DZAAZ v Minister for Immigration and Citizenship
[2012] FCA 1128
•18 October 2012
FEDERAL COURT OF AUSTRALIA
DZAAZ v Minister for Immigration and Citizenship [2012] FCA 1128
Citation: DZAAZ v Minister for Immigration and Citizenship [2012] FCA 1128 Appeal from: DZAAZ v Minister for Immigration & Anor [2012] FMCA 39 Parties: DZAAZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 14 of 2012 Judge: DOWSETT J Date of judgment: 18 October 2012 Catchwords: MIGRATION – appeal from decision of Federal Magistrate – alleged failure to accord procedural fairness – Afghanistani citizen of Hazara ethnicity – Minister’s power to allow protection visa pursuant to s 46A(2) of the Migration Act 1958 (Cth) – Independent Merits Review – claim based on fear of death for reason of ethnicity and religion Legislation: Migration Act 1958 (Cth) ss 46A(2), 91R(1), Cases cited: Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 cited
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 citedUNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan”, dated December 2010
Date of hearing: 2 May 2012 Dates of last submissions: 14 May and 1 June 2012 Place: Brisbane (via video link) (Heard in Darwin) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Appellant: Ms N Karapanagiotidis Solicitor for the Appellant: Northern Territory Legal Aid Commission Counsel for the First Respondent: Mr T Anderson Solicitor for the First Respondent: Australian Government Solicitor No appearance for the Second Respondent, at the hearing, she having indicated that she would abide any order of the Court, save as to costs
N THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 14 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZAAZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
18 OCTOBER 2012
WHERE MADE:
BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1.The appeal be dismissed; and
2.the appellant pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 14 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZAAZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
DOWSETT J
DATE:
18 OCTOBER 2012
PLACE:
BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)
REASONS FOR JUDGMENT
THE APPEAL
On 26 February 2010 the appellant arrived by boat at Christmas Island without valid travel documents. In those circumstances he may not apply for a protection visa unless the first respondent (the “Minister”) exercises a discretion conferred by s 46A(2) of the Migration Act 1958 (Cth) (the “Act”). Pursuant to an established departmental procedure, a person seeking the favourable exercise of such discretion undergoes a refugee status assessment (an “RSA”). The purpose of such an assessment is to determine whether or not Australia owes protection obligations to the person in question, that is whether he or she:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it … .
The appellant sought an RSA. The outcome was unfavourable to him. He was entitled to seek an independent merits review of that decision (an “IMR”) and did so. The IMR was performed by the second respondent (the “Reviewer”). The appellant was again unsuccessful. The outcome of an IMR is amenable to judicial review. The appellant sought such review in the Federal Magistrates Court. He was unsuccessful and now appeals from that decision. The Reviewer has indicated that she will abide any order of the Court, save as to costs.
THE APPELLANT
The appellant was born in 1976, in Ghazni, a province of Afghanistan. Ghazni is located in the central highlands, within an area often described as “Hazarajat”. Before leaving Afghanistan he lived in Zavaran, a village in the Jaghori district of Ghazni province. He is a Shi’a Muslim by religion and an Hazara by ethnicity. He claims to fear death for reason of his ethnicity and religion. He claims that both the Taliban (an insurgent force in Afghanistan) and the Pashtun ethnic majority mistreat Hazara people. His fear of such ill-treatment seems primarily to have arisen out of a dispute with a Mr Zarif. Mr Zarif is Pashtun and, as the appellant believes, a member of the Taliban. The appellant operated a grocery store in the Angori markets. Mr Zarif, a customer, was indebted to him. When the appellant sought to recover the money, Mr Zarif became aggressive and abusive. Subsequently, he left the area. The appellant encountered him again in Ghazni city and requested payment. There was an argument between the two men but, with the assistance of a local policeman, the appellant recovered his debt. Subsequently Mr Zarif threatened to kill him. The appellant said that whilst returning to his village from Ghazni, Mr Zarif and another Taliban member shot at his car. Subsequently he received a letter, purportedly from the Taliban, asking to meet him at a designated time and place. He interpreted this letter, described as a “night letter”, as a threat of harm or forcible enlistment in the Taliban. Night letters are regularly used by the Taliban to threaten Afghan people who work with international forces or the government.
