FEDERAL COURT OF AUSTRALIA

MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrate on 30 March 2012 be set aside.

3.    A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of ground 1 set out in the amended notice of appeal dated 24 July 2012.

4.    The first respondent pay the costs of the appeal and of the hearing before the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

Introduction

1    By an amended notice of appeal dated 24 July 2012, the appellant appeals from the judgment of a Federal Magistrate who, on 30 March 2012, dismissed his application for judicial review of the recommendation of the second respondent, the Independent Merits Reviewer (“IMR”) made on 27 April 2011, that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together, the “Convention”).

2    The amended notice of appeal states the following grounds:

1.    The learned Federal Magistrate erred in finding at [47] that the IMR dealt with the appellant’s claim that he had a well-founded fear of persecution from the Taliban.

2.    The learned Federal Magistrate erred in finding at [22] that the IMR found at paragraph 77 of its reasons that the harm which the appellant would encounter upon his return to Afghanistan (as set out by the IMR at paragraphs 76, 77, 83 and 84 of its reasons) was not Convention-related.

3    The first respondent contended that the Federal Magistrate’s judgment was not affected by any appellable error.

Background

4    The appellant is a citizen of Afghanistan who was born in 1955 in Dai Chopan district in Zabul province, where he grew up. He is of Hazara ethnicity and of the Shia Muslim faith.

5    In 1997 or 1998, the appellant left Afghanistan with his family and moved to Quetta in Pakistan, where he made a living as a vegetable seller.

6    In or around early March 2010, the appellant left Pakistan and travelled to Malaysia and Indonesia. After boarding a boat in Indonesia, he arrived at Christmas Island on 28 March 2010.

7    On 19 April 2010, the appellant had an initial entry interview at Christmas Island. The appellant claimed that, as a Hazara and a Shia Muslim, he faced a real chance of persecution in Afghanistan at the hands of the Taliban and Pashtuns. He claimed that he feared that the Taliban would kill him and that the area he came from was under Taliban control.

8    On 4 June 2010, the appellant requested a Refugee Status Assessment (“RSA”), in support of which he lodged a statement of claims of the same date. On 7 June 2010, he was interviewed about his request.

9    The RSA record of interview states that the appellant claimed that he would be harassed and possibly killed by groups associated with the Taliban.

10    On 19 July 2010, an officer of the Department of Immigration and Citizenship (“the Department”), in an RSA assessment, found that the appellant was not a refugee.

11    The RSA officer’s reasons recorded that the appellant stated that he was unwilling to return to Afghanistan owing to a fear of being persecuted as a Hazara and a Shia Muslim. The appellant also stated that he feared that on return to Afghanistan he would be harassed and possibly killed by groups associated with the Taliban, the authorities would be unable to accord him effective protection in any part of the country and that it was unsafe to travel.

12    The RSA officer recorded that the appellant stated that he would be seriously harmed by the Taliban if he returned to Afghanistan because he was a Hazara Shia Muslim and his life would be in danger because Hazara Shia people were killed daily by the Taliban.

13    The RSA officer considered independent country information. The officer found that Zabul province in Afghanistan, where the appellant came from, was very susceptible to hostility and the security map of Afghanistan gave it a risk rating of ‘high’. The officer nevertheless found that it would be reasonable for the appellant to relocate to Kabul or to another predominately Hazara area.

14    On 30 July 2010, the appellant sought an independent merits review of the RSA for which his representatives lodged written submissions and other supporting documents.

15    At the independent merits review interview on 14 February 2010, the appellant was represented by a migration agent and gave evidence with the assistance of an interpreter.

16    Before the IMR, the appellant claimed that he feared persecution “at the hands of the Taliban on account of his ethnicity and religion” and on account of his actual/imputed political opinion of being opposed to Taliban rule. The appellant told the IMR that the Taliban would kill him. He stated that the area he came from (Zabul province in south-east Afghanistan) was under Taliban control.

17    The appellant’s representatives subsequently lodged further written submissions dated 20 February 2011.

18    The IMR, by a report dated 27 April 2011, recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention.

19    The appellant subsequently applied to the Federal Magistrates Court for judicial review of the IMR’s report and recommendation. On 30 March 2012, the Federal Magistrate ordered that the application be dismissed.

