FEDERAL COURT OF AUSTRALIA

AZABO v Minister for Immigration and Citizenship [2012] FCA 525

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs fixed in the sum of $6,105.00.

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

REASONS FOR JUDGMENT

1    The appeal in this matter and in AZABN v Minister for Immigration and Citizenship [2012] FCA 526 were heard together as were the original judicial review proceedings heard and determined by a Federal Magistrate adversely to the respective appellants under s 476 of the Migration Act 1958 (Cth). As common legal issues arise in the two matters – the five grounds of appeal in each are identical – my reasons for decision in each largely reflects those in the other.

Background

2    The appellant, a national of Afghanistan, is a Shia Muslim of Hazara ethnicity. He was born and lived in Kandahar Province until shortly after his father’s death in 1996 or 1997. His father was killed by the local Taliban as he was suspected of political activity contrary to its interests. His body was hung in a public place.

3    The appellant moved with his mother to Pakistan in 1997. He lived, worked and was married there. He came alone to Australia on 26 March 2010.

4    On 11 June the appellant applied for a refugee status assessment. In the declaration supporting his application he referred to the killing of his father by the Taliban and indicated he was fearful of returning to Afghanistan because he was both Hazara and Shia. The assessing officer found that while the appellant had a genuine fear of serious harm, there was not a real chance of persecution occurring.

5    The appellant then applied for an Independent Merits Review. He supplied a further declaration; submissions were made by his migration agent; and he was interviewed by the reviewer. The reviewer’s conclusion was a recommendation to the respondent Minister that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention 1951 as amended by the 1967 Protocol.

The Reviewer’s Reasons

6    The reasons contain a précis of the appellant’s declarations and interviews as well as country information which included two DFAT advices (dated February and September 2010 respectively) to which it attached “particular weight”.

7    The reviewer’s findings are captured in the following extracts from the reasons:

The reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and of the Taliban’s attacks on communications and facilities …

Nor was there evidence before the reviewer to support a conclusion that there is general societal discrimination against Hazaras so severe as to amount to persecution; indeed, other material cited discussing the general post-2001 situation of Hazaras indicates a significant lessening of such discrimination (see for example the DFAT advices of February 2010 and September 2010).

The reviewer attaches particular weight to the recent reports by the Department of Foreign Affairs and Trade which squarely address the issue of persecution of Hazaras, while not dismissing the historical background and concerns articulated by Professor Maley and his caution regarding future developments.

…

The reviewer does not accept that a person’s identity as an Hazara Shia of itself causes him or her to fall within the Refugee Convention definition …

(Emphasis in original.)

8    In relation to the significance of the Taliban’s killing of the appellant’s father, it was commented:

The reviewer therefore accepts that there is a real chance (although by no means a likelihood, given the length of time which has elapsed and the claimant’s age at the time) that on return to Kandahar the claimant might be imputed by the local Taliban with the hostile political opinion or position which they had attributed to his father and that this might place the claimant in danger of harm amounting to persecution by reason of this imputed political opinion.

Uncontentious country information indicates that there is little realistic prospect of effective State protection in these circumstances.

9    The all important issue of re-location was raised by the reviewer at the interview with the appellant in the following way:

The reviewer raised the question of return to somewhere else in Afghanistan, in particular Kabul, rather than to Kandahar (an option raised by the delegate and addressed in the submission from the adviser). The claimant replied that he did not know anyone in Kabul and that it was very difficult to survive in Kabul which still has the same life and the Taliban. It was put to the claimant that there is not the same situation regarding the Taliban in Kabul as in Kandahar and there are not the local people who might remember the suspicions about his father. The claimant replied that of course they would recognise him, or if not him, because he had been young, his mother. Asked who might recognise his mother in Kabul, the claimant did not answer directly but stated that the Pashtuns are all the same, there is is [sic] not anyone to support him in Kabul and that it would be very difficult to live there.

