FEDERAL COURT OF AUSTRALIA

SZQDS v Minister for Immigration and Citizenship [2012] FCA 396

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

introduction

1    Before the Court is an appeal from orders made by the Federal Magistrates Court on 27 October 2011. The federal magistrate dismissed an application for review of a recommendation made by the second respondent, the reviewer, to the first respondent, Minister for Immigration and Citizenship. On 10 February 2011, the reviewer recommended that the appellant not be recognised as a person to whom Australia has 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).

the appellant’s claims

2     The appellant was born in 1989. He is a citizen of Afghanistan, an Hazara and a Shia Muslim. He was born in Dahmarda which is situated in Northern Zabul province but comes under the administration of Jaghori district in Ghazni province.

3    He claimed that his brother was killed by the Taliban in about 2001 on his way to Kabul to by groceries. As a result, the appellant’s father moved the family to Quetta in Pakistan. The appellant also claimed that his grandfather had been killed by Pashtuns who were Taliban in a land dispute before he was born. He said the Pashtuns took his family’s land. He also said that if he returned to Afghanistan he would be killed by the Taliban.

4    The appellant arrived in Australia at Christmas Island on 23 March 2010. An assessment was made of his refugee status by an officer of the Department who determined that the appellant was not a refugee. The appellant sought a merits review of that assessment. It was that review which the federal magistrate considered in the judgment from which this appeal is brought.

The reviewer’s reasons

5    The reviewer considered the appellant’s claims on the Convention grounds of race, religion, political opinion and membership of a particular social group, namely, perceived supporters of the coalition forces, or returnees from western countries.

6    The reviewer considered and rejected the appellant’s claims based on his ethnicity and religion alone, the family land dispute, his brother’s death, and as a returnee from the west. No issue is taken in this appeal in relation to the reviewer’s conclusions on these matters.

7    The appeal concerns the reviewer’s findings concerning the security in Dahmarda and in the Jaghori district.

8    The reviewer concluded on this issue at [110]:

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.

9    In support of this conclusion the reviewer recorded that Jaghori district is in an almost 100% Hazara region with a population of about 250,000 people. There are enclaves on the outskirts populated by Pashtuns. The reviewer referred to DFAT advice from September 2010 and concluded that Jaghori district in Ghazni province was generally secure, although routes to and from Jaghori were marked by violence from criminals and the Taliban.

10    At [107] the reviewer said:

After considering the country information, I conclude that whilst Daimurda [sic] is not geographically within Jaghori district, the claimant would be conducting his life in a Hazara dominated area close to Jaghori and close to the district centre of Sang-e-Masha in the region’s south which administers the area. Whilst Daimurda [sic] is geographically located in northern Zabul province, available information shows it is protected by Hazara factions and in particular the Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat. There are still no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr faction, and there is not a situation of generalized [sic] violence in the Daimurda [sic] area. I conclude the security situation in the Daimurda [sic] (and nearby Jaghori) area does not prevent the claimant from returning to reside there.

11    At [108] the reviewer continued:

I further note and accept the September 2010 DFAT advice (see above) 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 factions which are strong across the Hazarajat including the Daimurda and Jaghori areas, lead me to conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future travelling to the Daimurda area upon his return.

proceedings in the federal magistrates court

12    There were two issues determined by the federal magistrate which gave rise to arguments on appeal. The first is the state protection issue. It was common ground in the Federal Magistrates Court that the appellant had made a claim that the government of Afghanistan could not provide him with adequate protection against his feared persecution, and that the reviewer did not consider the State’s ability to provide such protection. The appellant contended that the reviewer was bound to consider that claim and the failure to do so constituted jurisdictional error.

13    The federal magistrate rejected this argument and said at [75]:

In the current case the applicant claimed to fear harm in all of Afghanistan from the Taliban and Pashtuns. The Tribunal found that fear was not well-founded in relation to the applicant’s home district. In these circumstances there was no opportunity, nor any obligation, to consider the adequacy of state protection. The following, more than rhetorical, question makes this clear: Protection against what?

14    The second issue determined by the federal magistrate which is relevant to this appeal is the claim that the appellant was denied procedural fairness. The appellant contended that he was not put on notice of the highly relevant consideration that he could travel safely from Kabul to Dahmarda.

15    The federal magistrate rejected this argument. He held that the appellant had been put on notice of this fact.

grounds of appeal

16    The grounds of appeal raised the state protection issue and the alleged denial of procedural fairness.

Ground one – failure to consider state protection

17    Both in the Federal Magistrates Court and in this Court the appellant’s case was argued together with Razai v Minister for Immigration and Citizenship [2012] FCA 394 (Razai). Although the present appellant and the appellant in Razai were represented by different counsel on the appeal, the state protection argument was the same in both cases. The argument was rejected in Razai at [15] to [38]. Those reasons apply equally to this appeal and should be read as incorporated in these reasons. The result is that the first ground of appeal is not made out.

Ground two – denial of procedural fairness

18     This ground relates to the findings in [107] and [108] of the reviewer’s reasons. Those passages are set out in [10] and [11] of these reasons for judgment. The reviewer concluded that there was a secure route between Kabul and Ghazni, and further that the protection by Hazara factions prevented any real chance of serious harm to the appellant by travelling to Dahmarda in the foreseeable future.

19    The appellant contends that the first conclusion was based on a DFAT report which was not given to him. The second conclusion, namely, that it was safe to travel from Ghazni to Dahmarda, was, it was contended, never raised as an issue with the appellant.

20    In relation to the security of travel between Kabul and Ghazni, the information in the DFAT report was sent to the appellant in a natural justice letter dated 17 January 2011. Further, in the course of the interview with the reviewer the very passage was read out to the appellant and his adviser. This passage is the basis of the conclusion in [108] of the reviewer’s reasons.

21    In relation to travel to Dahmarda, in the same letter the appellant was asked to comment on information attached which might lead the reviewer to conclude:

Dahmarda village is geographically located in Arghandab district in Northern Zabul province, but is administratively under Jaghori district in Ghazni province. Hazara factions provide security in the area.

22    The appellant was clearly aware of the issue because in his adviser’s response to the natural justice letter the following appeared:

Dahmarda is a very isolated valley region in Zabul and is affected by the insurgency as can be seen in the map provided at the front of the HRW Report, “Ten Dollar Talib”. There is only one road into Dahmarda and it leads through Pashtun controlled areas. Otherwise, access is by foot through the surrounding mountains.

23    The federal magistrate made no error in rejecting the denial of procedural fairness argument.

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

Associate:

Dated:    20 April 2012