DZABT v Minister for Immigration - [2012] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 489

MIGRATION – Review of decision of Independent Merits Reviewer – failure to disclose reliance on three specific items of country information – whether a denial of procedural fairness.

Migration Act 1958 (Cth), s.476

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
DZABS v Minister for Immigration & Anor [2012] FMCA 297
SZQEK v Minister for Immigration & Anor [2011] FMCA 628
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57
SZAPC v Minister for Immigration & Anor [2011] FMCA 517
Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2002) 185 ALR 489

Applicant:

DZABT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 55 of 2011

Judgment of:

Lindsay FM

Hearing date:

23 February 2012

Date of Last Submission:

23 February 2012

Delivered at:

Adelaide

Delivered on:

13 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application for Review filed on 22 September 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 55 of 2011

DZABT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.476 of the Migration Act 1958 (Cth) (“the Act”) for a declaration that the recommendations of a certain Independent Merits Reviewer of 25 August 2011 were not made in accordance with law and for an injunction restraining the first respondent from relying upon the recommendations of the reviewer and for a supplementary order remitting the matter to a different reviewer for determination according to law.
There is only one ground of review and it is that procedural fairness was not afforded by the second respondent to the applicant in that he did not allow the applicant to comment upon country information from which the reviewer drew conclusions that were adverse to the applicant’s claim.
The way in which the jurisdiction of this Court in respect of such applications is engaged, having regard to the decisions of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, was a matter I sought to explicate in DZABS v Minister for Immigration & Anor [2012] FMCA 297 (see paragraphs [25] to [64] of that judgment). I propose to adopt the same approach to the jurisdictional issue in this case and for the same reasons. In particular, I regard myself as obliged to identify a jurisdictional error associated with a future migration decision which may rely upon the impugned IMR decision in this case before I would consider myself as having the authority to allow the review (see [63] of DZABS (supra)).
The applicant is from the Ghazni province of Afghanistan and was born in 1976. He is of Hazara ethnicity and is a Shia Muslim. He left Afghanistan in 2003 and has not subsequently returned.
Before the reviewer and in his RSA interview he advanced a number of matters personal to his own circumstances in support of his claim for refugee status. They were matters that related principally to his fears relating to the son of a neighbour of his family whom he contended was a commander of the Taliban. But in addition to these matters relating to his specific and individual circumstances, he also advanced before the review officer and at earlier phases of his quest for refugee status a more general claim to be at risk of persecution for a Convention reason if he returned to Afghanistan because of his Hazara ethnicity and his religious affiliation. In other words, this claim related to the position of Hazaras generally in Afghanistan. I will describe this as his “general refugee claim”.
It was in the way in which the IMR dealt with his general refugee claim that the applicant contends jurisdictional error arose. Being a general refugee claim it is unsurprising that the contention as to error relates to the use to which the IMR put country information.
That the claims of the applicant included such a general refugee claim is expressly acknowledged by the IMR at [88] of the decision:
The claimant articulated his claims primarily in relation to his particular difficulties with the Khan family, together with their stated link with the Taliban and has stated that his are problems particular to him and not those of Hazaras and Shias generally. Nonetheless, in submissions his adviser has also relied on the underlying claim that the claimant would face persecution as an Hazara and a Shia because Hazaras and Shias are generally persecuted by the Taliban. It is therefore appropriate to first address this general claim.
Also at [101] it is noted:
The adviser’s submission of 23 June 2011 had state, without further elaboration, that “the Applicant’s case is prima facie as he remains in an ethnic and religious minority and there exists a real chance that the Applicant will be harmed”.
That last reference goes on to quote from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1992 from what is paragraph 44 of that handbook:
While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees. In such situations the need to provide assistance is often extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to so-called “group determination” of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee.
On 14 June 2011 and prior to the reviewer carrying out his interview with the applicant, the reviewer sent to the applicant’s agent a quantity of country information. [51] sets out the material that was sent. It was sent with a letter that included the following:
Mr J Blount, the Independent Merits Reviewer who will be conducting an interviewer with the claimant, has asked me to advise you that material canvassed at the RSA interview, or quoted or cited in the RSA report, remains relevant and may be relied upon.