20    On 19 April 2012, the appellant appealed to the Federal Court.

THE IMR’S REASONS

21    The IMR found that the appellant was an illiterate farmer who prior to his departure from Afghanistan in 1997 or 1998, worked as an employee on land in Zabul which had belonged to his family about a century ago.

22    The IMR accepted that the appellant had answered questions honestly. She recorded that the appellant stated that “all Pashtuns were part of the Taliban” and apparently believed the Taliban to be Pashtuns and Pashtuns to be Taliban. He had received a beating from one or the other of those groups (whom he perceived to be the Taliban) while farming in Afghanistan. The IMR recorded that the appellant claimed that he was forced to modify his manner of prayer in public when in Afghanistan and had been harassed. The appellant nevertheless stated that he had an amicable arrangement with his Pashtun employer who, in fact, had warned him to flee.

23    The IMR noted that the appellant gave conflicting evidence about his contact with the Taliban prior to leaving Afghanistan, as, on the one hand, he stated that he had no direct contact, but, on the other hand, asserted that the Taliban had beaten him.

24    When asked what he feared should he return to Afghanistan, the appellant told the IMR that he feared the Taliban and that the Taliban would kill him. The appellant stated that he had heard that the area he was from was now under the control of the Taliban, but could not say when he last received updated information about Hazaras in Zabul and Jaghori. When questioned about his possible relocation to Jaghori, the appellant stated that he could not relocate there because he had no land, relatives or support network there and would be killed.

25    When the IMR put to the appellant country information indicating that it was now a “golden age” for Hazaras, the appellant responded that he believed that the situation was in fact worse, as the Taliban now showed less mercy to Hazaras they caught.

26    The IMR put to the appellant country information that there was “not a specific campaign targeting Hazaras”. The appellant responded that people with family in Afghanistan had reported that the situation was worse and the Taliban targeted Hazaras.

27    When the IMR asked the appellant about the possibility of relocating to Kabul, he responded that only very significant Hazara people in high positions could live in Kabul. The appellant said that he did not know of progress for Hazaras in Afghanistan and had heard no evidence of it.

28    The IMR recorded that the appellant’s migration agent submitted that there was under-reporting, and that equality for Hazaras was not being upheld. If relocated, the appellant would have no networks, support, land or family and his age (about 58) would make it more difficult. Further, there was significant Taliban activity immediately surrounding the appellant’s home area.

29    The IMR referred to independent country information.

30    The IMR accepted that most reports indicated that life in Afghanistan was difficult or very difficult, there had been an increase in violence over the last 12 to 24 months and that state protection from non-state agents was, on the whole, not available. There was also evidence that Taliban activity was increasing, and despite reports of a “golden age” for Hazaras, life could be violent and unpredictable in the daily experience of most people, including Hazaras.

31    The IMR stated at [56]:

The claimant's case is essentially that he fears persecution by the Taliban, and also that he has no land, relatives, or support network, and nothing to return to. His fear of the Taliban appears to be based on his race or ethnicity as a Hazara. His agent also made claims on [the appellant’s] behalf based on religion, actual or imputed political opinion and/or membership of a particular social group.

32    After considering independent country information, the IMR stated at [60]:

The reviewer does not accept that a person’s identity as a Hazara of itself causes him or her to fall within the refugee convention definition. Nor do the UNHCR guidelines suggest that it should.

33    The IMR stated at [61]:

[The appellant’s] Agent submitted that he also fears persecution based on his Shi'a religion. [Whilst the reviewer accepts that [the appellant’s] ethnicity as a Hazara, and religion as a Shi’a Muslim are intrinsically linked, these aspects will be examined separately under the convention grounds.]

34    The IMR considered the appellant’s claim that, while living in Afghanistan, he generally practised his religious beliefs at home. If the appellant prayed outside, however, he was forced to hold his hands in front of him and had had his praying stone kicked away. The IMR considered “mixed reports” about the ability of Shia Muslims to practise their beliefs freely in recent times, but concluded that this had improved since the appellant lived in Afghanistan and his past experience (while not necessarily amounting to serious harm within the meaning of s 91R(1)(b) of the Migration Act 1958 (Cth) (“the Act”)) did not establish that similar restrictions would now be imposed. The IMR stated at [66]:

The reviewer accepts that [the appellant] adjusted his religious observations by praying with his hands in front of him, as opposed to by his sides, and without a praying stone whilst in Afghanistan. However, the reviewer finds that [the appellant’s] past experience in this regard does not establish that any fear he may have of similar restrictions now is well-founded. This finding is based on the country information currently available, which states that conditions in which Shi’a Muslims can practise their religious beliefs have improved since the claimant lived there. Furthermore, the reviewer is not satisfied that such restrictions as he faced in the past amount to persecution in the relevant sense in that they do not amount to serious harm as contemplated by s.91R(1)(b).

