SZQGI v Minister for Immigration and Citizenship

Federal Court of Australia|2012-04-05|Before: Mr P, Rares J

REASONS FOR JUDGMENT 1 The sole issue in this appeal is the same as that which I decided in SZQKC v Minister for Immigration and Citizenship [2012] FCA 249. Does the definition of "refugee" in the Refugees Convention apply where the decision-maker has found that the claimant's home, in his country of nationality, is in an area in which he or she has no well founded fear of persecution, because persons other than the government of that country provide effective protection in that area from the harm feared? 2 The appellant sought constitutional writ relief in respect of a recommendation made by an independent merits reviewer conducting a review for the purposes of s 46A of the Migration Act 1958 (Cth). The purpose for the review was to enable the Minister to give consideration as to whether he would exercise his powers under either s 46A to permit the appellant to make a claim for a protection visa under s 36(2) of the Act: Plaintiff M61/2001E v the Commonwealth (2010) 243 CLR 319. 3 As I observed in SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 and SZQKC [2012] FCA 249, the notice of appeal again in this case made no reference to any ground on which the Federal Magistrates Court erred. The practice of drafting such notices of appeal must stop. It is essential that legally represented appellants identify the alleged error made by the Federal Magistrates Court in a notice of appeal in this Court.

The appellant's arguments 8 As in SZQGU [2012] FCA 340 and SZQKC [2012] FCA 249, the appellant argued that the reviewer had accepted that there was an absence of State protection in the area in which he lived. He argued that the reviewer's finding, that Pashtuns who were kidnapped by the Taliban could draw on tribal and family networks to help secure their release, demonstrated that he had a well-founded fear of persecution because the government of Afghanistan would not offer him protection from the risk of kidnap by the Taliban.

COnsideration 9 I reject that argument. The trial judge determined that the reviewer's findings were to the effect that any kidnapping which the appellant might fear would not be motivated for a Convention reason and thus the reviewer did not have to consider the adequacy or otherwise of State protection. I am unable to perceive any error in his Honour's conclusion that he should follow what Sundberg J had said in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [7], to which I referred in SZQKC [2012] FCA 249 at [21]-[22]. 10 The reviewer found that the appellant would not be targeted or kidnapped for any Convention reason. She had rejected all his claims based on his own experiences as being untruthful. The reviewer did not accept that merely because the appellant may have been subject to being kidnapped gave rise to a well-founded fear that he might suffer such a fate for a Convention reason. Moreover, the reviewer's reference to the ability of Pashtuns to draw on family networks to secure their release from the Taliban was a finding by the reviewer that any harm the appellant feared from such kidnapping was not likely to be serious. That latter finding was one of fact. It was based on her other finding that the appellant was not able to establish a well-founded fear that he might be persecuted for a Convention reason. 11 The appellant's argument failed to identify any jurisdictional error in the reviewer's finding that he would not be at risk for a Convention reason were he to return to Afghanistan. That is, the appellant failed to show that the harm he feared was persecution and that this justified his unwillingness to seek the protection of his country of nationality: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 13 [29] per Gleeson CJ, Hayne and Heydon JJ; SZQKC [2012] FCA 249 at [10]. 12 For these reasons the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Migration Act 1958(Cth)ss 36(2), 46A

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