The appellant claims that he feared for his life, and that it was unsafe for him to travel in the Ghazni region. Accordingly, he travelled to Kabul, and then to Indonesia via Malaysia. Thereafter, he travelled to Australia by sea, throwing overboard his passport and other documents. He claims that the Hazara community is under constant threat from the Taliban, Pashtun and other insurgents. There are constant and daily killings of Hazara people. The government authorities are unable to protect him. The Ghazni government is inept and unable to control the Taliban, or prevent their constant activities against Hazara. I note that the appellant does not claim to fear persecution at the hands of any government agency.
COUNTRY INFORMATION
In February 2010 the Department of Foreign Affairs and Trade (“DFAT”) issued a document dealing with the situation of the Hazara in Afghanistan. It reported that they constitute about 10% of the population, living mainly in the central highlands, as well as in Kabul. They are an easily recognizable ethnic group. They are generally Shi’a Muslim rather than Sunni Muslim, the latter being the dominant group in Afghanistan. There is a long history of hostility between the Pashtun (who tend to control central government) and the Hazara. Higher education and foreign and army services are closed to the Hazara. The Taliban is also anti-Shi’a. In the past it has sought to keep the Hazara within Hazarajat and has committed atrocities against them. The report also contained material derived from various sources as follows:
·A report by the United Nations High Commissioner for Refugees (“UNHCR”) dated 2009 contained guidelines for dealing with applications by Afghan people for refugee status. In particular, the UNHCR advised against the blanket acceptance of claims by ethnic groups. It said that there was no evidence of any current campaign by the insurgents (ie the Taliban) to target the Hazara. The UNHCR considered that Pashtun communities were suffering more from the insurgency than were other groups. The UNHCR also reported a well-organized Hazara people-smuggling operation, possibly reflecting economic motivation rather than fear of persecution. The UNHCR was “… not convinced that the majority of Hazara protection seekers abroad were genuine …”. However the situation was “fluid”. Although the Hazara were currently not in fear of persecution, that position might change.
·A report by the United Nations Assistance Mission in Afghanistan recorded violence in Hazara communities involving a Pashtun nomadic minority. Such violence was generally related to disputes over land and access to natural resources.
·In a report dated 2008, the American State Department identified increased involvement of Shi’a in government, a decrease in hostilities against them on the part of Sunni Muslims, but continuing social discrimination against Shi’a Hazara. The Hazara were sometimes asked for bribes at border crossings, whilst the Pashtun were not.
·A report by the Afghanistan Independent Human Rights Commission reported that Hazara people were more vulnerable to attacks when outside of Hazarajat. They feared travelling outside of their local communities. In those areas there was “pressure” from government and insurgents.
·Hazara advocates perceived that there was government discrimination against Hazara areas in the allocation of funds for local infrastructure and services. Hazara people also had difficulty in obtaining government employment.
In summary, DFAT said (in February 2010):
The Bonn Agreement and subsequent Afghan Constitution of 2004 protect the rights of the Hazaras, by enshrining “equality among all ethnic groups and tribes”. While unofficial discrimination still persists, there is no doubt that Hazaras are today very active in Afghan civil society, are well represented in government institutions, vote in proportionally high numbers in political elections (with women more represented than men), making strong progress in education and live mostly in areas where the insurgency is not active. They have been described, using an Iraq analogy, as the “Kurds of Afghanistan” in that they are making the most of the new dispensation but with a view to past grim history, remain anxious about the future.
(Afghanistan: Situation of the Hazara Minority, DFAT, 21 February 2010)
In April 2009 an Afghan “think tank”, Co-operation for Peace and Unity (“CPU”) gave a generally encouraging picture of primary and other industry in Jaghori. It is a centre of Islamic culture and practice, with numerous mosques and schools. However the Taliban was seeking to foster hostilities between Hazara and Pashtun. A report from the Finnish Immigration Service dated December 2008 (the “Finnish report”) focused on the Jaghori district. It said that whilst Jaghori, itself, was “somewhat secure”, access was difficult because of hostile action by insurgents, including the Taliban and other criminal groups. The safer routes in and out of Jaghori were significantly longer. However schools and health care “can function” without threats.