35    The IMR recorded that the appellant’s migration agent submitted that if the appellant returned, he could be subject to persecution or targeted as a member of a number of particular social groups; first, as a member of the Hazara community in Quetta; secondly, as an actual or perceived sympathiser or supporter of coalition forces, foreign workers and non-government organisations (“NGOs”). Thirdly, as a returnee from a Western country and a failed asylum seeker; and fourthly, due to his actual or imputed political opinion of being opposed to Taliban rule and a supporter of the Afghan government and coalition forces.

36    The IMR stated at [57]:

The issue for the reviewer is to consider is whether or not this claimant, in particular, is at risk of persecution, involving serious harm and systematic and discriminatory conduct, and if so, whether the essential and significant reason for the persecution is a convention reason. The reviewer has considered each of these grounds [the appellant] claimed refugee recognition under below. In relation to each the reviewer must consider whether a ‘real chance’ of persecution exists if the claimant were to be returned to Afghanistan.

37    In relation to the appellant’s claim that he could be targeted due to his actual or imputed political opinion of being opposed to the Taliban or as a failed asylum seeker, the IMR found that Hazaras had frequently moved in and out of Afghanistan since the 1970’s, as the appellant acknowledged, but raised no “issues of persecution” in relation thereto. The IMR was not satisfied that the appellant had a well-founded fear of persecution as a Hazara returning from Quetta and found, on the basis of country of origin information, that there was no real chance that the appellant would be targeted as a returnee from a Western country and/or a failed asylum seeker.

38    The IMR found that there was no real chance that the appellant would be persecuted due to being an actual or perceived sympathiser of coalition forces, foreign workers or NGOs, because there was no suggestion that he was involved with political causes, worked for the government or NGOs, or had a particular profile that would make him of interest to the Taliban or anyone else. Therefore, in the circumstances of the case, there was no basis on which he would be perceived as having an adverse political opinion or being a sympathiser of coalition forces, foreign workers or NGOs, and persecuted for that reason.

39    The IMR accepted that the appellant would face difficulties in Afghanistan, as follows (at [74]):

[The appellant] has a recorded age of 55. The average life expectancy for both men and women in Afghanistan is 42, which is the lowest in the world, (UNHCR Guidelines July 2009). [The appellant] would be considered quiet [sic] old in Afghanistan. He left Afghanistan in 1997 or 1998, being 13 or 14 years ago. He is illiterate. He worked as a farmer whilst living in Afghanistan, but has no land to return to and live off. He worked as a vegetable seller in Pakistan, but would be unable to sustain himself working in this role in Afghanistan because access to the roads to and from his area of residence are severely hampered by the presence of the Taliban. This would mean that he could not adequately access goods to sell. He has no family in Afghanistan and no support network.

40    The IMR acknowledged that in such circumstances, the appellant’s relocation would not be reasonable, but observed that relocation arose only if there is a finding that the claimant will be persecuted and the persecution is localised. The IMR did not accept that the appellant faced a real risk of persecution (in his home province or anywhere else) in Afghanistan although he was likely to suffer hardship which would not be persecution (in his home province or elsewhere) in Afghanistan.

41    The IMR concluded at [78]:

In light of the totality of [the appellant’s] evidence, including his oral evidence and the documentary evidence from the Consulate of Afghanistan in Quetta, the reviewer accepts that [the appellant] is a citizen of Afghanistan.

42    The IMR recognised, however, that although the appellant was not established to be a refugee, humanitarian or compassionate grounds were implicit in his claims. The IMR stated at [83] to [85]:

The reviewer finds that [the appellant] has no family, social or tribal affiliation in Afghanistan, either in or away from his home province of Zabul, and no support network to start life elsewhere in Afghanistan. His vulnerability is compounded by his age. He has not travelled widely within Afghanistan, and had only been to Jaghuri twice. [The appellant] has had no formal education and is illiterate.

