FEDERAL COURT OF AUSTRALIA

SZQKC v Minister for Immigration and Citizenship [2012] FCA 249

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Federal Magistrates Court refusing the appellant constitutional writ relief in respect of a recommendation made by an independent merits reviewer conducting a review for the purposes of s 46A of the Migration Act 1958 (Cth): SZQKC v Minister for Immigration and Citizenship [2011] FMCA 848. The purpose for which the review was conducted was to enable the Minister to give consideration as to whether he would exercise his powers under s 46A to permit the appellant to make a claim for a protection visa under s 36(2) of the Act: Plaintiff M61/2001E v the Commonwealth (2010) 243 CLR 319.

Background

2    The appeal raises a question that has arisen in a number of similar cases. The appellant was an Hazara Shia from the Malistan Province of Afghanistan. He claimed to have a well founded fear that the Taliban would persecute him were he to return to Afghanistan. This was for a number of reasons which can be summarised shortly. First, he claimed that he had been stopped and tortured by the Taliban in 2004 when driving a van carrying passengers and his brother from Shindeh to Ghanzi. He claimed that his brother and a passenger were killed, but that he had escaped. Secondly, the appellant claimed, that subsequently, he had had an affair with the wife of a Taliban commander and that resulted in the birth of a child. He further claimed that the commander killed the commander’s wife and child on discovery of the affair. The appellant claimed that he later fled to Pakistan with his family, and that one of his children has subsequently disappeared. Last, also claimed that were he to return to Afghanistan, at the time of the review or in the reasonably foreseeable future, he would be subject to persecution by the Taliban in the area of Malistan where his home and family were, because the Afghan state was not in control of that area and could not offer him protection from that persecution.

3    The reviewer had found that Malistan remained out of the reach of Taliban control due to military and political power of a faction known as Hizb-I Wahdat Khalili/Nasr (the faction). The reviewer found that there were no reports about Taliban attacks in Malistan and that it was a safe and relatively stable district compared to Pashtun districts in Ghanzi Province. The reviewer found that travel is dangerous for persons of all ethnicities because of activities of criminal groups as well as the Taliban that targeted travellers going into and out of Malistan. However, she did not accept that the Taliban targeted travellers because of their race or religion. I will return to these findings in more detail shortly.

The issues

4    The notice of appeal made no reference to any ground on which the Federal Magistrates Court erred. Rather, it proceeded on the basis that this Court was hearing an application for relief directly from the decision of the reviewer. An amended notice of appeal will be filed to correct this error. Such notices of appeal are inappropriate and should not be prepared by lawyers who ought be aware that the issue on an appeal from another court is whether the lower court erred. The appellant raised a considerable number of challenges to the reviewer’s adverse assessment of his claims before the Federal Magistrates Court, but now advances a challenge only on two bases.

5    First, he argued that the reviewer erred in arriving at her conclusion that he would not have a well-founded fear of persecution were he to return to Malistan now or in the reasonably foreseeable future. Secondly, the appellant challenges the reviewer’s finding that he was not a truthful or credible witness. The appellant argued that he should have been put on notice that his credibility was in issue by the reviewer directly confronting him with an assertion that he was lying.

Ground 1: Control of Malistan by the faction and not the government

6    The first basis on which the appellant claimed that the reviewer failed correctly to apply the law arises in this way. The inquiry which the reviewer was undertaking was to inform the Minister of her recommendation whether Australia had protection obligations with respect to the appellant so that the Minister could consider whether to allow the appellant to make an application for a protection visa. Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol provides that the term “refugee” applies to any person who:

“… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or owing to such fear is unwilling, to return to it.

7    The reviewer dealt with the appellant’s claim that he feared returning to his village in the Malistan district of Ghanzi Province and living there because he had a real chance of serious harm amounting to persecution occurring to him in the reasonably foreseeable future. The appellant claimed that the population in his village and surrounding villages were all Hazara. He claimed that he had a house and land in his village and that, when he lived in Malistan, he mainly worked on his land growing crops. The reviewer accepted that evidence and said that it was consistent with country information. She then made the following findings:

“50    I have considered a number of reports about Mailstan. I find that it is a district entirely populated by Hazaras. I find that Mailstan is not home to Pashtun communities not even at the outskirts of the district. I find that Malistan has suffered almost a decade of severe drought. I find that because of the severe drought in Malistan for almost a decade many men left to earn a living abroad primarily to Iran but also to Pakistan. I find that Malistan remains out of reach of Taliban control due to the military and political power of Hzib-I Wahdat Kahalili/Nasr faction. I find that there have been no reported clashes between the Taliban and Nasr faction and that the Taliban have not taken any steps to challenge groups in control of this district. I find that Malistan is a safe and relatively stable district compared to Pashtun districts in Ghazni. I have considered the reports in June 2010 that suggested that there were signs the Taliban might attempt to push forward into Hazara settled areas in the central region of Afghanistan. I note that this has not happened. I further note that while there are some reports of Taliban attacks in Jaghori district (the 2007 murder of members of the former police chief’s family in Angori, attacks against police post in Hutqul and night letters distributed to villagers in 2009) there are no such reports about Taliban attacks in Malistan. I am not satisfied that the claimant faces a real chance of serious harm amounting to persecution if he returns to his village in Malistan district, Ghazni province because he is a Hazara Shia.

51    I have considered that the claimant may need to travel in and out of Malistan. I find that travel is dangerous for all ethnic groups because criminal groups as well as the Taliban do target travellers. I find that the Taliban have focussed their efforts on extending their influence in Ghazni because they view it as a strategic province with proximity and road access to Kabul. It is in this context that they target travellers the majority of whom are Hazaras. I do not accept that the Taliban target these travellers because of their race or religion rather it is part of their strategy to put pressure on and gain control over areas in Ghazni they do not control. I find that there are three routes connecting Jaghori to Ghazni City. I find that the route through Qarabagh district is very insecure but can be avoided. I find that the most frequently used road passes through Nawur district and is considered secure. I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel in and out of Malistan.”

8    The appellant argued that his claim that he had a well-founded fear that he would be persecuted if he returned to his home in Malistan, had to be assessed by the reviewer in the context of whether the Afghan State would be able to provide him with protection, rather than the faction. The appellant claimed that the reviewer made a fundamental error of law in approaching her assessment of his fear of persecution in the manner set out above. He argued that this was because the reviewer had failed to inquire whether his claimed fear was well founded because the State of Afghanistan could not provide protection in the Malistan area. Rather, the appellant argued, the reviewer had acted on the basis that the faction effectively kept the peace. He complained that she had not inquired whether the faction was any part of the State’s machinery or as to the likelihood that, if the faction withdrew or failed to continue in its role, the Afghan State or other international organisations could fill any void. The appellant claimed that the reviewer failed to examine the absence of State protection at all in connection with the foundation of his claimed fear of returning to Afghanistan. He argued that this was an error of law by reason of the decision in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 particularly at 9 [21].

9    The appellant argued that the question of whether the State provides adequate protection is a fundamental part of a balancing test involving considering whether the person’s fear is well founded. He contended that, in all cases, what Gleeson CJ, Hayne and Heydon JJ had said in Respondent S152 (222 CLR at 8-9 [18]-[21]) raised the need to consider the ability of the State to provide protection in respect of the question whether the person’s claimed fear was well founded.

Ground 1: Consideration

10    I am of opinion that the following propositions emerge from their Honours’ analysis in Respondents S152 222 CLR 1. First, their Honours said that, in cases of alleged persecution by non-State agents, the willingness and ability of the State to discharge its obligations to protect its citizens may be relevant to consider at three stages of the enquiry raised by Art 1A(2), namely whether: (1) a person’s fear is well founded, (2) the conduct giving rise to the fear is persecution and (3) a person, such as the appellant, is unable or, owing to fear of persecution, unwilling to avail himself of the protection of his home State (222 CLR at 9 [21]).

11    Secondly, a refugee claimant must show that he or she is unwilling to avail himself of the diplomatic or consular protection of his country extended to its citizens abroad. Their Honours explained that the two limbs of Art 1A(2) of the Convention involve first, an unwillingness of the refugee claimant to seek his or her nation’s protection using diplomatic or consular processes in Australia and, secondly, that the unwillingness was owing to a fear of persecution. The second limb requires that the persecution feared is official, or officially tolerated or uncontrolled by the authorities in the State of the claimant’s nationality (222 CLR at 8 [19]).

