DZAAG v Minister for Immigration
[2011] FMCA 866
•24 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 866 |
| MIGRATION – Review of decision of IMR – where applicant submitted the IMR should have provided him with copies of the country information relied upon – where applicant submitted he had not been given an opportunity to comment on any additional matters. |
| Plaintiff M61 of 2010E v Commonwealth of Australia (2010) 85 ALJR 133 Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 SZPAC v Minister for Immigration& Anor [2011] FMCA 517 Minister for Immigration & Anor; ex parte Miah (2001) 206 CLR 57 VHAP of 2002 v Minister for Immigration & Anor [2004] FCAFC 82 Darabi v Minister for Immigration & Anor [2011] FMCA 371 |
| Applicant: | DZAAG |
First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 12 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 October 2011 |
| Date of Last Submission: | 24 October 2011 |
| Delivered at: | Darwin |
| Delivered on: | 24 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Lee |
| Solicitors for the Applicant: | Robert Welfare Barristers and Solicitors |
| Counsel for the Respondent: | Mr T Anderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 12 of 2011
| DZAAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent |
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan, a Shia Muslim of Hazara ethnicity. He arrived at Christmas Island on 5 January 2010 by boat and submitted claims in support of a request for refugee status assessment on 27 February 2010. His claims were considered by an assessor who in April 2010 determined that he was not a person to whom Australia owed protection obligations. He sought review of that decision from an independent merits reviewer and was assisted in relation to his application by a firm of solicitors and migration agents who made a detailed submission on his behalf. On 10 September 2010 an independent merits reviewer recommended to the Minister that the applicant did not meet the definition of a refugee as set out in Article 1A of the Refugees Convention 1951 as amended by the Refugees Protocol 1967 and should not be recognised as a refugee.
Following that decision the High Court of Australia determined that persons such as the applicant were entitled to judicial review of decisions of IMRs; Plaintiff M61 of 2010E v Commonwealth of Australia (2010) 85 ALJR 133; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. It was determined that this particular applicant should have a further review by an IMR of his application and the same lawyers wrote a further submission. The applicant’s claims were considered by the second respondent who, on 22 March 2011, came to the same conclusion as the first, that the applicant was not a person to whom Australia owed protection obligations.
The grounds upon which the applicant claimed that he had a well founded fear of persecution for a Convention reason can be divided into what I would describe as a generic and a specific element. The generic element was the fact that the applicant was of Hazara ethnicity and a Shia Muslim. It was argued on his behalf that such people are in considerable danger from Taliban and Taliban sympathisers throughout Afghanistan. It was also alleged that the applicant had some specific grounds for being a person who might come to the attention of the Taliban. They related to a relatively recent incident in which the applicant claimed that upon his return to Afghanistan from Greece where he had been living for some years, he fell foul of a relative who was associated with the Taliban and who had taken from his mother the property owned by his late father in Kabul. The applicant claimed that, should he return to Afghanistan, this person would organise for his persecution.
The IMR questioned the applicant upon these matters and it is not in dispute that it came to the view that the claims being made were not credible. When I say not in dispute, I am sure that the applicant does dispute the findings upon the credibility of his claims but it is accepted on his behalf that they cannot be impugned. The IMR also found that the applicant was not likely to be persecuted just because he was an Hazara and Shia [127] [CB 172]. The IMR stated:
“It is reasonable to consider that if the claimant returns to Afghanistan in the foreseeable future, he will return to Kabul. Country information shows that Kabul is a city of over four million that is growing rapidly and that the Taliban does not control. The National Geographic describes the relative progress for a growing Hazara middle class in Kabul. Indeed, an FAQ sheet on a Hazara organisation website (hazara.net) estimates Hazaras may constitute about 40 per cent of Kabul’s population…”
The IMR refers to information concerning death of Hazaras in Kabul and land disputes before saying:
“I do not accept that this land dispute shows that Hazaras are persecuted in Kabul or that it would adversely affect the claimant if he resided in Kabul in the reasonably foreseeable future. I note that at my interview he appeared to agree with country information I put to him that shows Hazara Shia are not persecuted in Afghanistan for that reason alone. Indeed, he indicated but for the incident with AA (which I reject) he would not have left.”