Country information to which the reviewer had regard is identified under the heading of “Country Information” at [78] to [82] and this account of the country information ends just prior to the commencement of the reviewer’s Findings and Reasons.
The complaint focuses on [94] which I set out in full:
Although absence of evidence does not necessarily constitute evidence of absence, it is reasonable to draw an appropriate inference from the fact that authoritative independent country reports dealing with persecution in Afghanistan fail to specifically identify Hazaras and Shias in Afghanistan as groups generally subjected to persecution by reason of their ethnicity and religion, although they do note a degree of societal discrimination.
The following items of country information are then specified in parenthesis:
a)UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010;
b)Amnesty International Report 2010, The State of the World’s Human Rights (the 2011 version of this Report is specifically identified in the summary of country information relied upon at [82]);
c)U.S. Department of State, 2009 and 2010 Country Reports on Human Rights Practices: Afghanistan, 11 March 2010 and 8 April 2011 (the second of those reports is specifically identified at [82]); and
d)U.S. Department of State International Religious Freedom Report 2010: Afghanistan, 17 November 2010 (this is also specifically referred to in [82]).
[94] goes on to conclude:
It is highly implausible that all three bodies, approaching their task no doubt from varying perspectives and utilising a range of sources, should all fail to note that such persecution if it were as generally pervasive as claimed”.
It will be noted that items 13 b) to 13 d) inclusive were amongst the material disclosed by the reviewer at [82] of his decision (see [11] hereof) as having been consulted by him.
In the light of the conclusions set out at [94] of the decision the applicant claims that he was denied procedural fairness on account of the failure of the reviewer to draw those three items to his attention and to seek comment on them.
The applicant contends that reliance on these reports was a critical aspect of the reviewer’s reasoning. The IMR found at [100] as follows:
The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.
The applicant relied upon the decision of Smith FM in SZQEK v Minister for Immigration & Anor [2011] FMCA 628. That case involved a review of an IMR report as to a Hazara person and the way in which his general refugee claim was determined. In particular, the reliance by the reviewer in that case on the December 2010 UNHCR Report on Eligibility Guidelines for Assessing the International Protection Needs of Afghan-Asylum Seekers (17 December 2010) and his failure to bring to the attention of the applicant for comment that report, resulted in a declaration of legal error.
It is clear that in the context of that case Smith FM regarded the document as being a very important source of country information and said:
The document appears to have been the most recent and thorough source of authoritative opinion and review of all recent country information concerning the applicant’s general claims which was available to Mr Karas. Its opinions and advice to refugee decision-makers, in the language of the guidelines, “superseded and replaced” the July 2009 UNHCR guidelines …
Again, at [44] of his judgment Smith FM remarked of the document:
In my opinion, the information that UNHCR in December2010 had issued a very recent re-assessment of the relevant situation in Afghanistan facing Hazara Shias, ‘superseding and replacing’ its previous assessment made in July 2009, was significant and material new information.
Smith FM determined that the failure to disclose the reliance on the report and invite comment amounted to a denial of procedural fairness. He did so, as the applicant here does, in reliance upon certain passages from the decision of the High Court in Plaintiff M61 (supra) namely, [91] and [98] of that judgment; the decision of Brennan J as he then was in Kioa v West (1985) 159 CLR 550 at 628 - 629; and on the decision of the plurality of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57 per Gaudron J at [98] to [99].
It can be readily accepted that common law rules of procedural fairness apply to IMR assessments. Ordinarily a person affected by a decision to deal with any adverse information that is “credible, relevant and significant” (see Kioa (supra) at [25]) should have that information disclosed to them to enable them to deal with it.
Smith FM in SZQEK (supra) at [31] also noted the following having regard to the authorities referred to above:
As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.
I note that the Amnesty International Report 2011 is referred to as having been consulted by the reviewer at [82] but it is the 2010 report of that same body that is referred to in [94]. The Minister was content to approach the matter upon the basis that the reference was to either of the Amnesty International Reports. In other words, the Minister did not consider it necessary to assume a typographical error which assumption was implicit in the applicant’s submissions.
The Minister conceded that the three reports, the subject of the complaint, were not specifically drawn to the applicant’s attention but said this provided no basis for relief.
