FEDERAL COURT OF AUSTRALIA

SZQGX v Minister for Immigration and Citizenship [2012] FCA 306

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 appeal was heard together with the appeal in SZQKC v Minister for Immigration and Citizenship [2012] FCA 249 and raises the same principal issue as the only issue in this appeal; namely, whether the independent merits reviewer erred in arriving at a recommendation to the Minister that Australia did not owe the appellant protection obligations. That recommendation was based on a finding that the appellant had not satisfied the reviewer that he had a well founded fear of persecution, were he to return to Afghanistan in the reasonably foreseeable future. The Federal Magistrates Court refused the appellant constitutional writ belief on that basis: SZQGX v Minister for Immigration [2011] FMCA 863.

2        The notice of appeal in this matter made no reference to any alleged error by the primary judge, but treated the reviewer’s reasons as being the only matter in issue as in SZQKC [2012] FCA 249.

BACKGROUND

3        The appellant was an Hazara Shia from the Jaghori district of Afghanistan. He claimed to fear the Taliban, because his brother had been killed by them in 2000 and his uncle had been injured in a conflict with them and the Kuchi in 2004. The reviewer accepted that the appellant’s brother was missing, presumably killed by the Taliban in 2000, but did not accept that his uncle had been wounded in a conflict with the Kuchi. But he found that those events were distant in time and occurred during the period in which the Taliban was the governing regime in Afghanistan. The reviewer did not accept that the appellant’s ethnicity and minority religion, by themselves, meant that he faced a real chance of serious harm amounting to persecution by the Taliban now or in the reasonably foreseeable future.

4        There was no challenge to the reviewer’s conclusion that he did not accept that the appellant had come to the specific attention of the Taliban or other groups in Afghanistan for any reason or that his brother’s death in 2000 showed that in the reasonably foreseeable future there was a real chance that the appellant would suffer serious harm amounting to persecution in Jaghori, where he lived. The reviewer found that country information did not corroborate the appellant’s claim that Hazara Shias were now targeted by the government, the Taliban, the majority Sunni Muslims or any other non-state party on a general basis. The reviewer found that positive country reports on the improving general situation of Hazara Shias had appeared. He did not accept the appellant’s claim that his ethnicity and minority religion by themselves meant that in Afghanistan in the reasonably foreseeable future he faced a real chance of serious harm; namely, persecution, by non-state agents, or government authorities, for reasons of race, religion or political opinion.

5        The reviewer found that Jaghori is in the Hazarajat region with a population almost entirely composed of Hazaras, with some enclaves of Pashtuns towards the outskirts. He found that authoritative sources had concluded that Hazaras in Hazarajat (which includes the Jaghori district) did not face the particular challenges faced by Hazara minorities in other provinces. The reviewer found that both the Jaghori and Malistan districts remained out of the reach of the Taliban control, due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction (the faction), which, the reviewer found, “seems to be robust across the Hazarajat”. In this respect, the reviewer made similar findings to those made by another reviewer in SZQKC [2012] FCA 249 at [7] that I have quoted there at length, in relation to the routes travelled between Kabul and the Ghanzi area and then between Ghanzi and Jaghori, saying that:

“The secure routes, together with the protection afforded by the Hazara faction, which is strong across the Hazarajat including the Jaghori area, lead me to conclude that there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future travelling to his home area upon his return.”

6        He concluded that there was not a situation of generalised violence in the Hazara dominated districts or in Ghanzi province that prevented the appellant from residing there and that there was no real chance that he would face serious harm in the reasonably foreseeable future in his home area. Accordingly, the reviewer recommended to the Minister that the appellant not be given a protection visa.

CONSIDERATION

7        The trial judge rejected the same argument that I have rejected in SZQKC [2012] FCA 249 based on the reasons of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1 and followed what Sundberg J had held in Siaw v Minister for Immigration [2001] FCA 953.

8        The appellant accepted that his argument in this case was substantively the same argument as put by the appellant in SZQKC [2012] FCA 249 which was argued consecutively this morning.

9        For the reasons that I gave there, in my opinion, this appeal must fail. Once the reviewer came to the conclusion that the appellant had no well founded fear of persecution were he to return to the Jaghori district or the Hazarajat area, it was not necessary for him then to embark upon a consideration of whether the absence of that fear had a relation to the ability of the State of Afghanistan to provide particular protection in the circumstances.

10        For these reasons I am of opinion that the appeal must be dismissed with costs.

Associate:                Dated:    27 March 2012