FEDERAL COURT OF AUSTRALIA

SZQKE v Minister for Immigration and Citizenship [2012] FCA 514

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of Driver FM delivered on 25 November 2011 which dismissed an application for judicial review of a determination of the second respondent, an Independent Merits Reviewer. Such determination affirmed a decision of a delegate of the first respondent, the Minister, that Australia does not owe protection obligations toward the appellant under the Convention Relating to the Status of Refugees 1951 (‘the Refugee Convention’).

FACTS

2    The appellant is an Afghani citizen from Bamyan Province. He arrived in Australia by boat in January 2010. On 13 March 2010 the appellant lodged a request for a Refugee Status Assessment with the Department of Immigration and Citizenship.

3    The Refugee Status Assessment was conducted on Christmas Island in March 2010. When interviewed on Christmas Island the appellant told the assessor that he feared persecution resulting from his Hazara ethnicity and from being a Shia Muslim.

4    The appellant’s application for refugee status was rejected on 30 March 2010 following completion of the Refugee Status Assessment. The appellant was notified of this decision by the Minister in a letter dated the same day.

5    The appellant then sought an Independent Merits Review of such Assessment. The review was conducted on Christmas Island on 19 and 23 August 2010 by a Reviewer (‘the initial Reviewer’), during which the appellant was again interviewed.

6    In this interview the appellant claimed that his father had been missing for 10 years and that his sister’s husband had been killed five to six years ago. The appellant claimed to have operated a tailoring and dressmaking business in Bamyan which designed and made western style clothes, but maintained that the clothes were only worn by his clients in their homes because of religious requirements.

7    The appellant claimed that two and a half years previously he was stopped on the road from Bamyan to Kabul. The appellant said that the Taliban arrested him and accused him of making women’s nightdresses that encouraged prostitution. The appellant responded that he would stop making the garments and bribed the Taliban and the Taliban allowed him to proceed.

8    On 14 September 2010 the initial Reviewer concluded that the appellant did not meet the definition of a refugee as set out in Article 1A of the Refugee Convention as amended by the 1967 Protocol relating to the Status of Refugees. Accordingly, the initial Reviewer recommended that the appellant not be recognised as a refugee.

SUBSEQUENT INDEPENDENT MERITS REVIEW

9    As a result of the High Court’s decision in M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, a further Independent Merits Review was conducted (‘the second review’). The second review took place at Villawood Immigration Detention Centre on 11 February 2011 and 25 March 2011 by a Reviewer (‘the Reviewer’).

10    The Reviewer noted that the appellant provided different information to that which he had given in his first Review. At the second review the appellant claimed that he had worked as a well known wedding dress designer and that he had a number of women who worked for him as dancers at weddings. The appellant told the Reviewer that he charged US$2,200 for women to attend parties and dance and sing, and that usually five to six women would attend parties with 20-25 men in attendance at each party. The appellant claimed that the Taliban accused these women of being prostitutes.

11    The appellant also provided further information as to his confrontation with the Taliban on the road from Bamyan to Kabul, described in this decision at [7]. He claimed that the Taliban had detained him and had known who he was because a mullah had issued a fatwa, or religious decree, ordering his death. The appellant claimed that he was in Kabul when he learnt of the fatwa, and that his house and shop were set on fire. He returned to Bamyan and relocated to the house of an old man in Yakawlang, a village in the same province. The appellant claimed that his wife and children left his village and fled to Iran to live with his sisters after other Hazaras in his village attacked his house and killed his two sons because of the fatwa. The appellant claimed he had escaped from his encounter with the Taliban on the road by telling a guard he had to go to the toilet and left money with the Taliban guards to ensure he would return. The appellant claimed that he then fled.

12    The appellant provided a document purporting to be a petition which he claimed supported his claims, together with a printed letter from the ‘Assembly of Afghanistan Clerics and Cultural Workers’ addressed to an advisor of the President of Afghanistan, notifying the advisor that a fatwa had been issued against the appellant and asking the advisor to notify the Assembly of the appellant’s whereabouts.

