SZRKY v Minister for Immigration and Another

Grounds 1-3

Nature of return to Jaghori

The relocation principle is no more than a manifestation of the principle stated by Black CJ that a person is not entitled to protection under the Convention if protection is available to them in their country of nationality. Put another way, even if a person does have a well-founded fear of persecution in one part of their country of nationality, protection obligations under the Convention will not be enlivened if there is somewhere else in that country where the fear would not be well-founded. [23]

In essence the applicant’s argument is that, in light of the particularised matters, the Reviewer was wrong to find that he could live in Jaghori. However, with the exception of the last, all the matters particularised are properly considered in the context of whether the applicant had a well-founded fear of persecution for a Convention reason in Jaghori. On the evidence it was open to the Reviewer to conclude that he did not have a well-founded fear of persecution there. [28]

The applicant’s argument also raises questions of the reasonableness, in the sense of ease, of a move to Jaghori. However, the relevant question is not whether it would be difficult to live in Jaghori but whether it would involve persecution, a matter on which the Reviewer found against the applicant. Further even if a return to Jaghori were to be considered a relocation of the sort considered in Randhawa, for the reasons given above at [26], again the question is whether the circumstances in Jaghori gave rise to a well-founded fear of persecution. The Reviewer concluded that they did not. The Court cannot review that factual finding. [29]

Travel to Jaghori

The same considerations apply in this case. There was no reason for the Reviewer to turn his mind to the question whether the applicant had a well-founded feared for his safety if he were to travel to Jaghori, assuming that questions of personal safety simpliciter, rather than of threats to safety arising out of persecution, would be the relevant ones to consider in any event. Far from closing his eyes, the Reviewer was not asked to look at the issue. [31]

Reviewer failed to ask the right question

The consequential questions have been addressed earlier in these reasons. As to the question whether the applicant had a well-founded fear of persecution in Afghanistan, it is not correct that the sequential approach advocated by the applicant must be followed. There is no point in the Reviewer considering the entirety of an applicant’s country of nationality only to conclude, for instance, that there is no well-founded fear of persecution in that applicant’s home area. Although the Reviewer could proceed in that fashion it would be inefficient. A more sensible approach involves determining whether the home area poses a threat of persecution and, if it does, then considering the situation in the remainder of a claimant’s country of nationality. [33]

Grounds 4-5

Modification of behaviour - move from parents

The passage quoted from Appellant S395/2002 reveals that a person is not to be expected to modify his or her behaviour for the purpose of avoiding persecution. However, in this case the Reviewer concluded that the applicant did not have a well-founded fear of persecution for a Convention reason by reason of his membership of the particular social group made up of his family, which means that any steps taken by the applicant which would lead to him not being in contact with his family would not amount to conduct of the sort discussed in Applicant S395/2002. But in any event, the Reviewer never actually suggested that the applicant might avoid persecution by avoiding or not contacting his parents. The issue simply was that in Jaghori he would not be persecuted. The fact that this might have a practical impact on how often he would see his parents was not a matter which was addressed by the Reviewer and was certainly not something which the Reviewer opined would reduce or avoid the alleged risk of persecution. [36]

Modification of behaviour - dependency on cousins

The applicant also submitted that the Reviewer imposed a further modification to his behaviour upon a move to Jaghori in the form of him being significantly dependent on his cousins and having to call upon them for support. However, the Reviewer did not say this; he simply observed that the applicant had relatives in Jaghori. Although it was implied that the applicant could call on them for assistance if needed, it was not suggested that he should. [37]

No evidence

The fact that the applicant pointed to evidence which, in his submission, indicated that his cousins would not or might not be able to assist him does not lead to a conclusion that the Reviewer had no evidence for his finding that the applicant could have the support of family networks if he returned to Jaghori. The fact that members of the same family can be expected to provide some form of support to other members of that family is a social commonplace, even if not ubiquitous. The fact of the applicant’s family connections, particularly at the relatively close degree of first cousin, was sufficient evidence for the Reviewer to infer that support would be available from family members still in Jaghori. It is also significant to observe that the Reviewer did not seek to quantify or describe the support he expected the applicant would be likely to receive. [39]

Ground 6

Given the manner in which the applicant referred to his language skills it is artificial to infer that the claim to fear persecution by reason of his language amounted to a separate and identifiable basis to fear persecution. It was presented by the applicant as a claim indivisible from the claim based on his ethnicity and as such, it was an aspect of his claims which rose or fell with the Reviewer’s decision on whether he had a well-founded fear of persecution by reason of his ethnicity. It can be inferred that the Reviewer dealt with it in that way and that, to the extent that it was an issue of relevance, the Reviewer’s findings in relation to it were subsumed into the more general claim concerning the applicant’s ethnicity: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]. [43]

