MZZSL v Minister for Immigration and Border Protection

Federal Court of Australia|2015-03-06|Before: Middleton J

INTRODUCTION 1 An appeal is brought from a judgment and orders of the Federal Circuit Court in MZZSL v Minister for Immigration & Anor [2014] FCCA 1910, made on 29 August 2014, dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') dated 5 August 2013. The Tribunal affirmed an earlier decision of a delegate of the first respondent ('the Minister') not to grant the appellant a Protection (Class XA) visa.

The appellant and his claims 2 The appellant's background may be relevantly summarised (as agreed by the appellant and first respondent) as follows: (a) The appellant is an Afghan male. His ethnicity is Tajik and his religion is Shia Muslim. When he was approximately one year old, on account of the war in Afghanistan at the time, the appellant moved with his mother and family to Parachinar in Pakistan. (b) While in Parachinar, the appellant served with the local tribal army in conflict with local Taliban. In early 2011, a group of tribal army members, including the appellant, were ambushed by the Taliban. Shortly after this incident, he left Pakistan and travelled to Christmas Island in Australia. (c) The appellant applied for a protection visa on 25 August 2012, which a delegate of the Minister refused to grant on 1 March 2013. (d) The appellant appeared before the Tribunal on 22 July 2013 to give evidence and present arguments. The appellant claimed before the Tribunal that he feared harm as a member of four groups, namely: (i) Shia Tajiks; (ii) Males in Parachinar, where it is necessary for one male from each family to serve in the tribal army; (iii) Afghan males who have resided predominantly outside their country of origin (referred to as the 'Outsider Claim'); and (iv) Returnees from the West (referred to as the 'Westerner Claim'). 3 The Tribunal considered the relevant country information and, on 5 August 2013, affirmed the delegate's decision. 4 The appellant subsequently applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 29 August 2014, the Federal Circuit Court dismissed the application for judicial review.

FEDERAL CIRCUIT COURT 5 The two grounds of review advanced before the Federal Circuit Court were that the Tribunal had failed consider the appellant's Outsider Claim, and further or alternatively, that the Tribunal failed to consider integers of that claim. 6 In relation to the first ground, the Federal Circuit Court found (at [12]) that the way in which the Tribunal formulated the issues evinced its misunderstanding that the appellant "put the outsider claim as a gloss on his returnee from the West claim or as a gloss on his failed asylum seeker claim". However, the Federal Circuit Court found that Tribunal's awareness of the appellant's claim that he had lived in Pakistan since he was one year old was evident in its reasons, and it had in fact considered the Outsider Claim: at [18]-[19]). 7 In relation to the second ground, the Federal Circuit Court found that the matters particularised in relation to the second ground were dealt with by the Tribunal, and that in any event, it was "not necessary for the Tribunal to expressly address every variation of every argument and every item of evidence raised by an applicant": at [21].

NOTICE OF APPEAL 8 The notice of appeal in this Court advanced two grounds, which were essentially repeated from the appellant's grounds of review before the Federal Circuit Court: 1. The Court erred in not finding that Second Respondent committed jurisdictional error by failing to consider the Appellant's claim that he feared persecution and / or would suffer significant harm as an Afghan male who has resided predominantly outside his country of origin. 2. Further or alternatively, the Court erred in not finding that the Second Respondent committed jurisdictional error by failing to consider integers of the Appellant's claim that he feared persecution and / or would suffer significant harm as an Afghan male who has resided predominantly outside his country of origin. 9 Only two of the particulars of the second ground which were put before the Federal Circuit Court were advanced here, namely that the Tribunal "failed to take into account the following integers of the appellant's claim: (i) the extensive time the Appellant has lived outside his country in Pakistan makes him identifiable in Afghanistan as it alters his cultural experiences and increases risk of persecution and harm; and (ii) if returned, the Appellant would be subject to treatment as an outsider, even among other Shia Tajiks, having left Afghanistan when he was very young as well as seeking refuge in Australia.