The reviewer also finds that [the appellant] would be unlikely to be able to earn his livelihood if returned to Afghanistan. This is because he has no land to work, and nor could he work as a vegetable seller (as he did in Pakistan) because he would not have adequate access to and from his area of residence due to the lack of security on the roads as a result of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups.

Therefore although [the appellant] has not been able to establish that he is a refugee, implicit in his claims is a claim for protection under humanitarian or compassionate grounds. The Minister’s consideration of this request would be greatly appreciated.

The Federal Magistrates Court

43    The appellant sought declaratory relief in relation to the IMR’s recommendation in the Federal Magistrates Court. The appellant advanced five grounds of appeal, all of which were rejected.

44    In particular, the appellant alleged that the IMR’s Report and the recommendation were affected by reviewable error on the grounds that:

(a)    the IMR failed to deal with the appellant’s claim to fear of persecution at the hands of the Taliban upon any return to Afghanistan; and

(b)    the IMR failed to consider whether or not any hardship which the appellant would suffer upon any return to Afghanistan would be for a Convention-related reason.

45    The Federal Magistrate rejected the allegation that the IMR failed to accord the appellant procedural fairness by failing to deal with a number of the appellant’s claims. His Honour accepted that the IMR had dealt with the appellant’s claims that he “may be unable to subsist as an old Hazara now returning to Zabul because of discrimination” (at [34]) and that he had been beaten by Pashtuns/Taliban because he was a Hazara Shia (at [36]). His Honour also accepted, as an independent basis for dismissing the latter claim, that as the beating occurred over 12 years ago “a failure to deal with it would not determine the outcome of the [IMR decision]” (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630) (at [37]). Similarly, his Honour rejected the appellant’s claim that the IMR failed to deal with his claim that a relative’s husband was killed as it too occurred over 12 years ago and was not relevant in determining whether the appellant would be at risk of Convention-based persecution.

46    The Federal Magistrate rejected the allegation that the IMR failed to deal with the appellant’s claim that the Taliban were in control of his home area. His Honour found that it was unnecessary for the IMR to make a specific finding on the claim about Taliban control, as it was “subsumed in a finding of greater generality as to relocation” (at [42]) on the basis of the reasoning in Toro Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [46], where Rares J stated:

The tribunal is not required to address every piece of evidence before it, provided that it considers the integers of the claim: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] “the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:

“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.”

47    The Federal Magistrate rejected the allegation that the IMR had erred by finding that hardship that the appellant was likely to suffer if he returned to Afghanistan could not amount to persecution. His Honour held the IMR’s comment that she was not “satisfied that any hardship, whether in his home province or elsewhere, would be persecution in the relevant sense” (at [77]) was a finding that the harm would not be for a Convention-based reason.

48    The Federal Magistrate also rejected a number of claims that were not pursued on appeal, including that the IMR denied the appellant procedural fairness by failing to put to him the new 2010 UNHCR Guidelines and the UNHCR Global Appeal 2011 update. His Honour found that the country information contained within was neither significantly adverse nor significantly prejudicial and was not required to be put to the appellant (at [55]).

49    The Federal Magistrate also rejected the claim the IMR denied the appellant procedural fairness by failing to put to him country information that indicated that conditions in which Shia Muslims could practise their religious beliefs had improved. His Honour found that, as the information was not adverse to the appellant, it was not required to be put to him (at [27]).

50    The Federal Magistrate also dismissed the claim that the IMR erred by assuming the restrictions on the appellant’s practice of his Shia religion could not amount to persecution. His Honour held that as the IMR found that conditions had improved since the appellant had lived in Afghanistan, the IMR was not required to consider the appellant’s particular claim (at [17]).

51    The Federal Magistrate further dismissed the claim that the IMR committed an error of law by relying upon the 2009 version of a US Department of State Report instead of a more recent 2010 version. His Honour accepted that the differences between the reports did not concern a critical fact that could influence the outcome of the review (at [67]).

Ground 1

52    Ground 1 of the amended notice of appeal states:

The learned Federal Magistrate erred in finding at [47] that the IMR dealt with the appellant’s claim that he had a well-founded fear of persecution from the Taliban.