On 29 April 2011 the applicant sought review of the IMRs decision from this court. On 9 September 2011 an amened application was filed. Mr Lee of counsel agreed to appear on behalf of the applicant pro bono and the court is most grateful to him for his assistance. There were originally five grounds to the amended application but now there are in effect only four. These are all contained in paragraph 3 of the amended application. Mr Lee believes that paragraphs 3(b), (c) and (d) should be read together. They state:
“3(b):Procedural fairness required the IMR to identify to the applicant the independent evidence and country information he relied upon in a way which made the information available to the applicant for consideration where the information could be found on the internet or otherwise provide copies.
(c) Other than reference to general information about Kabul, one fact sheet from hazara.net and general reference to unspecified reports from the UNHCR and the Australian Department of Foreign Affairs and Trade, the IMR did not identify or otherwise make available country information he relied on.
(d) The IMR did not identify or provide to the applicant copies of the country information that he relied on before the interview of 31 January 2011.”
It would appear that when the first respondent produced what is known as the “green book” it included within it some 700 pages of independent country information which the applicant took as the information the IMR had relied upon in coming to his conclusions. The gravamen of Mr Lee’s argument was that, first, all this information should have been translated into a language the applicant could read and understand. He later submitted that at the very least the IMR should have, on the day prior to the hearing, provided the applicant with an outline of the relevant parts of the independent country information that it proposed to rely upon. In SZPAC v Minister for Immigration& Anor [2011] FMCA 517 I discussed the nature of the obligations to provide procedural fairness which I believed had arisen following the decision in M61/69. I made reference to what I considered to be the relevant authorities, such as Minister for Immigration & Anor; ex parte Miah (2001) 206 CLR 57; VHAP of 2002 v Minister for Immigration & Anor [2004] FCAFC 82 and course the views of the High Court in M61/69. I also made reference to the helpful and thorough decision of Nicholls FM in Darabi v Minister for Immigration & Anor [2011] FMCA 371.
The situation in Darabi was quite similar to that here, where it was being argued on behalf of the applicant that all the independent country information which the reviewer intended to rely upon should have been provided to the applicant. At [85] Nicholls FM said:
“In submissions Mr Markus correctly reminded the Court that the starting point for any consideration of procedural fairness for this cohort of cases is M61/M69 itself. Relevantly (at [91]):
“Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims... The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.””
At [93] his Honour said:
“The reviewer’s obligation, and indeed the claimant’s entitlement, is to have the claimant’s mind directed to the core or critical issues on which the decision will turn. This is, of course, so that the claimant will have the opportunity of dealing with it (Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591). This is especially the case where the critical issue to the decision is not apparent from its very nature or even the terms of the statute under which it is made (here the Migration Act) (Ex parte Miah at [194] per Kirby J).”
Finally his Honour noted at [95]:
“But here again, and depending on the circumstances, where the country information is used by the reviewer as a basis against which to assess a complainant’s claims, procedural fairness does not require that country information, even where it is perceived to be of relevance, be provided as long as the issues of concern are raised and the claimant has an opportunity to put his or her case (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP of 2002”) at [27] – [28] per Allsop J, Gyles and Conti JJ agreeing at [17]).”
I am not only satisfied that the decision of Nicholls FM on this point is not clearly wrong but I am also of the view that it correctly expresses the law and therefore I do not intend to depart from it. Although I found that there had been a jurisdictional error in SZPAC I did so within the context of his Honour’s reasoning.
Turning to the instant case I am satisfied that the IMR did put to this applicant the substance of the independent country information, but I would also note, because I believe it to be very important, the fact that the applicant’s representatives were also aware of this information, possibly not every piece of it but certainly the gravamen of it, and had made submissions upon it to both the assessor and the merits reviewers, this is found at [CB 81-95] and again at [CB135-140].