In a further report dated July 2010, DFAT reported that an Afghan member of parliament had said that:
… in Jaghori, there were two main problems. First, insecurity on the routes to and from Jaghori. This applied to the routes via Qarabagh and Ghilan into Jaghori. The MP indicated a third alternative route existed which was safer than the two main routes but which took several more hours. The MP said that within Jaghori itself the situation was safe but surrounding districts were insecure …
The MNP said that there were three main sources of insecurity on the routes in and out of Jaghori: the Taliban; petty thieves; and organised criminals. The latter two categories affected Pashtuns and Hazaras equally. Hazaras faced particular difficulties, however, as compared to Pashtuns, if kidnapped by the Taliban on the road. Pashtuns who were kidnapped could draw on tribal and family networks to help secure their release. Such recourse to Pashtun networks was generally not an option for Hazaras which made securing their release difficult. Hazaras found it difficult to negotiate in such circumstances because they did not have direct communication channels with key figures in the Pashtun community that could influence the insurgents.
At para 78 of her reasons, the Reviewer referred to advice dated 28 September 2010 from the Embassy in Kabul, said to be based on meetings with several NGOs, international organisations and members of the diplomatic community (the “Embassy report”). That report stated:
Security has deteriorated in some Hazara areas in central Afghanistan over the past several years. In Ghazni, insurgents control most Pashtun districts. Travel is dangerous for all ethnic groups and Pashtuns and Hazaras are both limited in their ability to move through districts dominated by the other. Movement between Kabul and Ghazni has become increasingly challenging, and alternative travel routes, including through Bamiyan, involve several days of travelling. Access to Jaghori has also become more difficult. There are three routes connecting Jaghori to Ghazni city. The most frequently used road passes through Nawur district, and is considered secure. Another route through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. The third route through Qarabagh district is very insecure. There are secure (although rough) routes from Bamyian to Jaghuri, and Behsoud to Nawur.
Security challenges in Ghazni are not specific to the Hazara community. Hazara districts – including Jaghatu, Jaghuri, Malistan and Nawur – are relatively stable compared to Pashtun districts. Threats facing the Hazara community vary across different provinces and districts, and according to protection arrangements brokered with local commanders. There is a lack of effective protection from the state in Ghazni, but Hazara strongmen control most of the Hazara districts. Interlocutors described the possibility of wholesale violence against the Hazara community in Ghazni as unlikely, given commanders’ strength and the flexibility of their relationships with other factional and insurgency networks – including the Taliban.
… The Hazara community in Ghazni enjoys better educational and health facilities than neighbouring provinces, particularly in Jaghori district. Due to their better security environment, Hazara districts in Ghazni have greater access to these services than Pashtun-dominated districts. Limited employment opportunities, security challenges and a perception of discrimination are encouraging migration from Afghanistan. The Hazara community remains frustrated with the slow progress of development in their regions. … (DFAT, AFG10736: The Hazara, 28 September, 2010).
At para 85 of her reasons, the Reviewer also cited the following passage from “(t)he most recent UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan”, dated December 2010: (“UNHCR December”):
There is a systematic and sustained campaign by armed anti-Government groups to target civilians associated with, or perceived as supporting, the Afghan Government or the international community, particularly in areas where such groups are active.
Attacks by armed anti-Government groups, which have ranged from intimidation, assassinations, abductions and stand-off attacks, to the use of improvised explosive devises (IEDs) and suicide attacks, increasingly target civilians associated with or perceived as supportive of the Government and the international community/ISAF. Targeted civilians include Government officials and civil servants, Government-aligned tribal leaders, Ulema Council (a national clerics’ body) members, religious scholars, judges, doctors, teachers, and workers on reconstruction/development projects.
There was other country information, but it was generally to the same effect as that set out above. The appellant complains that the Reviewer did not give him an opportunity to comment on, or respond to the Embassy report and UNHCR December.
THE IMR DECISION
The Reviewer accepted that:
·there was a history of discrimination and violence against the Hazara because of race and religion;
·there was a history of mistrust between the Hazara and the Pashtun;
·whilst the Taliban was in power it had targeted the Hazara for reason of race and religion;
·the appellant may, in the past, have been locked up and otherwise mistreated; and,
·many Hazara see the Pashtun as being as much a threat to them as is the Taliban.
The Reviewer was not satisfied that the Taliban was currently targeting Hazara Shi’a, on a systematic and discriminatory basis, solely for reason of race and/or religion. She accepted that some Hazara may have been targeted for other reasons, or harmed in the course of the general insurgency. The Reviewer also accepted that:
·whilst the Hazara may face social discrimination, such discrimination was not so severe as to amount to persecution;
·the material indicated significant diminution in discrimination since 2001;
·the security situation in Afghanistan was highly unstable, involving indiscriminate attacks by insurgents against civilian targets, as well as against government representatives and international forces; and
·Ghazni province was one of the most volatile areas in Afghanistan.
