DZABU v Minister for Immigration
[2012] FMCA 1194
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1194 |
| MIGRATION – Judicial review – independent merits review – whether denial of opportunity to comment on adverse information – whether denial of procedural fairness – whether failure to apply correct test, misunderstanding or misconstruction of relevant test – whether failure to consider claims – whether failure to properly consider question of state protection. |
| Migration Act 1958 (Cth), ss.5, 36(2), 476 |
| Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2005) 214 ALR 310; [2005] FCA 23 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 225 CLR 88; [2005] HCA 72 Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 DZAAZ v Minister for Immigration & Citizenship & Anor [2012] FMCA 39 Kioa & Ors v West & Anor (1985) 159 CLR 550 Minister for Immigration & Citizenship v SZONJ & Anor (2011) 194 FCR 1; [2011] FCAFC 85 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30 MZYLR v Minister for Immigration & Citizenship & Anor [2011] FMCA 633 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2005) 144 FCR 1; (2005) FCAFC 263 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Razai v Minister for Immigration & Citizenship & Anor [2011] FMCA 777 Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2000) 206 CLR 57; [2000] HCA 22 Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489; [2001] HCA 77 S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 SZPAC v Minister for Immigration & Citizenship & Anor [2011] FMCA 517 SZQEK v Minister for Immigration&Citizenship & Anor [2011] FMCA 628 SZQHC v Minister for Immigration&Citizenship & Anor [2011] FMCA 851 SZQJP v Minister for Immigration & Citizenship & Anor [2011] FMCA 759 SZQNF v Minister for Immigration & Citizenship & Anor [2011] FMCA 965 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALD 559; [2004] FCAFC 82 |
| Applicant: | DZABU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 56 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Perth (by telephone to Darwin) |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson with Ms A Hanley |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T Anderson with Ms A Nanson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 56 of 2011
| DZABU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s 476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of John Blount, in his capacity as an independent merits reviewer,[3] finding that the applicant does not meet the criterion for a protection visa set out in s36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 162-182.
[3] “IMR”.
[4] “Convention”.
Relief sought
The applicant seeks the following relief:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other orders which the Court thinks fit;
5.Costs.
Jurisdiction
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]
[5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
The grounds of the application
There are two grounds of the application which are set out below together with the parties’ submissions and the Court’s consideration in relation to each ground.
Background facts
The applicant is an offshore entry person, as that term is defined in s.5 of the Migration Act. He arrived at Christmas Island in October 2010 with his wife and submitted claims in support of a request for a Refugee Status Assessment[6] on 9 January 2011,[7] including a statutory declaration.[8]
[6] “RSA”.
[7] CB 43-88.
[8] CB 44-48.
On 4 March 2011, the RSA found that Australia did not owe the applicant protection obligations.[9] On 15 March 2011 the applicant requested an independent merits review[10] of the RSA Decision.[11] The applicant made written submissions to the IMR via his solicitors on 3 May 2011[12] and 3 July 2011.[13]
[9] CB 97-114 (“RSA Decision”).
[10] CB 97-114.
[11] CB 115-118.
[12] CB 119-123 (“3 May 2011 Submissions”).
[13] CB 140-154 (“3 July 2011 Submissions”).
The IMR interviewed the applicant on 9 July 2011.[14] On 21 July 2011 the applicant made further written submissions to the IMR via his solicitors.[15] The IMR subsequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[16]
[14] “IMR Interview”. A transcript of the IMR Interview (“IMR Transcript”) is annexed to the affidavit of Marg Le Sueur, affirmed 18 January 2012, Annexure A (“Ms Le Sueur’s Affidavit”).
[15] CB 156-159 (“21 July 2011 Submissions”).
[16] CB 182, IMR Recommendation at para.139.
The claim
The applicant is an ethnic Hazara of the Shia Muslim faith from Afghanistan. He claimed to fear persecution by the Taliban because of its involvement in a land dispute between the applicant and the Zei family. The IMR accepted that there had been a violent dispute between the applicant and the Zei family and that there was a real chance that the Zei family would seek to harm the applicant on his return to Afghanistan. The IMR was not satisfied that the Taliban had any involvement in the matter or that the feared harm arose essentially and significantly because of the applicant’s ethnicity or religion, or for any other Convention reason.[17]
[17] CB179-181, IMR Recommendation at paras.117-129.
The IMR also considered whether Hazaras and Shias are generally subject to persecution by the Taliban and found that they are not.[18]
[18] CB175-178, IMR Recommendation at paras.96-110.
