MZYNA v Minister for Immigration and Citizenship

THE REVIEW 7 The Reviewer accepted the appellant's claims that there is a history of persecution of Hazaras in Afghanistan. The Reviewer however found that the majority of country information shows a change in the Taliban's tactics to targeting persons associated with the Afghan government and NATO forces. The Reviewer found this to be consistent with a wide range of reports indicating that the general situation of Hazara Shi'as in Afghanistan is improving and that Hazaras are not currently targeted by the Taliban as in the past. 8 The Reviewer accepted that some sources indicated that social discrimination against Hazaras continued. He did not, however, find that such discrimination amounted to persecution. The Reviewer rejected the submission that because of the appellant's ethnicity and minority religion, he faced a real chance of suffering serious harm amounting to persecution. 9 Although the Reviewer had some concerns in relation to the evidence regarding the appellant's uncle in Afghanistan, namely the coincidence between the timing of the information and the appellant's RSA application, the Reviewer could not discount the possibility that the events described by the appellant had occurred. Accordingly, the Reviewer was satisfied that the appellant could not return to Zabul province where the reported events were said to have taken place. 10 The Reviewer found that the appellant however could relocate to Kabul. He found that there was a large Hazara population in Kabul and that there were communities in Kabul with a predominant Hazara population. He further found that Hazara Shi'as had access to schools, a University and Shi'a Mosques. The Reviewer then found that the appellant would be able to move freely in Kabul and would have access to medical facilities of variable standards. 11 In considering the possible financial situation of the appellant should he relocate to Kabul, the Reviewer noted the fact that the appellant was able to raise $15,000 for his journey to Australia and found that, although the appellant may find some difficulties in the reasonably foreseeable future, the appellant "would reasonably be able to integrate into the Hazara communities in Kabul and seek sustainable employment". 12 In respect of the insurgency attacks in Kabul, the Reviewer noted that they had been directed at high profile and government targets. He found that the general insecurity in Kabul did not give rise to a well-founded fear of persecution for a Convention reason. The Reviewer also analysed a report in relation to a land dispute between Hazaras and Kuchis in 2010 that resulted in the displacement of 250 Kuchi families. The Reviewer noted that the dispute did not escalate and formed the view that this was not evidence that Hazaras are targeted by non-State agents in Kabul. 13 The Reviewer also gave consideration to whether the appellant's status as a returned detainee would result in him suffering serious harm. He found that there have been isolated reports of harm to deportees where they were known or suspected of returning with substantial amounts of cash. The Reviewer concluded that there is no credible evidence that showed that failed asylum seekers are targeted and persecuted. 14 The Reviewer concluded that it was reasonable and practical for the appellant to relocate to, and reside in, Kabul. The Reviewer was not satisfied that the appellant had a well founded fear of persecution as a returnee from a Western country and concluded that the appellant's fear of persecution was not a well founded fear for any Convention reason.

FEDERAL MAGISTRATE'S DECISION 15 The appellant sought judicial review of the Reviewer's decision in the Federal Magistrates Court. His amended application contained four grounds. The first, second and fourth grounds were identically worded. They read: "In recommending to the [Minister] that the [appellant] not be recognised as a person to whom Australia owed protection obligations, the [Reviewer]: (a) failed to observe the requirements of procedural fairness; (b) failed to apply correct legal principles." The third ground did not allege denial of procedural fairness but did rely on what was said to be a failure to apply correct legal principles. 16 The framing of these grounds appears to have been influenced by a statement of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at 354 that: There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given [to the Minister] by ss 46A and 195A [of the Migration Act 1958 (Cth)], including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied. (Emphasis in original, footnotes omitted.) 17 Particulars were subjoined to each ground. It was to these particulars that, in each case, the Federal Magistrate considered in order to discern the substance of the grounds relied on by the appellant. 18 The Federal Magistrate identified and considered the following grounds of review: 1. The Reviewer failed to consider the likely situation which would prevail into the reasonably foreseeable future in Afghanistan and, in particular, Kabul. 2. The Reviewer's statement regarding a lack of credible evidence which shows that persons returning from Western countries as failed asylum seekers are targeted and persecuted for that reason is incorrect. There was such evidence before the second respondent. 