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SZQOD v Minister for Immigration & Anor [2012] FMCA 19 (20 January 2012)

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SZQOD v Minister for Immigration & Anor [2012] FMCA 19 (20 January 2012)

Last Updated: 25 January 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOD v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of Independent Protection Assessment Reviewer – applicant appeared via video-link from Melbourne – whether the reviewer failed to consider if the applicant would face a real chance of persecution in the future if relocated – request for impermissible merits review – no jurisdictional error – application dismissed.


Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1
NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Minister for Immigration v MZYLE [2011] FCA 1210

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Applicant:
SZQOD

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number:
SYG 1840 of 2011

Judgment of:
Nicholls FM

Hearing dates:
6, 15 and 22 December 2011

Date of Last Submission:
22 December 2011

Delivered at:
Sydney

Delivered on:
20 January 2012

REPRESENTATION

The Applicant:
In person by video-link

Counsel for the Respondents:
Mr T Reilly

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application made on 22 August 2011, and amended on 13 September 2011, is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1840 of 2011

SZQOD

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent


REASONS FOR JUDGMENT

  1. The issue in this case is whether, in light of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 (“M61/M69”), the Court should grant declaratory relief in relation to a recommendation made by the second respondent to the Minister for Immigration and Citizenship (“the first respondent” – “the Minister”) that the applicant does not meet a relevant criterion for the grant of a protection visa under the Migration Act 1958 (Cth) (“the Act”).
  2. The recommendation was that the applicant should not be recognised as a person to whom Australia has protection obligations. That is, in essence, that he does not meet the definition of “refugee” as set out in Art.1A(2) of the United Nations Convention Relating to the Status of Refugees.[1] (See s.36(2) of the Act.)

Background

  1. The relevant background to this case can be largely derived from the Court Book (“CB”) filed in these proceedings by the Minister.
  2. The applicant arrived at Christmas Island by boat on 4 January 2010, and was interviewed by an officer of the Department of Immigration and Citizenship (“the Department”) on 22 January 2010 (CB 1 to CB 23).
  3. On 6 March 2010, the applicant accessed the Immigration Advice and Application Assistance Scheme (IAAAS) (CB 24 – CB 27) to assist in making an application for a Refugee Status Assessment (“RSA”) and submitting a Statement of Claims (CB 28 to CB 69).

The Claims to Protection

  1. The applicant is a citizen of Afghanistan, of Hazara ethnicity, and of the Shi’a Muslim faith (CB 3).
  2. The applicant first left Afghanistan in 1994 to reside in Pakistan with his father and brother to avoid recruitment by the Taliban. He then left Pakistan to reside in Iran, but returned to Pakistan. He claimed that in 2003 he was forced to leave because the “... Blouch, Pashtoon and Taliban were now telling all Hazaras to leave Pakistan and many of us got killed...” ([13] at CB 64).
  3. The applicant returned to Afghanistan in 2004 with his wife and went to reside in the village of “Qali Meray”, where he owned a grocery shop that was attached to his residence. The applicant claimed that those associated with the Pashtoon and Taliban would attend the shop and “... took whatever they wanted and left without paying...” ([18] at CB 64).
  4. The applicant claimed that on or about 4 or 5 September 2009, he was woken by three or four members of the Taliban trying to break into his shop. He claimed that he threw a brick at them to scare them off ([19] at CB 64). The applicant claimed that a similar incident occurred again, where on this occasion the applicant threw rocks at the group who, in return, fired at the applicant ([20] at CB 65).
  5. The applicant claimed that the group attended on a “third night” and broke the padlock and the door to the shop, at which time the applicant called out to the neighbours who fired at the group. The Taliban retaliated by throwing a “hand grenade” into the applicant’s neighbour’s yard ([21] at CB 65).
  6. In response to these incidents the applicant claimed that he “had to leave Afghanistan” as he feared that he would be killed by the Pashtoons or the Taliban because of his Hazara ethnicity ([22] – [23] at CB 65).

