FEDERAL COURT OF AUSTRALIA

MZYPA v Minister for Immigration and Citizenship [2012] FCA 581

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (MZYPA v Minister for Immigration and Citizenship [2012] FMCA 43) in which the Federal Magistrate dismissed the appellant’s application for relief, including 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 in Australia in February 2010. He is 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”. Those persons review the decision of an Officer where a request is made by a potential visa applicant. The Reviewer was such a person.

6    The 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 31 May 2011, 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 claimed to fear persecution by the Taliban and by Pashtuns for a number of reasons, including his Hazara ethnicity and his Shia religion. In 1992 and at the age of three the appellant (and his father) moved from Afghanistan to Iran. The appellant also claimed that if returned to Afghanistan he would be accused of being an Iranian spy as a result of his time in Iran and due to his speech. He also alleged that approximately eight years ago, his father decided to return to Afghanistan and believes that his father was attacked and killed while travelling through Afghanistan. The appellant also raised a claim based on his fear that the authorities in Afghanistan would not protect him (“the State protection claim”). That claim is central to this appeal and I will deal with it in more detail later. The appellant was deported from Iran back to Afghanistan in 2009 and later travelled to Australia.

THE INDEPENDENT MERITS REVIEW

9    The Reviewer accepted that the appellant had no right to return to Iran. While the Reviewer accepted that the appellant would face significant non-Convention difficulties in returning to and integrating into Afghanistan (at [84]), the Reviewer was not satisfied that the appellant faced persecution simply as a Hazara and Shia on the basis that Hazara and Shias are generally persecuted in Afghanistan (at [73]). In reaching this view, the Reviewer relied on country information contained in a report from the Australian Department of Foreign Affairs (“DFAT”), a UNHCR report, as well as other country information (at [63], [65, [67] and [69]). The Reviewer was not satisfied that such material corroborated claims that the Taliban (or Pashtuns generally) specifically target Hazara Shias on a systematic and discriminatory basis (at [70]). The Reviewer found that the appellant would not face persecution simply because he is a Hazara and a Shia (at [73]).

10    Having made that finding about the general claim of persecution of Hazaras by the Taliban (or Pashtuns generally), the Reviewer recognised that it was necessary that the specific circumstances of the appellant be considered. The first such circumstance considered was that the appellant would be suspected of being an Iranian spy. While the Reviewer accepted that the appellant’s long residence in Iran would be evident in his speech, and that this may lead to “a certain lack of acceptance by some people suspicious of differences”, he did not accept that the appellant would be regarded as a spy, or face harm or other consequences on that basis (at [81]).

11    Secondly, in relation to the appellant’s claims concerning his father’s disappearance, the Reviewer noted that there was no suggestion that this incident gave rise to any particular fear of persecution for the appellant (at [83]). The manner in which the state protection claim was dealt with by the Reviewer will be considered directly.

consideration

12    A number of different grounds were relied upon by the appellant in his application before the Federal Magistrates Court. Only one of those grounds is pressed on this appeal. That ground is that the Reviewer failed to consider the state protection claim made by the appellant.

13    The legal principles to be applied are not in contest. A failure by a Reviewer to consider a claim made by a prospective applicant for a visa will result in a denial of procedural fairness: Plaintiff M61 at [90]. However, there is no obligation upon a Reviewer to consider claims which are not articulated and which do not clearly arise from the materials before the Reviewer: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] (Black CJ, French and Selway JJ). A judgment that a Reviewer has failed to consider a claim is not lightly to be made: NABE at [68]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 French, Sackville and Hely JJ said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

14    A person who is persecuted by non-state agents will fall within the definition of a refugee if there is a Convention nexus consisting of either the motivation of the non-state actor or the motivation of the state. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] Gleeson CJ stated as follows:

Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

15    There are three issues in contention in relation to the appellant’s state protection ground. The appellant contends that a state protection claim was raised but was not considered and determined. On the other hand, the Minister contends that no such claim was raised and that if, in the alternative, such a claim was raised, the claim was considered and rejected. The Minister further contends that even if the claim was not considered, it was not necessary for a claim of lack of state protection to have been considered when a finding was made that no protection was required.

Was a State Protection Claim Made?

16    I am satisfied that the claim that the appellant would be denied state protection in Afghanistan because he is of Hazara ethnicity and of the Shia religion was articulated and clearly raised on the material before the Reviewer.