The Reviewer considered that the security situation affected all Afghans, Hazara and Pashtun alike. Selection of targets was not based on ethnicity but rather alliance with international forces or government. The Reviewer also pointed out that particular incidents identified by the appellant had not occurred in the Jaghori district of Ghazni province. The population of that district is entirely Hazara, and a strong Hazara warlord is in control. Jaghori is generally regarded as safe for Hazara. The Reviewer pointed out that the appellant had not disputed those facts. He had rather referred to the difficulties involved in travelling between Jaghori and Ghazni city. The Reviewer did not accept that Hazara or Shi’a faced a real chance of harm amounting to persecution by non-state actors (including in that term both Pashtun and the Taliban) for reason of ethnicity or religion. She accepted that where Hazara people came to the attention of the Taliban for other reasons, such as association with government, political opinion, association with international forces or opposition to the Taliban, they faced rather more severe consequences than other groups because of their Hazara ethnicity and Shi’a religion. However the evidence did not suggest that the appellant fell into any of these categories. The Reviewer concluded that the appellant did not face a real chance of persecution, now or in the reasonably foreseeable future, for reason of any imputed political opinion.
As to the appellant’s claims concerning Mr Zarif, the Reviewer considered that inconsistencies in his evidence could not be satisfactorily explained. The Reviewer also noted that some of his evidence was inconsistent with independent country information and was implausible, unsupported or based solely on supposition. The Reviewer gave detailed reasons for these conclusions. Although she accepted that the alleged events involving Mr Zarif had occurred, she was not satisfied that any of the conduct against the appellant was for a Convention reason. The Reviewer concluded that the appellant had embellished his claims in order to improve his chances of obtaining a protection visa. In particular, the Reviewer rejected claims that the appellant feared serious harm for a Convention reason.
BEFORE THE FEDERAL MAGISTRATE
The Federal Magistrate identified the following grounds for review as advanced by the appellant:
The [Reviewer] failed to invite the [appellant] to comment on country information, particularly [UNHCR December] and [DFAT September] which were potentially adverse to him and so failed to accord the [appellant] procedural fairness;
The [Reviewer] committed legal error in failing to consider whether or not state protection was available for the [appellant] from the Afghani authorities, given what he had stated in his statutory declaration;
The [Reviewer] erroneously found that the [appellant’s] claims regarding receipt of the Night letter were unsupported by evidence.
At [80] the Federal Magistrate concluded that all relevant material was put to the appellant for comment. His Honour then went on to observe at [82] that the appellant’s solicitors acted for “many Hazara off-shore entry persons in their various applications for refugee status”. His Honour inferred that “it seems implausible to conclude that they would not be aware of changing country information regarding the evolving situation in Afghanistan, particularly that the UNHCR had updated their eligibility criteria so far as potential refugees from Afghanistan were concerned”.
At [83] and [84] the Federal Magistrate observed that:
83… (T)he applicant, through his representatives, had an ample opportunity to raise any salient matters arising from [UNHCR December] and it is inconceivable that they did not know of them, given their wide ranging experience and understanding of the area of law concerned.
84As indicated earlier, in my view the Hazara Report, being earlier in time and deferential to material emanating from the UNHCR was less central to the reviewer’s determination. Its views were also rebutted by the submissions from the applicant’s advisers made in September 2010. In such circumstances, it seems to me that there was no ‘practical injustice” inflicted upon the applicant in the failure to seek his specific comments in respect of the DFAT report. … Nothing would have been achieved by submitting the specific report to the applicant given that it was, in any event, superseded by the later UNCHCR Eligibility Guidelines.
Upon this basis his Honour inferred that neither the Embassy report nor UNHCR December “could be considered novel documents, arising from a fluid security situation in Afghanistan, given the dates of their respective production in relation to the IMR interview process”.
GROUNDS OF APPEAL
On appeal to this Court, the appellant relies only upon the alleged failure to accord him procedural fairness. It is therefore not necessary to consider the other grounds which were considered by the Federal Magistrate.
