SZSHK v Minister for Immigration and Border Protection

The Grounds 18 The grounds of the application to the Federal Circuit Court, as pressed, were as follows, as there renumbered: 1. The Second Respondent failed to take a relevant consideration into account under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the findings regarding the possibility of: Particulars (a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or (b) any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) - noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of "real chance of serious harm" (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis. 2. The Second Respondent failed to consider all the integers of the complementary protection claims and thereby made a jurisdictional error Particulars That the second respondent failed to assess key integers of the [appellant]'s claims under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the [appellant]'s claims regarding the possibility of: (a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or (b) any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) - noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of "real chance of serious harm" (as defined in s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis. 3. The Second Respondent misconstrued and misapplied the complementary protection criterion of section 36(2)(aa) of the Act and thereby made a jurisdictional error. Particulars That the second respondent failed to apply the correct test at law pursuant to s36(2)(aa) of the Migration Act 1958 to the [appellant]'s claims, namely failing to consider whether the [appellant]'s claims regarding the possibility of: (a) robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or (b) any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) - noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of "real chance of serious harm" (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis. 19 As so renumbered these grounds correspond to the grounds in the notice of appeal from the Federal Circuit Court to this Court filed on 4 July 2013. In each case it is said that the primary judge made a legal error in not finding that the Assessor had failed to take a relevant consideration into account; had failed to assess key integers of the appellant's claims; and misconstrued and misapplied the complementary protection criterion.

The decision of the primary judge 20 The primary judge's conclusions, in summary, were as follows. The Assessor did not believe the factual assertions made by the appellant involving, relevantly, the Kuchis, and travel to and from his village. The Assessor did not need to repeat her analysis of the appellant's credibility in relation to complementary protection. 21 Further, there was no claim by the appellant expressly made, nor clearly arising, to say that he feared significant harm from the Kuchis in relation to livestock and such as to require the Assessor to address it in the way the appellant submitted she was. We set out the relevant part of [77] of the reasons of the primary judge because it was said by the appellant to manifest the error in respect of the Kuchi livestock claim: … There was no claim by the [appellant] (or his representative) expressly made, nor clearly arising, to say that he feared significant harm from the Kuchis in relation to livestock and such as to require the assessor to address it in the way the [appellant] now says she was. Attempts to argue to the contrary now do not rise to reveal a claim expressly made or clearly arising. 22 The summary of the primary judge's conclusions was: 82. Ground one asserts a failure on the part of the assessor to take a relevant consideration into account in relation to s.36(2)(aa) of the Act. That is the Kuchi claim and the travelling claim. That ground, for the reasons set out above, is not made out. The assessor specifically took into account the travelling claim when considering s.36(2)(aa) (as it was put and explained to her by the [appellant] and his representative). Further, she was not required to relevantly deal with the Kuchi threat to livestock and the like, beyond the way that she did. 83. Ground two, similarly, is not made out. When considering the complementary protection criterion, the assessor considered all integers of the [appellant]'s claims that were expressly made and clearly arising in the context of complementary protection. Ground two is not made out. 84. Ground three asserts a failure to apply the correct test in relation to s.36(2)(aa) of the Act to considering the Kuchi claim and the travelling claim. The [appellant]'s submissions before the Court did not focus on any misapplication of the correct test as such. Rather, the [appellant]'s attack focused on the argument of a failure to take into account integers of the [appellant]'s claims. In that sense, ground three was no different to ground two and fails for the same reason as set out above in relation to ground two. In any event, there is nothing before the Court to show that the assessor misunderstood, or misapplied, the correct test as required by s.36(2)(aa) of the Act.

