SZQXE v Minister for Immigration and Citizenship

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: FLICK J DATE OF ORDER: 21 NOVEMBER 2012 WHERE MADE: SYDNEY

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1180 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: FLICK J DATE: 21 NOVEMBER 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a national of Afghanistan who arrived by boat at Christmas Island in July 2010. 2 In November 2010 he requested a Refugee Status Assessment on the basis that he had a well-founded fear of persecution from the Taliban in Afghanistan by reason of his Hazara ethnicity and Shia muslim religious faith. The officer who conducted that Assessment recommended in January 2011 that he not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. 3 In February 2011 the Appellant sought an Independent Merits Review of the recommendation. In October 2011 he attended an interview with the Reviewer. In November 2011 the Reviewer also recommended that the Appellant not be recognised as a person to whom Australia owed protection obligations. 4 An Application seeking judicial review of the Independent Merits Reviewer's recommendation was filed in the Federal Magistrates Court in December 2011. An Amended Application was filed in May 2012. The Amended Application was dismissed by that Court in July 2012: SZQXE v Minister for Immigration [2012] FMCA 643. 5 A Notice of Appeal was filed in this Court in August 2012. The two Grounds of Appeal were set forth as follows: 1. The Court erred in holding that the second respondent (the reviewer) did consider conditions that may pertain in the future, as opposed to those that may currently exist. 2. The Court erred in finding that the reviewer did not have to address the practicalities of the appellant's return to his area of former residence in Afghanistan. The Federal Magistrate rejected much the same grounds when they were advanced before that Court. 6 The appeal is to be dismissed.

