FEDERAL CIRCUIT COURT OF AUSTRALIA
MZZNF v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1792	

Catchwords:
MIGRATION – Refugee Review Tribunal – failure to consider claim.	

Cases cited:
El Merhabi v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 375; [2000] FCA 42
NBCY v Minister for Immigration and Multicultural and Indigenous Affairs  (2004) 83 ALD 518; [2004] FCA 922
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184	

Applicant:	MZZNF	

First Respondent:	Minister for immigration & Border Protection	

Second Respondent:	REFUGEE REVIEW TRIBUNAL	

File number:	MLG 983 of 2013	

Judgment of:	Judge Riley	

Hearing date:	16 April 2015	

Date of last submission:	16 April 2015	

Delivered at:	Melbourne	

Delivered on:	30 June 2015	

REPRESENTATION
Counsel for the applicant:	Melissa Marcus	

Solicitors for the applicant:	Maddocks Lawyers	

Counsel for the first respondent:	Liam Brown	

Solicitors for the first respondent:	Sparke Helmore	

Counsel for the second respondent:	No appearance 	

Solicitors for the second  respondent:	Sparke Helmore	

ORDERS
(1)	The decision of the Refugee Review Tribunal handed down on 29 May 2013 in matter number 1303148 be set aside. 
(2)	The matter be remitted to the Refugee Review Tribunal for determination according to law.
(3)	The first respondent pay the applicant’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE	
MLG 983 of 2013
MZZNF	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
First respondent

