FEDERAL COURT OF AUSTRALIA

AZABN v Minister for Immigration and Citizenship [2012] FCA 526

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 AZABO v Minister for Immigration and Citizenship [2012] FCA 525 were heard together, as were the original judicial review proceedings brought under s 476 of the Migration Act 1958 (Cth) which were determined by a Federal Magistrate adversely to the respective appellants. 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 has lived in the Qarabagh district of the Ghazni Province in Afghanistan. On 2 April 2010 he arrived at Christmas Island. He is an “offshore entry person” as that term is defined in the Migration Act. He submitted claims for protection on 4 June 2010, claiming he feared persecution on account of his race, religion and imputed political opinion.

3    As the sole issue which arises in this appeal relates to the conclusion of the second respondent, the Independent Reviewer, that it was reasonable to expect the claimant to re-locate to Kabul, only brief reference needs be made to the circumstances founding the appellant’s claims of fear of persecution. It is sufficient to précis the reviewer’s conclusions.

4    These were –

(i) On the basis of available current and authoritative material, the Taliban did not specifically target Hazaras or Shias differentially from the population at large and Hazaras did not face a real chance of harm amounting to persecution by non-State actors simply by reason of their ethnicity or religion.

(ii) The appellant was not being targeted individually by the Taliban and did not face a real chance of harm for that reason.

(iii) The harm the appellant may genuinely fear from a former Pashtun friend did not arise for any Convention reason.

(iv) Nonetheless –

[t]he reviewer accepts that the claimant faces a small but real chance of harm in Qarabagh district from the Taliban, not personally targeted, but in which his identity as an Hazara may be a sufficiently significant and essential factor as to bring the reason within the purview of s 91R of the Migration Act. However, the reviewer does not accept that this is the situation throughout Afghanistan, including in Kabul. The evidence does not suggest that the Taliban is specifically targeting Hazaras in Kabul in a systematic and discriminatory manner.

“Relocation”

5    It is the reviewer’s treatment of re-location which gave rise to the judicial review proceedings in the Federal Magistrates Court and to the present appeal.

6    In outlining what transpired at the review interview, the reviewer noted that he –

raised with the claimant the question of possible re-location to Kabul (which his adviser had addressed in her submission), both in relation to the particular persecution feared and with regard to the reasonableness of relocation in practical terms.

The claimant stated that he is not able to relocate to Kabul. He does not have any past or present ties in Kabul and no support there. There continue to be security incidents in Kabul and it is not safe there. The Kuchis have attacked Hazaras in west Kabul. Also, the Pashtun who has threatened him would be able to find him anywhere in Afghanistan.

(Emphasis added.)

7    When it came to making findings on this matter, the reviewer observed:

It is … necessary to consider whether in all the circumstances it is reasonable for the claimant to relocate to Kabul.

The claimant has worked as a tailor and a driver, skills readily transferable to an urban environment. Ghazni province is relatively close and directly accessible from Kabul and there is no doubt that among the million Hazaras in Kabul there would be Hazaras from the claimant’s own province and district. His situation is not the same as a person whose working life has been spent on a remote farm. The reviewer attaches weight to the advice of the Australian Embassy in Kabul (DFAT, Afghanistan/Pakistan: The Hazara, AFG10736, 28 September, 2010), that: “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 claimant and his adviser have referred to continuing security incidents in Kabul but, as put to the claimant at interview, violence in Kabul appears basically 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 in Kabul 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 Qarabagh.

The Judicial Review Application

8    The grounds of the application to the Federal Magistrates Court were, for practical purposes, the same as in AZABO. It was claimed the reviewer incorrectly applied the law as to the ability of the appellant to re-locate within his country. The particular of this was that although he purported to do so, the reviewer “failed to adequately consider the [appellant’s] personal circumstances as required by law when considering whether it was reasonable for the applicant to relocate within their [sic] own country: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18”.

9    Given the material before the Federal Magistrate and the issues raised by the appellant, the reviewer’s response to them in light of the state of the law on re-location as he correctly found it to be was unsurprising. No jurisdictional error was revealed. His Honour observed (at [135]-[137]):

I do not think it to be the case that the decision maker has approached the [relocation] question in a narrow way. Rather consideration has been given to the impact of such a relocation on the applicant in question, given his individual circumstances and the matters which he had specifically raised.

In particular, it was considered that the applicant would be able to obtain financial support for himself in Kabul and would be able to maintain his religious and cultural identity as a Shia and Hazara amongst other Shias and Hazaras at that location. As such it was open to the decision maker to conclude that it was objectively reasonable for the applicant to relocate himself to Kabul.

As such, I do not consider that the IMR has failed to properly apply the considerations raised by the majority of the High Court in SZATV. In my view, in this particular case, the evidence considered by the IMR and the questions posed by him were directed to this issue of personal impact on the applicant concerned. In so doing, in my view, the IMR determined this matter within the parameters raised by the applicant in his case.

The Appeal

10    As I have already noted, the grounds of appeal in this matter are identical in all relevant respects to those in AZABO. 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 Ghazni, 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’.

11    To reiterate what I have said of these in AZABO, the burden of ground 1, considered in the light of the oral submissions of the appellants’ 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.

12    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 Refugees 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.

13    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

14    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.

15    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).

16    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.

17    So in Randhawa v Minister for Immigration (1994) 52 FCR 437, 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.)

18    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.

19    The fourth ground in a case such as the present, raises a false question. As the reviewer clearly recognised when commenting on the appellant’s “real chance of harm in the Qarabagh district”, he could not be expected to return to that district. 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 Ghazni province. As the Federal Magistrate acknowledged, such was a “hypothetical issue”.

Ground 5

20    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.

21    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.

22    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; (c) in so doing made extensive reference to DFAT advices to which he attached weight; and (d) had regard to the appellant’s work experience and skills which were “readily transferable to an urban environment”.

23    Importantly, while acknowledging the continuing security incidents in Kabul, the reviewer concluded that their incidence was such that “the risk of harm for an ordinary individual in Kabul is, in the context of the total population, extremely small”. The reviewer, in consequence, determined 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”. This last finding, involving as it does an extrapolation from what has occurred to predict what is likely to occur in the future, was in the circumstances a sufficient treatment of safety into the future in Kabul.

24    In saying this I would note that the reviewer emphasised at a number of places in his reasons that he gave particular attention and weight to the DFAT advices he had received, the conclusions of which were “at variance with what the claimant and his adviser submitted should be reached”; that the material supplied by the appellant’s agent did not always, upon careful examination and consideration, bear the significance or lead to the conclusions put to the reviewer; and that some of the appellant’s general assertions going beyond his own personal experience were at variance with reliable country information.

25    This ground is without substance.

Conclusion

26    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.

27    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.

28    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