FEDERAL COURT OF AUSTRALIA

MZYLX v Minister for Immigration and Citizenship [2012] FCA 580

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made on 21 December 2011 by the Federal Magistrates Court be set aside, and in lieu thereof:

(i)    it be declared that, in recommending to the first respondent that the appellant was not a person to whom Australia owed protection obligations, the second respondent made an error of law, in that he failed to observe the requirements of procedural fairness, by not addressing the appellant’s claim that he had a well-founded fear of persecution because he would be denied protection by state authorities in Afghanistan.

(ii)    the first respondent pay the appellant’s costs of the proceeding in the Federal Magistrates Court.

3.    The first respondent pay the appellant’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    This is an appeal from a judgment of a Federal Magistrate (MZYLX v Minister for Immigration and Citizenship [2011] FMCA 1006) in which the Federal Magistrate dismissed the appellant’s application for a declaration that the decision of a merits reviewer appointed by the first respondent (“the Reviewer”) was not made in accordance with law, and an injunction restraining the first respondent (“the Minister”) from relying upon the recommendation of the Reviewer.

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the review by the Reviewer was conducted according to law including by affording procedural fairness to the appellant: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [8] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

3    The task of this Court, by reference to the appellant’s grounds of appeal, is to determine whether the Federal Magistrate erred by failing to identify that the review was not conducted according to law.

BACKGROUND

4    The appellant arrived at Christmas Island in February 2010. He was an “offshore entry person” and “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (“the Migration Act”), as a result of his arrival at an excised offshore place without a visa or other legal right to enter Australia. Pursuant to s 46A(1) of the Migration Act, an unlawful non-citizen cannot make a valid visa application. However, s 46A(2) empowers the Minister to lift that bar and permit such a person to validly apply for a visa.

5    In considering whether to exercise the power under s 46A(2), the Minister has established an administrative process described in detail in Plaintiff M61 at [38] – [52] and [73]. Under that process the potential visa applicant is assessed, firstly by an officer of the Minister’s Department (“the Officer”). The Officer conducts a refugee status assessment (“RSA”). Persons appointed by the Minister to review the decisions of Officers are designated as “independent merits reviewers”. Such persons review the decision of an Officer where a request is made by a potential visa applicant. The Reviewer was such a person.

6    An RSA and any review by an independent merits reviewer inquire as to whether the potential visa applicant is a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together “the Convention”). The purpose of the administrative process is to make a recommendation to the Minister as to whether the potential visa applicant is a person to whom Australia owes protection obligations under the Convention.

7    The appellant’s RSA recommended that the appellant should not be recognised as a refugee. The appellant subsequently requested that a review be conducted. The review was conducted by the Reviewer and on 24 December 2010 the Reviewer made a recommendation (“the recommendation”) accompanied by a statement of reasons (“the reasons”), which recommended to the Minister that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention. The appellant subsequently applied for judicial review of the recommendation. As set out above, his application was dismissed.

8    The appellant is a citizen of Afghanistan. He is of Hazara ethnicity and of the Shia religion. He claims to fear persecution specifically from a named male individual (“the father”). The father opposed the appellant’s son having a relationship with his daughter. Despite that opposition, a relationship ensued. The daughter became pregnant during the course of the relationship. The son fled to Pakistan. The appellant alleged that the father then threatened to have the appellant and his entire family killed. The appellant also alleged that he fears persecution by the Taliban by reason of his ethnicity and religion. For reasons that will become apparent, an overlap exists between those two claims. As a consequence of these fears, the appellant said that he fled to Australia, his son fled to Pakistan, and the remainder of his family to Kabul.

consideration

9    There were a number of reasons relied upon by the appellant before the Officer and the Reviewer to try and establish a well founded fear of persecution for a Convention reason. There are also a number of grounds of alleged error that were raised before the Federal Magistrate, and later by the appellant’s notice of appeal in this Court. Despite that, the appellant now relies upon one ground alone and that ground raises a very specific issue for consideration. In those circumstances, in dealing with that specific issue, I will only recount so much of the background as is relevant for the determination of that issue.

10    The appellant contended and the Minister did not dispute, that a sufficiently identifiable claim was raised by the appellant (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] (Black CJ, French and Selway JJ)) that he feared persecution because he would be denied state protection for a Convention reason (“the state protection claim”). That claim was based upon the contention that Hazaras are a targeted and vulnerable minority group without access to police protection (see the reasons at [27]). There was no issue between the parties that the withholding of state protection, if done for a Convention reason, may be the basis for a well-founded fear of persecution: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] (Gleeson CJ).