53    The appellant submitted that, contrary to the established obligation to address each of the claimed bases of an applicant’s fear of persecution (Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90] (“Plaintiff M61/2010E”)), the component integers of a claim or significant evidence capable of influencing the result (SZOYH v Minister for Immigration and Citizenship [2012] FCA 713 at [50]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”)), in this case, the IMR denied the appellant procedural fairness by failing to deal with his claim of a well-founded fear of persecution by the Taliban. Before me, the appellant primarily submitted that the IMR did not make a finding on the claim the appellant put, which was that he was at risk due to his Hazara ethnicity or his Shia religion from the Taliban, in a home area where the Taliban was still in control.

54    In particular, the appellant submitted that the IMR made no finding on:

(a)    whether the Taliban was in control of the appellant’s home area;

(b)    whether the appellant was at risk from the Taliban, because the Taliban would target Hazaras; and

(c)    whether the appellant was at risk from the Taliban because of his Shia Muslim religion.

55    The appellant submitted that the IMR’s finding at [61]-[66] of her reasons referred to country information about the situation after the fall of the Taliban regime, which would not apply to the areas where the Taliban remained in control. The finding thus did not address the appellant’s claim that the Taliban remained in local control in his home area.

56    The appellant submitted that the Federal Magistrate erred in finding that it was unnecessary for the IMR to make any finding on whether he had a well-founded fear of the Taliban, because that issue was subsumed in the IMR’s finding that “a case by case analysis was needed, and that there was no evidence of a campaign by insurgencies to target Hazaras” (at [59]). The appellant submitted that the latter finding did not address the claim that the Taliban targeted Hazaras, of which there was evidence (emphasis added). Nor did it address the specific integers of the appellant’s claim about what had happened to him in the past, whether he could return to his home area in Afghanistan and what conditions would apply there.

57    The appellant submitted that the IMR’s conclusions were inconsistent with her recognition that Taliban activity and support were currently increasing in Afghanistan and country information which noted the Taliban’s growing power and rejection of peace overtones, and advised against travel to Zabul.

58    While the failure to consider an applicant’s claims or a significant integer of a claim may constitute a denial of procedural fairness (Plaintiff M61/2010E at [90]), the IMR was not required either to address a claim that was not expressly made or did not clearly arise on the materials (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [60]-[61] and [68]). Nor was the IMR required to advert to every item of evidence in support of a claim to explain why it was rejected or why a contrary finding was reached (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] (“Applicant WAEE”); Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [1] and [79]; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [65]).

59    In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303, the Full Federal Court considered the relevance of a misunderstanding or disregard of evidence by the Refugee Review Tribunal. At [28], North and Lander JJ (with whom Katzmann J agreed at [35]) relevantly stated that:

…an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim ...

60    It is also trite law that reasons such as those of an IMR should be read fairly and as a whole, and that the reviewing court should not approach them with “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Nor should the reviewing court be astute to conclude that an IMR failed to consider a particular point in the context of otherwise comprehensive reasons in which the issue is at least identified (Applicant WAEE at [47]).

61    In the present case, counsel for the appellant submitted that, even allowing for the above principles, the IMR did not address the claim he put. First, the IMR did not expressly state a finding on whether the appellant had a well-founded fear of persecution by the Taliban and, in discussing the risk of persecution, did not explicitly refer to the Taliban as its source. Therefore, the IMR’s extensive discussion of whether the appellant had a well-founded fear of persecution may have been directed at persecution by parties other than the Taliban, such as the Afghan government forces, or was otherwise in a vacuum.

62    In my opinion, when the IMR’s reasons are read fairly and as a whole, their structure, tenor and content demonstrate a clear recognition that the Taliban (or Pashtun persons perceived as Taliban) were the claimed source of persecution.

63    The IMR referred to the RSA’s finding that the appellant had a subjective fear of the Taliban (at [16]), albeit it was not well-founded. The IMR noted that the appellant was warned by his Pashtun employer to flee Afghanistan because the Taliban was coming, (at [19]). The IMR recorded that she questioned the appellant about the apparent inconsistency of asserting a lack of direct contact with the Taliban while alleging a beating by the Taliban, which the appellant explained by his belief that all Pashtuns were part of the Taliban (at [21]).

64    The IMR expressly noted that:

(a)    the appellant feared the Taliban if he returned to Afghanistan, stating that “he feared the Taliban and that the Taliban would kill him” (at [33]);

(b)    the appellant claimed to have heard that his home area was under the control of the Taliban (at [33] and [34]);

(c)    the appellant claimed that if the Taliban caught Hazaras, they blamed them for voting for Hazaras in parliament and now showed no mercy (at [38]); and

(d)    the appellant claimed that Hazaras were at risk, as the Taliban had been targeting Hazaras (at [38]).

