FEDERAL COURT OF AUSTRALIA

DZABK v Minister for Immigration and Citizenship [2013] FCA 328

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant is a citizen of Afghanistan who arrived in Australia in March 2010.

2    He submitted a claim for a Refugee Status Assessment in June 2010. That assessment was carried out and in December 2010 the Appellant was found not to be a person to whom Australia owed protection obligations. An Independent Merits Review was sought. An interview was carried out in April 2011. The Independent Merits Reviewer provided a recommendation in July 2011 and recommended that the Appellant did not satisfy the criteria for a protection visa.

3    Proceedings seeking to challenge the recommendation of the Independent Merits Reviewer were then instituted in the Federal Magistrates Court of Australia. That application was dismissed in November 2012: DZABK v Minister for Immigration & Citizenship [2012] FMCA 1035. The Appellant now appeals to this Court.

4    The Grounds of Appeal as set forth in the Notice of Appeal are as follows:

1.    The learned Federal Magistrate erred in finding that the Second Respondent did not fail to deal with the Appellant’s claim that he had a well-founded fear of persecution by the Taliban.

2.    The learned Federal Magistrate erred in finding that the Second Respondent did not misunderstand and/or misconstrue the test of and/or principles to be applied and/or failed to apply the correct principles regarding adequacy of state protection to the facts of the case.

The Appellant appeared before this Court unrepresented. He had the assistance of an interpreter.

5    The appeal is to be dismissed.

A FAILURE TO CONSIDER THE CLAIM MADE

6    The first Ground of Appeal seeks to contend that the Independent Merits Reviewer failed to consider the claim of fear of persecution by the Taliban. The Appellant is an Hazara Shi’a.

7    The relevant principles to be applied when entertaining such an argument have been recently considered in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [10] to [14]. The following exposition has been taken from that judgment.

8    It was there stated that it could be accepted that a failure on the part of a decision-maker to deal with a clearly articulated argument relying upon established facts is a denial of natural justice which may found relief under s 75(v) of the Constitution: Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 at [24] to [34], 77 ALJR 1088 at 1092-1093. See also: SZQFC v Minister for Immigration and Citizenship [2012] FCA 409 at [36], 126 ALD 530 at 535 per Yates J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [24] per Jagot J. More recently, in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, 243 CLR 319 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed:

[90]    … failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.

Even where a claim falls short of being expressly raised, a decision-maker must consider every claim that clearly arises on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] to [61], 144 FCR 1 at 18-20 per Black CJ, French and Selway JJ. See also: SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424 at [31] to [32] per Buchanan J; MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [141] to [145], 130 ALD 256 at 278-279 per Dodds-Streeton J.

9    A failure on the part of a decision-maker to deal with a claim or part of a claim may also constitute jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 194 ALR 244. It was there concluded that the Refugee Review Tribunal had erred in constructively failing to deal with an ethnicity-based claim which had been raised in the initial visa application. Allsop J (as his Honour then was) concluded:

[42]    … The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…

With reference to the particular facts there in issue, his Honour went on to further conclude:

[42]    … If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.

Spender J agreed with the reasons and orders proposed by Allsop J. Merkel J delivered separate reasons for also allowing the appeal.

10    In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: cf. Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51. Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: [2005] FCAFC 134 at [46] per Hill J; see also [2005] FCAFC 134 at [212] per Madgwick J.

11    A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. It may be that some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are “otherwise comprehensive”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184. Again in the context of reviewing a decision of the Refugee Review Tribunal, French, Sackville and Hely JJ there observed:

[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.

These observations have since been applied in respect to a review undertaken by an Independent Merits Reviewer: SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 at [14] to [15] per Logan J.

12    The onus of making out an argument that the Independent Merits Reviewer failed to consider the claims made and the material relied upon rests on the Appellant: cf. Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [67], 241 CLR 594 at 616 per Gummow J.

CONSIDERATION OF THE CLAIMS MADE

13    The reasons and findings of the Independent Merits Reviewer in the present proceeding identified the claims made by the Appellant (without alteration) as follows:

79.    The claimant and his agent have stated the claimant has a real chance of being persecuted by reason of the following Convention grounds:

•    Race-Hazara

•    Religion- Shi’a

•    Particular Social Group –former landowners

•    Particular Social Group – persons who have been in Pakistan for a prolonged period and have a Pakistani accent and look

•    Particular Social Group/Imputed Political Opinion-returnees from the West

•    Particular Social Group/Imputed Political Opinion-failed asylum seekers

The Reviewer thereafter dealt with each of these claims in turn and also separately addressed whether “there is a real chance of persecution by reason of any of the Convention nexuses…”. The Reviewer expressed conclusions in respect to each of the “nexuses” and ultimately also went on to conclude:

Accumulation

139.    I have also considered if, notwithstanding my view that the claimant does not face a real chance of persecution by reason of any of the discreet Convention grounds, when viewed cumulatively, he does face a real chance of persecution. In other words, I am required to assess whether the claimant faces a real chance of persecution in Nawur by reason of the combination of two or more of the following characteristics: the claimant’s race; his religion; his being a former landowner; his being a person who has a Pakistani accent and his being a person who, if returned to Afghanistan, would be a failed asylum seeker and a returnee from a Western country. In light of the country information and having heard from the claimant about his individual circumstances, I do not accept that the claimant would face a real chance of persecution on the basis of one or any combination, or indeed all these characteristics.