3. The Reviewer did not apply the correct legal test in reaching the conclusion that it would be reasonable and practical for the appellant to reside in Kabul. 4. The Reviewer failed to deal with matters advanced by the appellant about the reasonableness of any relocation to Kabul. In particular, the Reviewer failed to consider the general security situation in Kabul or the appellant's status as the "primary breadwinner" for his family. 19 The Federal Magistrate held that the first ground lacked substance. The Reviewer had given careful attention to the country information and gone on to make detailed findings about the circumstances prevailing in Kabul. The Federal Magistrate noted that the Reviewer had expressly directed himself that he had to have regard to the circumstances which would confront the appellant "in the reasonably foreseeable future". The first ground was directly contrary to what the Reviewer had stated in his decision, written notification of which had been given to the appellant. 20 In respect of the second ground, the Federal Magistrate held that the Reviewer's conclusions were open to him on the material and that no reviewable error could be found. 21 In dealing with the third ground, the Federal Magistrate identified two subsidiary arguments, the first dealing with the Reviewer's analysis of the appellant's capacity to "seek sustainable employment" and the second dealing with the Reviewer's failure to assess the likelihood that the appellant might obtain community support in Kabul. His Honour found the first matter to be one of over emphasis of the language of the Reviewer's reasons and that nothing turned on the use of the word "seek" as opposed to "obtain". On the second issue, the Federal Magistrate found that the Reviewer did consider the appellant's likely future circumstances and that his findings about those matters were open to him on the evidence before him. 22 In respect of the final ground, the Federal Magistrate held that the Reviewer did consider the security position in Kabul in great detail. In respect of the "primary breadwinner" argument, the Federal Magistrate found that there was evidence to show that the appellant's younger brother had become the supporter of the family in Quetta.

APPEAL TO THIS COURT 23 The appellant has appealed to this Court from the Federal Magistrate's decision. 24 The appeal relies on the same four grounds which were advanced before the Federal Magistrate. The grounds have simply been reworked to allege that the Federal Magistrate erred in not upholding them. I will deal with each ground in turn.

Ground 1 - consideration of the security situation in reasonably foreseeable future 25 The appellant submitted that the Reviewer "did not form any view about the likely situation in the reasonably foreseeable future in Afghanistan (and, in particular, Kabul)". This ground of appeal should be dismissed. It is contrary to the express words of the decision of the Reviewer and, moreover, seeks to scrutinise that decision in a manner which is inappropriate: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291-292. 26 The Reviewer considered all the material placed before him. The Reviewer was aware of and applied the correct test: Wu Shan Liang at 279 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. The Reviewer did not fail to form a view about the likely situation in the reasonably foreseeable future in Afghanistan (and, in particular, Kabul) and how that situation might affect the appellant. 27 First, the Reviewer considered, at some length, the relevant country information in relation to Hazaras and Shi'as in Afghanistan: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]. Second, in considering the appellant's claims founded on ethnicity and minority religion, and after referring extensively to the country information, the Reviewer concluded that the appellant would not be subject to harm "in the reasonably foreseeable future" for a Convention reason. Third, the Reviewer next considered whether the appellant could return to Zabul Province where his original village was situated and found that he may face more than a remote change of serious harm for a Convention reason if he returned to that province and sought to reclaim his family's land. Fourth, the Reviewer then considered relocation of the appellant to Kabul and, in particular, whether there was a real chance of persecution for a Convention reason "in the reasonably foreseeable future". 28 As the Federal Magistrate held, this ground of appeal lacks substance. The Reviewer had given careful attention to the country information and then made detailed findings about the circumstances prevailing in Kabul. Those circumstances included, but were not limited to: 1. Kabul is a city of between 4 and 5 million people that is growing rapidly; 2. there is not a situation of generalised violence in Kabul which is an urban area under government control and not controlled by the Taliban or other anti-government elements; and 3. a very significant percentage of Kabul is comprised of Hazaras which reside in a number of districts in Kabul and there is a cohesive Hazara community in Kabul. 29 As the Federal Magistrate noted, the Reviewer had expressly directed himself that he had to have regard to the circumstances which would confront the appellant "in the reasonably foreseeable future" and he did so. The appellant's first ground of appeal was directly contrary to what the Reviewer had stated in his decision. This ground of appeal is dismissed.

