SZSXE v Minister for Immigration and Border Protection

The appellant's story 18 The appellant provided a statutory declaration at the initial refugee status assessment stage. He was also interviewed by the officer who conducted the initial assessment. He was later interviewed by the two independent reviewers for the purposes of their reviews. He provided a relatively consistent account in the statutory declaration, and in his interviews, concerning incidents and events that had occurred to him whilst he resided in Afghanistan, and why he fears and believes that he will be harmed if he is required to return to Afghanistan. 19 That said, the second reviewer did not accept all of what the appellant told him. The second reviewer, in his reasons, analyses at length the appellant's claims and evidence. He points to what he considered to be some inconsistencies, implausibilities and apparent embellishments in parts of the appellant's story. Some aspects of the appellant's story were not accepted by the reviewer. 20 The basic thrust of the appellant's story is that one day in July 2008, when he was working in his family's shop in Ghazni Province in Afghanistan, two would-be suicide bombers were arrested near the shop. This arrest was publicised in the local newspaper. A short time later someone from a local Taliban group telephoned the appellant. The caller accused the appellant of working for a foreign government, informing on the bombers and, therefore, aiding their arrest. A short while later, in August 2008, the appellant and his father were kidnapped. They were taken to a house where some other people were also being held captive. His kidnappers were from the same Taliban group that had previously threatened him. At the house the appellant was tortured. He also witnessed his father and one of the other captives being beheaded. 21 After another six weeks in captivity, the appellant and two other captives were taken to another location. The appellant was kept there for another five months. During this period the appellant was again tortured. One of the other captives died. 22 Eventually, after the appellant pleaded to be released, the Taliban said they would release him if he agreed to drive a vehicle to Kabul for them. The appellant agreed. He and another person were then taken to another location and equipped to carry out that task. After some days, however, the appellant escaped from his captors. He caught a taxi to Kabul, arriving there in about January 2009. He eventually left Afghanistan and travelled to Pakistan in about February 2009. From there he travelled to Australia as previously described. 23 The appellant said that he feared returning to Afghanistan because the Taliban might capture and kill or otherwise seriously harm him. He claimed that the Taliban group members who kidnapped him knew that he had seen their faces. The Taliban believed he was associated with the government and was anti-Taliban. They would accordingly be concerned that the appellant would divulge their names and organisational structure to the government. The appellant produced to the reviewer a number of documents that he said supported his claim that the Taliban perceived him to be a government collaborator and that they would recapture him if he returned to Afghanistan. 24 At various stages of the administrative assessment process the appellant also claimed that he risked persecution in Afghanistan because of his ethnicity and religion. By the time of the second review, however, the appellant made it clear that he did not fear persecution or harm in Afghanistan because he was a Tajik and Sunni Muslim. The primary reason the appellant ultimately gave for his fear of returning to Afghanistan was his past mistreatment at the hands of the Taliban and his belief that, if he returned to Afghanistan, the Taliban would seek to recapture and harm him. 25 The only other claim or reason given by the appellant for fearing persecution in Afghanistan was that he would face persecution in Afghanistan because he was a failed asylum seeker. That was a claim that was ultimately rejected by the reviewer. That finding is not challenged and is not relevant to consider in the circumstances of this appeal. 26 Beyond that, the most that could be said is that the appellant appears to have made some very vague statements about the general security situation in Afghanistan, in particular in Ghazni and Kabul. He appears to have referred to frequent kidnappings and killings that occur in Kabul, as well as attacks on government and foreign institutions. As has been said, however, his real concern and essential claim was that he would be harmed again by the Taliban if he was required to return to Afghanistan.