11    The only ground pressed on the appeal was that the Reviewer failed to consider the state protection claim. There is no issue that, if it was necessary for that claim to have been considered, and the Reviewer did not consider it, a denial of procedural fairness would be established: Plaintiff M61 at [90].

12    The Minister contended however, that there was no need for the Reviewer to consider the state protection claim. That was said to be so because the question of whether the appellant could be protected by state authorities could not arise in circumstances where the Reviewer was satisfied that the appellant’s fear that he would be subjected to harm was not well-founded. The Minister relied on the observations of Lander J in SVVB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1001 at [23] as follows:

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.

13    North J in Razai v Minister for Immigration and Citizenship [2012] FCA 394 at [34] relied upon the observations of Lander J in the course of reviewing at [15]-[37] a large number of authorities which are consistent with that reasoning. At [19], North J said:

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.

14    If the Minister’s contention, that the Reviewer had found there was no well-founded fear of harm, is correct, I would accept the Minister’s position that a consideration by the Reviewer of the state protection claim would have been unnecessary.

15    However, the Minister’s contention raises the determinative issue about which the parties were at odds.

16    The Minister’s contention that such a finding was made, is based upon the proposition that the only claim made by the appellant of a fear of harm from the father, was based upon the Taliban harming him as agents of the father. In that context, the Minister contended that the Reviewer’s non-satisfaction that there was any well-founded fear of harm is at least implicit from the following finding made by the Reviewer at [82]:

The reviewer is satisfied that the man feared by the claimant [the father] does not have substantive links with the Taliban nor is in a position to induce or direct the Taliban to take his revenge for him for the affront to his personal and family honour.

17    The appellant contended that his claim that he was fearful of the father was not limited to action the father could take using the Taliban to carry out the harm. The appellant says that whilst the Reviewer rejected his assertion that the father could have the Taliban harm him, the reviewer accepted that he had a well-founded fear of the father. The appellant relied upon the following findings made by the Reviewer at [78] and [86]-[87]:

[78]    The reviewer is satisfied that the claimant’s fear arises in relation to the threats of [the father], because the claimant’s son got [the father’s] daughter pregnant. However, the reviewer finds that the claimant had added embellishments in relation to the man’s relationship with the Taliban and assertions that the Taliban will take revenge on behalf of [the father], in order to bolster his claims.

[86]    The reviewer is satisfied that [the father] who seeks to harm the claimant and his son, is not motivated by reasons of ethnicity, religion, nationality, political opinion or the claimant’s membership of a particular social group.

[87]    Given the reviewer’s conclusion that the claimant does not fall under the Convention, issues of State protection or relocation do not arise.

18    Having read the Reviewer’s reasons and the material which was before the Reviewer, I am satisfied that the Reviewer determined the appellant’s application on the basis that the appellant’s fear of the father was not limited to harm which the father could inflict through the agency of the Taliban. In my view, the Reviewer was satisfied that the appellant had a well-founded fear of the father but rejected the assertion that such a fear was based upon the father acting through the Taliban.

19    It needs to be appreciated that the appellant’s claim of fear was not a single claim based only on his fear of the father. Independently of that fear, the appellant also claimed a well-founded fear of the Taliban. The Reviewer rejected the claim that the appellant had a well-founded fear of the Taliban. He did that in two steps. Firstly, he did that at [65]-[72] of the reasons. There, the Reviewer rejected the contention that simply because the appellant is Hazara, he should have a well-founded fear of harm from the Taliban. Turning to the second step, the Reviewer noted at [73] that a Hazara Shia may nevertheless have a well-founded fear of the Taliban based on that person’s own individual circumstances and experiences. In that context, the Reviewer then considered the appellant’s claimed fear of the Taliban (not of the father) by reference to his “particular experiences and claims” and, relevantly, the appellant’s assertion that the father would activate the Taliban to harm him. That consideration was dealt with at [78]-[82] of the Reviewer’s reasons. In those paragraphs, the reviewer rejected the proposition that the particular circumstances of the appellant demonstrated that his fear of the Taliban was well-founded.

