SZRKY v Minister for Immigration and Citizenship

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: COWDROY J DATE OF ORDER: 19 April 2013 WHERE MADE: SYDNEY

1. The appeal be dismissed.
2. The Appellant pay the costs of the First Respondent in the amount of $4,450.00. 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 1762 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: COWDROY J DATE: 19 APril 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 18 October 2012, Cameron FM dismissed the appellant's application for judicial review of a recommendation of the second respondent ('the Reviewer') that the appellant not be recognised as someone to whom Australia owes protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 ('the Convention'): see SZRKY v Minister for Immigration and Citizenship [2012] FMCA 942 ('the FMC Decision'). The appellant appeals from that decision. 2 The appellant is an Afghani citizen who arrived in Australia on 1 May 2010. On 15 October 2010 the appellant requested a refugee status assessment. A delegate of the first respondent made a negative assessment on 21 December 2010. The appellant then sought a review with the Reviewer on 31 December 2010. That review also dismissed the appellant's claims and found that Australia owed no protection obligations to the appellant.

CLAIMS 3 Before the Reviewer, the appellant claimed that: he was a Hazara Shi-ite; around the time he was born, his father was attacked by the Taliban and sustained stab wounds; his family moved to Quetta, Pakistan when he was only three months old because of the threat of the Taliban and because he required an operation on his leg; his family owned a family farm in Afghanistan; that his father left the farm in the care of the appellant's uncle and cousins upon moving to Pakistan; in Pakistan he and his family also faced persecution for being Hazara Shia, claiming that his father was shot and injured in 1997 or 1998 by Taliban; that one of his brothers had been shot and killed by Pashtuns/Taliban; that one of his other brothers had gone missing in 2007 and was believed to have been killed by the Taliban; that he himself had been beaten as a young child while he was working in the marketplace by a Pashtun boy; he could not return to Afghanistan as he would be persecuted or killed by the Taliban because he is a Hazara Shi-ite, and because he is not able to speak or understand languages other than Hazaragi; and he could not live with or rely on the support of his cousins in Afghanistan as he was not certain if they were still alive. 4 Further, although it was accepted that the appellant did not have the right to enter and in reside in Pakistan, the appellant claimed that he could not return there because he would be persecuted as a Hazara Shia and as an Afghani refugee, and he would not be allowed to go to mosque or work in Pakistan. 5 The appellant's representative also put forward a submission that the appellant was a child/unaccompanied minor and that he would face risk of persecution in Afghanistan as a member of that social group.

THE APPEAL 6 The appellant's notice of appeal from the FMC Decision filed on 8 November 2012 set out the following grounds: 1. His Honour erred in holding that: a) There was no material difference between the test of reasonable practicability of relocation from a claimant's 'home area' and the test of a well-founded fear of persecution in the 'home area', and b) The practicability of relocation is only to be determined by reference to whether it involves a real chance of persecution. 2. His Honour erred in holding that: a) The Reviewer made any relevant finding that the appellant could live in Jaghori, and b) The matters raised by the appellant listed in para.27 of the decision, which the Reviewer failed to consider, were properly to be considered only in relation to a fear of persecution in Jaghori, and c) Without considering those relevant matters, it was open to the Reviewer to conclude that the appellant did not have a well-founded fear of persecution there [in Jaghori]. 3. His Honour erred in holding that: a) The appellant had not made a claim to the Reviewer that he feared persecution or it would be unsafe or impractical for him to travel to Jaghori, and b) The Reviewer was not obliged to consider whether the appellant could safely travel to that or any place nominated by the Reviewer as being relatively safe from persecution within his country of nationality. 4. His Honour erred in holding that the applicable test of refugee status was whether the appellant had a relevant fear 'in relation to that part of his country of nationality, with which he had the closest connection and where he might be expected to live in the future, absent a fear of persecution' irrespective of the facts accepted by his Honour, that the appellant had 'no real link with any particular part of that country' and 'almost negligible association with' that part of the country and despite the absence of any reasonable foundation of such an expectation. 5. His Honour erred in holding, that: a) the relevant identification of a claimant's 'home area' involved no more than the nomination of a location with which the appellant has the greatest connection, as the starting point of a consideration of any fear of persecution, b) the Reviewer made any relevant finding that Jaghori was the appellant's 'home area', and c) the Reviewer's exclusion from his consideration of: i) the appellant's fear of persecution anywhere in his country of nationality, other than his birthplace, and ii) hence the unreasonableness or impracticability of the appellant's relocation there, was 'an error of no significance'. 6. His Honour erred in holding that the mere existence of cousins on a farm in the region of Jaghori was sufficient evidence to support a relevant finding that the appellant would have available family support networks there either in itself or without consideration of the likelihood, quantum or nature of any such support being provided. 7. His Honour erred in failing to hold that it was an error of law going to jurisdiction of the Reviewer to effectively find irrelevant (or of no probative value) the evidence of violence against the appellant and his family inside and outside his country of nationality by the same group, against the same group, and for the same Convention reasons as were feared to be prevalent within it. 8. His Honour erred in holding that the Reviewer was not required to state his reasons for refusing the appellant's claim upon the accumulation of Convention grounds separately from his reasons for refusing the claims on those grounds individually.