13    The Reviewer noted the inconsistent claims given by the appellant. At the first interview he said Mullah Irfani, who purportedly issued the fatwa ordering the appellant’s death, spoke to him about the dance parties. However, at the second interview he denied such fact. The appellant’s evidence concerning whether a fatwa was issued and the reason for the issue of the fatwa also differed. The appellant explained that the reason for such inconsistencies was that at the time he arrived at Christmas Island, Hazaras were being issued with visas merely on the basis of their ethnicity and he did not think it was necessary to elaborate upon his claims and tell others of the death threat against him. The appellant also stated he was ashamed of the fatwa and for this reason did not disclose it.

14    In her decision (‘the decision’) the Reviewer referred to several other inconsistencies and ultimately did not accept the appellant’s claims. The Reviewer found the appellant’s claims of escape from the Taliban implausible and found inconsistencies between the appellant’s oral evidence and documentary evidence provided by the appellant in the form of a copy of a letter advising of the purported fatwa. The Reviewer observed that the appellant claimed his family had continued to live in the same house in his absence whilst there was an alleged fatwa against the appellant. The Reviewer also had regard to independent country information concerning Afghanistan and concluded the appellant’s Hazara ethnicity and his Shia religion would not, by itself, result in the conclusion that he faced a chance of serious harm amounting to persecution.

15    The Reviewer also had regard to independent country information which reported that Bamyan Province was considered one of the most secure provinces in Afghanistan and a safe haven for Hazaras. Independent country information also indicated there was no Taliban presence in that province.

16    The Reviewer concluded the fatwa and the claim surrounding it had been fabricated to strengthen the appellant’s claims. The Reviewer noted that the appellant could return to Afghanistan and travel to his home province of Bamyan and he would not face a real chance of serious harm if he returned. Consequently, the Reviewer recommended that the appellant not be granted refugee status.

RELEVANT FINDINGS OF THE REVIEWER

17    At [42] of her decision the Reviewer made the following observation:

While UNHCR was not convinced that the majority of Hazara protection seekers abroad were genuine the political and security situation in Afghanistan was fluid and therefore the current situation where Hazaras enjoyed freedom from fear of persecution might not last indefinitely. Currently however Hazaras were not being persecuted on any consistent basis.

18    Subsequently, having considered further information the Reviewer said:

I have considered the advice provided by Professor Maley as the claimant’s adviser asked me to do. I note that the situation for particular groups will wax and wane over time and that it is important to look beyond insignificant and domestic changes.

Given the information provided by the UNHCR, UNAMA, US Embassy, Afghan Human Rights Organisations and Hazara advocates I accept the advice in the February 2010 DFAT report 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”. I do not accept that the claimant’s ethnicity and religion by themselves means that he faces a real chance of harm amounting to persecution by the Taliban. This does not mean that a Hazara Shia cannot be found to be a refugee on the basis of his own personal profile, experiences and activities.

19    Based upon such information the Reviewer then addressed the appellant’s claims. Having considered such claims the Reviewer found that the changes in the claims made by the appellant demonstrated that he was an untruthful witness. However the Reviewer found that the appellant had resided in Bamyan, and was most likely to return to that province if his application for refugee status was refused. The Reviewer made the following findings:

I accept the claimant is from Bamyan Province as he has provided consistent evidence about his place of residence. Hazaras are the majority ethnic group in Bamyan. The Hazaras consider the province their cultural heartland. The UNHCR Guidelines note that Afghans generally avail themselves of the protection and assistance afforded by family, tribe and ethnic group in their place of origin. Given the claimant was born in Bamyan province returned to that province after having lived for 15 years in Iran and it is a Hazara dominated province I accept that he would seek to return to that province.

20    The country information before the Reviewer referred to the fact that there had been attacks upon Hazaras in Hazara dominated areas by a nomadic minority known as Kuchis. Such attacks had been in Bamyan and Wardak Provinces in 2008. However the information stated that such clashes were usually related to dispute concerning land and access to natural resources. The Reviewer said at [70] of her decision:

The claimant made claims about Kuchis in his statement of 19 May 2010. His advisor submitted country information about the attacks by Kuchis in Behsud Wardak province and Kabul in 2010. I accept that there were attacks by Kuchis in Behsud and Kabul in 2010. There is no evidence before me to suggest that there were attacks by Kuchis in Bamyan province in 2010. I do not accept the claimant would be persecuted by Kuchis because he is a Hazara Shia or for any other Convention reason in Bamyan province.

21    Thereafter the Reviewer concluded that the appellant would not suffer a real chance of serious harm if he returned to Bamyan Province and if he continued to design and make western style wedding clothes. The Reviewer found that the appellant did not have a valid fear of persecution if he returned to Bamyan.

