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[2012] FCA 340
Federal Court of Australia
2012-04-05
Mr P, Rares J
Original judgment source is linked above.
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 the 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 which the review was conducted 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 The notice of appeal made no reference to any ground on which the Federal Magistrates Court erred. A practice appears to be developing in which appeals to this Court, instituted by lawyers, seek to bypass entirely the identification of error in the Federal Magistrates Court. Rather, the notices of appeal are drafted as if that Court, and its decision did not exist and this Court was simply looking at the decision of the independent merits reviewer or other migration decision-maker afresh. This practice should not be countenanced. It ignores the fundamental roles of the Federal Magistrates Court as a trial court and this Court as a court of appeal.
Background 4 The appellant was an Hazara Shia who had resided in a village in Jaghori district, Ghanzi Povince, Afghanistan. He had arrived in Australia at Christmas Island on 2 February 2010. The independent merits reviewer had rejected all of the appellant's individual claims about his own personal experiences that he had advanced to justify his claim for protection. The issue in the appeal is whether the reviewer made an error of law when he found, based on country information, that the Hazara districts were secure and that the Jaghori district remained out of the reach of Taliban control due to the military and political power of a faction known as Hizb-I Wahdat Khalili/Nasr (the faction). 5 The reviewer found that there were secure routes between Kabaul and Ghanzi and, also between Ghanzi and Jaghori. He found that the security of those routes, together with the protection provided by the faction: "which is strong across the Hazarajat including the Jaghori area, lead me to conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, travelling to the Badarzar area upon his return. Although in Ghazni province, the claimant's home area is in a Hazara community. Whilst there is generalized violence elsewhere in the province, it is the case that the claimant would be conducting his life in Jaghori district, a Hazara-dominated region that is his place of origin and where he can reasonably seek access to traditional family and/or community structures. Country information shows that Jaghori district is a secure area where markets, health care and particularly schools continue to function. Additionally, one conclusion of the UNHCR report (in 'Internal flight or relocation alternative') is that the traditional family and community structures of Afghan society continue to constitute the main protection and coping mechanism particularly in rural areas where infrastructure is not as developed. I conclude there is not a situation of generalized violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there. I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future in his home area." 6 The appellant's argument was substantively that the above finding demonstrated that the reviewer accepted that there was an absence of State protection in the Jaghori region. The appellant argued, as in SZQKC [2012] FCA 249, that because the faction was not the government, he had a well founded fear of persecution were he to be returned to Afghanistan, because its government could not offer him protection from that persecution. This argument must fail for the reasons that I gave in SZQKC [2012] FCA 249. 7 The reviewer's finding was a finding of fact that there was no real chance that the appellant would face serious harm in the reasonably foreseeable future were he to return to his own home area in Jaghori. That being so, the reason why he was safe in his own area, namely the political and military strength of the faction, rather than the Afghan government, did not enliven Australia's protection obligations. The appellant had no well founded fear that he would be persecuted for any Convention reason in the area in which he lived, were he to return there. It does not matter that the absence of any such well founded fear is due to the presence, or military force, of a third party, rather than the government of the State in which the appellant lived. The purpose of the protection offered by States party to the Convention is to provide refuge for persons who would not be safe in their own country from a well founded fear of persecution were they to stay or return there. As Gleeson CJ, Hayne and Heydon JJ said in Minister for Immigration v Respondents S152/2033 (2004) 222 CLR 1 at 13 [29]: "It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality." (emphasis added) 8 It is not the purpose of the Convention to require States party to offer refuge to persons who had no well founded fear that they would be persecuted for a Convention reason in the place in which they live. Once there is no such well founded fear, the reason why the person might not suffer harm were he to return to his country of nationality is not relevant. A State party to the Convention has an obligation to offer protection only to persons who have such a well founded fear of persecution were they return to where they lived. 9 For these reasons the appeal must be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
SZQGU
Minister for Immigration and Citizenship