, as to
where in Malaysia the applicant had resided
before leaving the country, the
decision maker considered that she would be able to relocate somewhere else,
within Malaysia, away
from her previous aggressors.
- Hayne
J found this reasoning to be erroneous. He said as follows:
- “When
the delegate's reasons are read as a whole, it is evident that the particular
circumstances of the plaintiff were not
considered by the delegate in forming
the opinion that she could relocate to avoid the risk of persecution. So much
follows from
the delegate not knowing from where the plaintiff would have to
relocate. The particular circumstances of the plaintiff not having
been
considered, the delegate did not correctly identify a question that had to be
answered in determining whether there was a real
risk of the plaintiff suffering
persecution on account of her religious beliefs if she were to return to
Malaysia. By not correctly
identifying the relevant question, the delegate made
a jurisdictional
error.”[23]
- Raphael
FM made the following comment in respect of what was meant when it was said that
the test of relocation is one of reasonableness
“in the sense of
practicality”.
- “It
is not whether the conditions in the proposed area of relocation are so
unacceptable that the claimant will be constrained
to return to an area from
where he faces a chance of persecution. That may be the result of an
unreasonable or impracticable relocation
but to define a test by its result is
putting the cart before the
horse.”[24]
- This
seems to me to be a useful way to examine the application of the test. The
question is not what is abstractly or theoretically
possible for the applicant
concerned in the sense of could the applicant exist in the proposed safe haven
as opposed to it being
so difficult or oppressive that the applicant in question
will have no viable option other than to return to the area of possible
persecution. The inquiry required is more nuanced and must consider the
objective impact of the possible relocation on the applicant
concerned. The
test must not be construed narrowly.
The time limit issue
- Pursuant
to section 477(2) of the Migration Act this court has a discretion to
extend the time for the making of an application pursuant to section 476. The
section reads as follows:
- “477(2)
The Federal Magistrates Court may, by order, extend that 35 day period as the
Federal Magistrates Court considers appropriate
if:
- (a) an
application for that order has been made in writing to the Federal Magistrates
Court specifying why the applicant considers
that it is necessary in the
interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is
satisfied that it is necessary in the interests of the administration of justice
to make the
order.”
- In
the present case, the applicant received the decision of the second respondent
on 17 January 2011. His application for judicial
review was filed on 8 April
2011. On my calculations, he is forty six days out of time.
- In
support of his application for an extension of time, the applicant filed an
affidavit concurrently with his application for judicial
review. He deposed
that he was in immigration detention and had “no control”
over his circumstances as a result.
- As
such, he contended that the interests of justice demanded that time be extended
in his case, given any subsequent decision of this
court would have serious
implications for his “liberty and personal safety.”
- These
submissions were expanded upon by counsel for the applicant during the course of
the hearing before me. Mr Hanna emphasised
the novelty of his client’s
application, given the recent provenance of the court’s jurisdiction,
following the High
Court’s decision in Plaintiff M61/2010E. It
apparently took some weeks for the court to devise an appropriate form on which
off shore entry persons might bring an application
for judicial review of
decisions affecting them.
- In
addition it was submitted that it was self apparent, given his circumstances of
being in immigration detention, that the applicant
would have had difficulty in
accessing legal advice. Finally, it was asserted that the respondents had not
suffered any demonstrable
prejudice as a result of the delay, which in any event
could not be described as amounting to a significant period of time.
- The
respondents do not point to any specific incident of prejudice arising to them
if time is extended. Their only objection to extending
the period is that the
application is without merit and accordingly it would not be in the interests of
justice for the court to
extend time.
- The
issues raised by the applicant are clearly very significant ones to him
personally. He has provided an explanation for the delay
arising from his
circumstances of detention and the legal novelty of the issues raised following
the recent decision of the High
Court regarding judicial review of migration
decisions pertaining to off shore entry persons. I do not dismiss the veracity
of those
explanations, which seem to me to be reasonable ones given the
applicant’s personal circumstances.