65    The IMR also noted the migration agent’s submissions about reports of the Taliban’s re-emergence, the 2010 US Department of Defence report of significant Taliban activity immediately surrounding the appellant’s home area and a report dated 11 February 2011 that the Afghan government could not guarantee the safety of returnees, especially Hazaras, who were at added risk of persecution (at [46]).

66    At [56], the IMR stated “[t]he claimant’s case is essentially that he fears persecution by the Taliban … His fear of the Taliban appears to be based on his race or ethnicity as a Hazara. His agent also made claims…based on religion, actual or imputed political opinion and/or membership of a particular social group”.

67    In the light of the above, the submission that the IMR’s subsequent discussion of the appellant’s claimed fear of persecution on the specified bases was from a source other than the Taliban such as the Afghan government, or simply “in a vacuum”, was unpersuasive.

68    The IMR, on the basis of her evaluation of country information, concluded that Afghanistan was currently an insecure country exposing its inhabitants to a general risk of violence, unpredictability, danger and criminal conduct, while State protection from police and the armed forces was, on the whole, unavailable. The IMR concluded that the majority of reports indicated that life for the inhabitants of Afghanistan was “difficult to very difficult”.

69    Nevertheless, on the basis of independent country information, the IMR concluded that the appellant would not be targeted or persecuted for a Convention reason on any of the claimed bases of Hazara ethnicity, Shia religion or imputed anti-Taliban views, although she considered that he would be exposed to serious difficulty and hardship if he returned to Afghanistan.

70    The IMR recognised that there was a “long history of violence and persecution against Hazaras in Afghanistan” (at [58]). The IMR considered country information including UNHCR guidelines dated December 2010, which stated that ethnically motivated tension had markedly diminished since the fall of the Taliban in late 2001. The guidelines noted that concerns remained and discussed the stability of the security situation in various parts of the country, including ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along certain roads, stretches of which the Taliban controlled. The IMR also referred to the UNHCR’s conclusion that there was nevertheless no evidence of a campaign by insurgencies to target Hazaras and noted that UNAMA had not received “reports that Hazaras are being specifically targeted or discriminated against in the current environment” (at [59]). Although the evidence was not uniform, the IMR concluded that Hazara ethnicity in itself was not a basis for a well-founded fear of persecution for a Convention reason. The IMR’s reference to the lack of evidence of a campaign by insurgencies to target Hazaras implicitly included the Taliban as “insurgencies”.

71    The IMR recognised and accepted the appellant’s claim that he had suffered a beating 12 years ago by the Taliban (or persons perceived as such) when the Taliban regime was in power. The IMR did not, however, make a finding on whether the appellant had suffered persecution by the Taliban due to his Hazara ethnicity when living in Afghanistan, and rejected the appellant’s claim that he would be at risk of persecution if he returned to Afghanistan after the fall of the Taliban regime.

72    The IMR also accepted the appellant’s account of restrictions on his public worship prior to fleeing Afghanistan, and that the persons responsible were identified as Taliban or Pashtuns associated with the Taliban. The IMR noted country information which, although not of uniform import, satisfied her not only that there had been an improvement in religious freedom since the appellant had lived in Afghanistan, but that the restrictions the appellant suffered in his religious practices in the past may not, in any event, have constituted serious harm within the meaning of s 91R(1)(b) of the Act.

73    In concluding that the appellant was not at risk of persecution for a Convention reason, the IMR did not distinguish between areas where the Taliban was in local control and those where it was not. The IMR thus implicitly found that the appellant was not at risk of persecution for a Convention reason by any group, whether the Taliban or otherwise, in his home area or elsewhere in Afghanistan. The IMR’s observation that the appellant’s relocation from his home area was not relevant, as relocation only arose if there was localised persecution, also indicated that she concluded that the appellant would not face persecution in the home area.

