FEDERAL COURT OF AUSTRALIA

Razai v Minister for Immigration and Citizenship [2012] FCA 394

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by Federal Magistrate Nicholls on 27 October 2011. The federal magistrate dismissed an application by the appellant for a review of a recommendation made by the second respondent, the reviewer, to the first respondent, the Minister for Immigration and Citizenship. The reviewer recommended that the appellant not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (the Convention).

introduction

2    The appellant is a citizen of Afghanistan. He arrived at Christmas Island on 11 February 2010. He sought an assessment of his status as a refugee. An officer of the Department of Immigration and Citizenship came to the view that the appellant did not fall within the definition of a refugee under the Convention. The appellant applied for a merits review of the officer’s conclusions. It is that review which is the focus of attention in this appeal.

3    The appellant was born in 1989 in the village of Mamdak, Jaghori in Ghazni Province in Afghanistan. He has lived in Quetta in Pakistan since 1996. He is an Hazara and a Shia Muslim.

4    The appellant claimed that he and his family left Afghanistan because his father was a teacher and the Taliban threatened to kill him if he did not leave. The appellant claimed that his uncle was an activist against the Taliban and was killed in 1997 as a result. He further claimed that his brother and brother-in-law left Quetta in about February 2009 to return to Afghanistan. The appellant said that on their return they were killed in Ghazni Province on their way to Jaghori. The appellant claimed that they were killed out of revenge for the anti Taliban activities of the appellant’s uncle.

5    The appellant claimed to fear persecution for reasons of his Hazara ethnicity and his Shia Muslim religion, for his imputed political opinion as an opponent of the Taliban and as a member of a particular social group, namely, young Hazara males and Afghans who have returned to Afghanistan after living abroad.

6    The reviewer did not accept that the appellant would be targeted simply because of his ethnicity or religion. The reviewer also rejected his individual claims based on his father’s teaching and his uncle’s anti Taliban activism. The reviewer also rejected his claim as a returnee from abroad. No issue was raised on this appeal about these aspects of the reviewer’s reasons.

7    The appeal concerned the appellant’s claim before the reviewer that as a Hazara he would be in danger from the Taliban if he returned to his home village of Mamdak near Sang-e-Masha in the district of Jaghori in Ghazni Province. The reviewer rejected this claim. The basis on which the claim was rejected by the reviewer will now be examined.

the reasoning of the reviewer

8    The reviewer explained that Jaghori is in an almost 100% Hazara region with a population of about 250,000. There are some Pashtun enclaves on the outskirts. The reviewer said that most reports discussed the poor security in the Pashtun dominated districts and some reports suggested that the Hazara dominated districts are increasingly under threat from the Taliban. The reviewer then continued at [106]:

Nonetheless, authoritative sources (comments from an Afghan MP set out in a July 2010 DFAT advice; Cooperation for Peace and Unity report, DFAT, AIHRC, UNHCR) indicate the Hazara districts are secure. The AIHRC advised DFAT that Hazaras in Hazarajat reportedly did not face the particular challenges faced by Hazara minorities in other provinces. In particular, the 2009 CPAU report discussed that:

•    Despite the risk of future ethnic conflict between the Taliban and Hazara, the risk of this is likely to be lower in Jaghori than elsewhere in the Hazarajat.

•    Additionally, Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat.

•    Consequently, to date there are no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr as the Taliban has not yet taken steps to challenge groups in control of the Hazarajat region.

•    The report concludes that despite pervasive Taliban influence in Ghazni province, the Taliban remain at the outskirts of Jaghori and Malistan districts.

Although dated April 2009, the report’s conclusions have not been contradicted by later events. Other reports indicate the Hazara community in Ghazni province (particularly in Jaghori district), enjoys better educational and health facilities than neighbouring provinces, and due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts.

[Footnotes omitted]

9    The reviewer then at [107] set out an extract from the 2010 UNHCR report as follows:

Marginalized during the Taliban rule, the Hazara community continues to face some degree of discrimination, despite significant efforts by the Government to address historical ethnic tensions. Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening. Although not able to launch widespread operations in Jaghori, there are some reports of Taliban attacks in the district. Jaghori district is increasingly isolated given that some access routes to and from the district, including large stretches of the strategic Kabul-Kandahar road, are reportedly under Taliban control.

10    In relation to access to the area the reviewer said at [109]:

I further note and accept the September 2010 DFAT advice … which indicates there are secure route/s between Kabul and Ghazni, and between Ghazni and Jaghori. These 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 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.