PERSECUTION and THE FUTURE 7 When considering whether a claimant seeking refugee status has a "well-founded fear of being persecuted" consideration must not only be given to past or present circumstances - consideration must also be given to the circumstances as they may emerge in the "reasonably foreseeable future" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ) or the "immediately foreseeable future" (Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 at 403 per Sheppard J; Warnakulasuriya v Minister for Immigration & Multicultural Affairs (unreported, Finkelstein J, 6 April 1998)). Any difference in language between the "reasonably foreseeable future" and the "immediately foreseeable future" assumes no present relevance. Even though there may be no current risk of persecution for a Convention reason, a change in circumstances that may readily be foreseen may thus create a significant risk of persecution: cf. Minister for Immigration & Multicultural Affairs v Jama [1999] FCA 1680 at [24] per Branson and Sackville JJ. In Jama [1999] FCA 1680, an appeal was dismissed from a decision of the Refugee Review Tribunal which set aside a decision of a delegate of the Minister to not grant a protection visa. In dismissing the appeal, Branson and Sackville JJ observed: [28] The Tribunal recorded the substance of this submission, but did not address it. The reasons of the Tribunal demonstrate that it considered the evidence touching on the extent and purpose of the fighting between clans in north-west Somalia at and before the date of the decision. But there is nothing to show that the Tribunal directed its attention to the circumstances likely to prevail in north-west Somalia (the self-declared Republic of Somaliland) in the foreseeable future. [29] In particular, the Tribunal did not consider whether the fluid situation it described (even if relatively stable by Somali standards), might change so as to expose Ms Jama to a real chance that she would suffer serious harm by reason of her clan membership. As evidence cited by the Tribunal itself showed, the Republic of Somaliland in 1997 had rejected the so-called Sodere agreement which called for the reunification of Somalia. It was under pressure from other Somali factions to renounce its bid for secession. In these circumstances, bearing in mind that the relative stability in north-west Somalia involved "continuing skirmishes" between clan fighters, it might have been thought that the prevailing conditions were not guaranteed to continue unchanged. And if they changed for the worse, Ms Jama might have been thought to be at risk of serious harm inflicted by reason of her membership of her sub-clan. Kiefel J dissented. 8 Further, when forming a view as to events as they may unfold in the reasonably foreseeable future, reliance may be placed upon past events: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ there noted: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events … A finding of past persecution may render a finding of present or future persecution more likely: eg. WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399. 9 The Reviewer's finding in the present case that the Appellant did not have a fear of persecution based on past events rendered it necessary for the Appellant to demonstrate that the Reviewer either failed to consider whether such a fear could be based on a foreseeable change in circumstances or that the Reviewer committed some legal error in addressing whether a foreseeable change in circumstances could give rise to such a fear. 10 Although it may be accepted that the Independent Merits Reviewer was required to consider "conditions" as they may "pertain in the future", the first Ground of Appeal is to be rejected. 11 The Statement of Reasons provided by the Independent Merits Reviewer set forth his analysis of "future harm" under the heading "Consideration of future harm". There the Reviewer repeatedly set forth a finding (variously expressed) that there was not a "real chance" that the Appellant would face persecution "now or in the reasonably foreseeable future". That Statement of Reasons thus provides (by way of example) as follows: [59] … The claimant is from Jaghori which is 100% Hazara which further indicates that he would not face a real chance of persecution in the reasonably foreseeable future on account of his race and religion. Whilst there is some information … that paint[s] a difficult picture in terms of the safety of Hazaras in all parts of Ghazni I have given preference to the weight and authority of sources such as DFAT and the UNHCR in making my assessment. I accept that there are areas of Ghazni province which have a high level of Taliban activity but find that this does not apply to the claimant in Jaghori district which is considered relatively secure (though there is some evidence of Taliban activities). [60] Whilst I have accepted the claimant's account of what happened to him whilst travelling on a bus near Kandahar and afterwards, I do not accept that this will lead to him facing a real chance of persecution now or in the reasonably foreseeable future if he were to return to his home area of Jaghori. The incident occurred a long way from his home area and the claimant was unable to give any answer as to why the Taliban perceived that he had been working for the government (though it was later stated by his agent that he and the other three men were the only ones wearing western clothing). Given the country information that Hazaras are not being persecuted on any consistent basis and that Jaghori is relatively secure from the influence of the Taliban and the claimant did not claim, and there is no evidence to indicate that he is in anyway associated with the Afghan government, I find that it is fanciful and do not accept that there is a real chance, now or in the reasonably foreseeable future, that he would be targeted because of this incident in his home area of Jaghori. I also do not accept that he will face a real chance of being perceived as supporting the Afghan government and international forces and agencies by the Taliban and targeted in the reasonably foreseeable future. Repeated reference is also made under the same heading to events in the "reasonably foreseeable future" in subsequent paragraphs of the Reviewer's Statement of Reasons. Those reasons relevantly conclude: [65] I find that the claimant does not face a real chance of persecution on the basis of race, religion, membership of any particular social group or his actual or imputed political opinion now or in the reasonably foreseeable future. 12 Notwithstanding these repeated references to the "reasonably foreseeable future", Counsel on behalf of the Appellant submitted that the Statement of Reasons did not disclose a consideration of the "reasonably foreseeable future"; the references to those findings, it was maintained, was a matter of form and not substance. 13 The difficulty for the Appellant is twofold. 14 First, if consideration is confined to the Statement of Reasons, it is difficult to conclude that the Independent Merits Reviewer did not genuinely consider the "reasonably foreseeable future". As stated by Brennan CJ, Toohey, McHugh and Gummow JJ in Wu Shan Liang with respect to the reasons of the delegate in that case: … the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities: (1996) 185 CLR at 271. Their Honours ultimately concluded that "[t]oo long a leap" was required to conclude that the delegates there applied the incorrect test: (1996) 185 CLR at 280. So too is the case with respect to the Reviewer in the present appeal. 15 Second, it is respectfully concluded that the analysis undertaken by the Independent Merits Reviewer does in fact expose a genuine assessment of the events as they may ultimately unfold in "the reasonably foreseeable future". Based upon the information that was before the Reviewer, that was a finding open to him. To attempt to challenge that finding would be an impermissible intrusion into the factual merits of the case: eg. NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ. 16 The simple fact is that the Independent Merits Reviewer did consider the circumstances as they may develop in Afghanistan in the future. The Federal Magistrate was correct in rejecting the same argument. 17 The first Ground of Appeal is rejected.