74    Nevertheless, as the appellant submitted, the claim that the Taliban remained in control in his home area despite the fall of the regime was an essential element of his claim of fear of persecution by the Taliban. While the IMR recognised that the appellant claimed that the Taliban was in control of his home area, she did not make a finding on whether that were the case. I consider that, on a fair reading, the IMR’s discussion of and findings on the appellant’s fear of persecution were implicitly directed at the Taliban as its potential source. However, by failing to consider whether the Taliban was in control in the appellant’s home area, the IMR failed to address and deal with how his claim was put, at least in part (see Htun at [42]). The IMR’s finding that there was no real chance of persecution (implicitly by any party, including the Taliban) in Afghanistan (implicitly including the home area), was made without taking account of the appellant’s claim that the Taliban was in control of his home area. Moreover, the IMR made no finding on whether the appellant’s previous beating by the Taliban (or Pashtuns perceived as Taliban) amounted to persecution for a Convention reason. It is therefore a matter of speculation whether the IMR:

(a)    concluded that the Taliban was not in control of the appellant’s home area and irrespective of whether it had previously persecuted the appellant there for a Convention reason, there was currently no real chance of such persecution;

(b)    concluded that the Taliban was in control of the home area but had not previously persecuted the appellant for a Convention reason and would not do so currently;

(c)    concluded that the Taliban had previously persecuted the appellant in the home area for a Convention reason, and currently controlled the home area, but considered that such control was not comparable to the conditions that prevailed under the Taliban regime and therefore did not give rise to a real chance of persecution; or

(d)    simply failed to consider whether the Taliban controlled the appellant’s home area, and if so, the implications of such control.

75    Therefore, while (contrary to the appellant’s submission) the IMR recognised that he claimed fear of persecution by the Taliban and her discussion implicitly addressed that source of persecution, it did so in the context of a failure to make a finding on whether the appellant was previously persecuted by the Taliban for a Convention reason or to address the associated essential integer of the appellant’s claim, namely, that the Taliban was currently in control of his home area. Contrary to the opinion of the Federal Magistrate, in my view, the failure to make a finding on that question was not subsumed in the “finding of greater generality as to relocation”. The appellant was thus denied procedural fairness.

76    In my opinion, ground 1 of the appeal is made out.

Ground 2

77    Ground 2 of the amended notice of appeal states:

The learned Federal Magistrate erred in finding at [22] that the IMR found at paragraph 77 of its reasons that the harm which the Appellant would encounter upon his return to Afghanistan (as set out by the IMR at paragraphs 76, 77, 83 and 84 of its reasons) was not Convention-related.

78    The appellant submitted that the difficult circumstances and hardship which the IMR acknowledged he would suffer if returned to Afghanistan were capable of satisfying the definition of “serious harm” within the meaning of s 91(1)(d), (e) and (f) of the Act, yet the IMR relied on those matters to recommend that the Minister consider his case on humanitarian grounds, and erred in failing to address whether the hardship she identified could or did amount to persecution for Convention reasons.

79    The appellant conceded that the IMR had previously concluded that he had not established that he was a refugee and further, did not accept that he faced “a real chance of serious harm…in the reasonably foreseeable future because of his ethnicity/race, religion, actual or imputed political opinion and/or membership of a particular social group or a combination of these” (at [82]).

80    The appellant submitted that the IMR should nevertheless have discussed whether the hardship was capable of being motivated for a Convention reason. Further, the appellant complained that the IMR merely set out “a recitation” of the relevant law and a glib conclusion that there was no persecution in the relevant sense. As the material before the IMR (including that taken from the RSA record) referred to discrimination against Hazaras, the appellant submitted that it followed that the IMR failed to consider the appellant’s claim in the light of the findings or evidence.

81    The complaint under ground 2, while overtaken by the finding in ground 1, was not, in my opinion, otherwise made out.

82    The IMR’s conclusions that the appellant would be exposed to hardship must be viewed in the context of her foregoing discussion of the appellant’s claims of a well-founded fear of persecution for a Convention reason, which the IMR, after referring to and evaluating relevant country information, rejected.

83    The IMR set out the relevant legal principles briefly but accurately, and was not obliged extensively to discuss the legal concept of serious harm.

84    The IMR’s recommendation that the Minister consider the appellant’s case on humanitarian grounds was clearly based on her conclusion that the appellant was likely to suffer significant hardship on return to Afghanistan due to the insecure and potentially violent nature of the country, but not persecution for any Convention reason.

85    Accordingly, in my opinion, the allegations in ground 2 are not established.

Conclusion

86    In my opinion, the appeal should be allowed.

Associate:

Dated:    15 November 2012