The parties' submissions 23 The appellant submitted that there were three interrelated propositions arising from the complementary protection provisions and they were that the primary judge erred: in failing to find that the Assessor had failed to take relevant considerations into account; or in failing to assess the full integers of the appellant's claims; or in failing to apply the correct test under complementary protection to the claims squarely raised by the appellant. 24 The appellant submitted that, having accepted that he had once been robbed and once asked for money when travelling in and out of his village for over ten years, the Assessor failed to consider whether, if he returned to Afghanistan, travelling in and out of his village would result in a real risk of the appellant suffering "significant harm" as defined in s 36(2)(aa) of the Act ("the travelling claim"). Similarly, with respect to the Kuchis, having accepted that on one occasion three years ago the Kuchis took the appellant's animals, the Assessor failed to consider whether that would result in a real risk of the appellant suffering "significant harm" as defined ("the Kuchi claim"). 25 The appellant submitted that, in failing to consider these two claims in the context of complementary protection, the Assessor failed to address relevant considerations and, in doing so, failed to discharge her function according to law. The appellant submitted that [145] of the Assessor's reasons in turn referred to findings of fact elsewhere in the recommendation which the appellant submitted were "bound up in Refugee Convention-related reasoning". In the alternative, the appellant submitted that the Assessor's failure to consider these claims, where such matters were before the Assessor, led to a constructive failure to exercise jurisdiction (with reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23], [26] - [27], [86] - [89]). 26 In relation to the travelling claim, in oral submissions the appellant submitted there was an impermissible conflation of the language of s 91R on the one hand and s 36(2)(aa) on the other. The expressions in [145] of the Assessor's reasons which the appellant particularly criticised were the statement that the appellant was not "targeted" by the Taliban/Kuchis Pashtuns when travelling on the road; that not all Hazaras are subject to "persecution" by the Taliban and Pashtuns; and that the appellant would not be "denied protection". 27 In relation to the Kuchi livestock claim, the appellant submitted that the evidence regarding the Kuchis was squarely raised as a key integer of the appellant's claims and referred to the appellant's statutory declaration dated 12 March 2012 and to the entry interview. In oral submissions the appellant submitted that even if this material was never put as a complementary protection claim the Assessor still had to evaluate it. The fact that this material was considered under the Refugees Convention showed that it did arise. The appellant also referred to the statements under the heading "Relevant Background" at [4] and [5] of the reasons of the primary judge as indicating that his Honour had read the Assessor's recommendation in the manner urged by the appellant, and his later findings were said to be inconsistent with that reading. In short, the appellant contended that the fact that the claim had not been put by him or his representatives specifically under the "label" of complementary protection was immaterial to the Assessor's obligation to consider it in that context. The appellant referred in support of that submission to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [60] - [61]. 28 The Minister adopted the reasons of the primary judge. He submitted that all of the grounds of appeal essentially asserted the same error, namely, that the Assessor failed to consider the appellant's claims to fear harm while travelling outside his village, and of the Kuchis, when considering complementary protection. 29 The Minister submitted that the statement at [145] that "Given the country information and the [appellant]'s own experiences I do not accept that there is a real risk that he or she will suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads" directly and in terms of the language of 36(2)(aa) addressed the claims that the appellant faced a real risk of significant harm while travelling, given the appellant's stated fears while travelling were of the Taliban and Kuchis. 30 With respect to the appellant's Kuchi claim, the Minister submitted that on the basis of the Assessor's findings at [132] and [133], there was no basis for the Assessor to find there was a real risk of significant harm from the Kuchis. Further, the appellant's submissions did not explain how the grazing of cattle or even the possibility of future theft of animals by the Kuchis could possibly fall within either "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" given their definitions in s 5(1) of the Act. In any case, the Minister submitted, as the primary judge held, that the appellant never claimed to fear harm from the Kuchis as part of any complementary protection claim. There was no failure by the Assessor to deal with a "substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]. The claim to fear harm from the Kuchis was never put as part of the appellant's complementary protection claims and was in any case negatived by the Assessor's findings. In oral submissions the Minister accepted that the Assessor had not addressed the Kuchi livestock issue in relation to the complementary protection claim but submitted that there was no jurisdictional error in not so doing because that issue was not put and could not clearly arise, applying the approach in Dranichnikov.