11    The reviewer concluded at [111]:

Although in Ghazni province, the claimant’s home area is in a Hazara community and very close to the Jaghori regional centre of Sang-e-Masha. Whilst there is generalized violence elsewhere in the province, it is the case that the claimant would be conducting his life in Jaghori district, a Hazara-dominated region that is his place of origin and where he can reasonably seek access to traditional family and/or community structures. Country information shows that Jaghori district is a secure area where markets, health care and particularly schools continue to function. Additionally, one conclusion of the UNHCR report (in ‘Internal flight or relocation alternative’) is that the traditional family and community structures of Afghan society continue to constitute the main protection and coping mechanism particularly in rural areas where infrastructure is not as developed. I conclude there is not a situation of generalized violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there. I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future in his home area.

[Footnote omitted]

12    And at [113], the reviewer said:

In sum, I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason.

proceedings in the federal magistrates court

13    Before the federal magistrate two issues were argued which have given rise to this appeal. First, the appellant contended that the reviewer made a jurisdictional error by failing to consider whether the government of Afghanistan could provide protection to the appellant. The federal magistrate determined that there was no occasion for the reviewer to consider the existence of state protection in view of the conclusion that there were no grounds for the appellant to fear persecution. Second, the appellant submitted that he had been denied procedural fairness in that the reviewer relied on a newspaper article which was not put to him for comment. The newspaper article was to the effect that the Hazara community in Jaghori enjoy better educational facilities than in neighbouring districts. The federal magistrate rejected this argument on the basis that the substance of the information in the article had been put to the appellant in the course of the refugee assessment interview and was referred to in the recommendation of the refugee assessment officer. This argument was the subject of ground seven of the application for review before the federal magistrate.

Grounds of appeal

14    The grounds of appeal which were amended at the commencement of the hearing without objection from the first respondent stated:

1.    The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.

Particulars

In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hizb-I Wahdat Khalil/Nasr faction controlling the Jaghori district of Afghanistan, the second respondent failed to take into account the insufficient protection offered by the Afghan state.

2.    The Federal Magistrate erred by dismissing ground 7 of the Amended Application.

Ground one – failure to consider State protection

15    It was common ground that the recommendation of the reviewer is reviewable for jurisdictional error in accordance with Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2011) 243 CLR 319; [2010] HCA 41. The error relied on by the appellant for this ground was the failure of the reviewer to take into account a relevant consideration, namely, the absence of state protection.

16    It was also common ground that the reviewer did not consider whether the government of Afghanistan could provide protection to the appellant. The issue in contention was whether it was necessary to do so.

17    The question before the reviewer was whether the appellant was, owing to a well founded fear of being persecuted for a Convention reason, unable, or owing to such fear, unwilling to avail himself of the protection of Afghanistan.

18    The reviewer found that:

… there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason.

19    It follows as a matter of inevitable logic from the finding that the appellant would not face serious harm in the reasonably foreseeable future that the reviewer was not called upon to consider whether Afghanistan could or would provide protection. That finding of fact meant that no state protection was required.

20    This inevitable logic has been recognised in a number of cases.

21    In Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 the applicant claimed to be a refugee from Sierra Leone. The Refugee Review Tribunal found that it was reasonable for him to relocate from the countryside to Freetown. The tribunal found that there was no reasonable chance that the applicant would suffer persecution because the government and United Nations forces had restored a certain degree of peace and order to the area of Freetown. The applicant argued that the tribunal made an error of law in the application of the relocation principle by treating protection provided by United Nations forces as the protection required by the Convention, namely, state protection. Sundberg J said:

7.    … the Tribunal's initial task was to determine whether or not the applicant had a well-founded fear of persecution for a Convention reason. If such a fear existed, it was then required to decide whether the applicant's state of nationality was or was not able to offer protection to him. On the first part of its task, after assessing the material before it, the Tribunal found that Freetown and its environs were secure, that the applicant would be able to live there safely, and that he did not have a well-founded fear of persecution "at least for the reasonably foreseeable future". 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.

…

9.    Because of its finding that the applicant did not have a well-founded fear of persecution, the Tribunal was not required to make a separate finding as to the ability or otherwise of Sierra Leone to offer protection to the applicant. If it had made an error of law in the assessment of state protection, it would not have been an error that affected the decision to affirm the refusal to grant a protection visa. The error would not have had any impact on the ultimate decision of the Tribunal to affirm the delegate's decision. See Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at 519-520.