Refugee Status Assessment

  1. The applicant was invited to, and ultimately attended, an interview on 9 March 2010 with an assessment officer of the Department (CB 85.3). The assessor described the applicant’s recount of his claims at the interview as “... unconvincing, vague and often inconsistent with information provided at the Entry interview.” (CB 85.4.) The assessor found that the applicant’s fears about returning to Afghanistan were generalised in nature and did not give rise to a well-founded fear of persecution for a Convention reason. Further, the assessor found that it was not unreasonable for the applicant to relocate to Kabul, or another area with a predominant Hazara population (CB 87.8).

Independent Merits Review

  1. The applicant applied, with the assistance of his solicitor, for review of the Refugee Status Assessment (CB 89 to CB 99). Attached to this application was a Statutory Declaration made by the applicant on 22 June 2010 (CB 98 to CB 99). The applicant’s solicitors wrote to the reviewer assigned at that time to consider the case (not the second respondent), providing submissions in support of the application for review (CB 100 to CB 126).
  2. On 31 August 2010 the reviewer made a recommendation that the applicant not be recognised as a person to whom Australia owes protection obligations ([73] at CB 159).
  3. Subsequently, in light of M61/M69, the applicant, through his solicitors, sought another review of his claims (CB 165 to CB 190). On 14 January 2011 the applicant’s solicitors wrote to the second reviewer (subsequently assigned to conduct a review – the second respondent in these proceedings) providing further information for consideration (CB 161 to CB 162).
  4. The applicant was invited to, and ultimately did, attend an interview with the reviewer on 28 February 2011. The applicant’s solicitor was also present at the interview ([21] at CB 219).
  5. At the interview the reviewer highlighted to the applicant the four versions (at the early entry interview, his written statement and at the RSA interview, the interview with the first reviewer, and at the interview with the current reviewer) of his account of when and how his shop had been broken into (see [54] – [58] at CB 238). The applicant stated that: “... his memory was not good...” ([13] at CB 216). This statement had also been made in the applicant’s Statutory Declaration made on 9 March 2010, where the applicant provided further that: “... I have serious problems remembering specifics as to dates events and circumstances and I have had this problem since I was 20 years old...” (CB 68).
  6. On 3 March 2011 a representative for the reviewer sent correspondence to the applicant’s solicitors inviting them to provide comments on the issues that were raised at the interview on 28 February 2011. This included the inconsistencies and changes to the claims that the Taliban attended the applicant’s shop three times, that when the applicant was employed as a driver he was stopped by the Taliban (a claim which had only been raised before the initial assessor at the RSA interview), and that on one occasion, the Taliban forcefully entered the applicant’s residence (CB 92).
  7. In response to this invitation, the applicant’s solicitors wrote to the office of the reviewer on 25 March 2011 attaching further submissions for consideration (CB 195 to CB 208).
  8. Notwithstanding the explanations given by the applicant, the reviewer noted: “... [i]n his statements the claimant provided specific dates and details of incidents. At the interview the claimant had no difficulty recalling details of his early family history... [w]hen I asked the claimant to describe in more detail what had happened when the Taliban had come to his shop he didn’t claim he couldn’t remember the details...” ([58] at CB 238 to CB 239).
  9. The reviewer did not accept that the significant changes in the applicant’s account were “... because of his poor memory or his mental state... [but]... because he has not been providing a truthful account of his experiences...” ([59] at CB 239). This finding extended to the other factual claims made by the applicant as to claimed past events, thereby leading the reviewer to not accept any of the claims made ([70] at CB 241). It is important to note that the reviewer did not find the applicant “... to be truthful or credible witness... [and did]... not accept he has provided a truthful account of his experiences and activities in Afghanistan...” ([70] at CB 241.)
  10. However, the reviewer did accept that if the applicant were to return to “Qali Meray” that he would face a real chance of persecution because of his ethnicity and religion. This finding was based on advice from the United Nations High Commissioner for Refugees to the effect that members of ethnic minorities, such as Hazaras, are at “heightened risk” if they were returned to Pashtun dominated areas. The applicant’s home village is in one such area. Therefore the issue of relocation within Afghanistan was considered ([75] at CB 242).
  11. The reviewer did not accept the submission from the applicant’s solicitor that: “... it would be economically unreasonably and ethnically unreasonable for the claimant to relocate to Kabul...” ([79] at CB 243). The reviewer did note the lack of employment opportunities, high cost of rent, and poor services available in Kabul, but found that this was a general hurdle for all those residing in Kabul, not just those of Hazara ethnicity. Further, it was found that these difficulties did not amount to “serious harm” pursuant to s.91R of the Act. In all the circumstances the reviewer found that it was reasonable for the applicant to relocate to Kabul ([80] at CB 243 to [81] at CB 244).
  12. The reviewer also found that if returned to Afghanistan, the applicant would not face a real chance of persecution for reason of being a failed asylum seeker ([82] at CB 244).
  13. Consequently, on 8 July 2011, notified to the applicant by letter dated 18 July 2011, the decision was made to recommend that the applicant not be recognised as a person to whom Australia owes protection obligations (CB 245).