REFUGEE REVIEW TRIBUNAL	
Second respondent

REASONS FOR JUDGMENT
Introduction
1.	This is an application for review of a decision made by the Refugee Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.  
The applicant’s claims
2.	The applicant primarily claimed that:
a)	he was a 38 year old citizen of Afghanistan who was born in 1973 in Hotqul in the Jaghori province;
b)	his father was a member of the Khalq;
c)	the family relocated to Kabul in 1977 for the father’s work;
d)	in about 1985, when the applicant was about 13 years old, the father went to work and disappeared;
e)	the applicant’s mother was told the father had been killed by the Mujahideen, which had targeted members of the People’s Democratic Party of Afghanistan, such as the applicant’s father;
f)	for their safety, the applicant’s mother relocated with the applicant and his siblings to Quetta in Pakistan;
g)	in 1994, the applicant began to compete in bodybuilding tournaments and began working as a bodybuilding training coach;
h)	later, religious extremists developed a strong presence in Pakistan and began to attack and kill Hazaras;
i)	on 30 August 2011, the applicant was at a Shia mosque when a bomb exploded and killed 11 people;
j)	the applicant left Pakistan, fearing violence against Hazaras Shia;
k)	his family remained in Pakistan;
l)	he had no right to return to Pakistan; and
m)	he feared that if he were forced to return to Afghanistan, he would be mistreated for reasons of his race, religion and particular social group, being failed asylum seekers.
The Tribunal’s reasons 
3.	The tribunal did not accept that Hazara Shias in Afghanistan were being deliberately targeted, or that the applicant faced a well-founded fear of persecution for reasons of being a Hazara Shia in Afghanistan.  The tribunal did not accept that the applicant faced a well-founded fear of persecution in Afghanistan as a failed asylum seeker. The tribunal did not accept that Hazara Shias were targeted on the roads of Afghanistan. The tribunal did not accept that, 30 years after his father’s disappearance, the applicant would be persecuted because of his relationship with a member of the Khalq. The tribunal considered that the applicant would be able to work as a bodybuilding coach in Afghanistan.
4.	The tribunal also considered the applicant’s situation under the complementary protection provisions and concluded that the applicant did not face a real risk of significant harm if he returned to Afghanistan.
Grounds of application
5.	The application filed on 3 July 2013 was amended on 9 February 2015.  The amended application had three grounds.  However, the first and third grounds were verbally withdrawn at the hearing before this court. The remaining ground of review, ground 2, contains three parts, ground 2(a)(i), ground 2(a)(ii) and ground 2(b). I will address each part of ground 2 separately.
Ground 2(a)(i)
6.	Ground 2(a)(i) in the amended application is:
	The Second Respondent fell into jurisdictional error and failed to arrive at a decision according to law, namely by failing to consider, and make a finding on, the Applicant’s claim.
	Particulars
	(a)	The Second Respondent accepted that the Applicant did not have official rights to return to Pakistan. The Applicant submitted that the Applicant’s family, who are based in Pakistan, could not safely travel to Afghanistan. The Second Respondent, in assessing whether the Applicant had a real chance of persecution from the Taliban or otherwise because the Applicant is Hazara Shia, failed to consider and make a finding in relation to:
	(i)		The risk of persecution to the Applicant’s family when travelling back to Afghanistan from Pakistan, and, in particular, to the Jaghori district to join the Applicant … .
7.	The applicant clarified at the hearing that ground 2(a)(i) concerned fear of persecution of the applicant’s family by reason of the applicant’s return to Afghanistan.  The applicant submitted that NBCY v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 922; 83 ALD 518 and El Merhabi v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 375 at [16] to [17] were authority for the proposition that persecution can arise from fear of harm to one’s family.  
8.	The first respondent did not dispute that proposition.  However, the first respondent said at paragraph 24 of his written submissions that those cases were distinguishable, because the claims of family harm in those cases were intimately connected with the applicant’s own claims and as a result, the tribunal in those cases was required to make express findings.  The first respondent submitted that:
	the applicant’s family claim was not advanced (in terms of detailed submissions or evidence being provided) to the extent that it was shown that the family would suffer any harm, nor how the harm that might be feared by the family was relevant to the Applicant’s reasons for claiming to fear persecution.
9.	At the hearing before this court, the first respondent did not press the argument that NBCY and El Merhabi were distinguishable.  It appears that the argument was abandoned.  If it was not, I do not accept it.  That is, I consider that, if the family claim was raised, the tribunal had to deal with it in one way or another.
10.	The first respondent argued at the hearing before this court that the family claim was not raised expressly, and, furthermore, did not arise from the materials.
11.	The applicant said that the claim in relation to his family was made at paragraph 103 of a written submission dated 8 May 2013 addressed to the tribunal.  The applicant’s advisers there said:
	[The applicant’s] wife and family are also based in Pakistan and cannot reasonably be expected to illegally make the dangerous journey to Afghanistan. 
12.	The applicant also relied on paragraph 33 of the tribunal’s reasons for decision, where it is said that:
	The Tribunal asked the applicant why his family would find it difficult to travel from Quetta to Afghanistan.  The applicant stated that they had no documentation that would allow them to cross the border.
13.	The applicant also relied on certain passages of a transcript of the hearing before the tribunal.  The transcript was exhibited to the affidavit affirmed by Thomas Abourizk on 15 April 2015.  The first respondent did not challenge the accuracy of that transcript.
14.	The passages of the transcript that the applicant relied upon are as follows:
a)	at page 14:
	When I was saying to my mother that can go back to Afghanistan and she was saying that no we can’t go because the Shia people are being killed in Afghanistan in ##Lashkar Gah and ##Urozgan and other ways they are being killed.
	…