THE APPELLANT’S INTERVIEW
The Reviewer interviewed the appellant in Darwin on 14 March 2011. He was accompanied by an “adviser” from a legal firm. In the course of that interview, the Reviewer put to the appellant various items of independent country information. In her reasons she summarized the exchange as follows:
69.(I said that) (w)hile there was general agreement among various sources, including the UN, DFAT and the UK Home Office that the [sic] there had been a deterioration in the security situation and increasing violence in Afghanistan, this was regarded as “generalised violence”, which affected all Afghans and not just Hazaras. The claimant responded that he came from an area where the Taliban surrounded them on all four sides and that if someone killed him, no one would know. He said while journalists went to the cities, they did not come to isolated areas and did not know what was really happening there.
70.I noted that according to independent sources, there was no evidence that the Taliban were specifically targeting the Hazaras, as they had done when the Taliban regime was in power between 1996 and 2001. Today, while Hazaras still fell victim to violence, were sometimes killed and might be treated more harshly than non-Hazaras in some instances, the main targets of the Taliban insurgency were not specific ethnic groups, but people seen to be in alliance with international forces or the government. This included Pashtuns as well as Hazaras.
71.The claimant said he was finding the country information difficult to understand. The claimant’s adviser commented that the claimant was not very sophisticated or familiar with country information and noted that they had made submissions about the volatility of the Ghazni area. I said the submissions had been noted but that I was giving the claimant an opportunity to comment on country information which might be adverse to his claims.
72.I noted that in relation to the problems on the roads between Jaghori and Ghazni, independent sources indicated that these affected all travellers, not just Hazaras. Moreover, there were alternate roads which though sometimes longer, were considered to be safer routes, for example the road through Nawur; or the route through Bamian. While the situation in Ghazni province was volatile and the Taliban was in control of certain areas, independent sources indicated that the Hazara were in control in Jaghori because of strong Hazara warlords.
73.The claimant respondent that, outside Jaghori, the road to Ghazni was controlled by the Taliban and he needed to go to Ghazni to get supplies. I observed that the problems on that road affected all travellers, not just Hazaras; and that there were alternative routs which, while longer, were considered to be safer; and that he had himself spoken of alternative routes.
74.After a short break, the claimant’s adviser submitted a number of articles regarding the situation in Afghanistan and Ghazni province which she said supported his claims that the situation in Ghazni was volatile and Hazaras faced significant discrimination and persecution. These included several reports from Hazara media networks about the alleged beheading of eleven Hazaras in Taliban controlled Uruzgan province and of a headmaster in Qarabagh district of Ghazni province in June 2010; the death of the Deputy governor of Ghazni and his relatives in a suicide bombing in September 2010; a 25 June 2010 New York Times report of the Uruzgan incident: “Taliban Kill 9 Members of Minority in Ambush”; as well as Professor Maley’s June 2010 report (cited in their previous submission); and an Austrian Red Cross Report of September 2010 citing the various academic and other sources referred to in their previous submissions.
75.The adviser also submitted that some of the inconsistencies in the claimant’s evidence might be explained by the fact that, when he first arrived in Australia, he did not feel he could expand on his story and was asked to be concise.
THE IMPUGNED MATERIAL
The Reviewer referred to UNHCR December and the Embassy report at paras 92-95 of her reasons as follows:
92.Whilst I accept that Hazaras may face “social discrimination” as suggested in the US State Department report, I am not satisfied that this is so severe as to amount to persecution and note that according to other materials cited, including DFAT reports of February and [the Embassy report], the discrimination Hazaras face has significantly diminished since 2001.
93.There is ample evidence that the security situation in Afghanistan remains highly unstable, with continued indiscriminate attacks by insurgents against civilian targets, Government representatives and international forces; and that Ghazni province is one of the most volatile in the country. However, as indicated by various interlocutors identified in [the Embassy report], and as I put to the claimant at interview, this situation is one of generalized violence which affects all Afghans, Hazara and Pashtuns alike. Moreover, as indicated in [UNHCR December], the main targets of the insurgency are not people of a particular ethnicity but those seen to be in alliance with international forces or the government.
94.It is notable that the Hazara victims of the attacks in the reports provided by the claimant in support of his claim, fell into these categories – a school teacher, a deputy governor and his family; and, according to the New York Times report provided of the ambush in Uruzgan, Hazara elders reportedly returning from a meeting with district officials and foreigners. It quoted Afghan law enforcement officials saying that the men were regarded by the Taliban as suspected informants to NATO troopers and Special Operations forces, who had recently targeted a house in the area and killed several Taliban militants. The Taliban claimed they were trying to form a local militia.