The reviewer's decision and recommendation 27 The reviewer accepted most of the appellant's story in relation to his mistreatment at the hands of the Taliban in Afghanistan in 2008. Critically, however, the reviewer rejected those parts of the appellant's story that suggested that the Taliban saw him as a government collaborator, or someone who was responsible for the capture of the bombers, or someone who was anti-Taliban. The reviewer effectively found that the appellant's mistreatment was a random act of brutality on the part of the Taliban. The Taliban did not specifically target the appellant as a result of any of his activities or perceived or actual beliefs or connections. 28 The reviewer either rejected as falsifications, or gave little or no weight to, the documents that the appellant relied on to corroborate or confirm his claim that the Taliban would target or seek to recapture or harm him if he returned to Afghanistan. 29 The rejection of these aspects of the appellant's story was critical because it led the reviewer to conclude that the appellant was, or would be, of little interest to the Taliban if he returned to Afghanistan. The reviewer also concluded that the chances of the Taliban tracing the appellant if he returned to Afghanistan were remote, particularly if he returned to Kabul. 30 This in turn led the reviewer to conclude that he was not satisfied that the appellant faced a real chance of persecution at the hands of the Taliban because of his perceived political association with the government. This was fatal to the appellant's central claim to be a refugee and to satisfy the Refugee Convention criterion in section 36(2)(a) of the Act. 31 Having dealt in his reasons with the question whether the appellant satisfied the refugee criterion in section 36(2)(a) of the Act, the reviewer then separately dealt with whether the appellant satisfied the complementary protection criterion. At paragraphs [18] to [20] and [129] of his reasons, the reviewer set out the essential elements of the complementary protection criterion. He set out the terms of section 36(2)(aa), as well as other sections of the Act that define, explain or qualify the words and phrases used in section 36(2)(aa). 32 The reviewer's recitation and explanation of the complementary protection criterion is uncontroversial. The appellant accepts that, in these paragraphs of the reasons, the reviewer stated the correct test. This tends to reveal that the reviewer was acutely conscious of the separate complementary protection criterion and the relevant test that he was required to apply. 33 Having set out the terms of the complementary protection criterion, the reviewer then noted (at paragraph [130] of his reasons) that the appellant's claim that he met the criterion essentially relied on the same facts and circumstances that he relied on in relation to his claim to be entitled to protection as a refugee. That observation is neither particularly surprising nor controversial. One might reasonably expect a person in the appellant's position to advance a single story or body of evidence about their past persecution or mistreatment and the resulting fear and belief that they will be harmed if returned to the country from which they had fled. The application of the facts to the separate criterion in section 36(2)(a) and 36(2)(aa) is, however, a separate matter. It is for the decision-maker to apply the facts to the statutory criteria. 34 In dealing with the complementary protection criterion in his reasons, the reviewer effectively repeated the factual findings he had detailed earlier in his reasons in the context of the Refugee Convention criterion. The reviewer's critical conclusions in terms of the complementary protection criterion are set out in the latter part of paragraph [132] and in paragraph [133] in the following terms: I accept that [the appellant] and his father were kidnapped by the Taliban and that his father was murdered by them. I accept that the abduction of [the appellant] and his father may have been intended to undermine, challenge and frighten the community and the authorities in Ghazni. I accept that their abduction may have been a form of payback for actions on the part of the authorities in the area against the Taliban. Again, I do not accept that the Taliban targeted [the appellant] or his father as collaborators with the authorities or foreign forces. I accept that [the appellant] pleaded to be released and later escaped from the Taliban after agreeing to undertake a task for them, which he therefore did not fulfil. I accept that [the appellant's] experiences make him subjectively afraid to return to Ghazni and I accept that he is subjectively afraid of returning to live in his birthplace Kabul, where he also conducted an essential aspect of his family's commerce on a regular basis in more recent years. Even though past events have caused him some trauma, I do not accept on the evidence before me that [the appellant] is of significant ongoing interest to the Taliban, let alone in Kabul. I accept that there are occasional attacks on government and foreign institutions in Kabul and that these can sometimes cause harm in the locations where they occur, to the population generally. With regard to these factors, and having regard to the diagnosis of PTSD in this case, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, Afghanistan, there is a real risk that [the appellant] will suffer significant harm either in the form of arbitrary deprivation of life, or the death penalty, or subjection to torture or to cruel or inhuman treatment or punishment or to degrading treatment or punishment (for the purposes of s.36(2)(aa), as defined in s.5(1) of the Act, particularly with regard to intentional infliction of pain or suffering or international causing of extreme humiliation which is unreasonable).