17    The material before the Reviewer included a pro forma document headed “Request for RSA and Statement of Claims”. This is a document that was provided by the Minister’s Department to the appellant which encouraged the appellant to set out the basis for his claim for protection. The document relevantly informed the appellant that he should provide as much information as possible to support his claims and that the information provided would be the basis for assessing his need for protection under the Convention. Part C of the document is headed “Your Reasons for Claiming to be a Refugee”. The form begins with a direction that the questions in Part C should be answered and relevantly states: “You should tell us everything about why you think you are a refugee”. Question 7 is in the following terms:

Do you think the authorities of that country [the country you have a fear of returning to] can and will protect you and your accompanying family members if you go back? If not, why not?

18    In response to that question, the appellant referred to his attached statement. The attached statement was a statutory declaration made by the appellant on 1 May 2010. In answer to question 7, the declaration said:

Why I believe that the authorities in my country will not protect me if I go back:

In Afghanistan, the government is formed by Tajik and Pashtoon [sic]. The Hazara people are constantly being persecuted by the Taliban and no one reports it. The government will not protect us because it is a crime to be Hazara and Shia in Afghanistan.

19    It is apparent, on the basis of that material alone, that in setting out his reasons for claiming to be a refugee (in a document specifically designed to elicit the appellant’s claim to be a refugee), the appellant identified that one of the bases for his claim to be a refugee was his fear that the authorities in Afghanistan will not protect him from the Taliban because he is of Hazara ethnicity and of the Shia religion.

Was the State Protection Claim Considered?

20    The reasons of the Reviewer are broken up into various parts by the use of headings. The findings of the Reviewer are set out under a major heading “Findings and Reasons”. That part of the reasons is then broken up into a number of sub-headings as follows:

    Country of Reference – [54] to [55];

    Credibility – [56] to [57];

    Claims – [58] to [60];

    Hazara ethnicity and Shia religion – [61] to [78];

    Iranian spy – [79] to [82]; and

    Father’s disappearance in 2002 – [83].

21    The sub-headings which I have identified to some extent correspond with the identification of the claims made by the appellant which are set out under the heading “Claims” at [58]-[60]. For instance, at [58] there are two claims indentified each of which is later dealt with under a specific heading. The first claim is described as the appellant’s fear of persecution by the Taliban and Pashtuns in Afghanistan on account of his ethnicity and religion. That claim appears to be considered and dealt with under the sub-heading “Hazara ethnicity and Shia religion”. Next at [58] is a reference to the appellant’s fear of being accused of being an Iranian spy. That is dealt with at [79]-[82] under the heading “Iranian spy”. The claim referred to at paragraph [59] that “the Afghan government will not protect him” has no corresponding sub-heading and is not expressly dealt with in the paragraphs that follow.

22    In response to the appellant’s contention that the state protection claim was not considered and determined, the Minister contended that in the context of comprehensive reasons in which the Reviewer had identified the claim, the Court should not infer that the claim was not considered. The Minister contended that the claim was expressly rejected or in the alternative impliedly rejected.

23    There is support at [59] of the reasons (and also at [24]), for the Minister’s contention that the reasons reveal that the Reviewer appreciated that the appellant was claiming that the Afghan government would not protect him. I accept that in circumstances where a decision-maker has referred to a claim in the reasons given, it is more difficult to infer that the claim was not considered and determined. The difficulty with the Minister’s contention, however, is that there is an insufficient basis upon which it may be concluded that the claim actually made by the appellant was properly appreciated and given any real consideration.

24    The first basis upon which the Minister contended that the state protection claim had been rejected, relied upon the content of [57] of the reasons as follows:

Understandably, given his lengthy absence from Afghanistan, some of the claimant’s assertions about Afghanistan were simply demonstrably incorrect: for example, that it is a crime in Afghanistan to be a Hazara and a Shia. Such errors go to reliability rather than credibility.

25    A fair reading of the claim made by the appellant and set out at [18] above, would not characterise the claim made, as the Reviewer did at [57] (and also at [24] and [59]), as a claim that Hazaras are not protected by the Afghan government because the criminal law of Afghanistan deems all Hazaras to be criminals. That characterisation ignores the first sentence of the claim and unfairly takes an overly literal interpretation of the second sentence.

26    The claim that was made conveys the words of a young male who, on any view, has endured horrific experiences. Fairly read, those words convey a claim that the government is formed by ethnic groups antagonistic to the appellant’s ethnicity and religion and that despite constant persecution by the Taliban, Hazara people do not report persecution because the government treats them like criminals and will not protect them.