95.Moreover, none of the incidents took place in the Jaghori district of Ghazni province where the claimant lives. With its 100 percent Hazara population and strong Hazara warlord control, Jaghori itself is generally regarded as safe for Hazara, which the claimant himself did not dispute, referred instead to the difficulties of travel between Jaghori and Ghazni city, which I will address later.
In para 97, there is a reference to the UNHCR guidelines concerning the recognition of Hazara Shi’a as refugees. This appears to be a reference to the 2009 guidelines which were cited earlier in the Reviewer’s reasons, although the relevant statement may also have appeared in UNHCR December.
The discrete points emerging from the Embassy report are that:
(i)in recent years, security has declined in some Hazara areas;
(ii)in Ghazni, insurgents control most Pashtun areas;
(iii)travel is dangerous for all ethnic groups, although there are some safer, but less convenient routes;
(iv)security challenges are not specific to the Hazara community;
(v)Jaghori is more stable than are Pashtun districts;
(vi)threats to the Hazara vary across provinces and districts;
(vii)there is a lack of government protection in Ghazni, but Hazara “strongmen” are in control;
(viii)wholesale violence against the Hazara community in Ghazni is unlikely;
(ix)the Hazara community in Ghazni enjoys better educational and health facilities than do neighbouring provinces; the Jaghori district being a particular example of this;
(x)limited employment opportunities, security challenges and a perception of discrimination are encouraging emigration.
The passage from UNHCR December to which the Reviewer referred identifies a systematic and sustained campaign by anti-government groups to target civilians associated with, or perceived to be associated with government or the international community. Targeted civilians include government officials, civil servants, government-aligned tribal leaders, members of a national body of clerics, religious scholars, judges, doctors, teachers and workers on reconstruction/development projects.
The appellant submits that the Reviewer ought to have disclosed the “substance and source” of the information in both documents.
THE REVIEWER’S OBLIGATION
In Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57, the Minister’s delegate had rejected an application for a protection visa upon the basis that, whatever the applicant’s fears may have been, they were, in effect, defused by the election of a fresh government in Bangladesh. That matter had not been put to the applicant. At [140] McHugh J said:
A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise … . This does not mean that all material which comes before the decision-maker must be disclosed but, “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
It is worth noting that the requirement is that there be:
·an opportunity to deal with,
·relevant matters adverse to the person’s interest,
·which the decision-maker proposes to take into account in exercising the relevant power.
The appellant asserts that in this case, it was necessary that he have the opportunity to deal with both the substance of the information in question and its source or sources, they being authoritative and more or less current. In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45, the Full Court considered a similar submission. Rares and Jagot JJ said at [26]-[31]:
26The Courts have declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case. This is because what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations … .
27An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision … . If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source … .
28The identity of the source of potentially adverse information that is credible, relevant and significant to the decision to be made may itself be relevant. For instance, the source’s credibility may bear on the reliability of the information. If the identity of the source is potentially relevant, the decision-maker may have to consider whether it can or should be given to the person affected. … .
29Country information in many documents can be repetitive or, as with the DFAT report, can summarise information from a variety of sources. Here, the information in the CSM article was country information. The reviewer had to put to the applicant, for his consideration and comment, the aspects of that information that the reviewer considered may bear upon the applicant’s claims … .
30However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
31But the substance of such information is, generally, distinct from the particular mode or source of its expression, which could be in a book, a news or journal article, or in an audio or audio visual form, such as a radio or television program, or in a number of those. In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her. The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance. For example, a decision-maker might put to a person information that had been taken out of context. Depending on the circumstances, such conduct might fall short of what procedural fairness would require unless the decision-maker also identified the context or the way in which the context affected the information being put.
I agree with, and adopt this approach.
THE EXTENT OF THE APPELLANT’S CLAIM
I should say something about another aspect of the case. Clearly, the appellant’s claim is that he fears persecution in the form of serious physical harm at the hands of either the Taliban or the Pashtun majority, such violence being offered for reason of his ethnicity and/or religious affiliation. However the Reviewer also referred to the question of “social discrimination”, finding that such discrimination against Hazara as there was did not amount to persecution for a Convention reason. This question was apparently raised in the course of the RSA process. At para 15 in the Reviewer’s decision, the following passage appears:
The RSA officer invited the claimant’s comment on country information that, while the Hazaras still faced some discrimination, this was not so serious as to amount to persecution; and that the Hazarajat area in Afghanistan was more secure. The claimant responded that the area where he was living was surrounded by Taliban; that there was no protection or security, especially for himself; that Taliban had headquarters in Rasna, where even government forces with weapons could not go.