	My mother is now 65 years old and she ## ## ## used to say a long time ago until now that circumstances in Afghanistan for Shia people is not good and there was a road between ## Jaghori and Kandahar a place which called ## Karibar.  The Hazara people genocide there and there have been killed a lot of people there.
b)	at page 17:
	So if I can’t.
	… go back and they are my children and they are my son and if they go back to Afghanistan they will ask who are they.  He is the son of this man and I’m the son of that Kulqi.
15.	The first respondent noted that, at the end of paragraph 25 of its reasons, the tribunal paraphrased the applicant’s submission that:
	The applicant’s family cannot travel to Afghanistan.
16.	The first respondent also noted the passage set out above from paragraph 33 of the tribunal’s reasons for decision.  The first respondent submitted at paragraph 23 of his written submissions that these passages show that the tribunal considered the issue of the applicant’s family.
17.	I accept that these references were sufficient to indicate that the tribunal had identified the family issue.  However, by themselves, I do not accept that that they are sufficient to show that the tribunal considered the family issue.
18.	Of course, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184, the Full Federal Court said at [46] and [47]:
	It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
	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. 
19.	The first respondent acknowledged at paragraph 24 of his written submissions that there was no explicit finding by the tribunal in relation to the applicant’s claim about his family.  However, the first respondent said at paragraph 24 of his written submissions that the inference to be drawn from the absence of a finding on the family claim is that it was not a material issue, and therefore did not require an express finding.
20.	I do not accept that the family claim was not a material issue.  I consider that the family claim was raised, expressly, in the passages set out above.  The family claim contained three components.  The first was the danger the family faced as Hazara Shias travelling home on the roads to Jaghori.  The second was that the family was descended from a member of the Khalq.  The third was that the family did not have documentation to re-enter Afghanistan.
21.	I consider that the tribunal dealt with the first aspect of the family claim, namely, the danger on the roads, in making findings of greater generality.  That is, the tribunal, in addressing the applicant’s claims about the risks facing himself as a Hazara Shia, also addressed the risks facing his family as Hazara Shias.
22.	More particularly, the tribunal canvassed a good deal of country information and said at paragraph 75 of its reasons for decision that it did not accept that Hazara Shias were deliberately targeted in Afghanistan or faced persecution for those reasons.   The tribunal found at paragraph 89 of its reasons for decision that Hazara Shias are not targeted on the roads of Afghanistan.
23.	In relation to the second component, the tribunal said at paragraph 89 of its reasons for decision:
	The Tribunal has not accepted that the applicant will be identified as a son of a communist member over 30 years after the applicant and his family left that region of Afghanistan.  He will not be stopped on the road or harmed on the road because of this reason.
24.	This finding undermines the factual substratum of the claim that the applicant’s family might be harmed because the applicant’s father was a member of the Khalq.  Consequently, as explained in WAEE, there was no need for the tribunal to say any more about it.
25.	The third component of the family claim was that the applicant’s family did not have documentation that would enable them to cross the border back into Afghanistan.  It is clear that the tribunal did not address that issue.  
26.	The first respondent said that, on the applicant’s own claims, his mother had crossed the border back to Afghanistan twice, in 1992 and 1995.  The first respondent appeared to be implying that the applicant’s family would be able to cross the border, with or without documentation.  Obviously, there have been a number of regime changes in Afghanistan since 1995.  However, more importantly, the first respondent appeared with this submission to be inviting the court to make a finding of fact and otherwise engage in merits review, which, of course, the court cannot do.  
27.	The first respondent also emphasised in oral submissions that the tribunal had implicitly found that the applicant’s family would return to Afghanistan.  This was possibly a sleight of hand, to suggest that the tribunal’s disregard of the family’s lack of documentation was overcome by a finding that took away the necessary factual substratum.  However, if that is what the first respondent meant to argue, I do not accept the contention.  
28.	The passages on which the first respondent relied to submit that the tribunal had implicitly found that the applicant’s family would return to Afghanistan all concerned the issue of the applicant being able to support his family.  Obviously, the applicant could work in Afghanistan and send money to his family in Pakistan and thereby support them.  I do not accept that the tribunal made an implicit finding that the applicant’s family would return to Afghanistan.  The Tribunal certainly did not make an express finding about that issue.
29.	Otherwise, neither party said anything about the applicant’s family not having the documentation to permit them to legally return to Afghanistan. If the applicant’s family did not have, and could not get, the documentation to return to Afghanistan, they would have to return illegally or remain in Pakistan.  There was no finding that the applicant’s family could return to Afghanistan illegally.  If they remained in Pakistan, on the applicant’s case, they would be subjected to the same harm that the applicant said he had fled, namely, persecution of Hazara Shias in Pakistan.  On the authority of NBCY and El Merhabi, that could constitute persecution of the applicant.  The tribunal did not consider the question of persecution in Pakistan.    As a threat to the applicant’s family could be persecution of the applicant himself, these were matters that the tribunal was required to consider.  It is not to the point, as Tamberlin J observed at [26] in NBCY, that the applicant’s family members are not parties to the present application.
30.	In other words, the tribunal was required to consider, but did not:
a)	whether the applicant’s family faced persecution in Pakistan; and, if so