20    The Reviewer then dealt with the appellant’s social group claim at [83]-[85].

21    At [86], the Reviewer then turned to deal directly with the claimed fear of the father. The Reviewer expressly found that the father “seeks to harm” the appellant. The Reviewer then considered whether the intended harm (and thus the basis for the fear) was motivated by a Convention reason, a matter which was unnecessary to consider if the Reviewer had not been satisfied that the appellant held a well-founded fear of the father. Both of those matters strongly support the conclusion that the Reviewer was satisfied that the appellant had a well-founded fear of the father. The nature of that fear is earlier revealed in the reasoning given for rejecting the claimed fear of the Taliban. It was not a well-founded fear that the father would act through the Taliban. That assertion was rejected as an “added embellishment” (at [78]).

22    The evidence that the Minister relied upon to try and demonstrate that the appellant’s claim of fear from the father was limited to the father taking action through the Taliban, was the evidence that the Reviewer rejected as embellishment. At [81], the Reviewer said:

In none of his statements (including at the review interview) did the claimant claim that, in the course of [the father’s] visit to his house and direct threats to the claimant, the man had himself made any direct reference to the Taliban. It was only in the adviser’s submission of 6 September 2010 that it was claimed that [the father] himself “has threatened to use his connections with the Taliban to have them killed”. The Taliban link appears to be based on assumptions and speculation and to have been developed to try to link the claimant’s plight to a Convention reason.

23    The material before the Reviewer included evidence that the father was a man of influence with both the authorities and with the Taliban. The Officer (whose RSA was before the Reviewer) understood the appellant’s fear of harm from the father as not limited to a fear that the father would act through the Taliban. In dealing with whether the appellant had a well-founded fear, the Officer relevantly said:

I accept the claimant fears he may be harmed by agents of the present Afghan government or members of the Taliban at the instigation of the ‘powerful local man’ (who is also a Hazara Shia) and whose daughter became pregnant by the claimant’s eldest son.

24    In my view, the Reviewer was not of a different view in relation to the nature of the claim made by the appellant relating to his fear of the father. The Reviewer was however of a different view in relation to whether that fear could be based upon Taliban involvement. The Reviewer considered it could not because the potential for Taliban involvement had been embellished. The Reviewer did not find that the appellant’s claim of fear of the father was limited to the father’s use of the Taliban to inflict harm.

25    In my view, the Reviewer’s reasons reveal an acceptance of a well-founded fear of the father. However, the appellant need not travel so far to establish that it was necessary for the Reviewer to consider the state protection claim. The absence of a finding by the Reviewer that the appellant had failed to establish a well-founded fear of serious harm from the father, would suffice. The “inevitable logic” that North J referred to in Razai is based upon a finding that the asylum seeker would not face serious harm in the reasonably foreseeable future. In this case, no such finding was made.

26    In the absence of such a finding, the Reviewer was wrong to conclude as he did at [87], that the issue of state protection did not arise.

27    By failing to consider the appellant’s state protection claim, the review conducted by the Reviewer involved a denial of procedural fairness. The Federal Magistrate at [19]-[26] accepted the argument of the Minister which by these reasons I have rejected. In doing so, the Federal Magistrate failed to identify that the review conducted by the Reviewer involved a denial of procedural fairness. For those reasons, I am satisfied that appealable error has been made out and that the appeal should be allowed.

disposition

28    In his claim for relief, the appellant sought a declaration that the recommendation of the Reviewer was not made in accordance with law, an injunction restraining the Minister from relying upon that recommendation, and an order that the matter be remitted for reconsideration by a different independent merits reviewer.

29    I will make the declaration sought. There being no suggestion that the Minister will rely upon the Reviewer’s recommendation, in the face of the Court’s declaration that the recommendation is flawed, I do not consider it necessary that an injunction be granted restraining the Minister from acting upon the Reviewer’s recommendation. Whilst it might be preferable that any further review be conducted by a reviewer other than the second respondent, no submission was made to the Court as to the source of the Court’s power to make an order requiring that to occur. In the context of there being no duty upon the Minister to exercise the power given by s 46A(2) of the Migration Act, I doubt that the Court has power to make such an order.

30    Orders will also be made allowing the appeal and setting aside the orders made by the Federal Magistrates Court. It was accepted that the unsuccessful party should pay the successful party’s costs and orders to that effect will also be made.

Associate:

Dated:    5 June 2012