FEDERAL COURT OF AUSTRALIA

MZYXR v Minister for Immigration and Citizenship [2013] FCA 252

THE COURT DECLARES THAT in recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations the second respondent made an error of law by failing to observe the requirements of procedural fairness in that the second respondent failed to consider whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future as distinct from the present or immediate future.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court of Australia on 12 October 2012 be set aside.

3.    The first respondent pay the appellant costs of:

(a)    the appeal, to be taxed in default of agreement;

(b)    the Federal Magistrates Court fixed in the sum of $6,471.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by the Federal Magistrates Court on 12 October 2012. The federal magistrate dismissed an application for review of a recommendation made by the second respondent (the reviewer) to the first respondent, the Minister for Immigration and Citizenship (the Minister), on 26 January 2012 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 Relating to the Status of Refugees.

2    The appellant is a citizen of Afghanistan. He was born in Bamyan province, Afghanistan, and lived there until he was five years old. He was then taken by his family to live in Quetta, Pakistan, as a result of a family property dispute with neighbours over farming land. He is of Hazara ethnicity and Shia by religion. He arrived in Australia on 30 April 2010. So far as the present appeal is concerned, his claim was that he feared persecution if returned to Afghanistan on the grounds of his race and religion. Certain other claims were made and rejected and were not pursued on this appeal.

3    The reviewer rejected the claim that the appellant would face persecution in Afghanistan, finding that if the appellant returned to his home province of Bamyan he would find a relatively secure position as a person of Hazara ethnicity and Shia religion.

4    The question raised on the appeal is whether the reviewer considered whether the appellant had a well founded fear of persecution in the reasonably foreseeable future, as distinct from the present or immediate future. The ground is narrow.

5    The appellant also raised this same ground before the federal magistrate. The federal magistrate, on this issue, said:

34.    The substantive findings made by the Reviewer were based upon the evidence before him and the extensive country information. That country information allowed the Reviewer to make an assessment of the future whilst acknowledging that it was unpredictable. The Reviewer engaged with the diversity of country information, and by his own research developed it. The applicant, upon the hearing, was included in the process. The applicant puts before this Court no changed circumstance that the Reviewer failed to consider, nor claim that the Reviewer failed to consider.

35.    The country information did not predict what the future holds, and the Reviewer conducted his assessment on the basis of the evidence before him and how it sat with the country information, being both historical background information, general information, current conditions and statements contained in that information which were forward-looking.

36.    The analysis of the Reviewer is itself adequately forward-looking and corresponds with the country information as described in the reasons. The Reviewer looked, in particular, to the security situation in the Bamyan province. The situation into the future was assessed on the basis of the country information available to the Reviewer at the present time, and that information and evidence of the applicant supported the findings made by the Reviewer.

6    The federal magistrate then concluded:

37.    The Reviewer expressly made findings as to the reasonable foreseeability of harm in the provision of his reasons.

the reviewer’s decision

7    The decision of the reviewer was carefully constructed and comprehensive in most regards. The decision set out an introduction, the relevant law, the claims made by the appellant and the evidence provided by him in interviews and written statements.

8    The decision then set out certain country information in a methodical and careful way. The section which referred to the country information commenced with information on the general background of the situation in Afghanistan and was followed by a section on the security situation. Next, there were sections which gathered material relating to the Taliban after 2006, on the province of Bamyan, the position of returnees to Afghanistan from western countries, and finally, on Afghan refugees in Pakistan. A number of these sections were relevant to particular claims made, and other sections were relevant to the general situation in Afghanistan.

9    The decision then set out the findings and reasons of the reviewer. In [135] to [141], the reviewer dealt with the claims presently under consideration in this appeal as follows:

135.    The claimant fears there is a real chance of him being seriously harmed…because he is a Hazara and a Shia. These claims are based on the Convention grounds of race and religion.

136.    The reviewer has had regard to the country information that describes the experience of the Hazara people from a historical perspective, particularly the conflict with the Taliban in more recent years … . The reviewer observes that the available information points to a complex society that is driven not only by current circumstances and relationships but by those that existed in historical times. Specifically, this is reflected in the situation for Hazaras. A short but useful statement of these complexities is set out in the UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (17 December 2010) … . Professor Maley’s views reflect this complexity concluding that regard not be had to “temporary, insignificant or cosmetic changes” when determining whether a fear of persecution for a Convention reason is well founded.

137.    However, there are consistent reports from the UNHCR and other organisations, which have been observing the situation in Afghanistan and, in particular, the situation for Hazaras since the Western intervention, that report that there is no evidence of a campaign by the Taliban and their supporters to specifically target Hazaras. Indeed, there is evidence to suggest that the activities of the Taliban are more directed … .