The Federal Circuit Court proceedings and judgment 35 There is no issue that the Federal Circuit Court had jurisdiction to entertain the appellant's application for judicial review of the reviewer's decision and recommendation on the basis that the reviewer did not address the relevant legal question. That flows from the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319. 36 In the Federal Circuit Court, the appellant claimed that the reviewer applied the wrong test under s 36(2)(aa) of the Act. It is worth setting out the sole ground relied on by the appellant in the Federal Circuit Court, particularly as essentially the same ground is advanced in this Court: 1. The Second Respondent applied the wrong test under section 36(2)(aa) of the [Migration] Act 1958 (Cth). PARTICULARS a) In dealing with the applicant's claim under section 36(2)(aa) of the Migration Act, The Second Respondent focussed on the non-systematic or targeted nature of the threat posed to him by the Taliban and the motivations of those findings the persecution - namely, whether the Second Respondent could accept that the applicant was conflated the test under section 36(2)(a) with the test under section 36(2)(aa) by: i. importing the statutory language of section 91R(1)(c) of the Migration Act into the statutory test under complementary protection; and ii. importing the statutory language of section 91R(1)(a) and the test under the Refugee Convention into the statutory test under complementary protection, drawing into the test under complementary protection the requirement for the motivation for inflicting persecution. 37 The primary judge rejected the appellant's argument that the reviewer applied the wrong test in addressing the complementary protection criterion. Having considered the reviewer's findings and reasons, the primary judge concluded as follows (at paragraphs [24] and [25] of the judgment under appeal): The critical issue is whether the Reviewer applied the complementary protection tests to the facts he found. In my view he did - his reasons expressly record that the matters he found had been proved did not persuade him that the applicant met the criteria for the grant of a protection visa on complementary protection grounds. Further, the Reviewer's conclusion that the Taliban did not have a "significant ongoing interest" in the applicant was not a finding which was derived from or dependent on the Convention tests. Specifically, it was not concerned with the motivation for the Taliban's attitude towards the applicant as the applicant contended. It was no more than a finding that, contrary to the applicant's central claim, the Taliban lacked a real interest in him. Moreover, it was a conclusion which, once drawn, the Reviewer properly went on to consider further, first in the context of the applicant's Convention claims and then in the context of his complementary protection claims.

Grounds of appeal and submissions 38 The sole ground of appeal in this Court is that the primary judge erred in not finding that the reviewer had applied the wrong test. The ground of appeal contains the same particulars of the alleged error on the part of the reviewer as were contained in the Federal Circuit Court application. 39 The appellant's argument that the reviewer applied the wrong test essentially proceeds as follows. First, the appellant focuses on the reviewer's finding, at paragraph [132] of his reasons, that he did not accept that the applicant is of significant ongoing interest to the Taliban. He submits that this finding is derived from the statutory formulation in s 91R(1) of the Act. That section relates to the elements or test to be applied in relation to the Refugee Convention. It focuses on the motivations of the alleged persecutors. It follows, so the argument goes, that the reviewer imported components of the test relating to the Refugee Convention into his consideration of whether the appellant satisfied the complementary protection criterion. The reviewer accordingly applied the wrong test at law. 40 Second, the appellant argues that the fact that the reviewer applied the incorrect test is exposed by the fact that the reviewer transposed findings of fact he made in the context of considering whether the appellant satisfied the Refugee Convention test into his consideration of the complementary protection criterion. 41 This submission, again, focuses essentially on the reviewer's findings of fact relating to the motivations of the Taliban. For example, at paragraph [132] of his reasons, the reviewer concludes: I do not accept that the Taliban targeted [the appellant] or his father as collaborators with the authorities or foreign forces. 42 The appellant submits that this reveals that the reviewer was applying Refugee Convention facts and reasoning to the complementary protection criterion. He submits that the motivation of the Taliban is irrelevant to the complementary protection criterion. 43 Third, the appellant contends, at least in his written submissions, that the reviewer's finding that the appellant was of no "significant ongoing interest" to the Taliban was treated by the reviewer as dispositive of the appellant's complementary protection criterion claim. He submits that whilst this finding might have been dispositive of the Refugee Convention claim, it was not dispositive of the appellant's complementary protection claim. 