Ground 1
Ground 1 is as follows:
1. The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or its decision was affected by an error of law.
PARTICULARS
a) The Second respondent did not afford procedural fairness to the Applicant in that it did not bring to his attention or allow him to comment on information from which the reviewer drew conclusions adverse to the applicant’s claim. It did not put the substance of the information relied upon to the Applicant either in the course of the review or at any other time prior to the recommendation. The material was used decisively in relation to the Applicant’s general claims relating to his fear of persecution as a Hazara Shi’a
i) The information was drawn from the following material:
· AI Annual Report 2011
· USDS International Religious Freedom Report 2010 Afghanistan 17 November 2010
· USDS 2010 Country Reports on Human Rights Practices Afghanistan 8 April 2011
Applicant’s submissions
The applicant submits as follows:
a)there is a clear legal or jurisdictional error by way of failure to afford the applicant procedural fairness in not drawing to his attention country information which was material to the IMR Recommendation. The obligations of the IMR to disclose and invite submissions on pertinent undisclosed country information are undisputed;[19]
[19] Citing SZQEK v Minister for Immigration&Citizenship & Anor [2011] FMCA 628 (“SZQEK”), but noting the qualifications in SZQHC v Minister for Immigration & Citizenship & Anor [2011] FMCA 851 (“SZQHC”) and SZQNF v Minister for Immigration & Citizenship & Anor [2011] FMCA 965 (“SZQNF”), as explained in DZAAZ v Minister for Immigration & Citizenship & Anor [2012] FMCA 39 at para.60-87 per Brown FM (“DZAAZ”). And see also taking the same approach as SZQEK, SZPAC v Minister for Immigration & Citizenship & Anor [2011] FMCA 517.
b)the IMR sets out the relevant information of which the applicant’s adviser was advised by email on 27 June 2011,[20] being:
[20] CB 168 at para.44.
i)Department of Immigration and Citizenship[21] March 2011 Country Guidance note;[22]
[21] “DIAC”.
[22] “March 2011 DIAC Country Guidance Note”.
ii)United Nations High Commissioner for Refugees[23] Eligibility guidelines 17 December 2010;[24]
[23] “UNHCR”.
[24] “2010 UNHCR Guidelines”.
iii)Two Department of Foreign Affairs and Trade[25] Reports of February and September 2010; and
[25] “DFAT”.
iv)Professor Saikal’s article;
c)the IMR did not afford procedural fairness to the applicant in that it did not bring to his attention, or allow him to comment on, information from which the IMR drew conclusions adverse to the applicant’s claim. It did not put the substance of the information relied upon to the applicant either in the course of the IMR Interview, or at any other time prior to the IMR Recommendation. The material was used decisively and relied upon by the IMR in relation to the applicant’s general claims relating to his fear of persecution as a Hazara Shia;
d)the IMR referred to two important sources of material consulted, in addition to those disclosed, which had not been listed in the RSA Decision,[26] as follows:
[26] CB 174 at para.90.
i)Amnesty International[27] Annual Report 2011;[28] and
[27] “AI”.
[28] “2011 AI Report”.
ii)United States Department of State[29] 2010 Country Reports on Human Rights Practices Afghanistan 8 April 2011;[30]
[29] “USDS”.
[30] “2010 USDS Country Report”.
Although ground 1 refers to three undisclosed sources, only the above two reports[31] are relied on as disclosing error in this case.[32]
[31] “Two Reports”.
[32] Applicant’s Contentions of Fact and Law, para.30.
e)in its “Findings and Reasons” under the heading “Hazara ethnicity and Shia religion” and dealing with the general claims of the applicant,[33] the IMR states:
[33] CB 175 at para.96.
The reviewer has carefully reviewed, considered and weighed the range of material currently available and has given particular attention to current and recent information emanating from authoritative sources including DFAT…[34]
[34] CB 176 at para.97.
f)the IMR states that:
In reaching some conclusions at variance with what the adviser submitted should be reached the reviewer had regard not only to adverse material … such as the DFAT advices…[35]
[35] CB 176 at para.99.
and
…it is reasonable to draw an appropriate inference from the fact that authoritative independent country 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…[36]
[36] CB 176 at para.101.
g)in addition to the recent 2010 UNHCR Guidelines the IMR then cites the Two Reports,[37] and finds that it is:
[37] CB 176 at para.101.
highly implausible that all three bodies approaching their task from varying perspectives and utilising a range of sources should all fail to note such persecution if it were as generally pervasive as claimed.[38]
[38] CB 176 at para.101.
h)after referring to, and quoting from, the 2010 UNHCR Guidelines[39] the IMR made a crucial finding that it was:
[39] CB 176-177 at para.103-104.
not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted in particular places either individually for other reasons or as part of the general insurgency and the Taliban’ attacks on communications and facilities.[40]
[40] CB 177 at para.105.
and found that:
the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazaras and Shias are generally persecuted in Afghanistan.[41]
[41] CB 178 at para.110.
i)in the 3 July 2011 Submissions the applicant specifically relied on the Two Reports as authoritative sources of support for the claims made by the applicant concerning the risk in Afghanistan;[42]
[42] CB 142-143.
j)the denial of procedural fairness in this case is the use of the information from the Two Reports to reach an adverse conclusion, without affording the applicant the opportunity to meaningfully comment on the significance of the nature and content of the Two Reports;
k)the IMR used the undisclosed aspects of the Two Reports to undercut the applicant’s reliance on the parts of the Two Reports cited by the applicant;[43]
[43] Citing SZQJP v Minister for Immigration & Citizenship & Anor [2011] FMCA 759 at paras.34-35 per Smith FM.