Firstly, the Minister contended that on a fair reading of the decision the discussion at [94] of the unanimity of opinion in the reports of the three agencies was not significant.
Certainly there are a number of other reports from other sources that assisted the reviewer in coming to the conclusion that the applicant did not face persecution simply on account of him being a Hazara and a Shia. For example, the UNHCR Eligibility Guidelines for Assessing the International Protections Needs of Asylum-Seekers from Afghanistan Report (17 December 2010) is quoted from extensively at [95].
But the inference the Tribunal draws at [94] that it was “highly implausible” that there should be unanimity in the reports mentioned therein if the persecution of the Hazaras was as generally pervasive as claimed by the applicant indicates, in my view, that the reports constituted a significant part of the material relied upon by the reviewer in coming to his ultimate conclusion.
I do accept, however, the Minister’s submission that the USDS 2010 Religious Freedom Report and earlier versions of the USDS Country Reports on Human Rights Practices - Afghanistan and the 2010 Amnesty International Report are cited extensively in the 2010 UNHCR Eligibility Guidelines provided to the applicant by the reviewer (see [51]). Similarly, the USDS 2010 Report on Religious Freedom - Afghanistan and its 2008 and 2009 predecessors are discussed in the DIAC March 2011 Country Guidance note for Afghanistan (again, the disclosure of which is noted at [51]).
I also accept that there is lacking from this decision any emphasis upon the fact that the three reports are the latest available and significant on account of simply being so (as in SZQEK (supra)).
But these matters are less important answers to the claim that the applicant was the subject of procedural unfairness than this matter: that the failure to disclose these specific reports did not actually result in any unfairness. We are concerned not with procedural irregularity but procedural unfairness. It is not a matter of finding error by comparing lists of documents relied upon with lists of documents disclosed and ascertaining that they are not co-extensive. It is a matter of discerning unfairness as being involved in the non-disclosure. If the disclosure of the documents would have had no practical consequence or benefit for the applicant, then a failure to disclose is unlikely to give rise to a finding of a failure to accord procedural fairness.
I do not understand any of the authorities relied upon by the applicant to indicate that a failure to disclose reliance on a report or article is presumptively unfair. Indeed, one of those authorities, the decision of Raphael FM in SZAPC v Minister for Immigration & Anor [2011] FMCA 517 contains an extended passage from the decision of Allsop J in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [17]. The passage is as follows:
[27] Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
[28] Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.
The RSA decision in this case had concluded that Hazaras were not the subject of generalised persecution by the Afghan authorities or by Pashtun militias or the Taliban and had come to that conclusion in large part by reliance on country information.
The reviewer had put in writing to the applicant (CB 131) on 14 June 2011 a body of material indicating that Hazaras and Shia Muslims were no longer targeted for persecution by the Taliban. The applicant’s written response of 23 June 2011 (CB 142 - 192) includes a reference to the Amnesty International 2010 Report (at CB 170).
Nothing was put to this Court on behalf of the applicant to demonstrate that the material that was not specifically disclosed by the reviewer was inconsistent in any way with the earlier versions of that material, which earlier versions the applicant was aware of.
More importantly, nothing was put to this Court on behalf of the applicant to suggest that, had specific disclosure of reliance on these three documents been given to him, he would have presented contrary or answering country information to the reviewer or even that such information exists or existed.
In Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2002) 185 ALR 489 Kirby J was dealing with an application for constitutional writs by a Burmese national who complained that the Refugee Review Tribunal had failed to accord him procedural fairness by not advising him of its intention to rely upon Department of Foreign Affairs and Trade cables from the Australian Embassy in Rangoon relating to the attitude of the Burmese authorities to persons, such as the applicant in that case, who had been arrested in the 1988 civil disturbances in that country. One of his Honour’s reasons for rejecting this submission is set out at [54]:
Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.

In this case I consider that it is appropriate to make a similar observation.
The three reports did not assist the applicant. They were consistent with earlier reports by the same organisations. No contrary or answering material which would have been relied upon by the applicant if he had been given an opportunity to provide it has been brought to the attention of the Court. In the circumstances of this case the non-disclosure was not material.
I am not satisfied that the applicant was not afforded procedural fairness.
This was the only ground of review.
The application will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 13 June 2012