- In
Fisher v Minister for Immigration and Citizenship and Another,
[25] Stone J
suggested that the concept “...in the interests of the administration
of justice” in section 477(2)(b) “...would involve
consideration not only of the reasons for not meeting the original time limit
but also whether the application, were
the extension of time to be granted,
would have any prospect of success.”
- In
SZNZI v Minister for Immigration &
Anor[26] Smith FM
identified two critical considerations relevant to the discretion to
extend time pursuant to section 477(2)(b) firstly an explanation, reasonable to
the circumstances for the party’s default and secondly that “the
party in default had a material argument which, if heard and decided on its
merits, might reasonably affect the determination
of the rights and duties of
the parties in a way different from that in the impugned order.”
- The
arguments advanced by the applicant in this case are, in my view, not without
prospects of success. The IMR found that the applicant
had a well founded fear
of persecution in his home area of Qarabagh. The legal issues arising in this
case turn on whether it is
reasonable, in the sense of being practicable, for
the applicant to relocate himself to another part of Afghanistan, namely its
capital
Kabul.
- As
such, the case raises issues, amongst others, as to how theoretically the
applicant might travel from Qarabagh to Kabul and how
personally he would be
able to sustain himself there. It seems to me that these issues are important
ones and it is probable that
there will be controversy as to how properly the
IMR considered them. It is also not analysis of these issues to be
wanting.
- If
I do not grant the applicant the extension of time sought by him, it may result
in him loosing any entitlement to appeal against
my
finding.[27] This
does not appear to me to be in the interests of the administration of justice.
The time which has elapsed since time expired
is relatively short. No specific
prejudice arises to the Minister. In all the circumstances, I have decided to
make an order under
section 477(2) in the applicant’s
favour.
Conclusions
- In
my view, the IMR after having determined that the applicant was subject to a
real chance of suffering harm, for a Convention reason,
if he returned to
Qarabagh, correctly posed for himself the next relevant consideration, namely
whether internally relocation to
another place, within Afghanistan, was
reasonably open to the applicant, in the sense of being practically open to him,
given his
particular circumstances.
- The
IMR said as follows:
- “It
is therefore necessary to consider whether in all the circumstances it is
reasonable for the claimant to relocate to
Kabul.”
Following this statement of intent, the
IMR turned to summarise the evidence available to him and make findings in
respect of it.
- Firstly,
the IMR considered the applicant’s employment experience, as both a driver
and a tailor. It found that these skills
were readily transferrable to an urban
environment, such as Kabul. This was a finding of fact and one I consider to
have been open
to the decision maker in question.
- The
IMR then turned to considerations relevant to the societal support likely to be
available to the applicant, given his background
as a Shia Hazara from Ghazni
province. On the basis of the evidence available to him, the IMR found that it
was likely there would
be Hazaras, in Kabul, from the applicant’s home
area, in terms of both his province and more particularly district.
Accordingly,
it was found that the applicant’s circumstances were
different to those of a person from a remote area of Afghanistan, who
was
similarly being assessed in respect of his capacity to assimilate into the
Hazara community in Kabul.
- In
reaching this conclusion, the IMR placed significant emphasis on the DFAT
country information, which indicated that there was a
cohesive Hazara
community in Kabul. As such, it was relatively easy for new arrivals
to integrate into Kabul. I do not consider that the IMR considered the issue of
a possible internal relocation
in an artificially narrow way or in a manner
divorced from the applicant’s idiosyncratic circumstances. Consideration
was
specifically given to the applicant’s objections to Kabul, namely the
alleged lack of work there and the contention that he
was likely to lack support
there.
- The
IMR specifically dealt with the applicant’s claims that he would be at
risk in Kabul because of a lack of security in the
city. On the basis of the
evidence available to him, the decision maker found that this risk was
negligible, given the population
of Kabul and the fact that acts of violence
appeared to be directed against foreigners, public figures and institutions.
Again,
in my view, this was a finding which was open to the IMR, on the evidence
available to him.
- The
IMR also rejected the applicant’s specific claims that, as a failed asylum
seeker returning from Australia to Afghanistan,
he was likely to face
persecution from the Taliban. It was found that the applicant had not been in
the West for a significant period
of time and had not adopted westernised habits
or modified his religious views. Clearly, these were evidentiary findings open
to
the decision maker.