44 Fourth, the appellant submits (at least in his written submissions) that the reviewer effectively sidestepped or ignored a claim, clearly raised by the appellant, to the effect that there was a risk of harm to the population of Afghanistan by insurgent activities generally. This is said to demonstrate error of the sort considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, NABE v The Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. In oral submissions at the hearing, however, the appellant's counsel made it clear that he did not press any submission that the reviewer erred in law by ignoring a claim. 45 As for the primary judge's rejection of similar arguments that were advanced in the court below, in his written submissions the appellant points to three alleged errors by the primary judge. 46 First, he submits that the primary judge incorrectly applied a passage from the judgment of the Full Court in SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 (SZSHK) at [35] when he concluded, at paragraph [22] of the judgment, that the relevant question was whether the reviewer: …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 [the reviewer] did not accept the [appellant's] claims. 47 The appellant submits that SZSHK is distinguishable because in that case, unlike here, the claimant was the subject of adverse credit findings. 48 Second, the appellant contends that the primary judge was wrong to conclude that the reviewer's finding that the Taliban did not have a significant ongoing interest in the appellant was not concerned with the motivation of the Taliban. This was said to be the basis of the primary judge's finding that the reviewer did not impermissibly import the Refugee Convention test when considering the complementary protection criterion. 49 Third, the appellant submits that the primary judge erred in referring to section 36(2B)(c) of the Act in dealing with the appellant's claims concerning the risk of harm arising from attacks by insurgent groups operating in Afghanistan. In his written submissions, the appellant points to the fact that this section was not referred to in the reviewer's reasons, was not raised during the hearing, and is inconsistent with another decision of the Federal Circuit Court in SZSRY v Minister for Immigration [2014] FCCA 1284. No oral submissions were made in relation to this point at the hearing of the appeal.

Consideration 50 A fair and reasonable reading of the reviewer's reasons does not support the appellant's contention that the reviewer applied the wrong test in dealing with the complementary protection criterion. The reviewer did not conflate or confuse the test with the Refugee Convention test. The primary judge was correct to reject the appellant's contention and did not err in any of the ways advanced by the appellant. 51 The reviewer's finding that the appellant was of no significant ongoing interest to the Taliban must be considered in the context of the appellant's claims and evidence and the reviewer's other findings of fact. 52 The appellant's primary claim before the reviewer was that he feared harm at the hands of the Taliban if he was required to return to Afghanistan. The reviewer accepted that the Taliban had mistreated the appellant in the past, but rejected the appellant's claim that he had been targeted by the Taliban, or that he was seen by them as a government collaborator. Based on this finding, the reviewer concluded that the appellant would be of no significant interest to the Taliban should he return to Afghanistan. There was accordingly no real risk that he would suffer significant harm in the future at the hands of the Taliban. 53 None of this reasoning impermissibly imports the Refugee Convention test or conflates that test with the complementary protection criterion test. It was logical and permissible reasoning relevant to the reviewer's consideration of the complementary protection criterion. Even if it did involve, to an extent, a consideration of the motivation of the Taliban for harming the appellant in the past, it does not follow that it involved reasoning that was relevant only to the Refugee Convention test. 54 The past motivation of the Taliban was plainly relevant to a consideration of whether there was any real risk of the appellant suffering serious harm from the Taliban in the future. As counsel for the Minister put it, in her helpful submissions: In a case where it is accepted that the appellant did experience harm in the past, which is the situation in this case, it was entirely appropriate for the reviewer to consider the context and circumstances of that harm (including the motivation of the perpetrators) when undertaking the prospective assessment of whether there were substantial grounds for believing that there was a real risk that the person will suffer significant harm if removed from Australia. 55 That is undoubtedly correct. The appellant's submission that the motivation of the Taliban was irrelevant to a consideration of the complementary protection criterion is rejected. 