Those conclusions were open on the materials before the Reviewer. Each of the claims made by the Appellant was in fact considered. The reasons of the Reviewer disclose that he actively considered each of the claims, both individually and cumulatively.

14    With specific reference to the claim identified in Ground 1 of the Notice of Appeal, namely a failure to consider “persecution by the Taliban”, the Independent Merits Reviewer referred to the Appellant’s assertion that he would “be viewed as a spy and as someone endowed with liberal, pro-west and pro-Afghan government and anti-Taliban opinions due to his being a failed asylum seeker”. The Reviewer went on to conclude:

98.    … Again neither the claimant nor the agent have persuasively explained how or why someone who had sought asylum in the West would be imputed, by the Hazara population in Nawur, with a political opinion or seen as spy. Again I concede that in a Taliban-controlled area of the country failed asylum seekers from the West may be seen by the Taliban as pro-West and even spies. However, in light of the country information that the Hazara predominate in Nawur, I do not accept that, the claimant, as a failed asylum seeker would be imputed, by the majority Hazaras in Nawur, with any political opinion. I find that the claimed Convention nexus of anti-Taliban imputed political opinion as a failed asylum seeker does not exist.

The Reviewer further went on, when summarising the country information available to him, to conclude:

137.    I have considered a range of information including material provided by the claimant and his agent. In note that in a post IMR interview statement the claimant referred to recent incidents in which about 25 villages were captured by the Taliban. I have also had regard to and attach some weight to the views expressed by commentators such as Professor William Maley, Professor Thomas Ruttig and Halima Kazem (and a number of other academic and media reports). However, I consider that the overwhelming weight of country information indicates that Hazara Shi’as in Nawur do not face a real chance of persecution by reason of their race or religion and I find that they do not.

15    Any argument that the Independent Merits Reviewer did not consider the claims of the Appellant, including in particular his claim to fear “persecution by the Taliban”, is to be rejected. The Federal Magistrate was correct in concluding that “the IMR did consider the applicant’s claim as to whether he had a well founded fear of persecution by the Taliban on the basis of his Hazara race”: [2012] FMCA 1035 at [38].

16    The first Ground of Appeal is rejected.

STATE PROTECTION

17    The second Ground of Appeal alleges error in the construction or application of the “principles regarding adequacy of state protection to the facts of the case”.

18    Given the conclusion of the Independent Merits Reviewer that “there is not a real chance that [the Appellant] would be persecuted on the basis of his race, religion, or membership of a particular social group or any other Convention ground were he to be returned to Afghanistan now or in the reasonably foreseeable future”, there remained outstanding only the prospect that the Appellant would be exposed to harm by reason of being a person who was unsuccessful in seeking refugee status in Australia.

19    The Independent Merits Reviewer relevantly concluded:

119.    I accept that the information about the level and adequacy of state protection is a matter of some disagreement and that Hazara leaders have been reported as saying it is ineffectual. Whilst state protection may not be comprehensive, I note that country information (provided by the agent on 28 June 2011) indicates that the police have intervened and have sent an investigation team and requested assistance from Jaghori and Qarabagh.

120.    I consider that the state authorities are not refusing to provide protection on Convention grounds. Nor are they turning a blind eye on Convention grounds. The country information demonstrates that the law enforcement authorities are demonstrating their commitment to provide protection to those affected by Kuchi violence.

The Independent Merits Reviewer had earlier set forth country information concerning friction between the “Kuchi” and the Shi’a Hazara. Part of the source of that friction has been ascribed to Kuchis bringing their flocks each summer for highland grazing in the homeland of the Shi’a Hazara. The conclusions in paragraphs [119] and [120] are to be read together with the ultimate conclusion of the Reviewer at paragraph [142] that the Appellant did not “face a real chance of persecution on the basis of one or any combination, or indeed all his Convention characteristics.”

20    In reaching this conclusion the Independent Merits Reviewer made express reference to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, 222 CLR 1. Gleeson CJ, Hayne and Heydon JJ there observed with reference to the facts there in issue:

[26]    No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.

Their Honours went on to conclude with reference to the facts there in issue:

[29]    The Tribunal's finding that it was not satisfied that the Ukrainian Government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art 1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and uncoordinated, then its finding about the government's willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.

21    No error is discernible in the reasons for decision or conclusion reached by the Independent Merits Reviewer. The conclusion reached was a conclusion as to fact. See: SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 at [6] to [7] per Rares J.

22    Nor is any appellable error discernible in the conclusion of the Federal Magistrate that “there was adequate state protection available”: [2012] FMCA 1035 at [43]. The Magistrate was correct in rejecting the comparable argument advanced before that Court.

CONCLUSIONS

23    Both Grounds of Appeal have not been made out. Neither presents any argument of substance. The appeal should be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    12 April 2013