The reviewer put to the claimant that, having regard to the reports of specific security incidents provided by his adviser, violence in Kabul appeared to be basically directed against foreigners, public figures and institutions and at disrupting normal life and that none of those specific incidents appeared to have been targeted against Hazaras as such. In its September 2010 advice, DFAT had advised that there is a cohesive Hazara community in Kabul and that it would be relatively easy for new arrivals to integrate into the city, where they can move freely. The reviewer noted that the claimant had been living and working in a large city for a number of years so that he was not in the same position as an illiterate farmer with no other experience.

10    Re-location was returned to in the findings made:

Although, it is possible that any adverse attention or suspicions the claimant may attract because of his father if he now returns to Kandahar may be exacerbated by returning after a long absence overseas, the reviewer does not accept that the claimant would face a real chance of persecution for that reason elsewhere, including in Kabul (where the evidence does not suggest that the Taliban is specifically targeting Hazaras in a systematic and discriminatory manner). The reviewer is not satisfied that the claimant would be sought, located or individually targeted in Kabul because of events in Kandahar 14 years ago or any residual suspicions in relation to his father. That leaves the question of whether it is, in practical terms, reasonable for the claimant to relocate away from Kandahar.

In considering whether the claimant might relocate elsewhere within Afghanistan rather than return to Kandahar, the reviewer has fully considered the submissions in this regard by both the claimant and his adviser. An assessment of the reasonableness of re-location will depend upon the individual circumstances in each case.

The reviewer accepts that the nature of traditional rural life in Afghanistan makes it both impractical and unreasonable to expect someone to relocate to a rural area. The only realistic option to consider appears to be Kabul, with a very large population of which a significant proportion are Hazaras.

The issues involved were raised with the claimant at interview, as already detailed.

The reviewer attaches weight to the recent advice of the Australian Embassy in Kabul (DFAT, Afghanistan/Pakistan: The Hazara, AFG10736, 28 September, 2010), “Whether returnees would have a social network in Kabul if they moved there would depend on which province and district they came from, and the part of Kabul they were located in. But there is a cohesive Hazara community in Kabul, and a Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely.”

The reviewer notes that the claimant’s life and work experience has been in a large city (Quetta) rather than in a rural environment. Although the claimant states that he does not have any immediate or extended family in Kabul, he is an adult male 25 years of age with many years experience as a street vendor in Quetta. His situation is not the same as a person whose working life has been spent on a remote farm. It is undisputed that there is a very large Hazara community in Kabul, drawn from all parts of the country (Wikipedia estimates 25% of 2.8 million; the hazaranet website states that Hazaras make up 40% of Kabul’s population: http://www.hazara.net/hazara/FAQ/faq.html.) The general insecurity arising from the Taliban insurgency is relevant, although not conclusive. The claimant and his adviser have cited continuing security incidents in Kabul but the reviewer notes that the evidence presented indicates that it is largely directed against foreigners and public figures and institutions. The reviewer is satisfied that the nature and incidence of such occurrences (and the extent to which ordinary citizens in Kabul may be directly affected) is such that in a city of several million people the risk of harm for an ordinary individual is, in the context of the total population, extremely small. The reviewer is satisfied that such incidents do not impact on the day-to-day security of an individual to such an extent as to make it unreasonable for a person to live there to avoid persecution elsewhere.

The reviewer is satisfied that the totality of the circumstances are not such that the claimant would be unable to live in Kabul and might therefore be constrained to return to Kandahar.

In all the circumstances, the reviewer concludes that it is reasonable for the claimant to relocate within Afghanistan, specifically in Kabul.

I find that the claimant … does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.

The Judicial Review Proceedings

11    There was only one ground of review in the application made to the Federal Magistrates Court. It was, in effect, that the reviewer incorrectly applied the law with respect to internal re-location. This was particularised in the allegation that the reviewer “failed to adequately consider the applicant’s personal circumstances as required by law when considering whether it was reasonable for the applicant to re-locate within their [sic] own country”.