12    Their Honours said that the context in which Art 1A(2) used the word “persecuted” shed light on its meaning. They held that the immediate context was that a putative refugee, who was outside the country of his or her nationality, could make a claim for “protection” to his State’s diplomatic mission in the State where he or she then was, such as Australia. Gleeson CJ, Hayne and Heydon JJ then referred to the wider context in which such a claim could be made as instructive to the construction of Art 1A(2). Their Honours observed that the Convention was an international instrument that defined and limited the form of international responsibility towards a person whose fundamental rights and freedoms had been violated in a certain respect in that person’s country of nationality. They accepted that the wider sense in which “protection” was used in Art 1A(2) involved what Lord Hope of Craighead indicated in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 495, namely:

“The general purpose of the Convention is to enable a person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community.”

Gleeson CJ, Hayne and Heydon JJ then went on to say in the passage on which the appellant founded his argument (222 CLR at 9 [21]):

“Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of alleged persecution by non-State agents, the willingness and ability of the State to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home State. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath ([2001] 1 AC 489 at 497) where she said, in relation to the sufficiency of State protection against the acts of non-State agents:

“[I]f it is sufficient, the applicant's fear of persecution by others will not be ‘well-founded’; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home State.”” (emphasis added)

13    If the harm feared is not harm inflicted by the State, or agents of the State of the nationality of the putative refugee, but that State condones or tolerates the harm, then that conduct may readily be characterised as persecution and identified as the reason the person in question is outside his or her country of nationality. Their Honours added (222 CLR at 10-11 [23]):

“The attitude of the State is relevant to the decision of whether the fear of harm is well founded. It is consistent with the possibility that there is persecution. It is consistent with the person being outside the country of nationality because of a well founded fear of persecution and it supports a conclusion of unwillingness to seek (external) protection based on the fear of persecution because of the State’s encouragement, condonation or tolerance of the persecution.”

14    On the other hand, where the harm feared consists of random or uncoordinated attacks and there is no question that the government or the country was out of control, different considerations arise. As their Honours observed (222 CLR at 11 [25]-[26]), no country can guarantee that all its citizens, at all times, and in all circumstances will be safe from violence. Indeed, as they pointed out, every day in Australia our Courts deal with criminal cases involving violent attacks on persons and property. In conclusion, their Honours said (222 CLR at 13 [29]):

“It was not enough for the first respondent to show that there was a real risk that, if he returned to his country he might suffer further harm. He had to show that the harm was persecution and he had to justify his unwillingness to seek the protection of his country of nationality.” (emphasis added)

15    Importantly, their Honours observed that not all harm or serious harm inflicted by a person’s fellow citizens necessarily will amount to persecution within the meaning of “refugee” in the Convention (222 CLR at 8 [18]). The definition required that a putative refugee, outside his or her country of nationality, had to be unwilling to return to that country owing to a well founded fear of persecution that was official, or officially tolerated or uncontrollable by that country’s authorities (222 CLR at [19]).

16    The reviewer made findings of fact that (1) Malistan was entirely populated by Hazars; (2) it was out of the reach of Taliban control, albeit due to the military and political power of the faction; (3) there had been no reported clashes between the Taliban and the faction; (4) the Taliban had not taken any steps to challenge the faction or any other groups in control of the Malistan district; (5) Malistan was safe and relatively stable compared to other places in the Ghanzi Province; and (6) there were no reports about Taliban attacks in Malistan. Accordingly, the reviewer was not satisfied that, because he was an Hazara Shia, the appellant faced a real chance of serious harm amounting to persecution if he returned to his village in Malistan.

17    Earlier, in the course of rejecting the appellant’s claims to past persecution, the reviewer did not accept that, by reason of the appellant’s ethnicity and religion, he faced a real chance of harm amounting to persecution by the Taliban. In arriving at that finding, the reviewer relied on a deal of country information. This included advice from the Department of Foreign Affairs and Trade given in February 2010 which the reviewer accepted, namely that while there “are strong perceptions of discrimination and a sense that development needs in the Hazarajat are being neglected, the Hazara do not live in fear of “systematic persecution as they did under the Taliban, and that currently Hazaras are not being persecuted on any consistent basis”.”

18    The willingness of the State to provide its citizens with protection may be relevant in the three circumstances to which Gleeson CJ, Hayne and Heydon JJ referred in Respondents S152 222 CLR at 9 [21]. I am of opinion that their Honours’ explanation of the three stages of the inquiry raised by Art 1A(2) at which the willingness or ability of the State to discharge its protection obligations could be relevant, however, was not intended to mandate that in every case, and at each of the three stages, it was relevant. Their Honours identified, by using the word “may”, whether such an inquiry was actually relevant would depend on the facts.