- As
such, on the basis of the material originating from Professor Maley and Dr
Goodhand, it was found that the applicant did not have
a “well
founded” fear of persecution for that specific reason. Accordingly,
when the IMR considered the totality of the evidence available to him
he was
satisfied that it was not unreasonable for the applicant to relocate himself to
Kabul.
- In
reaching this conclusion I do not think it to be the case that the decision
maker has approached the question in a narrow way.
Rather consideration has
been given to the impact of such a relocation on the applicant in question,
given his individual circumstances
and the matters which he had specifically
raised.
- In
particular, it was considered that the applicant would be able to obtain
financial support for himself in Kabul and would be able
to maintain his
religious and cultural identity as a Shia and Hazara amongst other Shias and
Hazaras at that location. As such it
was open to the decision maker to conclude
that it was objectively reasonable for the applicant to relocate himself to
Kabul.
- As
such, I do not consider that the IMR has failed to properly apply the
considerations raised by the majority of the High Court in
SZATV.
In
my view, in this particular case, the evidence considered by the IMR and the
questions posed by him were directed to this issue
of personal impact on the
applicant concerned. In so doing, in my view, the IMR determined this matter
within the parameters raised
by the applicant in his case.
- In
my view, the situation prevailing in this case is distinguishable from that
which existed in Plaintiff M13/211. In the latter case, the decision
maker concerned was unable to make any assessment of the particular
circumstances of the claimant
concerned because no specific place of relocation
had been considered in respect of her.
- In
the current case, I am satisfied that the IMR did pose himself the correct
question and had sufficient evidence available to him
to answer it
satisfactorily in all the circumstances prevailing. It must follow from this
conclusion that the application herein
should be dismissed.
- It
further follows that the applicant should pay the first respondent’s
costs, which I assess at $5,850.00.
- For
all these reasons, the orders of the court will be as set out at the
commencement of these reasons for judgment.
I certify that the
preceding 141141one hundred141141forty-oneeighty-threeone hundred and forty-one
(141) paragraphs are a true copy
of the reasons for judgment of Brown FM
Date: 27 October 2011
[1] See Migration
Act 1958 (Cth) at section
5
[2] See
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR
14
[3] SZATV v
Minister for Immigration & Anor [2007] HCA 40; (2007) 233 CLR 18
[4] See IMR at page
7
[5] See IMR at
page 12
[6] See IMR
at page 16
[7] See
IMR at page 16
[8]
See IMR at page
17
[9] AZABO v
Minister for Immigration & Anor [2011] FMCA
772
[10] SZATV
v Minister for Immigration & Citizenship & Anor
(supra)
[11] See
SZATV (supra) at page
27
[12] See
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206
CLR 323
[13] See
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185
CLR 259 at 272
[14]
Randhawa v Minister for Immigration (supra) at
440-441
[15] See
SZMCD v Minister for Immigration [2009] FCAFC 46; (2009) 174 FCR 415 at 438-439 per Tracey
& Foster
JJ.
[16] Ibid at
451
[17] See
Appellant S395/2002 v Minister for Immigration and Multicultural and
Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473
[18] See SZATV
(supra) at page
29
[19] Ibid at
page 47
[20] See
SZFDV v Minister for Immigration & Citizenship & Anor [2007] HCA 41; [2007] 233
CLR 51
[21] Ibid
at page 61
[22]
See Plaintiff M13-2011 v Minster for Immigration & Citizenship [2011]
HCA 23
[23] Ibid
at [22]
[24] See
SZQEN v Minister for Immigration & Anor [2011] FMCA 648 at paragraph
20
[25] Fisher v
Minister for Immigration and Citizenship and Another [2007] FCA 591; (2007) 162 FCR
299
[26] SZNZI v
Minister for Immigration & Anor [2010] FMCA 57 at
[11]
[27] See
SZQEN v Minister for Immigration and Anor [2011] FMCA 648 per Raphael FM
at [14]
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