TRAVEL TO BAMYAN

22    The Reviewer also considered the question whether the appellant was likely to suffer persecution during his travels if he returned to Bamyan after he was deported. The Refugee Status Assessment stated that ‘if the claimant were to be returned to Afghanistan, he would arrive in Kabul’. The Reviewer concluded at [71] of her decision:

I accept that travel into and out of Bamyan can be dangerous but it is civilians who are associated with or perceived to be associated with the Government or the International Community who are at greater risk than others on the roads. There is no evidence to suggest that the claimant has had any association with the Government or the International Community. 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 into and out of Bamyan.

23    In view of all the above findings, the Reviewer found that the appellant did not meet the criterion for a protection visa contained in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’).

THE FEDERAL MAGISTRATES COURT

24    On 1 July 2011 the appellant filed an application in respect of the Reviewer’s recommendation, and sought a declaration that the decision be set aside and that a writ of prohibition be issued restraining the first respondent and his servants and agents from giving effect to the decision.

25    On 24 October 2011 the appellant filed an amended application raising only the following ground:

1.    The Second respondent erred in failing to lawfully consider whether the applicant faced a well founded fear of persecution in attempting to return to Bamyan, being the part of Afghanistan where she found that he would be safe.

1.1    Error in finding that because the applicant is not a member of a group which faced a greater risk than others, he did not have a well founded fear of persecution.

26    On 2 November 2011 the Federal Magistrate granted the appellant’s application for an extension of time in which to seek orders: see SZQKE v Minister for Immigration & Anor (No 2) [2011] FMCA 847. At the substantive hearing the appellant asserted that the Reviewer failed to determine whether the appellant faced a real chance of persecution on account of his ethnicity and religion were he to attempt to return to Bamyan and that the Reviewer had failed to apply the law to the facts.

27    In his decision (see SZQKE v Minister for Immigration (No 3) [2011] FMCA 878) the Federal Magistrate found that the Reviewer had considered the issue of the risk faced by the appellant in travelling to Bamyan. The Federal Magistrate noted that the Reviewer had specifically stated she was not satisfied the appellant would face any real chance of serious harm of persecution for any Convention reason in relation to travel into and out of Bamyan.

28    The Federal Magistrate noted that the appellant challenged such finding in the context of the dangers if travelling en route to Bamyan. However, his Honour found that there is no error in the Reviewer’s decision. His Honour observed at [39]:

[The Reviewer] expressly states that she is not satisfied that the claimant faces a real chance of serious harm amounting to persecution for any Convention reason in relation to travel into and out of Bamyan. [Emphasis in decision of Federal Magistrate]

29    The Federal Magistrate then continued at [40]:

In circumstances such as the present, where a decision maker finds that an applicant may live in his home region of the country from which he has fled without a well-founded fear of persecution for a Convention reason but that that region is surrounded by other territory through which the applicant must pass in order to reach his home, and which is dangerous, decision-makers must consider whether that necessity of transit will expose an applicant to a well-founded fear of persecution. In the present case, I am satisfied that the Reviewer did give lawful consideration to that issue. The applicant’s concern is with the adequacy of that consideration but, in my view, that dispute goes to the merits to the Reviewer’s report and recommendation. The Reviewer took the view that, while the applicant would be subjected to risk in travelling to Bamyan, the harm that may befall him would not amount to persecution for a Convention reason. It was simply part of the general risk of harm that all Afghans faced in traversing the areas in question. That conclusion was, in my view, open to the Reviewer on the material before her. The consideration might have been more fulsome but the consideration given to the issue was lawful, in that the consideration addressed the right question and no relevant material was overlooked.

30    Accordingly his Honour was satisfied the Reviewer gave lawful consideration to the issue of travel by the appellant to his home in Bamyan. His Honour also found that the Reviewer had not misapplied the law to the facts. His Honour dismissed the appellant’s application on the basis that the decision did not reveal jurisdictional error.

APPEAL TO THIS COURT

31    On 14 December 2011 the appellant filed a Notice of Appeal in this Court. Such notice contained the following single ground:

The Court erred in holding that the second respondent had correctly construed and applied the words, “well founded fear of persecution” in Article 1A(2) of the Refugees Convention in finding that the appellant did not have such a fear for reason of his race whilst returning to Bamyan in Afghanistan.