138.    The reviewer finds that the country information indicates that currently the Taliban targets Afghans who identify as supporters of the government, supporters of the Western presence in Afghanistan or those who in some other way are seen as being tainted by Westernisation. Obvious examples are politicians, bureaucrats, teachers, police or those assisting government sanctioned projects (or, at least, those that appear to be sanctioned by the government). In this regard, the country information suggests that members of all ethnic groups, including Pashtuns, are at risk if they have that type of profile.

139.    Having considered the evidence, the reviewer finds that the claimant is not a person who has such a profile. He is, as the reviewer has found, a Hazara Shia, who was born in Bamyan, without overt political affiliations, not engaged in an occupation or profession of a nature that attracts the interests of the Taliban and who has not lived in Afghanistan for many years.

140.    Whilst the claimant’s claims were directed to his country of nationality, there was some specific focus on whether the situation the claimant says he would face if he returned to the province of his birth, Bamyan.

141.    After considering the country information, the reviewer finds that Hazaras are the major ethnic group living in Bamyan province (see paragraph 100…). Likewise as a Shia, the claimant would be a member of the major religious group in the province (see paragraph 100…). The reviewer also accepts the country information that reports that in those parts of Afghanistan where Hazaras are the majority of the population the security situation is more stable. However, problems and issues, or at least a perception of them, continue to exist in the population living in those areas (as they do in virtually every community or society) (see paragraphs 94 – 95 and 101…). This is reflected in the country information about Bamyan, especially in relation to the security situation there. The reviewer has had regard to the country information which says that there are no particular security concerns in Bamyan and under the leadership of its current governor improvements have been made in the area of governance, security and infrastructure. At interview, the claimant was not able to present specific information that provided the reviewer any basis for not relying on this country information. As a consequence, having considered the evidence, the reviewer finds that there is no real chance of the claimant being persecuted in Bamyan for reason of him being a Hazara and Shia.

10    The reviewer then concluded:

145.    [T]hat having regard to the claimant’s evidence and the country information that there is not a real chance of the claimant being harmed in Afghanistan for a Convention reason of race or religion now or in the reasonably foreseeable future.

11    The method used by the reviewer to support various findings made in his reasons was to reference the findings by previous paragraphs in the decision from the section dealing with the country information.

12    Of particular note to the issue in this appeal of the reasonably foreseeable future prospects of Hazaras in Afghanistan is that there was a section in the country information which focused on the question of the conditions of Hazaras in Afghanistan in the reasonably foreseeable future. The sources in this section noted the then improvement in the conditions facing Hazaras in around early 2010, but questioned whether those conditions would endure in the foreseeable future. This section of the country information provided as follows:

93.    A report of the Department of Foreign Affairs and Trade dated 21 February 2010 cannot be ignored. It considers the situation of Hazaras. When considered with other material, such as Professor Maley’s opinion dated 27 June 2010 (see below), provided to this reviewer by email dated 5 April 2011, there is a clear picture of a range of views and sources in relation to the position of Hazaras and whether they face persecution.

94.    The following information on the circumstances of Hazaras in Afghanistan is sourced from a report from the Department of Foreign Affairs and Trade (21 February 2010). Significantly, it reports that:

Afghanistan’s Hazaras do not live in fear of violence or systemic persecution as they did under Taliban rule. In the current period is perhaps the best in several hundred years for Hazaras in terms of personal and community freedoms, opportunities and human security. However, they claim to face social, economic and political barriers to upward mobility and community development. The human rights gains Hazaras have experienced in recent years are very real but they will wonder if it will continue (emphasis added).

As members of an easily identifiable ethnic group, and mostly followers of Shia rather than the more prevalent Sunni Islam, the Hazaras have always been a distinct community in Afghanistan … During the Muhajedin the Hazaras experienced attacks from both sides of the conflict. The Taliban regime with its anti-Shia attitudes, severely restricted their movements by keeping them contained in Hazarajat and committed atrocities against them.

95.    However, a September 2010 report, the Department of Foreign Affairs and Trade contained some mixed assessments (emphasis added). First, it noted that the Hazaras were making the most of the opportunities now open to them, reflected in typically high levels of education and active involvement in the political process. It was reported that Hazaras in Ghazni, particularly in Jaghori district, enjoyed better educational and health facilities than neighbouring provinces. Due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun – dominated districts. Then, the report noted that Hazaras continue to have limited employment opportunities, face security challenges and have a perception of discrimination, as well is frustration over the slow rate of progress is, all of which were encouraging migration from Afghanistan.