Ground 2 - Evidence about returnees 30 The appellant contends that the Reviewer erred in observing that there was no credible evidence that persons returning from Western countries as failed asylum seekers are for that reason targeted and prosecuted for a Convention reason. 31 To establish that there was no evidence for a finding made, the appellant must show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[35]. 32 As Heerey J said in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [17]: To succeed on the "no evidence" ground the appellant would have to show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. (Emphasis in original.) See also SZHZF v Minister for Immigration and Citizenship [2007] FCA 1173 at [33] and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31]. 33 In the present case, the Reviewer set out country information on the position of returnees. He gave reasons for rejecting the claim that the appellant would be persecuted as a returnee. The Reviewer specifically referred to the fact that country information indicated that there had been incidents of harm, usually where the returnee was known or suspected of returning with substantial amounts of cash. The Reviewer noted that nevertheless those incidents appeared very isolated and related to their particular circumstances and/or the general insurgency. They were not systematic and discriminatory: cf s 91R(1)(c) of the Migration Act 1958 (Cth). The Reviewer further referred to and accepted a 2010 Department of Foreign Affairs and Trade (DFAT) report to the effect that Hazaras would not be targeted because they had sought asylum in the West. 34 The appellant placed particular reliance on 2009 DFAT material. The Reviewer referred to that material and acknowledged that it indicated that there had been incidents of harm, usually where the returnee was known or suspected of returning with substantial amounts of cash, but that those incidents appeared very isolated and related to their particular circumstances and/or the general insurgency. The First Respondent submitted (and I accept) that the appellant sought to isolate one statement by the Reviewer and take it out of context. As the passage records, the Reviewer was acknowledging that that there had been incidents of harm but they were isolated incidents of targeting due to factors other than for reasons of being a returnee and were not systematic and discriminatory. Not unconnected to this aspect of the argument, the Reviewer further found that the appellant could relocate to Kabul where the Reviewer was satisfied that the appellant would not be targeted as a returnee for any reason. For those reasons, this ground of appeal must fail. 35 The appellant referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. That matter involved a finding by the Refugee Review Tribunal that there was no mention of any event or attitude that would support VOAO's claim, when in fact there was and which the Tribunal failed to have regard to. The Court stated that "[t]he situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than "no evidence" (at [13]). That case does not assist the appellant. Here, the Reviewer referred specifically to the relevant evidence but determined that there was no credible evidence to show that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted. As the First Respondent submitted, the weight and credit to be given to the material before the Reviewer was entirely a matter for him. The making of findings of fact is uniquely a matter for the decision maker. There is no basis for review simply because the Court disagrees - even profoundly disagrees - with the weight given by the decision maker to the various factors relevant to his or her decision or the factual findings made: see, by way of example, SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, (at [12] and the authorities cited (see also SZJDI v Minister for Immigration and Citizenship [2008] FCA 685 at [25]). 36 Second, even if there was evidence which was misunderstood or overlooked (which there was not), it would not assist the appellant in the present appeal. As the Full Court in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 (North and Lander JJ (at [21]-[28]) with whom Katzmann J agreed stated): [28] However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294. The Reviewer considered the appellant's claim.