27    The Reviewer’s literalist characterisation of the claim is dismissive of the real complaint made by the appellant. The appellant’s claim was that the Afghan government will not protect him from the Taliban. The claim made was not a claim that the Afghan government will not protect him because he is a criminal.

28    Having characterised the claim in the way he did, it seems to me that the Reviewer failed to appreciate the actual complaint that was made about the lack of state protection. The Reviewer rejected a claim that it is a crime to be Hazara and Shia, but that was not the claim actually made. That mischaracterisation serves to explain why, once the Reviewer regarded the appellant as being in error to assert that it was a crime to be Hazara, he did not address the claim actually made.

29    In arriving at that conclusion, I have rejected the alternative basis relied upon by the Minister for contending that the state protection claim was dealt with. It is that basis upon which the Federal Magistrate relied at [39] of his judgment, with which I would respectfully disagree.

30    The alternative basis contended for relies upon the finding made at [73] in the section of the reasons headed “Hazara ethnicity and Shia religion”, as follows:

The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.

31    The Minister contended that the finding made at [73] should be understood as a finding that Hazaras and Shias are not generally persecuted in Afghanistan, including by being denied access to state protection. Understood in that way, the finding was said to support the Minister’s contention that the state protection claim was rejected. By reference to the observation of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91], the Minister contended that the finding at [73] of the reasons was “at a higher level of generality than the question of” whether governmental authorities in Afghanistan persecuted Hazaras and Shias on the basis of their race or religion.

32    However, I am not prepared to construe the finding at [73] in the broad terms contended for by the Minister. The finding must be read by reference to the subject matter which was being dealt with by that section of the reasons. That subject matter is the first identified claim in [58], namely, the appellant’s “fear of persecution by the Taliban and Pashtuns in Afghanistan on account of his ethnicity and religion”.

33    The reasons expressed in this section focus on whether there is generalised persecution of Hazaras by the Taliban and (to a far lesser extent) Pashtuns generally. The section only directly addresses whether non-state agents, namely the Taliban and Pashtuns generally, subject Hazara Shias to persecution. The section makes no reference to the state or agents of the state. Whilst the section (including at [73]) includes statements capable of application beyond the subject matter dealt with by the section, I do not accept that the Reviewer intended the findings made to have a wider application. In particular, the structure of the reasons and the Reviewer’s earlier rejection of the proposition that Hazara’s lacked government protection because it was a crime to be Hazara, suggests to me that the subject matter of state protection was not at play at all in this section of the reasons.

34    With some reservation, I have concluded that the better view is that the state protection claim actually made by the appellant was not considered by the Reviewer.

Was it Necessary for the Claim to have been Considered?

35    The Minister further contended that in any event, it was unnecessary for the Reviewer to have considered the state protection claim because the Reviewer had found that the appellant would not face serious harm. In support of that contention the Minister relied upon the authorities helpfully summarised by North J at [15]-[37] of Razai v Minister for Immigration and Citizenship [2012] FCA 394. 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.

36    Although the Federal Magistrate did not expressly refer to this contention of the Minister, nor to the line of authority upon which it is based, it seems to me that this is what the Federal Magistrate had in mind when at [41] he said:

…The assertions made as to lack of State protection arose directly in the context of the applicant’s fear of harm as a Hazara generally. The Reviewer made a finding that this was not the case, a finding which is not itself the subject of attack.

37    For the reasons I have already dealt with, the finding at [73] of the reasons is to be understood as a finding that Hazaras and Shias are not generally persecuted by the Taliban and Pashtuns. The claim made by the appellant in relation to the lack of state protection was confined to protection from the Taliban. The finding made at [73] necessarily encompasses a finding that the appellant would not face serious harm from the Taliban simply because he is Hazara and a Shia, and the findings made about the specific circumstances of the appellant did not satisfy the Reviewer of any well-founded fear whatsoever. The finding made at [84] that the appellant would “no doubt face significant non-Convention difficulties in returning to and integrating into Afghanistan” is not a finding that the appellant would face serious harm from the Taliban. It follows “as a matter of inevitable logic” that no state protection from such persecution is required. In those circumstances, I am satisfied that the Reviewer was not called upon to consider the state protection claim made by the appellant.

disposition

38    In light of my last conclusion, it follows that the appeal must be dismissed and that the appellant should pay the Minister’s costs of the appeal.

Associate:

Dated:    5 June 2012