The Application to the Court

  1. On 22 August 2011 the applicant applied to this Court for judicial review of the reviewer’s decision. The application was made to seek a remedy pursuant to the exercise of the Court’s jurisdiction pursuant to s.476 of the Act.
  2. The applicant was represented by solicitors at that time, being the Legal Aid Commission NSW (“the Commission”).
  3. The sole ground of the application was stated as:
  4. The application also contained the following certification:
  5. When the matter came on at the first Court date on 7 September 2011, there was no appearance by the applicant (he was held in immigration detention at the time), but more importantly, no appearance by his solicitors on his behalf.
  6. While draft proposed orders had been sent to my Chambers by the solicitors just prior to that date, it would have been of benefit to the applicant, the Minister, and the Court if someone from the Commission had attended to explain how the certification of reasonable grounds for believing that this migration litigation had reasonable prospects of success had been formulated in light of the bare, general, unparticularised assertion in the sole ground of the application.
  7. Notwithstanding this concern, I nonetheless made a number of orders to enable this matter to proceed to a final hearing as soon as was reasonably possible given that the applicant was held in immigration detention.
  8. Consistent with these orders, an amended application was filed on 13 September 2011. It is in the following terms:

Before the Court

  1. Pursuant to this Court’s Rules, the Commission filed on 14 November 2011 a “Notice of Withdrawal” as the applicant’s lawyer.
  2. It appears that prior to this time, the applicant had been moved by the Department to Melbourne and was placed in what was described as “community detention”.
  3. Despite some difficulties, and two earlier adjournments, the applicant appeared in person at the final hearing of this matter by video-link facility at the Court’s Melbourne Registry. He was assisted by an interpreter in the Hazaragi language. Mr T Reilly of counsel appeared for the first respondent.
  4. The applicant was no longer legally represented. For this reason the Court had earlier sought from the Commission some further explanation of the sole ground of the amended application. Despite brief particulars, their general nature left the applicant in no better position than a bare assertion that the reviewer had misconstrued and misapplied Art.1A(2) of the Refugees Convention in the applicant’s case.
  5. No assistance was provided by the Commission. However, the Court thanks Mr L J Karp of counsel for his written assistance in this regard (see further below).
  6. The applicant had assistance from lawyers soon after arrival in Australia and throughout the process before the Minister in seeking to avail himself of Australia’s protection.
  7. For a time he was represented by lawyers in these proceedings. Given the nature of his oral “submissions” before the Court it is clear that the applicant has either not had explained to him the nature of the current proceedings, or if he has, has not understood them, or has “chosen” not to understand.
  8. Whatever the case, the applicant’s statements to the Court can only be seen as a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).
  9. He asserted that there had been a “mix-up” in his case, that the situation had not improved in Afghanistan, that Shias and Hazaras continue to be “targeted”, and that he had been “traumatised” for the past 30 years.
  10. Further, that he had been in detention in Australia for two years and his mind was not “working well” because he was worried and concerned.
  11. These were all matters variously before the reviewer and considered by her (see for example the issue of his memory at [58] (at CB 238 to CB 239)).
  12. The reviewer, as set out above, did not believe the applicant had given a truthful account of his experiences in Afghanistan. This finding and the findings that informed it, were all findings of facts within the exercise of the power and task given to the reviewer (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
  13. It is trite to say that the proceedings in this Court provide no opportunity for the applicant to be heard on his factual assertions as to why he meets the definition of “refugee”. In short, the applicant sought from the Court impermissible merits review (Wu Shan Liang).
  14. The sole question for legal consideration put before the Court was whether there was jurisdictional error in the reviewer’s finding that notwithstanding a well-founded fear in relation to his home village, it was reasonable for the applicant to relocate to Kabul where the chance of facing “serious harm” was remote.
  15. The amended application, and as explained, contends that the reviewer considered only the current situation, particularly as it applied to Hazaras in Kabul. It asserts that there was a failure to consider whether the applicant may face a real chance of persecution in the future on relocation if the security situation were to worsen.