The precise nature of the discrimination, to which the RSA officer referred, is unclear. The appellant seems to have assumed that it was a reference to race or religion-motivated violence. The Federal Magistrate referred to social discrimination at [36], but the term “social discrimination” is not explained. His Honour then observed that as the Hazara community in the Jaghori district had a “better security environment”, it had more “opportunities” than had Hazara in Pashtun dominated areas. It seems that he was dealing with the availability of public services, concluding that the Hazara in the Jaghori district had better access to such services than Hazara in other areas. The Federal Magistrate again mentioned discrimination at [56], comparing the report of diminished discrimination against Hazara with the appellant’s claim that the security situation was deteriorating.
I am concerned to identify the extent of the applicant’s claim to fear persecution for a Convention reason and to address any other basis for such a claim which may appear from the evidence. Clearly, the appellant claims to fear violence motivated by racial or religious discrimination, but the evidence as to “social discrimination” may suggest an alternative form of persecution. However the appellant seems never to have claimed to fear persecution in that form. The RSA officer gave him an opportunity to do so, but he responded by referring to his fear of violence. In the appellant’s outline of submissions on appeal (at para 31) he submits that:
The information [from DFAT September] was relied upon by the Reviewer in its general assessment of the situation of Hazara Shi’as in Afghanistan … , and specifically referred to in support of a finding that the social discrimination that Hazaras might face in Afghanistan was not so severe as to amount to persecution ... .
Again, there is no attempt to define what is meant by the term “social discrimination”. I take it to have the meaning which I have previously attributed to it. There is some suggestion of such discrimination in the evidence. The question is as to its relevance in this case. I do not find any suggestion that the appellant has ever claimed to fear persecution of that kind. Rather, the matter seems to have arisen as part of the country information and been incorporated into the Reviewer’s reasons. It may have been part of the context in which the appellant’s claim was made, but I do not understand it to have been advanced as a separate fear of persecution for a Convention reason. The appellant’s case is, and has always been fear of physical violence from the Taliban and/or Pashtun majority. Whilst the Reviewer was no doubt obliged to consider any possible fear of persecution raised by the evidence, the ultimate questions were as to the appellant’s subjective fear and whether it was well-founded. His only fear seems to have been of physical violence. Further, the evidence demonstrates no basis for inferring that social discrimination against Hazara in Afghanistan satisfies the requirements of s 91R(1). The Reviewer found to the contrary at para 92. I proceed on the basis that the only relevant fear is of violence at the hands of the Taliban or Pashtun majority.
WAS THE APPELLANT AFFORDED PROCEDURAL FAIRNESS?
The question is whether the Reviewer should have put to the appellant for comment, the material derived from the Embassy report and UNHCR December which was included in the Reviewer’s reasons. The answer to that question will depend upon the use made by the Reviewer of that material, the other material which she considered and the material which was, in fact, put to the appellant. As to the use of the material, I proceed upon the basis that such use is as demonstrated by the Reviewer’s reasons. As to other material, at para 76 of her reasons the Reviewer said that she had considered country information detailed in the RSA and information provided by the appellant’s advisers. The appellant raises no objection to the Reviewer having relied upon that material, the objection being only to her use of the Embassy report and UNHCR December. The material put to the appellant is summarized in paras 68-75 of the Reviewer’s decision and set out above. If material contained in the Embassy report or UNHCR December also appeared in any of the other country information referred to by the Reviewer in her reasons, or was put to the appellant by her then, subject to one qualification, the appellant cannot complain that such material was not put to him for comment or response.
I have, above, identified the various points (i) to (x) which emerge from the Embassy report. Below, I identify where each point either appears in the other country information or was put to the appellant by the Reviewer. Paragraph references are to the relevant paragraphs in the Reviewer’s reasons.
Item (i) Para 69.
Item (ii) Paras 69, 72 and 73.
Item (iii) Paras 72, 73, 80, 81 and 82.
Item (iv) Para 69.
Item (v) Paras 79 and 80.