HEARING BEFORE THIS COURT 7 Counsel for the appellant made comprehensive written and oral submissions at the hearing before this Court. Given the number of issues raised, the Court will consider each issue in respect of which it is submitted that his Honour erred in his decision.

Travel to a place of relative safety 8 His Honour found that it was not necessary for the Reviewer to consider whether it was safe for the appellant to travel to Jaghori, since the appellant had not claimed that it was impossible to do so. Reliance was placed by his Honour in the decision of SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] in which Foster J determined that where represented claimants had not pursued an issue, there was no obligation for a Reviewer to consider a claim not made. 9 The appellant submits that his Honour's reliance on SZRPA was misplaced as in those proceedings there was an alleged obligation to consider rights under the Refugees Convention and other international instruments different from that under Australian legislation. However in the present circumstances, the Reviewer was bound to consider the practicality of the appellant's return to his birthplace, Jaghori. 10 Further, the appellant submitted that his Honour's observation differed from the test accepted by the Full Court in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59 in which the Full Court considered the need to consider whether there was evidence relating to the safety of a family's return trip to their 'home' from Kabul and whether there was evidence before the Tribunal which fairly raised the question. The appellant also relies upon the observations of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] wherein the Full Court confirmed that a claim not expressly advanced 'will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal'. To similar effect see MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462 at [41]. 11 Further, the appellant submits that the issue of his relative safety does not relate to a 'home' to which he might 'return' but rather a 'relocation'. As such, there can be no effective onus on the appellant to raise such a question. 12 The appellant submitted in the alternative that the claim of fear of persecution throughout the country was made before the Reviewer. Although this submission was rejected by his Honour, his Honour could not have been satisfied that it was necessarily safe to travel across the countryside to reach the place described as 'home'. It is submitted that although the lack of safety in respect of the travel to Jaghori was raised by the appellant, the Reviewer made no finding in relation to such claim. Accordingly, there was a strong inference that they had been 'overlooked': see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. Further, failure to deal with such matter was a denial of procedural fairness: see Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [90].

Consideration 13 The appellant had not made the claim to the Reviewer that it was not safe for him to return to Jaghori. The Reviewer made the following observation: I suggested that it would be safe for him to return to Jaghori. He stated that he would not return. 14 Before the Reviewer the appellant mentioned that a 'long time ago his father could not take the family across the border from Quetta in Pakistan to Jaghori'. That was the only reference made to any issue concerning the inability to travel back to Jaghori. Neither expressly, nor impliedly, was there any claim by the appellant that it would not be safe for him to travel to Jaghori if he were returned to Afghanistan. In these circumstances his Honour was correct in his observation that the Reviewer had not been required to determine whether it was safe for the appellant to undertake such travel. His Honour's finding was consistent with the observations that, where a claimant is represented professionally, it is to be assumed that the claims he seeks to make are expressly raised by him and his advisers, and that no claims are to be 'inferred': see SZRPA at [10]. For the appellant to now raise such a matter is an attempt to re-canvas factual findings in an impermissible way: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [123] per Kirby J. Further, it is an established principle that a Reviewer cannot err through 'an application, never made, which might have been put on another basis': see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 15 The appellant's submission, now made, claims that the question of safe travel from Jaghori was raised because of information regarding the danger to a traveller on the roads to Afghanistan. However that was recognised by the Reviewer when he found that he was not satisfied that the independent country information supported 'the claims that the Taliban in Jaghori specifically target Hazara Shia on a systematic and discriminatory basis'. The Reviewer observed that Hazaras may have been targeted on the road for non-Convention reasons or as part of their general insurgency. However, this does not suggest that the attacks were motivated by reasons relating to persecution. 16 In view of the above, although the claim was never specifically raised by the appellant in respect of any return journey, the fact is that the Reviewer did consider the prospect of return as set out above. In view of his conclusion that there were no specific attacks for a Convention reason against Hazaras, the Reviewer fulfilled any obligation upon him which might be said to have been imposed as referred to in SGDB and in NABE (No 2). It also follows from this finding that the Reviewer did not overlook any relevant circumstance. Accordingly the principle in Applicant WAEE and Plaintiff M61/2010E has no application. The Court rejects the first ground of appeal.