CONSIDERATION 10 Before going to the Tribunal's reasons, I make these brief observations. 11 First, a decision-maker (in this appeal, the Tribunal), in considering a submission, must engage in "an active intellectual process directed at that … submission": Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ and see, eg, WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 per Flick J at [12]. 12 Secondly, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh and Gummow JJ explained that reasons of an administrative decision-maker should not be scrutinised in an overly critical way at 271-272: When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. … (Footnotes omitted) 13 However, the principle that administrative decisions should be given a "beneficial construction" is not to be elevated beyond the approach outline above by the High Court. As Stone J said in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]: The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked. 14 I consider that the correct approach in dealing with each of the contentions of the appellant is to be found by a fair reading of the Tribunal's reasons, to which I will come. Whatever errors in the Tribunal's reasons that were shown by the appellant, the following aspects of the Tribunal's decision are clear. These aspects demonstrate in themselves no error of the kind sought to be established by the appellant giving rise to jurisdictional error. 15 The claims were articulated by the Tribunal (at [22]) as follows: It was submitted that the applicant would be at risk because of his membership of two particular social groups consisting of 'male living in Parachinar where one male in each household has to serve in the tribal army', 'a male in Parachinar', Shia Tajiks. It was also submitted that he would be at risk as a returnee who had spent more than one year in Australia and that he would be accused of spying by the Taliban and as a person who had not been in Afghanistan since he was one. (Emphasis added) 16 Regardless of whether the Tribunal used imprecise language, grouped claims together, or mistakenly referred to "two particular social groups", it is clear that the Tribunal was aware of the Outsider Claim in articulating the claims. 17 The fact that the Outsider Claim and the Westerner Claim appear to be dealt with together in that paragraph is not, as the appellant submits, a failure to consider the Outsider Claim. In fact, such treatment of the claims is consistent with the submissions sent to the Tribunal on 16 July 2013. In those submissions, the Outsider and Westerner claims are treated as both separate and combined claims, and were referred to more generally as a "returnee" claim. In particular, the submissions contain the following relevant paragraphs: The Applicant has spent more than one year in Australia. Further to this, the Applicant has not returned to Afghanistan since his departure in 1975 at the age of one. We submit that the plight of returning Afghan refugees is dangerous, and the Applicant would be at further risk of harm and persecution if returned. … The Applicant has had no experience of Afghanistan from the age of one year old. The extensive period in which he lived in Pakistan makes him identifiable in Afghanistan as it alters his cultural experiences. The difficulty that a returnee faces to integrate socially and culturally into Afghanistan after a period of long absence was examined by the following…report [which observes, amongst other things, that "returnee reintegration prospects are generally low for refugees with fewer social networks"]. … We submit that if the Applicant were returned, he will potentially be subject to treatment as an 'outsider', even among other Shia Tajiks, having left Afghanistan when he was very young, as well as seeking refuge in Australia…. 18 The Tribunal set out country information dealing with "Returnees" generally (at [49]-[54]). Although this country information does contain a lot of information about returning from the West, it also contains references to returnees from non-Western countries. In any event, that country information was not irrelevant to the Outsider Claim. 19 The Tribunal at [59] again referred to the fact that the appellant left home when he was one and had resided in Pakistan since. 20 Then at [63]-[65], the Tribunal assessed what it called the "returnee claims" and considered matters directly relevant to the Outsider Claim, as follows: [63] I have considered whether the applicant is at risk for his membership of two particular social groups consisting of 'failed asylum seekers' and 'returnees from a western country' and due to his period spent in Pakistan. I accept that these are particular social groups and he would be a member of both if he returned to Afghanistan. Country information cited above from both authoritative sources such as DFAT and the UK Foreign and Commonwealth and Office does not support that members of such groups are targeted and harmed in Afghanistan. Country information also indicates that there have been a large number of persons returning from Pakistan to Afghanistan in recent years and that Logar is one of the more common destinations. When the substance of the information was put to the applicant at hearing he stated that there was no safety for Shias in Afghanistan that he would be accused of being a non-Muslim. He said that he had heard that someone had died in Australia a month ago and that three people returned him to Afghanistan and that during the funeral the Taliban approached them and they escaped, however he did not give any further details of this incident and I do not accept that such an incident has any direct relevance to the applicant. I asked him how he thought his conduct and behaviour had changed since arriving in Australia and he said it was much safer here but he had been getting depressed as he had not seen his children. Later, he said he had changed his clothes and that his speech had changed since he was introducing English words into his speech. He also said that as… he had lived in Pakistan [he] had a different accent to those in Logar. [64] I have considered carefully the country information referred to in the agent's submission and other information such as that of the Edmund Rice Centre in April 2012 but I have given preference to the DFAT information in particular because it is more recent and DFAT have been specially charged with giving advice of this nature to those involved in government decision-making. The country information indicates that returnees can experience a general negative attitude and discrimination (Saito) but I do not consider that this amounts to either serious harm or significant harm. I accept that he speaks with a different accent and that his speech may have altered somewhat in his time during Australia and that he may wear different clothing but due to the country information, I do not accept that he faces a real chance of being accused of being a non-Muslim or a spy and being targeted by the Taliban, other Shias or anybody else. The above country information from DFAT and UK FCO is persuasive whilst the country information also indicates that a large number of persons have returned from Pakistan in recent years and that Logar has been one of the more popular destinations. I accept that the applicant and his family will experience substantial economic hardship if they return to Logar province, that he is unaccustomed to life there and that he will be disadvantaged by a lack of family connections there. However, I do not accept that these factors will constitute either serious harm as a result of systematic and discriminatory conduct or significant harm within the terms of s.36(2A) of the Act. [65] On the basis of the country information, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of membership of the above particular social groups and because of his time living in Pakistan. For the same reasons, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on these bases. (Emphasis added) 21 The appellant referred to a number of key indicators of error, mainly concerned with the possible confusion of the Tribunal in relation to the number and characterisation of particular social groups, the emphasis placed by the Tribunal on information about returnees from the West, conflation of the various claims, and failure to deal with the actual profile of the appellant. The last point (in support of which the appellant sought to rely upon S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [75]-[76] per Gummow and Hayne JJ) was not raised as a separate ground of appeal, but rather as an indication that the Tribunal failed to properly consider the Outsider Claim. It was contended that if the Tribunal had considered the Outsider Claim, it would have looked at the particular circumstances of the appellant. As it did not undertake that task, I was asked to infer the Outsider Claim was not considered by the Tribunal. 22 However, none of these indicators overcome the parts of the Tribunal's reasons (as set out above) which show the Tribunal's appreciation of the Outsider Claim and an active intellectual process directed to that claim in reaching a final determination. 23 The analysis above deals with both grounds of appeal. By approaching the Outsider Claim as it did, the Tribunal adequately considered the material integers of the Outsider Claim, including the effect of the extensive time the appellant lived outside his country in Pakistan, and the potential treatment of the appellant as an "outsider". This is not a case where the grouping of claims together resulted in the Tribunal failing to consider any distinct integer of the appellant's claim, as occurred in MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462. 24 The Federal Circuit Judge was therefore correct to dismiss the appellant's application.

CONCLUSION 25 In light of the foregoing reasons, the appeal is dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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