b)	whether it was true that the applicant’s family did not have documentation to return to Afghanistan; and, if so
c)	whether they could return to Afghanistan without documentation; or
d)	whether they would be able to get documentation.
31.	As these matters were not considered, the tribunal fell into jurisdictional error.  The matter must be remitted to the tribunal for determination in accordance with law.
Ground 2(a)(ii) 
32.	Ground 2(a)(ii) in the amended application is:
	The Second Respondent fell into jurisdictional error and failed to arrive at a decision according to law, namely by failing to consider, and make a finding on, the Applicant’s claim.
	Particulars
	(a)	The Second Respondent accepted that the Applicant did not have official rights to return to Pakistan. The Applicant submitted that the Applicant’s family, who are based in Pakistan, could not safely travel to Afghanistan. The Second Respondent, in assessing whether the Applicant had a real chance of persecution from the Taliban or otherwise because the Applicant is Hazara Shia, failed to consider and make a finding in relation to:
	…
	(ii)	The need for the Applicant to travel outside of the Jaghori district to visit the Applicant’s family residing in Pakistan.
33.	The tribunal dealt with the question of the applicant facing persecution while travelling on the roads of Afghanistan in paragraphs 87 to 90 of its reasons for decision.  Those paragraphs are as follows:
	87.	The applicant has claimed that he will be targeted on the road to Jaghori by the Taliban, who are seeking to harm Hazara Shias. Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. Advice by DFAT and the Afghanistan Development Association indicates that there is no evidence of ethnic targeting on roads in Ghazni. In contrast, Thomas Ruttig, Professor Alessandro Monsutti, Professor William Maley and a Ghazni based NGO – the Ghazni Rural Support Program, maintain that travel for Hazaras is dangerous on roads passing through Pashtun districts.
	88.	Again, the UNHCR material cited above is a relevant consideration as to whether the applicant would be subjected to harm on the roads outside of Jaghori, as it relates to individuals who have some attributes that draws them to the attention of the Taliban. The applicant has claimed that he will be targeted because of his imputed political opinion as a son of a communist, status as a returnee from a western country or Pakistan, and as a Hazara Shia.
	89.	The Tribunal does not accept that the applicant will be targeted for harm on the roads into and around the Jaghori district of Afghanistan. The Tribunal has not accepted that the applicant will be identified as a son of a communist member over 30 years after the applicant and his family left that region of Afghanistan. He will not be stopped on the road or harmed on the road because of this reason. The Tribunal also does not accept that returnees from either Pakistan or Australia are targeted on the roads by the Taliban or other insurgent groups. As discussed with the applicant, the Tribunal does not accept that Hazaras and Shias are specifically targeted on the roads of Afghanistan. 
	90.	The Tribunal finds that the applicant does not have a real chance of serious harm arising out on the roads of Afghanistan. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
34.	I consider that those paragraphs comprehensively dealt with the question of the applicant being persecuted on the roads in Afghanistan.  This ground is not made out.
Ground and 2(b)
35.	Ground 2(b) in the amended application is:
	The Second Respondent fell into jurisdictional error and failed to arrive at a decision according to law, namely by failing to consider, and make a finding on, the Applicant’s claim.
	Particulars
	…
	 (b)	The Second Respondent considered the Applicant’s claim for a protection visa pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth). The Applicant’s submissions detailed a claim for complementary protection due to a real risk of significant harm to the Applicant in relation to travel on the roads in Afghanistan generally. The Second Respondent concluded that the Applicant may need to travel on the roads in Afghanistan to obtain work. The Second Respondent concluded that the Applicant would not suffer significant harm in the context of section 36(2)(aa) from travelling on the roads because the Applicant is Hazara Shia. The Second Respondent failed to consider, and make a finding on, the Applicant’s claim under section 36(2)(aa) in relation to the Applicant’s claim that the Applicant would suffer significant harm from travel on the roads in Afghanistan generally, separate from persecution of the Applicant from travel on roads because the Applicant is Hazara Shia. 
36.	In this ground, the applicant alleged that the tribunal did not consider whether the applicant faced significant harm on the roads of Afghanistan, for reasons other than him being a Hazara Shia.  The tribunal considered the applicant’s complementary protection claims at some length.  In relation to whether the applicant faced a risk of significant harm on the roads of Afghanistan, the tribunal said at paragraph 108 of its reasons for decision:
	The Tribunal also does not accept that the applicant will have a real risk of significant harm arising from being from a Hazara Shia background. The Tribunal has considered the information and evidence regarding the treatment of Hazara Shia and finds that Hazara Shia are not at risk of significant harm merely because of this background, in the general communities or on the roads of Afghanistan. The Tribunal considers that arguments can be made that individuals are at risk in Afghanistan due to attributes as described by the UNHCR, and the Tribunal considers that the applicant does not have such attributes.  The Tribunal finds that the applicant does not have a real risk of significant harm due to his background as a Hazara Shia in Afghanistan. 
37.	The applicant submitted that the applicant was at particular risk because he would have to travel to Pakistan to see his family.  However, the applicant did not claim that he would be at risk on the roads for any reason other than his background as a Hazara Shia.  It was not suggested that a risk of significant harm clearly arose on the materials.  Therefore, it was not necessary for the tribunal to consider other bases of significant harm.  This ground is not made out.
Conclusion
38.	As one of the applicant’s grounds has been made out, the matter will be remitted to the tribunal for determination according to law.  The first respondent will be ordered to pay the applicant’s costs of the proceeding.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:  

Date:  30 June 2015