The report also noted that the [s]ecurity has deteriorated in some Hazara areas in recent years, but affects all religious and ethnic groups within them. Hazara districts in Ghazni Province are relatively stable compared to Pashtun-dominated areas, and enjoy better access to services. Conditions for the Hazara community in Afghanistan have [improved] significantly since the fall of the Taliban. But limited employment opportunities, security challenges and a perception of discrimination encourage Hazara migration...

96.    Professor William Maley, in his paper entitled “On The Position Of The Hazara Minority In Afghanistan” (December 2010) records that advice by foreign governments to their citizens is to the effect that the security situation in Afghanistan is volatile and unpredictable. He specifically refers to the travel advice published by the Government’s (sic) of Australia and the United States of America.

He then states:

The hopes that were initially entertained at the fall of the Taliban regime would rapidly produce a secure and stable Afghanistan have not been vindicated by the passage of time. Instead arrange (sic) of factors have frustrated the hopes that initially prevailed, notably the failure to build a state with appropriate capacity and legitimacy … There is little reason to be confident that the general situation in Afghanistan will take a turn for the better in the foreseeable future (emphasis added).

97.    Professor Maley counsels:

It is of course the case that the situation of the particular individuals and groups will wax and wane over time. This is true of all situations. In determining whether a fear of being persecuted for a Convention reason is well founded, however, it is important to look beyond temporary, insignificant or cosmetic changes. For example, the existence of prominent Hazara politicians tells one virtually nothing about the fears that may haunt the lives of ordinary Hazaras. This is equally true of the active involvement of some Hazaras and civil society groups in Kabul; civil society groups generally have little life beyond the capital city.

98.    Professor Maley also makes observations about [the] credibility [of] the Department of Foreign Affairs and Trade’s sources:

I understand that in assessing claims for refugee status, decision-makers have referred to Department of Foreign Affairs and Trade Cable number CX240092 dated 21 February 2010 and entitled Afghanistan: Situation of the Hazara Minority. At the outset, one should note that while the Australian Embassy in Afghanistan is staffed by dedicated officials, their ability to conduct field research of their own is extremely limited, given the tight security constraints under which they operate. This applies also to a number of the organisational informants on whom they rely in other embassies and in international agencies such as UNHCR. This poses a problem in relying on such sources for an assessment of the general situation for Hazaras, namely that the scale of persecution and abuse of power in Afghanistan tends to be under-reported.

99.    The UNHCR made some observations about the assessment of claims by Hazaras for refugee status by recommending a case-by-case assessment that relies upon a consideration of each claim on its merits:

Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for social, economic and historical reasons, this does not exclude that others are forced to move for protection-related reasons. UNHCR therefore considers that members of ethnic groups, including, but not limited to those affected by ethnic violence or land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case. However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant. Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines, which may exacerbate the risk of persecution. In the ever-evolving context of Afghanistan, the potential for increased levels of ethnic-based violence will need to be borne in mind (emphasis added).

13     There were several other paragraphs containing country information of relevance to the reviewer’s recommendation to the Minister, dealing with the province of Bamyan which stated as follows:

100.    Bamyan is one of the central provinces in Afghanistan. It is located in the Central Highlands region and is part of the Hazarajat. It is bordered by the provinces of Sar-e-pol and Samagan to the north, Baghlan, Pawan and Wardak to the east, Ghazni, Oruzgan and dai Kundi to the south and Ghowr to the west. It is difficult to determine the population but sources estimate that it may be between about 390 000 and 500 000. Hazaras make up an estimated 59% to 67% of the population. The majority of the population is reported to be Shia. …

101.    The Department of Foreign Affairs and Trade in a short report entitled The Hazara Community in Bamyan dated 24 October 2010 provided the following information about Banyam:

Bamyan is widely regarded as secure. The population and international community are able to move freely through most of the province, with the exception of Kahmarad district, and some northern areas of Shibar district near the border with Baghlan province. Bamyan’s security is community-based and therefore highly-resilient; the Taliban would find it difficult to infiltrate the Hazara majority province without detection. Interlocutors did not believe that any ethnic group was a greater risk than others within Bamyan, and saw no protection issues for returnees. But travel into and out of Bamyan can be dangerous, and has become more challenging in the context of a broader deterioration in security in Afghanistan. Individuals associated with the Government and international community may be at greater risk than others on the road.

Interlocutors agreed that Bamyan is moving in a positive direction in terms of development, governance and security. Development is increasingly visible, with improving levels of investment and several major infrastructure projects planned over the next two to three years. Girls receive an education in disproportionately high numbers in Hazarajat, the central highlands region of Afghanistan. In Bamyan girls constitute approximately 43 percent of students.