Ability to live in Jaghori 17 The appellant submits that no relevant finding was made that the appellant could live in Jaghori and that the Reviewer had 'closed his eyes' to such question. It is submitted that his Honour dismissed such claim on the basis that it only arose where there may be a well-founded fear of persecution for a Convention reason in Jaghori. The appellant argues that this finding is inconsistent with his Honour's justification for selecting a location to consider the issue of persecution, namely 'where he… might be expected to live in the future, absent a fear of persecution'. The appellant contends that the reasonableness of this expectation necessarily depended on evidence showing the practicability of living in the location. 18 Further, the appellant submits that his Honour erred in holding that it was 'open to the Reviewer' to determine that the appellant did not have a well-founded fear of persecution and that a failure to take into account relevant considerations infects the resulting decision with error, even if the same decision could properly have been reached taking into account such relevant considerations. It is submitted that his Honour should have found that there was an obligation on the Reviewer to consider the practicability of living in Jaghori separate to the issue whether the appellant would be subjected to persecution there.

Consideration 19 Having reached the conclusion that he did, his Honour was not obliged to conduct any further inquiry. The real question, as his Honour found, was whether living in Jaghori would result in the appellant being persecuted for a Convention reason. The Reviewer found against the appellant on this issue. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [25], the High Court found that the Refugees Convention 'is concerned with persecution in the defined sense, not with living condition in a broader sense'. Since there was a factual finding that the appellant would not suffer persecution in Jaghori, no further inquiry was required. The Court rejects ground 2 of the appeal.

Relevant 'support network' 20 The appellant submits that there was no evidence that support networks were available. 21 The Reviewer found that the appellant would not risk persecution as a child in Jaghori because he would have the support of family networks. Although the appellant is now no longer a child, it should be observed that the Reviewer found, on the basis of evidence given to the assessor, that cousins of the appellant lived on a farm in the Jaghori region. The appellant argued that he would not be able to live with them because the cousins' father had been killed and, as a result, the appellant would be living in fear should he live on the farm. 22 His Honour found that the Reviewer had 'implied that the applicant [appellant] could call on [his cousins on their farm in Jaghori] for assistance if required' and whilst such finding was not based on any evidence, it could be inferred from the 'social commonplace' that family would provide 'some form of support'. 23 The appellant submits that since his father had abandoned any claim in the farm there was no reasonable expectation that there would be support available.

Consideration 24 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ found at 356 that if there was 'some basis for an inference… even if that inference appears to have been drawn as a result of illogical reasoning', then no error arose if a decision was based upon that evidence. In Shop Distributive Allied Employees Association v National Retail Association (No 2) (2012) 205 FLR 227, Tracey J observed at [31] that the '"no evidence rule" cuts out when even a "skerrick of evidence appears"' (citing Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, Thomson Reuters, 2009) at p 259). 25 The Federal Magistrate considered the Reviewer's findings and the appellant's submission before concluding: The fact that the applicant pointed to evidence which, in his submission, indicated that his cousins would not or might not be able to assist him does not lead to a conclusion that the Reviewer had no evidence for his finding that the applicant could have the support of family networks if he returned to Jaghori. The fact that members of the same family can be expected to provide some form of support to other members of that family is a social commonplace, even if not ubiquitous. The fact of the applicant's family connections, particularly at the relatively close degree of first cousin, was sufficient evidence for the Reviewer to infer that support would be available from family members still in Jaghori. 26 The Court is satisfied that the Reviewer and his Honour were correct to draw the inference taking into account the fact of the evidence of a family connection in Jaghori. The Court rejects this ground of appeal.