32    The appellant submits that the Federal Magistrate erred in concluding that because other groups of people, namely those associated with foreign organisations and the Afghani government, are at greater risk than any other person travelling on the road to Bamyan and because the appellant was not in those groups, the appellant would not be exposed to a real chance of persecution. The appellant submits that the Reviewer’s conclusion does not address the critical question, namely whether the appellant would be exposed to the risk of harm resulting from persecution irrespective of whether he was a member of the group referred to by the Reviewer.

CONSIDERATION

33    The Federal Magistrate also reiterated the country information available to the Reviewer. The key aspects of that information are:

a)     persecution of the minority Hazaras in Afghanistan has taken place over several centuries;

b)     the Taliban had in the more recent past restricted the movement of Hazaras and committed atrocities against them;

c)     there is currently no evidence of a campaign by the insurgency to target Hazaras, and that currently Hazaras are not being persecuted on any “consistent basis”;

d)     discrimination against Hazaras has however continued;

e)     there have been atrocities committed against Hazaras in the recent past, such as in Uruzgan Province in 2010 when 11 Hazara men were murdered and decapitated, allegedly by the Taliban;

f)     the roads in and out of Bamyan are in “an enormously poor condition”. There are two routes to Kabul which are closed for long periods between November and April due to snowfall in winter and floods in spring;

g)     travel into and out of Bamyan can be dangerous and has become more challenging in the context of a broader deterioration in security in Afghanistan. “Individuals associated with the Government and international community may be at greater risk than others on the road.” [Emphasis in Federal Magistrate’s decision only]

34    The Federal Magistrate also observed at [35] of his decision:

I accept that the Reviewer had no evidence to suggest that the Taliban, a fundamentalist Sunni movement, have changed their attitude to Shia Hazaras, or that they have completely abandoned persecution of Hazaras. Indeed, country information suggested the contrary. It may also be inferred from the above that Hazaras continue to face a risk of serious harm, even if they are not being systematically persecuted.

35    The learned Federal Magistrate determined at [40] that a factor that must be taken into account by decision-makers in circumstances such as these is whether ‘transit will expose an applicant to a well-founded fear of persecution’. The Federal Magistrate found that outside of Bamyan, the appellant faces a risk of substantial harm. The learned Federal Magistrate determined that, this notwithstanding, the appellant would not face persecution in Bamyan.

36    The Federal Magistrate referred to the Reviewer’s finding that in travelling to Bamyan by road the appellant would be exposed to no greater risk than any other civilian: that is, beyond the usual risks of travelling on such a road. His Honour said of such finding at [40]:

The Reviewer took the view that, while the applicant would be subjected to risk in travelling to Bamyan, the harm that may befall him would not amount to persecution for a Convention reason. It was simply part of the general risk of harm that all Afghans faced in traversing the areas in question.

37    The Federal Magistrate found that the Reviewer had properly considered the issue of the appellant’s travel to Bamyan. In concluding that the appellant did not face a real chance of serious harm amounting to persecution for a Convention reason in relation to his travel into Bamyan, the Reviewer thereby concluded that the risk of persecution as defined in s 91R of the Act was not a real risk. This is a factual finding, based on independent country information available to the Reviewer.

38    The issue in these proceedings is confined to a sole question. That is, whether the Federal Magistrate erred in his conclusion that appellant would not be exposed to a real risk of serious harm constituting persecution as defined in s 91R of the Act if he were to travel by road to Bamyan.

39    The appellant relies on the decision of Burchett J in Ponnudurai v Minister for Immigration [2000] FCA 91. In that decision a Tamil applied for refugee status. He had been born at Jaffna in Sri Lanka in 1966 and in late 1989 was forced to attend a number of classes conducted by the Liberation Tigers of Tamil Eelam (‘LTTE’). The appellant in those proceedings claimed that he had been arrested on several occasions in general search and round-up operations conducted by the authorities. He was arrested in May 1995 and taken to an army camp where he was beaten but released after about five hours, and thereafter ultimately sought refuge in Australia.

40    The Tribunal member found that the appellant did not have a well-founded fear of discrimination by reason of his race (Tamil) or for any other convention reason. Having referred to the country information available the Tribunal member found: ‘those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East’. The appellant in that case did not fall into the latter category as he was neither young nor had been travelling in such areas. On this basis the Tribunal member concluded that there was not a real chance that the appellant would be arrested in the future by the Sri Lankan authorities by reason of his race or his imputed political opinion, namely support of the LTTE.