The Federal Magistrate’s Decision

12    I need only refer briefly to this as it is unexceptionable. The learned Federal Magistrate acknowledged that the “re-location principle” had been adopted into domestic refugee law and referred to the decision of Black CJ in Randhawa v Minister for Immigration (1994) 52 FCR 437 (“Randhawa”) at 440-441 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”). He indicated that a decision-maker must give consideration to the possibility of a person seeking refugee status to re-locate within his or her country of origin if such re-location is reasonable in the sense of it being a practicable response to his or her fear of persecution and that what was practicable –

must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV at [24].

He also acknowledged properly that, in giving consideration to the particular circumstances –

the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant: Randhawa at 443.

13    This last comment, I would emphasise, is of no little importance in this matter. Having regard to the issues addressed by the reviewer and the manner of their address, his Honour concluded that the reviewer determined the matter “within the parameters raised by the applicant in his case”: [122]. The correct question was posed by the reviewer and there was sufficient evidence to answer it as the reviewer did. The application was dismissed.

14    There are two features of the manner in which the case was presented to his Honour upon which I should comment. First, the appellant’s counsel importuned the Federal Magistrate to disregard the principles stated by the High Court in SZATV and by Black CJ in Randhawa. Unsurprisingly, this was to no avail. Secondly, counsel criticised the reviewer for not considering whether it was feasible for the appellant to travel from Kandahar to Kabul to access the safe haven available there. The Federal Magistrate indicated that this was not specifically raised before the reviewer and it was a “hypothetical issue”.

The Appeal to this Court

15    As I have already noted, the grounds of appeal in this matter are identical in all relevant respects to those in AZABN. They are:

1.    The Federal Magistrates Court did not properly consider the internal relocation “principle”.

2.    Assessment of whether an applicant for refugee status could (reasonably) relocate within the country of origin must be determined according to the criteria set out in the Refugee Convention.

3.    The Refugee Review Tribunal accepted the applicant as a credible witness with a well-founded fear of persecution, for Refugees Convention reasons, in his home province of Kandahar, and the presence of a “safe haven” elsewhere in the country of Afghanistan cannot extinguish that fear.

4.    The learned Federal Court Magistrate erred in failing to find jurisdictional error after the Tribunal failed to consider, or failed to consider relevant material regarding, the practicality of travel from the place of persecution to the “safe haven”.

5.    The learned Federal Court Magistrate erred in failing to find jurisdictional error after the Tribunal failed to consider, or failed to consider relevant material regarding, not only the present but also the future safety of the proposed “safe haven”.

16    The burden of Ground 1, considered in the light of the oral submissions of the appellant’s counsel, would seem to be that his Honour erred in not applying the re-location principle to the appellant at the time he “fled the site of persecution”. This proposition is, seemingly, tied to the contention that the “safe haven” must be accessible “from the site of persecution”. Ground 4 of the appeal is that the reviewer committed a jurisdictional error, not discerned by the Federal Magistrate, in failing to consider “the practicality of travel from the place of persecution to the ‘safe haven’”. These two grounds will be considered together.

17    Grounds 2 and 3 are hardly grounds of appeal at all. At best they seem to be advanced as oblique support for the idiosyncratic view of internal re-location advanced by the appellant’s counsel and which he still appears to concede goes beyond binding authority. All I need say of it is that merely because a person has a well founded fear of persecution for a Convention reason in relation to a part of his or her country of origin does not of itself justify an unwillingness to avail of available protection of that country in another part of it. Hence the observations of Black CJ quoted earlier on whether it is reasonable in the circumstances to expect the person to re-locate to that other part of the country.

18    I should note that Grounds 4 and 5 above were not raised in the application to the Federal Magistrates Court. Nonetheless, the respondent Minister acknowledges that these arguments became part of the appellant’s case before the Federal Magistrate and for that reason the Minister does not oppose their being used in the Notice of Appeal.