Past violence excluded 27 The appellant submits that the Federal Magistrate erred in failing to find that it was an error of law for the Reviewer to discount various acts of violence against the appellant or members of his family, as set out at [3] above, as having no probative value. The basis of such claim is that the evidence concerning violence was relative and circumstantial, and therefore went toward the appellant's alleged well-founded fear of returning to Jaghori.

Consideration 28 As noted by the Federal Magistrate, a submission as to an error of law involves two considerations. The first is whether there was no evidence to support a particular finding. The second is whether the evidence adduced could not have tended logically to show the existence or non-existence of facts relevant to the issue to be determined: Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 at 689. 29 The appellant relies on the Court finding that the Reviewer considered the evidence to be 'literally irrelevant', and in doing so fell into error. This submission has not changed in effect from the submission put to the Federal Magistrate. In considering such argument, his Honour said at [47]-[48] of the FMC Decision: It is unclear whether the applicant's assertion is that the Reviewer failed to consider the evidence in question and thus erred or that, having considered it, he erred by not according it appropriate weight. Whichever it is, neither discloses error by the Reviewer - if the assertion is that the Reviewer failed to consider the evidence in question then the submission is not supported by the evidence and if the assertion is that the Reviewer failed to accord the evidence appropriate weight then it is wrong in law. If the Reviewer had failed to consider what significance and weight the evidence deserved then he would have erred. However, it is apparent that that is not what occurred in this case, where the Reviewer considered the evidence in question but concluded that it was of no or little value in deciding whether the applicant had a well-founded fear of persecution in Afghanistan. That is to say, having considered the evidence, he made a decision as to whether it was to be accorded any weight. A finding as to the weight to be accorded to particular evidence is part of the Reviewer's fact-finding function and something which the court has no power to review: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 at 375 [38]. 30 The Court finds no error in his Honour's findings. 31 Further, it is useful for practitioners acting in migration appeals to bear in mind the comments of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB 223. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at 507; Pickwell v Camden London Borough Council [1983] QB 962 at 990. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. [Authorities inserted] 32 The appellant's submissions in the present proceeding reflect a belief that the Reviewer's findings in relation to the evidence of violence were manifestly unreasonable. To the extent that this argument was implicitly raised, the Court rejects it for the following reasons. 33 The evidence concerning violence related to events which occurred when the appellant's family left Afghanistan when the appellant was approximately three months old. In these circumstances the Court finds that the observation of his Honour, namely that the Reviewer was entitled to consider the probative value of the events, was unremarkable. A substantial period of time had elapsed since the events upon which the appellant relied had occurred. Accordingly, the information concerning the incidents was vague and the most recent and relevant incidents to the appellant occurred in Pakistan and not in Jaghori. The Court concludes that his Honour did not err in holding that the findings of the Reviewer were open to him.