It says much for this country’s observation of its responsibilities under the Refugees Convention and the 1967 protocol that persons such as the applicant are provided with the type of assistance that these documents evidence. It is clearly recognised that applicants in the position of the one before me may be unfamiliar with refugee law and even unfamiliar with the situation in their home country, as many of them have come here from places other than their original homes. Certainly it shows an appreciation of the fact that there is a considerable cultural and social divide between most of the applicants and the IMRs. But the corollary of this is that the assistance given must be taken in to account and cannot be ignored. An applicant cannot put up as a ground for judicial review the fact that he was personally unaware of some generic country information that had been pleaded in aid of his case. This would be like a party to any ordinary piece of litigation not being bound by what is said on his behalf by those representing him in court.
The views I have expressed above, of course, do not excuse a case such as SZPAC, where a very vital piece of information only came in to existence after the hearing by the IMR and then was utilised by the IMR to make a finding against an applicant. There was no opportunity in that case for the advisers to make comment upon it. But that is not the case here and in my view the major ground relied upon by this applicant cannot stand. I would also point out, because I think it is important to do so, the notation made by the IMR at [127] [CB 172], the applicant had indicated that but for the incident with AA he would not have left the country. This, to my mind, indicates that the applicant did not have a well founded fear of persecution.
The second ground upon which the applicant relies is that contained at 3(e) of the amended application. It states:
“Procedural fairness required the IMR to clarify from the outset of the interview that the applicant was free to comment on issues or subjects which had not been specifically asked by the IMR.”
As noted in an earlier decision this morning concerning the admissibility of an affidavit orders were made by Lucev FM in this matter on 22 June 2011, including an order that:
“Evidence of an interview shall be presented as a transcript verified by affidavit, and the recordings shall not be received without the leave of the court obtained prior to the hearing.”
No transcript has been provided and there is no evidence that the IMR did not explain to the applicant that he could make any points and was not required just to answer questions. At [59] [CB 155] there appears the following in the statement of reasons from the IMR:
“[59]I asked if he had anything else to say, even about things I had not asked about.
[60] The claimant stated he fears for his life and he wants to establish a safe life with his family. In Greece he lived in poor conditions. He lived there as he feared for his life.”
I note that paragraph 60 leads on to paragraph 61 which is important in respect of the earlier ground and I think is worth extracting:
[61] On 1 February 2011 in Darwin I provided to the agent several pages of country information which summarised sources I had discussed at the interview. I indicated I would provide an additional period of 7 days within which they could provide any additional comments and information. I indicated the country information concerning Afghanistan was in several broad areas and concerned…
[62] No additional information was provided after the interview.”
Returning to the concerns raised in 3(e) of the amended application, at [104] [CB 167] the IMR states:
“The agent did not make any particular submissions at or after my interview concerning the claimant’s mental capacity to undertake the interview. The claimant confirmed that he was able to tell his story and give evidence during my interview. During the interview the claimant appeared to understand my interpretive questions and gave coherent answers. On several occasions I asked him what he wished to say. At the conclusion of the interview I did not have any concerns that the claimant was unable to provide evidence and tell his story for any reason.” [emphasis added]
In my view in the absence of a transcript the court is entitled to rely on the record of interview contained in the IMRs report and this record of interview clearly states that the applicant was provided with an opportunity to give any information that he wished to give. In the affidavit there is a paragraph, which I have not allowed to be read, that deals with the applicant’s conversion. The applicant says that he did not tell the IMR about this and it is suggested that this provides some evidence of the fact that he was not properly instructed by the IMR. Apart from the fact that the paragraph has not been read I do not think it would lead to such an inference. I note particularly that his own representatives, who refer to the applicant’s stay in Greece where he alleges he first became interested in Christianity, make no mention of this conversion.
Having considered the representations made on behalf of the applicant by Mr Lee, and those of Mr Anderson, I am, for the reasons given above, of the view that it cannot be shown that the IMR fell in to jurisdictional error in the manner in which he reached his decision. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $6,240.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 9 November 2011
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