Item (vi)Para 77, under sub-heading “Afghanistan Independent Human Rights Commission (AIHRC)”.
Item (vii)Para 72, and other paras dealing with insecurity, particularly for travellers.
Item (viii) Paras 72 and 79.
Item (ix) and (x) probably not relevant, but see para 77, under the headings “UNHCR” and “Views of Hazara advocates”.
In some cases, the identified paragraphs may not squarely deal with the point made in the Embassy report but, when read in the context of all of the country information (excluding the Embassy report and UNHCR December), the effect is clear.
The only relevant point arising out of UNHCR December is that civilians are being targeted by anti-government groups because of actual or perceived support for the government or the international community, including particular groups such as government officials, civil servants, government-aligned tribal leaders, members of a national clerical body, religious scholars, judges, doctors, teachers and workers on reconstruction and development sites. At para 70 the Reviewer recorded that this matter was put to the appellant. His response appears at para 74.
In my view all information referred to by the Reviewer and derived from the Embassy report and UNHCR December was put to the appellant in the interview or, alternatively, was in country information documents about which no complaint is made. In those circumstances, the only possible ground for criticism of the Reviewer’s conduct is her failure to identify expressly the sources of the information as being the Embassy report and UNHCR December. The appellant submits that those sources were, in some way, more persuasive than the other available country information, or were so treated by the Reviewer. However, in para 91 of her reasons, the Reviewer said that she had given great weight to the DFAT report of February 2010, a report which she identified as bringing together the views of UNHCR and UNAMA. In para 92 the Reviewer dealt with social discrimination, referring to the DFAT report of February 2010 and the Embassy report. The reference to the year 2001 seems to reflect the fact that the Taliban government fell in that year, rather than anything in the country information documents. See para 70 of the reasons. As I have said, the reference to the UNHCR Guidelines in para 97 seems to be a reference to the passage quoted in the DFAT report of February 2010, which was taken from the UNHCR guidelines of 2009, although the passage may also have appeared in UNHCR December.
None of this suggests that either the Embassy report or the UNHCR December was accorded particular weight by the Reviewer. It is true that at para 97, she referred to “available current and authoritative material” and, at para 85, she referred to UNHCR December as “most recent”. However, given that the relevant material did not depart significantly from that contained in earlier material, no question of relative weight arises. The appellant seems to suggest that any vice may lie in the re-inforcing effect of the more recent material, but that argument holds little appeal. The DFAT report of February 2010 was more detailed than the later Embassy report. There was also a further DFAT report in July 2010 and UK Home Office country information dated November 2010, to all of which no objection is taken. It seems that there was an ongoing flow of information between February and December 2010. There is no reason to believe that any one document was given special significance or weight.
With all respect this appeal point is little more than opportunistic exploitation of what is, at most, a minor irregularity.
ONE OTHER MATTER
I should deal with one other issue. The Federal Magistrate disposed of the matter upon the basis that all relevant material had been put to the appellant. I agree. However he then seems to have considered whether or not the appellant’s solicitors knew, or should have known of the Embassy report and UNHCR December at the time of the appellant’s interview and responded to them. As far as I can see that matter was irrelevant to the question for determination. It may be that the Federal Magistrate considered that it went to the question of whether information contained in those documents was “novel”. That question is not infrequently addressed when a party seeks to lead further evidence on appeal. However I do not see its relevance to the question of procedural fairness. It may be that his Honour was suggesting that the appellant’s solicitors were, in some way, responsible for the documents not being expressly addressed prior to the publication of his reasons, such responsibility being based upon an inference that the solicitors had elected not to refer to the documents or had been negligent in not being aware of them.
Questions of procedural fairness are to be addressed by reference to well established principles, primarily that each party must know the basis upon which the case is to be decided so that he or she can respond to it and make appropriate submissions. Generally, the decision-maker may only have reference to material of which parties have notice and to which they have had an opportunity to respond. The relevant notice is not awareness that the material exists, but rather awareness that the decision-maker may rely upon it. A basis for such notice must be found in the way in which the proceedings were conducted. In my view, the Federal Magistrate erred by venturing into speculation about the state of the solicitors’ knowledge. Had his decision depended upon that aspect of his reasoning, the appeal would have succeeded. However it was also correctly based upon the view that all relevant information had been put to the appellant, a view in which I concur.
ORDERS
The appeal must be dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 18 October 2012
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