A RETURN TO THE Appellant's FORMER DISTRICT 18 The remaining Ground of Appeal focuses attention upon whether the Appellant could return to an area of safety within Afghanistan. 19 The Appellant was born in a village in the Jaghori District in the province of Ghazni in Afghanistan. Before the Independent Merits Reviewer there was material that "Jaghori is 100% Hazara and that Hazaras are not being persecuted on any consistent basis and that there was no evidence … of a campaign by the insurgency to target Hazaras". 20 But a question arose as to whether he could return there safely. 21 When determining whether a claimant is a refugee, consideration may be given to whether it is reasonable for a claimant to move to an area within his home country where he can live without fear of persecution: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 per Black CJ; SZQEN v Minister for Immigration and Citizenship [2012] FCA 387 at [28]-[31], 202 FCR 514 at 520-521 per Yates J. A well-founded fear of persecution, however, remains if "… it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country …": (1994) 52 FCR at 443 per Black CJ. See also: AZABN v Minister for Immigration and Citizenship [2012] FCA 526 at [17] per Finn J. A claimant, however, is not at risk of persecution if he can reasonably access effective protection in some part of his state of origin: AZABO v Minister for Immigration and Citizenship [2012] FCA 525 at [21]-[22], 127 ALD 526 at 532 per Finn J. 22 It is initially necessary to consider whether a claimant can safely get to the borders of his home country: Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578. In dismissing an appeal from a decision setting aside a decision of the Refugee Review Tribunal, Mathews, Tamberlin and Mansfield JJ there concluded: [40] The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him. It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries. The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries. In the particular circumstances of Mr Sameh's claim, that was a matter which the Tribunal was obliged to address. It was one of a series of critical factual matters which the Tribunal had to address to determine whether Mr Sameh has effective protection in Iraq. See also: Applicant Z v Minister for Immigration & Multicultural Affairs [2001] FCA 325 per Nicholson J. 23 Thereafter, it is equally necessary to consider whether a claimant can - "as a practical matter" - travel within his home country to get to an area of safety. In Randhawa (1994) 52 FCR at 442, Black CJ thus observed: … notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. And, any determination as to whether a claimant can relocate safely "depends upon the framework set by the particular objections raised to relocation": SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [124], 174 FCR 415 at 438-439 per Tracey and Foster JJ. A claim must be considered "in light of the matters" that a claimant puts before an Independent Merits Reviewer: SZQEN [2012] FCA 387 at [41], 202 FCR at 524 per Yates J. 24 The question as to whether the Appellant could safely return to the Jaghori District was a question expressly raised with him by the Reviewer. The Reviewer's Statement of Reasons thus state in part as follows (without alteration): 24. I also put to the claimant for comment that there was also evidence from the September 2010 DFAT report that there is a secure route from Jaghori to Ghazni City thru the Nawur District. I also said that also was evidence provided by DFAT in September 2011 that there is a route from Kabul to Ghazni, through long and arduous using the Parwan Road through Bamyan. I stated that this may suggest that he would be able to return to his home village without facing serious harm. He commented that he still had to be able to pass through areas to get to Jaghori. The Independent Merits Reviewer's ultimate finding was expressed later in his Statement of Reasons as follows: 62. I accept that there are insecure routes leading from Jaghori to Ghazni City but the country information from DFAT also indicates that there is a secure route through the Nawur district. The country information also indicates that there is secure (but long and arduous route) from Kabul to Ghazni City. I am therefore satisfied that the claimant could return safely to his home area without facing a real chance of persecution from the Taliban and/or criminal elements and that he could travel to Ghazni city safely. I note that the claimant's family have a farm in Jaghori and do not accept that he has a need or would travel through Pashtun dominated areas or insecure routes where he would face a real chance of persecution from the Taliban and/or criminal elements. The interview, it should be noted, took place in the presence of the Appellant's migration agent and with the assistance of an interpreter. 25 The inquiry and the factual basis upon which the Reviewer proceeded was nevertheless said by Counsel for the Appellant to be inadequate. Counsel's submission was that the fact that there was a "secure route … did not say anything about this appellant's ability to travel on it". Counsel went on to submit that "[i]n many countries the ready availability of transport can be assumed, but in a country like Afghanistan where the situation is fluid, and some roads at least are dangerous … [a person's ability to travel] cannot be assumed". The argument, as particularised before the Federal Magistrate, maintained that there was a failure to consider the "length of the journey"; "means of travel"; and "availability of basic overnight accommodation, if that were necessary". The issue as raised during the course of the interview, it was submitted, merely raised the possibility of the Appellant getting from Kabul to Ghazni; the practicality of getting there was left outstanding. 26 These submissions are rejected. Much will obviously depend upon the facts and circumstances of each individual claim. But, in the circumstances of the present appeal, it is not considered that more was required of the Independent Merits Reviewer than the analysis in fact undertaken and the findings made. 27 There is, with respect, considered to be no failure on the part of the Independent Merits Reviewer to properly consider whether the Appellant could reasonably return to the Jaghori District. The fact that a "secure route" may be "long and arduous" (for example) does not, in and of itself, render the taking of that route "unreasonable". The Appellant was unable to point to any "particular objection" raised by him during the course of the interview which was not addressed. Whatever may be the position if (for example) a poorly-educated claimant has been interviewed without the assistance of either a migration agent or an interpreter and fails to raise an available "objection" which may "emerge clearly from the materials before the Tribunal" (cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [68], 144 FCR 1 at 22 per Black CJ, French and Selway JJ) is a situation which need not presently be addressed. 28 These matters were considered and correctly determined by the Federal Magistrate: [2012] FMCA 643 at [92]. No appellable error is thus discernable from the Federal Magistrate's reasons. 29 The second Ground of Appeal is also rejected.

CONCLUSIONS 30 Both Grounds of Appeal are rejected. The appeal is to be dismissed. 31 There is no reason why the Appellant should not pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.