Accumulation claim 34 The appellant submits that the concluding remarks contained in the Federal Magistrate's decision failed to give due consideration to the separate considerations raised by the claim of persecution for an accumulation of Convention reasons. At [72] of the FMC Decision, his Honour said: The factual basis for the Reviewer's conclusion was made sufficiently clear in the lengthy discussion of the claims and evidence which preceded it. The relevant reasoning was summarised in the final sentence of para.108 of his reasons. Given the Reviewer's earlier findings on the applicant's claims and evidence, he did not need to say more and, specifically, was not required to undertake the exegesis which the applicant submits was appropriate. While it can be accepted that in certain circumstances the absence of detailed reasons indicates that a matter has been overlooked, the manner in which the Reviewer expressed himself in the reasons presently under review makes it plain that he did not overlook any relevant matter. 35 The appellant submits that issues required considered determination, namely whether an unaccompanied minor Hazara Shi-ite, who had been the subject of past persecution and was 'returning' through Pashtung/Talaban-controlled areas from the west as a filed asylum seeker who only spoke Hazaragi, would be more likely to be the subject of persecution than others in each of those categories. Further, it is submitted that from the Reviewer's report, neither the appellant nor the Minister would know how the combination of grounds affected the Reviewer's assessment of the 'real chance' of his being persecuted. As a result, if there had been a failure to scrutinise the appellant's claims on appeal, there would be procedural error. 36 The Reviewer considered the accumulative effect of the appellant's claims. In SZQFC v Minister for Immigration and Citizenship [2012] FCA 409, Yates J said at [64]-[65]: The appellant submitted that the IMR's reference to "in all the circumstances" was "simply a form or words" and that the IMR did not consider the cumulative effect of the appellant's circumstances. I do not accept that submission. It is clear from reading the reasons that, as a matter of substance, the IMR did consider the cumulative effect of the appellant's circumstances. The presiding Federal Magistrate did not err in finding to that effect. 37 The Court is unable to conclude that any jurisdictional error has arisen because of the content of the finding of the Federal Magistrate reproduced at [34] above. It was no more than a conclusion of his Honour having read the detailed reasons of the Reviewer which addressed every issue raised by the appellant. The Court rejects this ground of appeal. 38 The appellant specifically argued in his written submissions that the Reviewer was required to consider whether the appellant's inability to speak a language other than Hazaragi had an effect upon the likelihood of the appellant facing persecution in relation to the claims he made on Convention grounds. By merely dismissing the appellant's inability to speak a language other than Hazaragi as not being a Convention ground, the appellant argues that the Reviewer failed to consider such issue. 39 This submission must be rejected. As stated at [14] above, where a claimant is represented professionally, it is to be assumed that the claims he seeks to make are expressly raised by him and his advisers, and that no claims are to be 'inferred': see SZRPA at [10]. 40 The appellant did no more than claim in his RSA interview on 18 October 2010 that the Taliban would kill him because of his language and his inability to speak other languages. No claim was made before the Reviewer that the appellant's inability to speak a language other than Hazaragi would lead to a greater likelihood of persecution arising from a Convention reason. As referred to by the Federal Magistrate at [40] of the FMC Decision, the Reviewer found at [85] of his reasons that the appellant 'failed to explain how the claim was being put… [and] what Convention nexus/es is/are being invoked'. 41 In the Full Court decision of MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541, Yates J found at [38] that the failure to take into account the specific issue of dialect led the independent merits reviewer into error. That finding was predicated on the fact that the appellant had raised 'the substance of the issue' before the independent merits reviewer. The substance of the issue referred to was contained in a submission by the appellant that 'the dialect that he and his family spoke would mark them out in Afghanistan': see MZYPW at [35]. Furthermore, there was material before the independent merits reviewer to show that 'differences in dialect of returnees can lead to a denial of government services, attacks and murders': see MZYPW at [36]. 42 No such submission or material was before the Reviewer in the present proceeding, and as such, the judgment of Yates J does not assist the appellant. 43 For the above reasons, the appeal must be dismissed. In doing so however, the Court makes the following observation.

OBSERVATION 44 Section 351(1) of the Migration Act 1958 (Cth) ('the Act') provides that: If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. 45 Such power may only be exercised by the Minister personally: see s 351(3) of the Act. Further, pursuant to s 351(7) of the Act, the Minister does not have a duty to consider whether to exercise the power under subsection 1 in respect of any decision, whether requested to do so by an applicant or by any other person, or in any other circumstances. The High Court has determined that in analogous circumstances prerogative writs cannot operate to compel the Minister to act: see Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 48. 46 The Court has found that no error exists, either in the Reviewer's challenged findings, or in the Federal Magistrates findings. However, the Court notes that the appellant has not resided in Afghanistan since he was three months old, has no immediate family remaining in that country save for cousins, and he is currently 18 years of age. 47 Accordingly this case may be one in which the Minister may wish to exercise his power under s 351(1).

COSTS 48 The Minister seeks fixed costs in the amount of $4,450.00 pursuant to r 40.02 of the Federal Court Rules 2011 (Cth). The calculation of such amount has been set out in the affidavit of Oliver Richard Jones, sworn and filed on 26 February 2013. The appellant has not sought to adduce any evidence in reply as to costs. 49 The Court is satisfied upon review of the information contained in the affidavit of Mr Jones that an award of fixed costs in the amount sought by the Minister is appropriate in this proceeding. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.