  16. The written explanation given to the Court refers to the reviewer’s consideration (at CB 243 to CB 244) to assert that the reviewer’s analysis was directed only to the past or the present, but not the future. The reviewer’s statement at [83] – [84] (CB 244), which made reference to “... return to Afghanistan now or in the reasonably foreseeable future...” were said to be “formulaic conclusions” that do not “save” the reviewer’s decision.
  17. These paragraphs are in the following terms:
  18. I agree with Mr Reilly that the thrust of the complaint and the specific reference to “formulaic” are an unfair reading of the reviewer’s analysis.
  19. It is the case that past events can help inform as to the forseeability of persecution in the future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”), particularly at 574-5, Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412 and Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1). The relevant test however is one focussed on the future.
  20. In submissions Mr Reilly drew a parallel with similar circumstances in Wu Shan Liang at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ and at 294 per Kirby J, where initially the Federal Court found that the test had not been properly applied. The High Court disagreed and provided, with respect, clear direction on how decisions of this type are to be read.
  21. In the current case, a holistic and plain, let alone a fair reading, of the reasons reveals that the reviewer was seized of the need to focus on the future (see in particular [51] (at CB 237) where the reviewer considered whether “... now or in the reasonably foreseeable future he would return to Qali Meray...” and at [67] (at CB 241) “... I am not satisfied that if the claimant returns to Afghanistan in the reasonably foreseeable future he has a well founded fear of persecution because of his brother’s death...”).
  22. The complaint is that what is set out at [83] – [84] of the decision record is a formulaic expression of the, albeit, correct test, and reveals some failure on the part of the reviewer. On its own this must be rejected. It can be expected that reviewers would have to express this critical and central test in every case involving claims to protection as a refugee. It is not appropriate that they should seek to express this test in different words simply to avoid charges of being “formulaic”.
  23. To the contrary, it is the case that the Courts often exhort
    decision-makers in cases of this type to employ the language of any relevant legislation, or that used by the Courts, in expressing tests such as the one under current consideration, or, relevantly, that of the Convention (Guo at 572-3, NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140 per Beaumont, Carr and Sackville JJ.
  24. To do otherwise may well lead to decision-makers being accused of not understanding or applying the correct test.
  25. The circumstances of this case and, on a holistic reading of the reviewer’s reasoning, and her expression of it, the plain expression of the relevant test at key parts of the decision record, reveals the paucity, if not lack of merit in the ground, as particularised, and as explained.
  26. As to the question of the reasonableness of the applicant’s relocation, the reviewer’s approach is consistent with authority as to how this task is to be approached (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634, Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265). Further, the reviewer dealt with, and considered all of the applicant’s objections to relocation (see in particular CB 198, CB 200, CB 223.3 and the reviewer’s relevant analysis at [81] (at CB 244)) (see generally SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).

Conclusion

  1. With, albeit limited, legal assistance, the applicant has put one ground before the Court. It is not made out. Further, there was nothing in what the applicant himself said to the Court that could give rise to any legal error in the reviewer’s decision. Nor was any legal error apparent.
  2. In these circumstances the application, as amended, should be dismissed. I will make an order accordingly.

Postscript

  1. At one point prior to the final hearing, consideration was given as to how to arrange the applicant’s appearance before the Court. The matter of a video-link facility arose. There was some question as to whether the Minister should pay for this facility given that the applicant was physically present and detained in Melbourne at the Minister’s instigation and direction.
  2. I did consider what was relevantly said in Minister for Immigration v MZYLE [2011] FCA 1210 (“MZYLE”) per North J.
  3. It is the case that the current circumstances have important differences to what was in MZYLE. Importantly, the Minister was able to arrange the applicant’s presentation to this Court, albeit at a different Registry. In the circumstances, the Minister should not have to pay for the
    video-link facility between two Court Registries. This should be borne by the Court’s administration.

I certify that the preceding 64Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-foursixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Date: 20 January 2012

[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).

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