Ground 3 - Relocation in Kabul 37 Ground 3 concerns relocation. The appellant contended that the Reviewer misapplied the principles relating to relocation in concluding that the appellant could relocate to Kabul. In particular, the appellant contended that the Reviewer's reasoning was not directed to what was practicable. 38 In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, it was concluded that a well-founded fear of persecution need not always extend to the whole territory of an applicant's country of nationality for the applicant to qualify as a refugee. It was further concluded that a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country. Gummow, Hayne and Crennan JJ stated at [24]-[26]: ... 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. … ... [I]n particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography. See also Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-443 and NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]ff. 39 Relocation was further considered by the High Court in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, a decision handed down on the same day as SZATV. Gummow, Heydon and Crennan JJ (with whom Callinan J relevantly agreed) observed as follows at [14]: … As indicated in the reasons in SZATV, and 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. 40 As noted at [14] above, the Reviewer concluded that "it would be reasonable and practical for the [appellant] to reside in Kabul". The appellant contended that this was a misstatement of the proper legal test, and that in any event, the Reviewer's reasoning strongly suggested that he failed to apply the correct legal principles. In particular, the appellant contended, the Reviewer's reasoning was not directed to what was "practicable". 41 In relation to the first matter, that the Reviewer misstated the proper legal test, that contention fails at the outset. The requirement that relocation be reasonable, in the sense of "practicable" (see [38] above) has been stated in terms requiring consideration of the "practical realities of relocation": see SZCLY v Minister for Immigration and Citizenship [2009] FMCA 569 and Randhawa at 442. 42 In relation to the second matter, that the Reviewer's reasoning was not directed to what was "practicable", the appellant had two principal contentions. First, the appellant contended that the Reviewer's reference to the appellant's ability to seek sustainable employment was not relevant to the issue of reasonableness of relocation. The appellant submitted that instead it was necessary for the Reviewer to "consider and make a finding in respect of the appellant's ability to obtain employment". Secondly, the appellant contended that the Reviewer's reference to potential community support available to him did not involve an assessment of the likelihood that the appellant might obtain community support. 43 As the Federal Magistrate stated, the appellant's approach to the Reviewer's reasons reflects an approach rejected as inappropriate in Wu Shan Liang. Neither of the matters referred to by the appellant are matters which demonstrate that the Reviewer erred jurisdictionally. The Reviewer properly and adequately considered whether it was practicable for the appellant to relocate to Kabul. 44 As to the first matter (the contention that the Reviewer's reference to the appellant's ability to seek sustainable employment was not relevant to the issue of reasonableness of relocation), the Reviewer was satisfied that although employment in Kabul was difficult, the appellant had skills and business experience as a shoemaker, and that his skills, work and business experience could reasonably be utilised in Kabul. 45 In both SZOCW v Minister for Immigration and Citizenship [2010] FCA 1307 and SZLWB v Minister for Immigration and Citizenship [2009] FCA 1067, appeals were dismissed on the basis that the relevant Tribunal considered, with the assistance of independent country information, whether the applicant could relocate in another part of the country and did so by reference to the applicant's own personal circumstances. In SZLWB, the appellant complained that the Tribunal had not considered reasonableness because it failed to address whether the appellant could support his family during the start up period for a business. The contention was rejected. In neither of the appeals did the Tribunal "consider and make a finding in respect of the appellant's ability to obtain employment". In any event, as the Federal Magistrate noted, this ground of appeal is contrary to the evidence. The evidence disclosed (and the Reviewer made findings) that the appellant was a young single man with skills and business experience as a shoemaker who would reasonably be able to integrate into the Hazara communities in Kabul and seek not just employment but sustainable employment. 46 In relation to the second matter (the contention that the Reviewer's reference to potential community support available to him did not involve an assessment of the likelihood that the appellant might obtain that community support), this ground of appeal fails at the outset. It is contrary to the findings made by the Reviewer. The Reviewer was satisfied that the appellant would reasonably have access to Hazara communities. That finding was made in the context of the September 2010 DFAT Report which stated that is a cohesive Hazara community in Kabul and that it had assessed that it would be relatively easy for new arrivals to integrate into Kabul where they can move freely. 47 The matters referred to by the appellant, in substance, are not contentions that the Tribunal has not addressed a necessary element of a claim but contentions that the Tribunal has not addressed a matter adequately. A failure to address a matter adequately does not amount to an error going to jurisdiction: SZLWB. As the Federal Magistrate found at [31]-[32]: So far as the question of community support is concerned, it is noteworthy that the Reviewer accepted…the DFAT report which asserted that: "There is a cohesive Hazara community in Kabul, and the Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely." The Reviewer clearly considered the applicant's likely future circumstances in Kabul…and the findings made appear to me to have been open to the Reviewer on the evidence before him. I agree. This ground of appeal is dismissed.