Grounds 7 and 7A

It is unclear whether the applicant’s assertion is that the Reviewer failed to consider the evidence in question and thus erred or that, having considered it, he erred by not according it appropriate weight. Whichever it is, neither discloses error by the Reviewer - if the assertion is that the Reviewer failed to consider the evidence in question then the submission is not supported by the evidence and if the assertion is that the Reviewer failed to accord the evidence appropriate weight then it is wrong in law. [47]

If the Reviewer had failed to consider what significance and weight the evidence deserved then he would have erred. However, it is apparent that that is not what occurred in this case, where the Reviewer considered the evidence in question but concluded that it was of no or little value in deciding whether the applicant had a well-founded fear of persecution in Afghanistan. That is to say, having considered the evidence, he made a decision as to whether it was to be accorded any weight. A finding as to the weight to be accorded to particular evidence is part of the Reviewer’s fact-finding function and something which the Court has no power to review: NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at 375 [38]. [48]

Grounds 8-11

The applicant’s submissions concerning Jones v Dunkel are not apposite. That case is authority for the proposition that a party’s unexplained failure to adduce evidence may lead to an inference that the evidence which was not adduced could not have assisted that party’s case: at 320-321 per Windeyer J and that any inference supported by evidence favourable to a party might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the basis for that inference has not been called as a witness by the opposing party and the evidence provides no sufficient explanation for that witness’s absence: per Kitto J at 308, Menzies J at 312. The rule applies when a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J. In this case, the Reviewer’s analysis did not amount to even an implicit application of the Jones v Dunkel principle but was, instead, simply a comparative analysis of different aspects of the applicant’s case. Moreover, it was a conclusion open on the evidence. [54]

The applicant submitted that this statement implied that the Reviewer failed to take into account Australia’s obligations to him under the Convention on the Rights of the Child. Notwithstanding this submission, the applicant did not identify how Australia’s obligations under that instrument should have affected the Reviewer’s consideration of whether the criteria for the grant of a protection visa had been met. As was said in Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263:

Adoption of the Convention does not, of itself, create an obligation on the second respondent to consider the interests of the relevant children. The Convention is not part of Australian domestic law. A matter which can be discerned on the proper construction of the Act as a whole to be relevant in the exercise of that discretion, does not achieve that quality because the same matter is stipulated in an international treaty, or is the subject of one or more of Australia's international obligations. Thus, if, for example the right of the child of an applicant to acquire Australian nationality were relevant to the exercise of the Minister's discretion, the regard which the Minister should have to that right would not materially change because a similar right is recognised by a treaty. (at 277 [67] per Black CJ, Mansfield and Bennet JJ) [65]

Indeed, the wording of s.36 of the Act indicates that the Convention on the Rights of the Child was not a matter relevant to be taken into account by the Reviewer: SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 at [13]. [66]

The applicant’s argument about the rationality of the findings referred to above at [64] was concerned with what were intermediate findings of fact, whereas illogicality, in the sense discussed in Minister for Immigration& Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 and SZOOR is concerned with decisions in relation to the state of satisfaction required under s.65 of the Act, i.e. the jurisdictional fact which the Refugee Review Tribunal (“RRT”) must find before it can make a determination under s.65, for which there is no evidence or at which no rational or logical decision-maker could arrive: see SZOOR at 21 [78] and 22 [84]. In the Reviewer’s review the equivalent of the RRT’s jurisdictional fact was the conclusion reached by the Reviewer which was a precondition to his recommendation to the Minister - that the applicant did not satisfy the criteria for the grant of a protection visa. The applicant’s submission does not assert illogicality in connection with that finding and, for that reason, does not disclose error on the Reviewer’s part. [68]

Grounds 12-13

The applicant submitted that, apart from the Reviewer’s discussion of the risk of persecution for the dual reasons of him being Hazara Shia, the reasoning for the above statement was undisclosed. The applicant submitted that para.108 failed to engage with the combination of Convention grounds which he had raised and failed to mention how any one matter affected any other. [71]

The factual basis for the Reviewer’s conclusion was made sufficiently clear in the lengthy discussion of the claims and evidence which preceded it. The relevant reasoning was summarised in the final sentence of para.108 of his reasons. Given the Reviewer’s earlier findings on the applicant’s claims and evidence, he did not need to say more and, specifically, was not required to undertake the exegesis which the applicant submits was appropriate. While it can be accepted that in certain circumstances the absence of detailed reasons indicates that a matter has been overlooked, the manner in which the Reviewer expressed himself in the reasons presently under review makes it plain that he did not overlook any relevant matter. [72]