[Emphasis added]

22    Then in Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 566 (A148) the applicant, a Pashtun from Afghanistan, claimed a fear of persecution from the Taliban. The Refugee Review Tribunal found that there was no real chance of the Taliban returning to power and hence the applicant was not at risk from the Taliban in the reasonably foreseeable future. The applicant’s argument was set out at [16] as follows:

In order to fully discharge its obligations to act according to law, the Tribunal was required to consider the issue of state protection and to make a finding in relation to the issue of state protection because these issues were placed squarely before the Tribunal. The Tribunal did not fully discharge its obligations to act according to law and therefore the Tribunal made a jurisdictional error.

23    Lander J rejected this argument as follows:

17    In my opinion, the argument is misconceived. Certainly, if the RRT had determined that there was a real chance of persecution, the RRT would have needed to have addressed the question of protection.

18    However, the RRT did not find that there was a real risk of persecution. Indeed, it found, on the other hand, that there was no risk. It found that, because the Taliban was no longer in a position of power, the applicant did not have a well-founded fear of persecution. In those circumstances, it did not need to consider whether the authorities could protect him, because there was nothing to protect him from.

    [Emphasis added]

24    In A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1416 Mansfield J rejected an application for an extension of time within which to appeal from the judgment in A148. Mansfield J said at [9]:

However, as Lander J pointed out, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution at all if he were to return to Afghanistan because of the changed circumstances in Afghanistan. As his Honour said, because the Taliban was no longer in a position of power, the Tribunal found the applicant did not have a well-founded fear of persecution. As it was the fear of the Taliban which prompted the applicant's claims, and because the Tribunal found that fear was not well-founded, his Honour concluded that it was not necessary to address whether the Afghani authorities could protect the applicant from the Taliban.

25    His Honour then concluded at [13] that there was no arguable case of error in the way in which Lander J decided the application.

26    At the centre of the appellant’s argument were two contentions. One was that the absence of state protection is a defining factor of a claim to refugee status. In particular, the appellant submitted that the question whether the state provides adequate protection is fundamental to the determination of whether a person’s fear of persecution is well-founded. The other contention was that where a claimant raises the lack of state protection as a basis for their claim the decision maker is bound to address that issue. In the present case it was accepted that the appellant had raised the inability of the government of Afghanistan to protect him, and the reviewer had not considered the issue.

27    In support of these contentions the appellant placed particular reliance on Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2003) 222 CLR 1; [2004] HCA 18 (S152). In that case a Ukrainian citizen who was a Jehovah’s Witness was attacked on several occasions whilst promoting his beliefs and his property was damaged. He claimed that the government instigated the attacks. This case was rejected by the Refugee Review Tribunal and that decision was upheld by Wilcox J. The Full Court allowed an appeal on the ground that, although the tribunal did not err in rejecting the argument that the government instigated the attacks, the tribunal did err in failing to consider whether Ukraine was able to protect the applicant.

28    The plurality in the High Court (Gleeson CJ, Hayne and Heydon JJ, and Kirby J separately) held that the tribunal did not overlook the ability of Ukraine to protect the applicant. Because of the way the applicant put his claim before the tribunal, the matter did not receive, nor did it require, lengthy discussion.

29    The matter which was the focus of the Court’s consideration was the manner in which the tribunal dealt with the question of state protection, not whether that subject had been addressed at all.

30    In the course of this consideration the plurality explained the circumstances in which a consideration of state protection might be relevant in a case involving persecution by non state actors. They said at [21]:

… 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 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."

31    Neither the terms of this discussion nor the context of S152 suggest that where an applicant alleges fear of persecution by non state agents and asserts a failure of protection by the state the decision maker is bound to determine the question whether the state is able to provide protection.

32    The discussion in S152 concerned the matters which might be relevant in a case in which the persecution alleged was perpetrated by non state actors. The case itself did not raise the question whether it was necessary for the tribunal to make a finding on whether the state could provide protection. In the circumstances before the Court it was held that the tribunal had made such a finding. The passage extracted at [30] of these reasons and the judgment of the plurality as a whole do not establish that, in the circumstances of the present case, the reviewer was bound to determine whether Afghanistan could provide protection to the appellant.