Grounds 1 and 4

19    It is necessary to begin with the definition of “refugee” in Art 1A(2) of the Convention which is applied by s 36(2) of the Migration Act as a criterion for the grant of a protection visa. The Article applies the term “refugee” to any person who (insofar as presently relevant):

(2)    owing to 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.

20    In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [61]-[62], McHugh and Gummow JJ commented of this provision that:

This passage presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality “owing to” fear of persecution for reasons of membership of a particular social group, which is well founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself “of the protection of” the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition.

The definition of “refugee” is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to “protection” is to “external” protection by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of “internal” protection provided inside the country of nationality from which the refugee has departed.

(Emphasis in original.)

See also Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [19] (the claimant “must justify, not merely assert, his unwillingness” to avail of the protection of the country of nationality).

21    If the above observations suggest that the time to test the legitimacy of a person’s unwillingness to avail of the protection of the country of origin, is the time when his or her refugee status is under consideration outside of the country of origin, it is also consonant with the idea which informs the re-location principle itself. As Professor Hathaway put it (The Law of Refugee Status (1991), 133):

A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin.

22    So in Randhawa, Black CJ could observe (at 443):

If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.

Previously, the Chief Justice had endorsed the view (at 442) that:

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

(Emphasis added.)

23    Authority and principle require that I reject both the first and fourth grounds of appeal. Whether a person can properly claim to be a refugee under the Convention is to be ascertained in light of the circumstances obtaining when the claim for refugee status itself is determined. For this reason, the decision-maker can take account of changes of circumstances in the country of origin after the claimant has fled from it. Such occurred in this matter.

24    The fourth ground in a case such as the present, raises a false question. As the reviewer clearly recognised, the appellant could not be expected to return to Kandahar. Effective State protection could not be given there. He could be expected to return to Kabul where such protection was available. No issue thus arose as to whether he could have access to Kabul from Khandahar. As the Federal Magistrate acknowledged, such was a “hypothetical issue”.

Ground 5

25    This alleges a jurisdictional error – not discerned by the Federal Magistrate – resulting from the reviewer’s failure to consider, or failure to consider relevant material regarding, not only the present but also the future safety of the proposed “safe haven” in Kabul.

26    The only relevant document identified in the appellant’s written submissions was a 2010 article written by Professor Maley entitled “On the Position of the Hazara Minority in Afghanistan”. No reference was made to its contents on the appeal. However, the reviewer indicated he had “carefully considered” Professor Maley’s views.

27    What is clear is that the reviewer (a) was made well aware of the appellant’s objection to living in Kabul; (b) considered the security situation then obtaining in Kabul and its significance for Hazara Shia; and (c) in so doing made extensive reference to DFAT advices to which he attached particular weight. What the reviewer did not do expressly was consider the security situation in Kabul into the future, either for its citizens generally, or for Hazara. He did, though, acknowledge that insecurity and risk of harm in an insurgency situation neither established nor precluded refugee status. Thus the reviewer made the appellant’s claims his focus and he concluded that, as an Hazara Shia, the appellant did not for that reason “face a real chance of harm amounting to persecution by non-state actions (ie Pashtuns in general and the Taliban in particular)”. The proper inferences to be drawn from the reviewer’s reasons are that this evaluation involved a projection of the past into the future. It also involved a rejection of the appellant’s general contention to the contrary which dealt compositely with the present and future.

28    This ground is without substance.

Conclusion

29    I need to re-emphasise, given how the appeal has been conducted on behalf of the appellant, that the question whether it was reasonable to expect the appellant to re-locate to Kabul required the individual circumstances of his case to be addressed. This the reviewer did. The case which was put by the appellant and which was squarely raised by the evidence was dealt with: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1 at [58]-[63]. I reject the appellant’s contentions to the contrary.

30    It is appropriate, finally, to comment that the decision of the Federal Magistrate is not only free from error, it also reflects careful consideration of, and reflection, on the matter.

31    I will order that the appeal be dismissed and that the appellant pay the respondents’ costs fixed in the sum of $6,105.00.

Associate:

Dated:    23 May 2012