Consideration 31 There was a suggestion in the appellant's submissions that adverse credibility findings were not relevant to the assessment by the Minister under the complementary protection provisions: see [3(c)]. We do not accept this submission if intended to mean that whether or not a claimant is believed cannot be relevant to the Minister's substantial grounds for believing there is a real risk of significant harm. Plainly, in our opinion, if the claimant claims that he or she has suffered significant harm in the past but his or her account of the constituent events is not believed, then that is relevant to the question for the Minister of substantial grounds for believing there is a real risk of significant harm. 32 In the present case the Assessor did not accept that the appellant was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City, which was a factual component of the appellant's claim. The Assessor did not accept that there was a real risk that the appellant would suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads, which was another factual element. The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. These being the claims put we see no error in so assessing them. We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act. 33 In our opinion the major premise of the appellant's submissions is that the reference in [145] of the Assessor's findings incorporates the entirety of the reasoning of the Assessor, particularly the reasoning at [127] and [133], which refers to Convention reasons, and that therefore the findings in [145] should be read down accordingly. We do not accept that reading of the Assessor's findings. As we have indicated, in our view [145] adequately sets out the Assessor's findings of fact. The first sentence of [145] upon which the appellant primarily relies for his major premise is, in our view, an explanation by the Assessor of why it was that she did not accept the appellant's claims which followed. 34 As to the specific criticisms made by the appellant of [145] of the Assessor's reasons, read in context and so as to inform as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, we are not persuaded that those references establish that the Assessor impermissibly strayed from addressing the statutory question posed by s 36(2)(aa) in relation to the travelling claim. We accept that to some extent the Assessor was restating what she had earlier found but we do not regard those restatements, in the terms in which they are made in [145], as irrelevant to the s 36(2)(aa) question given the claim made that the routes to and from Ghazni province were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban as a Hazara: see [30] of the Assessor's reasons and the claim made at page 45 of the appellant's lawyers' 46 page submission to the Assessor. For completeness we also note that protection obligations are the subject matter of s 36(2)(aa) and that obtaining protection from an authority of the country is referred to in s 36(2B). Both these provisions form part of the complementary protection criterion for a protection visa. 35 As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker's reasoning in fact was. In the present case, the Assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant's claim. 36 As to whether the claim regarding the Kuchis was squarely raised as a key integer of the appellant's claims, we agree with the conclusions of the primary judge at [75]-[77] that the appellant's legal representative's long and detailed submissions, when arguing that the appellant met the complementary protection criterion, made no specific reference to the appellant's Kuchi claim. The basis for the appellant's legal representative's argument before the Assessor that the appellant met the "significant harm" criterion was the absence of State protection in circumstances where the authorities and the Taliban would torture and kill Hazaras and Shias and that the appellant would also be at risk because he would be a returnee from a Western country and that he would suffer degrading treatment or punishment from the Taliban because he would be unable to travel freely. There was no claim by the appellant or his representative to say that he feared significant harm from the Kuchis in relation to livestock so as to require the Assessor to address it. There was no such claim expressly made or clearly arising. In our opinion the Assessor accurately summarised the appellant's submissions in relation to the complementary protection criterion as, first, that the routes to and from Ghazni were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban and, second, that if he returned to Afghanistan his identity and whereabouts would become known to the Taliban and Pashtuns and he would be subject to degrading treatment and punishment. 37 We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant's submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection. 38 It follows that we reject the submission that the Assessor failed to address relevant considerations and thereby failed to discharge her function according to law. We also reject the alternative submission that the Assessor's failure to consider the appellant's claims led to a constructive failure to exercise jurisdiction. We also reject the submission that the Assessor failed to apply the correct test to the claims. As will be apparent, our reasons differ to some extent from those of the primary judge. 39 Nothing that we have said should be taken to suggest that the facts on which the appellant relied could amount to cruel or inhuman treatment or punishment or to degrading treatment or punishment as defined in s 5(1) of the Act. For example, we note the finding that the appellant's village had never been attacked by Kuchis and that the appellant or and his family had never been threatened or harmed by the Kuchis.

Conclusion 40 The first respondent's name should be amended to "Minister for Immigration and Border Protection". The second respondent's name should be amended by substituting "Protection" for "Merits". 41 The appeal should be dismissed with costs. We note that in the written submissions on behalf of the appellant it is contended that leave to appeal should be granted with costs but counsel for the appellant accepted that that is a mistake as no leave to appeal is required. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Robertson, Griffiths and Perry.