FEDERAL COURT OF AUSTRALIA SZQGI v Minister for Immigration and Citizenship [2012] FCA 343 Citation: SZQGI v Minister for Immigration and Citizenship [2012] FCA 343 Appeal from: SZQGI v Minsiter for Immigration & Anor [2011] FMCA 715 Parties: SZQGI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and KERRY-ANNE HARTMANN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 1709 of 2011 Judge: RARES J Date of judgment: 5 April 2012 Legislation: Migration Act 1958 (Cth) ss 36(2), 46A Cases cited: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 applied Plaintiff M61/2001E v the Commonwealth (2010) 243 CLR 319 applied Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 applied SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 applied SZQKC v Minister for Immigration and Citizenship [2012] FCA 249 applied Date of hearing: 21 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Appellant: Mr S Prince, Mr P Bodisco Solicitor for the Appellant: SBA Lawyers Counsel for the First Respondent: Mr D Godwin Solicitor for the First Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1709 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQGI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent KERRY-ANNE HARTMANN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: RARES J DATE OF ORDER: 5 APRIL 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1709 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQGI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent KERRY-ANNE HARTMANN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: RARES J DATE: 5 APRIL 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The sole issue in this appeal is the same as that which I decided in SZQKC v Minister for Immigration and Citizenship [2012] FCA 249. Does the definition of "refugee" in the Refugees Convention apply where the decision-maker has found that the claimant's home, in his country of nationality, is in an area in which he or she has no well founded fear of persecution, because persons other than the government of that country provide effective protection in that area from the harm feared? 2 The appellant sought constitutional writ relief in respect of a recommendation made by an independent merits reviewer conducting a review for the purposes of s 46A of the Migration Act 1958 (Cth). The purpose for the review was to enable the Minister to give consideration as to whether he would exercise his powers under either s 46A to permit the appellant to make a claim for a protection visa under s 36(2) of the Act: Plaintiff M61/2001E v the Commonwealth (2010) 243 CLR 319. 3 As I observed in SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 and SZQKC [2012] FCA 249, the notice of appeal again in this case made no reference to any ground on which the Federal Magistrates Court erred. The practice of drafting such notices of appeal must stop. It is essential that legally represented appellants identify the alleged error made by the Federal Magistrates Court in a notice of appeal in this Court. BaCKGROUND 4 The reviewer did not find the appellant to be a truthful or credible witness and did not accept any of his claims regarding past mistreatment by the Taliban were true (R 54, 66). She did accept that the appellant was a Pashtun from Koshk village, in Ghanzi, Ghanzi Province, Afghanistan. The reviewer accepted that the appellant's family lived there and his ethnic group formed the majority of the population in that area. The appellant had claimed that he had been targeted by the Taliban because they suspected him of being an informant. The reviewer did not accept that the Taliban had any interest in him and accordingly did not accept that he had any reason to fear them. 5 The reviewer found that country information indicated that the population of Ghanzi was culturally diverse with the largest population being Pashtuns. She accepted that the appellant's village had Pashtuns and Tajiks living in it and that there was an Hazara village nearby. She found that in the appellant's village about 50-60 members of his extended family lived and could provide him with economic and social support. The reviewer rejected his claim that he faced a real chance of serious harm amounting to persecution by the Taliban because he was a Pashtun Sunni from Koshk village. 6 The reviewer considered country information about travel to and from Ghanzi Province. She accepted that travel between there and Kabul was challenging. She found that an advice from the Department of Foreign Affairs and Trade of September 2010 indicated that there were secure routes between Kabul and Ghanzi and that, because the appellant was from a village about four to five kilometres from Ghanzi city, he had no reason to travel on any unsafe section of the highway. The reviewer continued: "Further according to an Afghan member of Parliament familiar with Ghanzi Province Pashtuns who were kidnapped by the Taliban on the roads could draw on tribal and family networks to help secure their release because Pashtun networks have direct communication channels with key figures in the Pashtun community that could influence insurgents. On the evidence before I am not satisfied that the [appellant] faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel to and from Ghanzi Province." 7 The reviewer also accepted that generalised violence and insurgent attacks continued in Afghanistan and that there had been an increase in the number of civilian casualties. But, she did not accept that the general insecurity was for a Convention reason or that there was a discriminatory aspect to the generalised violence or that its effects amounted to a well-founded fear of persecution. The appellant's arguments 8 As in SZQGU [2012] FCA 340 and SZQKC [2012] FCA 249, the appellant argued that the reviewer had accepted that there was an absence of State protection in the area in which he lived. He argued that the reviewer's finding, that Pashtuns who were kidnapped by the Taliban could draw on tribal and family networks to help secure their release, demonstrated that he had a well-founded fear of persecution because the government of Afghanistan would not offer him protection from the risk of kidnap by the Taliban. COnsideration 9 I reject that argument. The trial judge determined that the reviewer's findings were to the effect that any kidnapping which the appellant might fear would not be motivated for a Convention reason and thus the reviewer did not have to consider the adequacy or otherwise of State protection. I am unable to perceive any error in his Honour's conclusion that he should follow what Sundberg J had said in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [7], to which I referred in SZQKC [2012] FCA 249 at [21]-[22]. 10 The reviewer found that the appellant would not be targeted or kidnapped for any Convention reason. She had rejected all his claims based on his own experiences as being untruthful. The reviewer did not accept that merely because the appellant may have been subject to being kidnapped gave rise to a well-founded fear that he might suffer such a fate for a Convention reason. Moreover, the reviewer's reference to the ability of Pashtuns to draw on family networks to secure their release from the Taliban was a finding by the reviewer that any harm the appellant feared from such kidnapping was not likely to be serious. That latter finding was one of fact. It was based on her other finding that the appellant was not able to establish a well-founded fear that he might be persecuted for a Convention reason. 11 The appellant's argument failed to identify any jurisdictional error in the reviewer's finding that he would not be at risk for a Convention reason were he to return to Afghanistan. That is, the appellant failed to show that the harm he feared was persecution and that this justified his unwillingness to seek the protection of his country of nationality: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 13 [29] per Gleeson CJ, Hayne and Heydon JJ; SZQKC [2012] FCA 249 at [10]. 12 For these reasons the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 5 April 2012