19    The reviewer’s finding that the appellant’s claimed fear was not well-founded was a finding of fact. She addressed that inquiry in a conventional way by asking herself whether there was a real chance that the appellant would be persecuted for a Convention reason if he returned to Malistan. No doubt he was unwilling to return. The reviewer was entitled, and bound, to make findings about whether or not the appellant faced a real chance of persecution. She had to do so in the context in which she had found that the stable and unthreatening political and military situation in Malistan would not change for Hazaras there in the foreseeable future. Once the reviewer had arrived at those findings, any inquiry as to the role of the Afghan State in protecting that peace in Malistan did not arise. That is because the reviewer had found that the situation in Malistan posed no threat to the appellant that gave rise to a well founded fear of persecution. Thus, she found that the appellant had not shown that the harm he feared was persecution: Respondents S152 222 CLR at 13 [29].

20    Australia’s obligation to offer a putative refugee protection does not extend to protect him or her against a State that may or may not have broken down. It is only to afford protection if the person has a well-founded fear of persecution where the State in which the person lived was unable or unwilling to provide that person with protection from such a fear. In my opinion, once the appellant’s claimed fear was found by the reviewer not to be well-founded, then there was no occasion, for the reviewer to go on to inquire about whether the Afghan State would be able or willing to offer particular protection from an unfounded fear.

21    Such an inquiry would only arise if the appellant had a well-founded fear that if he returned to Malistan he would be persecuted for the reasons that he claimed. For the reasons I have explained above, the reviewer found that the appellant’s fear of persecution was not well-founded. Australia’s protection obligations could not be enlivened without the appellant having a well-founded fear of persecution. I am of opinion, the trial judge was correct to treat this as a finding of fact. In Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [7] Sundberg J came to a similar conclusion saying:

“The political composition of those who are keeping the peace and making an area secure is not relevant to the assessment of whether an applicant has a well-founded fear.”

22    His Honour observed that a similar view had been taken by Spender, Marshall and Goldberg JJ in Cole v Minister for Immigration and Multicultural Affairs [2001] FCA 76 at [17]-[18]. Obviously, those decisions ante-dated the decision of the High Court in Respondents S152 222 CLR 1. However, subsequently in SVTB v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 104 at [23] Marshall, Mansfield and Stone JJ applied Respondents S152 222 CLR 1. In that case, their Honours observed that the Refugee Review Tribunal had rejected an appellant’s claim that she feared sexual assault or other criminal behaviour by reason of her membership of a particular social group as not being well-founded. They said:

“The issue of state protection was then simply an additional reason for the Tribunal’s conclusion in relation to that fear.”

23    They noted that the tribunal had found that there was a serious problem with violence directed against women in Albania. But, their Honours concluded that that finding was simply that the appellant had been at no greater risk of sexual assault or other criminal conduct by reason of her being a single woman in Albania without male protection than any other Albanian woman, concluding:

“In other words, [the tribunal] did not accept that she was vulnerable to such conduct by reason of her membership of a particular social group.”

24    Here, the reviewer rejected both the appellant’s claims to have a well-founded fear of persecution by reason of the past, as well as the future, as justifying his fear of returning. The reason that the reviewer found that his fear was not well-founded was because the source of the fear – the Taliban – had no real capacity to act within the Malistan area so as to cause harm to the appellant. The reviewer found as a fact that people in that area could go about their daily lives without fear. Accordingly, the issue of State protection was not a matter which the reviewer was obliged to take into account. No error has been shown in the trial judge’s rejection of this argument.

25    For these reasons, the first ground fails.

Ground 2: The credibility ground

26    It is possible to deal with the second argument shortly. During the course of an interview, the reviewer raised with the appellant a considerable number of concerns she had with his evidence and the claims he was making. The reviewer put directly to the appellant that she had great difficulty with his new claim that he feared persecution by persons he claimed were connected to the Taliban or the Taliban commander because of his affair and its consequences. The reviewer told him that her concern about this claim arose because of his delay in making it. She told him that he had had numerous opportunities to make it at a number of prior interviews and was aware of the importance of bringing his whole case forward. She concluded her invitation for him to comment on this concern by saying:

“Your delay in making the claim until just before this interview may lead me to think you have simply fabricated [it] in order to strengthen your claims. Would you like to comment on that?” (emphasis added)

27    The appellant commented in response. The reviewer then continued addressing a considerable number of other concerns which she summarised fairly in her report. She expressed one concern about the appellant’s account at the interview that she said had been “completely inconsistent with your later claims”. The reviewer discussed with the appellant the changes over time of his account of being kidnapped by the Taliban together with his brother and another passenger and held by them in a house. The appellant had claimed that the three had escaped one night and run for some time before the Taliban shot at them, killing his brother and the other man. The reviewer put to him that his assertion that, following the shooting, the Taliban did not come to check if all three had been killed was not consistent with his claims that later they had gone to his village and also to Pakistan to try to find him.