56 For essentially the same reasons, there is no merit or substance in the appellant's submission that the reviewer erred by simply transposing findings of fact made in relation to the Refugee Convention criterion to his consideration of the complementary protection criterion. Some of the findings of fact made by the reviewer, in the context of the Refugee Convention claim, were also plainly relevant to a consideration of whether the appellant met the complementary protection criterion. As the primary judge found, the critical issue was not whether the reviewer drew on the same body of evidence to resolve more than one question. Rather, the question was whether the reviewer applied the complementary protection test to the facts he found. The primary judge was correct to find that the reviewer did just that. 57 Finally, contrary to the appellant's written submissions, the reviewer did not sidestep or ignore any claim relating to attacks by insurgents, other than the Taliban, on the Afghani population either generally or in Kabul. That is so for two reasons. First, there does not appear to be any indication in the materials that the appellant ever clearly articulated any claim that he feared serious harm from non-Taliban insurgents if he returned to Afghanistan. This was effectively conceded by the appellant's counsel in oral submissions at the hearing of the appeal. Second, the reviewer accepted that there are occasional attacks on government and foreign institutions in Kabul and that these can sometimes cause harm to the population in the locations where they occur. But it is equally clear that the reviewer found that this general risk to the population was not sufficient to meet the complementary protection criterion. 58 The appellant's submissions of error on the part of the primary judge can also be disposed of briefly. None of them were the subject of any substantial oral submissions at the hearing of the appeal. 59 First, there is no merit in the contention that the primary judge was wrong to refer to or apply the relevant passage from SZSHK. The fact that SZSHK may be factually distinguishable is irrelevant. The Full Court's statement of the relevant question applies generally and was directly relevant to the argument that was advanced by the appellant in the court below. 60 Second, for the reasons already given, the primary judge's finding that the reviewer's conclusion that the appellant was of no significant ongoing interest to the Taliban was not derived from or dependent on the Refugee Convention test was correct for the reasons his Honour gave. That was the case whether or not the finding was concerned with the motivation of the Taliban. In saying that the reviewer's conclusion was not concerned with the motivation of the Taliban, his Honour appeared to be indicating no more than that the reviewer's conclusion was not concerned with any of the Refugee Convention motivations. 61 Finally, the primary judge did not err by referring to section 36(2B)(c) of the Act. As already indicated, the reviewer accepted that there were occasional attacks that could cause harm to the population generally. Nevertheless, he found that this did not satisfy the complementary protection criterion. It was undoubtedly open to him to so conclude. Whilst the reviewer did not expressly refer to section 36(2B)(c) of the Act, its terms clearly support his ultimate findings. It is difficult to see how any claim by the appellant relating to the risk of attacks to the population generally could fall within the complementary protection criterion given the terms of section 36(2B)(c). The primary judge's reference to that section must be considered in that context. It was not a significant part of his reasoning and, in any event, involved no error.

Disposition 62 It is difficult not to feel some considerable sympathy for the appellant. He has been found to have suffered greatly at the hands of the Taliban in Afghanistan. He was himself tortured. He witnessed the beheading of his father and other brutality by the Taliban. Not surprisingly, it has been found that he has a real fear of returning to Afghanistan. Nevertheless, he has been assessed by a departmental officer and a reviewer as not being someone to whom Australia owes protection obligations. That is essentially because both the officer and the reviewer consider that it is safe for the appellant to return to Kabul. 63 Whilst this administrative process took place, the appellant spent some two years in immigration detention. He has now been released into the community and is working. The result of this negative assessment may ultimately be that the appellant will be denied a visa and will most likely be returned to Afghanistan. On any view this is a harsh outcome for the appellant. It must be one that is difficult for him (and perhaps many others) to comprehend. 64 Nonetheless, whatever one may think of the outcome, and whatever sympathy may be felt for the appellant in all the circumstances, the review has not been shown to have involved any legal error. There is no basis in law to overturn it. The facts and merits of the appellant's assessment are matters for the primary decision-maker, here the reviewer. 65 The appellant has failed to demonstrate any error on the part of either the primary judge or the reviewer. The appeal must accordingly be dismissed with costs. 66 The Court should acknowledge, with gratitude, the fact that the appellant has been ably represented by Mr Stratton of senior counsel and Mr Bodisco of counsel on a pro bono basis. This has been of great assistance not only to the appellant, but also to the Court I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.