But progress is occurring from a low base, and Bamyan continues to face significant challenges. Infrastructure (including roads, electricity and potable water) and access to services is limited. Like other relatively peaceful central highlands provinces, Bamyan has received less of the development assistance which has flowed into insecure southern provinces, and also remains underdeveloped compared to the Northern provinces. Hazaras in Bamyan are frustrated by the slow pace of development, and resentful of their perceived economic neglect and political marginalisation by the central government. Limited economic opportunities within Bamyan are encouraging outward migration, and inhibiting the number of returning refugees. Returns, predominately from Iran and Pakistan, have been on the decline since 2005, with most opting to live in cities outside the province.

the first respondent’s submissions on appeal

14    The first respondent contended that in the consideration of the country information the reviewer adequately looked at the situation of potential harm in the reasonably foreseeable future and the discussion supported the reviewer’s finding that the appellant would not suffer harm in the reasonably foreseeable future. Ms Latif, who appeared as counsel on behalf of the Minister, argued that one would need to read the reviewer’s decision with an eye too attuned to finding an error to ignore a number of features of the decision which supported the reviewer’s findings.

15    There was a specific reference in [145] that the appellant would not suffer harm in the reasonably foreseeable future. Ms Latif further referred to [100] and [101] of the decision and argued that in those paragraphs the security position in Bamyan was addressed by reference to, not only the present, but also the reasonably foreseeable future. In particular, she relied on the sentence:

    Bamyan’s security is community-based and, therefore, highly resilient.

16    Ms Latif argued that the proper way to read the decision without seeking to impugn it on the basis of error was to regard [93] to [99], which contained information which focused on the question of the conditions of Hazaras in Afghanistan in the reasonably foreseeable future as part of the reasoning process, even though these paragraphs appeared in the country information section.

consideration

17    The reviewer had careful regard to the current situation in Afghanistan and supported his conclusions by references to other paragraphs in the decision which set out the country information relevant to that finding. For instance, the findings made in [141] about Hazaras in Afghanistan was supported by country information in [100] and [101], relating to the present situation in Afghanistan. The reference to [101] was stated to be in support of the finding at [141] that the security situation in those parts of Afghanistan where Hazaras are the majority “is” more stable. Paragraph [100] in the country information section was used to support the finding at [141] that Hazaras “are” the major ethnic group living in Bamyan province. Further, at the end of the findings about the current situation for Hazaras in Afghanistan at [141], the finding is made in terms of the present, namely, that:

there is no real chance of the claimant being persecuted in Bamyan for reason of him being a Hazara and Shia.

18    The country information in [93] to [99] which referred to the issue of the reasonably foreseeable future prospects of Hazaras in Afghanistan was not dealt with in the reasons at all.

19    Given the structure and methodology of the decision, a fair reading leads to the conclusion that the issue of the prospects of persecution in the reasonably foreseeable future was not addressed. The formulaic reference in [145] that there is no real chance of the appellant being harmed in Afghanistan for a Convention reason of race or religion now “or in the reasonably foreseeable future” is not supported by any earlier reasoning in an otherwise extremely carefully constructed decision.

20    Furthermore, it cannot be the case that, as Ms Latif sought to argue, the references to the reasonable foreseeable future in the country information in [93] to [99] represent the reasoning which supports the conclusion in [145]. This is because the material in those paragraphs generally contradict the conclusion that the appellant would have no reasonable basis for fearing harm in the reasonably foreseeable future. Even the report of the Department of Foreign Affairs dated 21 February 2010, which is generally regarded as the high point of optimism about the fate of Hazaras recorded that:

The human rights gains Hazaras have experienced in recent years are very real but they will wonder if it will continue.

21    If those paragraphs were to be seen as part of the reasoning then they contradict the conclusion in [145] that the appellant would have no reasonable basis for fearing harm in the reasonably foreseeable future. In any event, to read the country information as a consideration of the issue, as distinct from the setting out of available country information, would be discordant with the careful structure of the decision as a whole.

conclusion

22    Consequently, the appellant is correct in his submission that the reviewer failed to consider whether he had a well-founded fear of persecution in the reasonably foreseeable future, as distinct from the present or immediate future. It was common ground that such a failure amounts to jurisdictional error entitling the appellant to relief.

23    Thus, the Court will declare that, in recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations, the second respondent made an error of law by failing to observe the requirements of procedural fairness in that the second respondent failed to consider whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future, as distinct from the present or immediate future.

Associate:

Dated:    20 March 2013