28    The reviewer found that his accounts of that escape and his story about his affair with the Taliban commander’s wife and its consequences were implausible. Ultimately, the reviewer said “taking into account all of the above evidence, I did not find the claimant to be a truthful or credible witness”. She then summarised each of the claims of past conduct on which he had based his claims to persecution in the past. She found that she did not accept these and that she was not satisfied that he had “a well-founded fear of persecution arising from the above-claimed past incidents”.

29    The appellant argued that for the reviewer to afford him procedural fairness it was necessary she put the basis of her incredulity squarely to him before making such adverse findings as to his truthfulness or, I gather, the implausibility of his account. He relied on a number of authorities dealing with the professional discipline of lawyers and others, such as Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. There, Brennan, Dawson, Toohey and Gaudron JJ made observations about a finding made by the Court of Appeal that a barrister had lied in his evidence. Their Honours adverted to the difference between a rejection of a person’s evidence and a finding that he or she deliberately lied. They observed that, as a matter of logic and common sense, something more than more than mere rejection of a person’s evidence was necessary before there could be a positive finding that he or she had deliberately lied in the giving of that evidence. They said that it was particularly important in disciplinary cases, where the honesty and candour of legal practitioners assumed special significance and that it was necessary to maintain the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied.

Ground 2: Consideration

30    I am of opinion that such authorities have no application here. The complaint by the appellant is in the teeth of what Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47]-[48] about the way in which an inquisitorial tribunal or person, in the position of the reviewer here, ought approach the difficulties that such a decision-maker may consider to arise from evidence or assertions made by the person seeking a favourable decision. Their Honours said:

“First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry ([1975] AC 295 at 369),

“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.” (italic emphasis in original, bold emphasis added)

31    In the portion of the Court’s reasons that I have emphasised, their Honours made clear that it was not necessary, and would often be inappropriate, for a decision-maker to put directly to an applicant for a favourable decision that he or she was lying. Here, the way in which the reviewer dealt with the appellant’s account, including his changes of story, inconsistencies and difficulties which the reviewer had, appear to me to have been appropriate. The reviewer gave fair warning to the appellant that his evidence might not be accepted and, indeed, might be found to be untruthful. At one point she told him directly that she might conclude that he had fabricated a claim and asked for his comments.

32    The appellant complained that the finding against him made by the reviewer was a serious one as it was, and that his truthfulness in giving his account might not be the only conclusion to be drawn from his evidence. I am satisfied that, in the circumstances, the reviewer could find his claims to be implausible and untruthful, including the claim the Taliban had shot indiscriminately at the three persons escaping from them, killing his brother and a passenger, but not him but they did not then search immediately to see whether their shots had met all their targets. The rejection of that claim could lead to a conclusion that the whole account had been fabricated, was implausible or was completely untruthful. Similarly, the reviewer had raised her concerns about the late introduction of a claim that the Taliban commander had killed his wife and child who had resulted from the appellant’s claimed affair and had sought to kill him. The way in which the reviewer had raised those concerns was sufficient to justify her conclusion that the whole story was fabricated.

33    Indeed, it is difficult to think that in light of her expression of concerns to the appellant that he was not on notice that this inference was not being considered. One does not make mistakes about whether one is shot at or people one had an affair with were killed or that the killer was also pursuing that person.

34    In my opinion, this ground of appeal has no substance and should fail. His Honour was correct to have found that the reviewer made it sufficiently clear to the appellant, during the course of his evidence, from questions she put to him, that he was on notice that the truthfulness of his account may not be accepted. I see no ground on which his Honour’s finding could be challenged in that regard. Indeed, in my view, he was correct to have rejected this basis on which the appellant sought relief.

Conclusion

35    For these reasons, I am of opinion that this appeal fails and should be dismissed with costs.

Associate:

Dated:    21 March 2012