Ground 4 - The claims relating to reasonableness of relocation 48 The appellant submitted that the Reviewer failed to consider the particular matters advanced by the appellant on the question of the reasonableness of relocation. As noted above, the ultimate question is whether as a matter of fact relocation is "practicable:" see [38] above. 49 In my view, a fair reading of the Reviewer's recommendation establishes that he considered the issue of relocation taking into account the material and evidence before him and the individual circumstances of the appellant, as he was bound to do: see [7]-[14] above. 50 The appellant identified two matters that he submitted were not considered by the Reviewer but should have been in assessing the reasonableness of the relocation of him to Kabul. The first matter which the appellant contended was not considered by the Reviewer was the general security situation in Kabul. The Federal Magistrate rejected this contention. I agree. The Reviewer considered the general security situation in Kabul. The Reviewer made a number of findings including: The [appellant] states there are regular attacks in Kabul and the Afghan government cannot protect themselves, let alone Hazaras. However, the insurgency attacks in Kabul have been directed at human rights activist, high profile and government targets. The [appellant] has not claimed … to have undertaken any political or human rights activities in the past and has no political profile. The reports do not show Hazaras and Shia Muslims have been targeted and persecuted in Kabul for the reason of their minority status or imputed political opinion. Nor am I satisfied that the effects of the general insecurity and insurgency in Afghanistan including Kabul, without any additional factors increasing the risk, give rise to a well founded fear of persecution for a Convention reason. The 2010 UNHCR report shows that there is not a situation of generalised violence in Kabul, which is an urban area under government control and not controlled by the Taliban or other anti-government elements. … Country information shows there have been incidents of harm to deportees usually where they were known or suspected of returning with substantial amounts of cash. Nonetheless, those incidents appear to be very isolated and relate to their particular circumstances and/or the general insurgency; they are not systematic and discriminatory. … I further note and accept the September 2010 DFAT report which indicates contacts in Afghanistan did not believe Hazaras would be targeted because they had sought asylum in the west. There is no credible evidence before me which shows that persons returning from Western countries as failed asylum seekers are for that reason targeted and prosecuted. As well, should the [appellant] relocate to Kabul, he would reside in an urban area under government control and not controlled by the Taliban or other anti-government elements. In light of the large and growing population in Kabul, including the large Hazara population there, I am not satisfied he would be so remarkable amongst the local communities there that he would be targeted as a returnee for any reason. 51 Moreover, that consideration is also to be viewed in the context of the Reviewer's other findings that the appellant's fear of persecution was not well-founded in Afghanistan except if he sought to return to the Zabul province and to attempt to reclaim his family land. 52 Further, as the passage above records, the Reviewer did not confine himself to those risks arising from particular groups targeting the appellant. The Reviewer referred, inter alia, in his consideration specifically to the report of the United Nations High Commissioner for Refugees (UNHCR) entitled UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (UNHCR, 17 December 2010) that showed that there was not a situation of generalised violence in Kabul. The Reviewer did not confine consideration to Convention related reasons or to risks arising from the appellant being targeted by particular people or groups. The appellant's contention that a general lack of security (comprised by attacks on others) affected or impacted upon the relocation of the appellant to Kabul was not considered by the Reviewer is rejected. 53 The second matter relied by the appellant was the contention that the appellant's claim that he was the primary breadwinner was not considered by the Reviewer in the context of his work prospects in Kabul. The substance of the appellant's claim was that he would not find employment in Kabul to enable him to support his family in Quetta. The Reviewer considered the appellant's claim that he would face unemployment in Kabul and impoverished financial circumstances. The Reviewer found that the appellant had skills and business experience as a shoemaker. He found that both his skills and his business experience would enable him to seek suitable employment. Indeed, as a resident in Quetta he had had a number of occupations. He had worked in shoe shops for seven years, as a construction labourer for two years and, before leaving for Australia, had been a self-employed shoe shop owner for two years. The finding that he could seek suitable employment adequately dealt with his claim that he could continue as the primary breadwinner. His options were not limited to a narrow range of skills. 54 There is, however, another reason for dismissing this aspect of the appellant's appeal. The appellant's submission that a matter relevant to the issue of relocation was that as he was the "primary breadwinner" for the family and had to support them was contrary to the facts. The appellant's evidence was that his younger brother (who also worked as a shoemaker) was currently supporting the family. 55 Indeed, as the Federal Magistrate stated at [35]: The final matter raised was that the Reviewer had not considered the [appellant's] position as the primary breadwinner in his family. This matter may be dealt with shortly. There was clear evidence before the Reviewer that the [appellant's] younger brother had become the supporter of his family in Quetta, and the proposition that it was necessary for the Reviewer to consider the matter otherwise is plainly unsustainable. I agree. This ground of appeal is dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.