41    It was submitted by the appellant in Ponnudurai that the Tribunal failed to determine the real issue, namely whether the appellant was exposed to the risk of persecution. Burchett J upheld the submissions of the appellant. Referring to the requirements of the extant s 476 of the Act, Burchett J said at [12]:

Having negatived, not that the applicant's fear of persecution was well-founded in a real chance of it, but that "he will be arrested", the Tribunal continued by referring to a suggestion it had derived from the evidence "that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East". But the expression "those most at risk" and the word "particularly" indicate how far the Tribunal had strayed from the path of decision according to law. The question was not whether the applicant was most at risk, or whether he was one of those particularly at risk, but whether his fear of persecution was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution. The Tribunal went on to refer to the submission of the applicant's representative, which did relate to the true question, put in reliance on "information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members", and urging that, a fortiori, a young male Tamil with the applicant's antecedents would be at risk. But the Tribunal, while acknowledging the accuracy of this to the extent that it "is certainly true that ... it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo", then avoided the issue by a return to the irrelevancy that what was submitted to be a demonstrable risk was not "particular", so as to put the applicant "equally at risk" with others for whom a particular risk could be shown. The Tribunal said "it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk." It said it accepted evidence "that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East”

…

The Tribunal's discussion of those most at risk, or particularly at risk, just diverted its attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant's account of particular arrests he claimed to have suffered. A failure of this kind involves an error of law within s476(1)(c) and (e) of the Migration Act 1958, and, in addition, s476(1)(a)…

42    In the present appeal, there appear to be some analogous circumstances. They arise from the Reviewer’s finding that the appellant was at no greater risk than others whilst travelling on the road to return to Bamyan. However, when analysed, the factual circumstances found in Ponnudurai are clearly distinguishable.

43    In Ponnudurai a submission was made by the appellant that country information suggested that all Tamils were at risk of being arrested and that all Tamils were regarded as potential LTTE members. To this submission, the decision-maker responded that it was possible to identify instances in which younger Tamils had been arrested, before going on to refer to ‘those most at risk’. The decision-maker therefore did not address the critical question, namely whether there was a real chance that the appellant would suffer persecution if he returned to Sri Lanka.

44    In the present proceedings the Reviewer found as a fact that Bamyan Province was a place where Hazaras did not live in fear of persecution. The Reviewer’s decision was based upon the independent country information. It was for this reason that the Reviewer concluded that the appellant would not suffer a real chance of serious harm if he returned to Bamyan.

45    In the appeal now before the Court, the Reviewer has clearly assessed the risk of persecution resulting from the appellant’s potential return to Afghanistan by a clear statement to the effect that the appellant will not be exposed to a risk of persecution if he returns to Bamyan, because Hazaras are not subject to persecution in that province. In contrast, the decision-maker in Ponnudurai appears to have acknowledged that Tamils are at risk of persecution in Sri Lanka. This is a vital distinction between Ponnudurai and the present matter. In view of the factual difference, the Court is satisfied that Ponnudurai does not provide any assistance to the appellant.

46    In R v Secretary of State for the Home Department; ex parte Gunes [1991] Imm AR 278, Simon Brown J quoted the ‘UNHCR Handbook on Procedures and Criteria for Determining Refugee Status’ and stated at 282:

The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.

Implicit in that final clause is this. If in all the circumstances it would be reasonable to expect someone to return to another part of his country of nationality, then that is a matter that can properly found an adverse decision on a claim to refugee status.

47    In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, the Full Court considered whether it would have been reasonable for an Indian Sikh to relocate from his home state of Punjab, where he would be in danger of persecution, to elsewhere within India. Black CJ at 270 said:

Notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

48    The Full Court thus recognised that if a person claiming refugee status could not, as a practical matter, relocate, such consideration could be decisive in determining whether the person was in need of protection. The issue of whether the alternative place was suitable and ‘accessible’ in the above extract is to be understood in the sense of a suitable place to reside.

49    The present appeal does not raise a question of relocation, as it was clearly accepted that the appellant’s only destination were he to be returned would be Bamyan. However, the above authorities are useful for emphasising that a decision-maker is required to take into consideration the practicality of a claimant for refugee status relocating somewhere within their country of origin.