33    McHugh J in S152 thought that the issue of state protection had not been raised before the tribunal at all. But he said that if it had been raised the finding of the tribunal did not require it to be decided. See [46]. At [88] his Honour said:

… Having found that the husband and, through him, his wife did not have a well-founded fear of persecution, the tribunal was not required to determine whether Ukraine had the ability in a practical sense or otherwise to eliminate acts that harmed Jehovah's Witnesses.

This reasoning applies in the present case.

34    The passage from the judgment of McHugh J was applied in SVVB v Minister for Immigration, and Multicultural and Indigenous Affairs [2004] FCA 1001. The applicants in that case claimed that the husband applicant had been assaulted and detained by police as a high profile member of the Democratic Party in Albania. The Refugee Review Tribunal rejected evidence that he had been detained or beaten by the police for his political opinion or that he had a high profile. On review, the applicants claimed that the tribunal erred by failing to consider whether the state could protect them if they returned to Albania. At [23] Lander J said:

The argument, in my opinion, is misconceived. The question of whether or not the husband could be protected by authorities in Albania could not arise if the RRT concluded that he was not likely to be subject to persecution. There was nothing to protect him from.

35    His Honour relied on the judgment of McHugh J in S152 and on the judgment in A148. Despite the argument of the appellant to the contrary, the fact that this was not a case of persecution by a non state actor was immaterial. The inevitable logic applies equally. See also SVBD v Minister for Immigration and Citizenship [2007] FCA 402 at [16].

36    S152 does explain that the way in which the failure of state protection might arise in the claims of persecution by non state agents. But, it does not require consideration of that issue where the decision maker finds that there is no real chance of harm to the applicant. Further, the fact that the applicant relies on the failure of state protection as an argument does not compel the decision maker to determine the issue. To do so is unnecessary where the preliminary finding of fact is made against the applicant.

37    Following the hearing, the parties drew the Court’s attention to a number of recent judgments which have come to the same conclusion as expressed in these reasons. See SZQKC v Minister for Immigration and Citizenship [2012] FCA 249; SZQGX v Minister for Immigration and Citizenship [2012] FCA 306; SZQGU v Minister for Immigration and Citizenship [2012] FCA 340; SZQGI v Minister for Immigration and Citizenship [2012] FCA 343.

38    It follows from this reasoning that ground one is not made out.

Ground two – denial of procedural fairness

39    The reviewer referred to independent evidence and country information including material about the Hazara districts. In relation to the education and health facilities in those districts the reviewer said at [76]:

Reports indicate the Hazara community in Ghazni province (particularly in Jaghori district), enjoys better educational and health facilities than neighbouring provinces. Due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts. A report on 16 December 2010 indicated the Ghazni Education Department and provincial council spurned reports that most schools in insecure areas of the province were controlled by the insurgents.

[Footnotes omitted]

The report dated 16 December 2010 referred to in the last sentence came from an article in the Pajhwok Afghan News.

40    The federal magistrate found that the substance of the information in that article had been provided to the appellant and consequently there had been no denial of procedural fairness.

41    There is an initial question concerning this information. Procedural fairness requires adverse information to be provided to the claimant. The information that the authorities had rejected the suggestion that schools were controlled by insurgents applied to the insecure area of Ghazni Province. This was not the appellant’s area. Jaghori, from where he came, was found to be a secure area.

42    Even if the information related to the Jaghori area, the question whether the schools were operating and secure was raised orally in the refugee status assessment interview where the assessor said to the appellant:

TC    The Government of Finland Immigration Service visited Jaghori in September 2009.

TC    They said Jaghori is a somewhat secure area where schools and healthcare can function without threats.

43    Then in the natural justice letter dated 17 January 2011 sent by the reviewer to the appellant seeking comment on the information attached, the subject of security in schools was raised as follows:

Reports indicate the Hazara community in Ghazni province (particularly in Jaghori district), enjoys better educational and health facilities than neighbouring provinces. Due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts.

44    The footnote to the last sentence referred to the 2010 DFAT report and the 2009 Finnish Immigration Service Situation Report which were quoted in [76] of the reviewer’s reasons. Further, the reviewer’s reasons indicate at [114] that material provided by the appellant showed that schools continued to function in Jaghori.

45    The appellant was therefore made aware of, and responded to, the issue whether schools in Jaghori were secure from the Taliban. There was no denial of procedural fairness by the reviewer failing to raise the newspaper article to the extent that it raised that issue with the appellant.

46    The second ground of appeal is not made out.

47    For these reasons the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    20 April 2012