50    As to the necessary travel from Kabul to Bamyan, the Reviewer stated:

A lack of power and poor roads are the obstacles to economic development in Bamyan. The roads in Bamyan are in an enormously poor condition. There are two routes to Kabul via the Shibar pass through the province of Parwan (237km) and through the Hajigag pass through Wardak province. It takes about 9 hours to travel on these roads and security is poor on the Hajigag pass. The roads are closed for long stretches from November to April due to heavy snowfall in winter and flooding in Spring. (Regional Rural Economic Regeneration Strategies Undated p5).

51    Courts have recognised that the place to which a claimant for refugee status is to be returned must be reasonable: Karanakaran v Secretary of State for the Home Department [2003] 3 All ER 449; Randhawa. In Karanakaran Booke AJ said at 456(d)-(j):

Since the decision in Ex p Ravichandran, it has often been argued in cases of individual asylum-seekers from Sri Lanka (and, indeed, from other countries) that the alternative destination to which they are to be sent back does not provide the quality of internal protection that the Geneva Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171) (as amended by the 1967 Protocol (New York, 31 January 1967; TS 15 (1969); Cmnd 3906)) (the convention) demands, and that they are therefore still properly to be recognised as refugees.

This argument turns on the correct interpretation of a few words contained in the definition of 'refugee' in art 1A(2) of the convention, being any person who:

‘… owing to well-founded fear of being persecuted [for a convention reason] 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.' (My emphasis)

The words I have italicised have not been interpreted literally. In theory it might be possible for someone to return to a desert region of his former country, populated only by camels and nomads, but the rigidity of the words 'is unable to avail himself of the protection of that country' has been tempered by a small amount of humanity.

52    Similarly in Alphonsus v The Minister for Immigration and Multicultural Affairs [1999] FCA 289, Lehane J observed at [41] also in relation to a Tamil asylum seeker, that if a person was to be returned to their country of origin, it was ‘necessary to consider the reasonableness test, having regard to the particular circumstances of the applicant’.

53    Again, these authorities were cases of relocation but they serve to remind decision-makers that consideration of ‘reasonableness’ for the place of return, and by analogy, the means of return, are considerations for the decision-maker.

54    In the present appeal, it is apparent from the Reviewer’s observations set out at [22] above that this consideration was specifically addressed. The Reviewer was not satisfied that the appellant faced a real chance of serious harm amounting to persecution for any Convention reason in respect of his return travel to Bamyan. Insofar as the Reviewer referred to the fact that the appellant would not be at ‘greater risk’ than others on the roads, since he was not associated with he government or the international community, the Reviewer recognised that the appellant would be at no greater risk than any other civilian using the road. There may be risks associated with the use of the road but those risks were not such as to amount to persecution.

55    The Reviewer’s findings accord with the approach adopted in Fadil Dyli v Secretary of State for the Home Department [2000] IMM AR 652. In Fadil Dyli the Asylum and Immigration Tribunal (UK) said at [32] of its decision of a person who would be liable to be subject to persecution in some part of his originating country:

He is not entitled to be considered as a refugee merely because he has a well-founded fear of persecution in some pat of his own country, if there are other parts of that country where he would be safe from persecution.

56    The Tribunal continued at [33]:

A person cannot be removed to a place where he is at risk of persecution. But if he is at risk of persecution in his own home area, he can be expected, on return to his own country, to live in a different area, in order to avoid the risk. There will then be no breach of the Convention in returning him to his own country, despite the risk of persecution in part of it. At this point two further factors enter the equation. The first is that, even if there is a safe area, he cannot properly be returned to his own country if he cannot reach the safe area, or if he cannot do so without being at risk of persecution on the way there-either immediately on arrival or on his subsequent journey within the country. Secondly, he cannot be returned if the safe area is one in which it would be unreasonable or unduly harsh to expect him to live.

57    The observations of this Tribunal coincide with the approach taken by the Reviewer to the appellant’s claim. The Reviewer considered the very question whether the appellant would be at risk of persecution in returning to Bamyan and concluded that she was not satisfied that such risk existed. The Reviewer also considered the question of physical access and found that the appellant would be exposed to no greater risk than any other person.

58    The Court is satisfied that the Reviewer addressed the correct issues and that the learned Federal Magistrate made no error in concluding that the Reviewer had conducted the review according to law.

59    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    18 May 2012