l)the applicant was not to know that the IMR would rely upon the Two Reports in an adverse sense in the way that the IMR did, contrary to the reliance placed upon them in support of the applicant’s case, and this constitutes clear practical injustice;
m)in SZQEK the Court said:
… the information that the UNHCR in December 2010 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. Its potential significance required Mr Karas to have drawn the applicant’s attention to the publication, its contents, its perceived authority, and its possible pertinence to his assessment of the issues previously addressed in the RSA determination by reference to the earlier DFAT cable and Professor Maley’s opinions. The materiality of the December 2010 UNHCR guidelines, in my opinion, to Mr Karas’ decision turned as much upon the timing and dating of the guidelines, as upon any changes to their contents.[44]
n)in SZQEK this Court also said:
…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.[45]
o)in the present case none of the information which was material to the IMR’s conclusions was ever put to the applicant for comment at any point;
p)the common law rules of procedural fairness apply to IMR assessments. The duty upon a decision maker is to put to the applicant information that is adverse to his interests and is credible, relevant and significant to the decision to be made;[46]
q)the obligation to disclose and invite comment was applied in relation to significant new country information relied upon in a refugee determination by a majority of the High Court; and
r)the materiality of the Two Reports to the IMR Recommendation was such that the failure to disclose those aspects of, or the substance of those parts of, the Two Reports relied upon constituted a denial of procedural fairness.[47]
[44] SZQEK at para.44 per Smith FM (applicant’s emphasis).
[45] SZQEK at para.31 per Smith FM.
[46] Citing Kioa & Ors v West & Anor (1985) 159 CLR 550 at 628-629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 225 CLR 88 at 95-96 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2005] HCA 72 at paras.16 and 17 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2000) 206 CLR 57 at 86 per Gaudron J; [2001] HCA 22 at paras.98-99 per Gaudron J (“Miah”).
[47] Citing Plaintiff M61 CLR at 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at para.98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Minister’s submissions
The Minister submits that:
a)the applicable law is not contentious. The outcome of this application will turn on the application of well established principle to the facts of this matter;
b)the Minister notes that although the IMR refers to having consulted the 2011 AI Report,[48] the IMR later refers to the AI Report 2010 in commenting on the matter.[49] The applicant has either not noted this discrepancy or assumes a typographical error.[50] As the AI Report 2011 was put to the IMR by the applicant’s solicitors[51] in response to the indication that he may rely on other country information,[52] and there appears to be no other mention of the AI Report 2010 in the relevant material, the Minister considers it appropriate to infer a typographical error;[53]
[48] CB 174 at para.90.
[49] CB 176 at para.101.
[50] CB 176 at para.101; Applicant’s Contentions of Fact and Law at paras.31-34.
[51] CB 140-143.
[52] CB 124.
[53] S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at paras.27-29 per Moore J.
c)the Minister makes the qualified concession that the Two Reports the subject of the applicant’s complaint were not specifically and directly drawn to the applicant’s attention by the IMR, but denies this resulted in any practical injustice, as this Court found in DZAAZ, SZQNF and on most grounds, in SZQHC. The authorities the applicant relies on, SZQEK and SZQJP (and also SZQHC on the ground the applicant was successful) are distinguishable on their facts;
d)the Two Reports were put to the IMR by the applicant[54] in response to the indication that he may rely on other country information.[55] The applicant was aware of the information, of its potential relevance to the issue of general persecution, and deployed it to the extent considered possible in support of his claims;[56]
e)the applicant was well aware that there was a body of country information to the effect that Hazaras or Shias were no longer targeted for persecution by the Taliban. The material principally relied upon by the IMR to that effect was put to the applicant in writing[57] and at the IMR Interview.[58] The applicant responded at length in the 3 July 2011 Submissions and the 21 July 2011 Submissions;
f)the applicant had notice that the 2010 USDS Country Reports may be considered relevant. The 2009 version of the 2010 USDS Country Report,[59] which is not materially different to the 2010 USDS Country Report,[60] in that neither suggests Hazara Shias are generally persecuted, was also cited in the RSA Decision.[61] The IMR notified the applicant that material, “quoted or cited in the RSA report, remains relevant and may be relied upon”;[62]
g)the 2009 USDS Country Report is extensively referenced in the 2010 UNHCR Guidelines.[63] Similarly, the 2009 USDS Country Report is discussed in the March 2011 DIAC Country Guidance Note.[64] Both documents were specifically drawn to the applicant’s attention;[65]
h)no practical injustice has arisen by virtue of the IMR’s failure to specifically direct the applicant’s attention to the Two Reports. The applicant’s agents had already made detailed written submissions referring to such information as was available to support the applicant’s claims. There was nothing more the applicant’s agents could or would have said in response to the observation that the relevant reports did not contain information supporting the applicant’s claims. In the circumstances of this case, the absence of evidence to the contrary is compelling;[66]
i)the applicant’s case is dependent on establishing that the discussion complained about by the applicant in the IMR Recommendation[67] was significant in the IMR reaching the determination[68] that the applicant “does not face persecution simply as an Hazara and a Shia”, such that the requirements of procedural fairness required that specific mention be made of it during the review process;
j)on a fair reading of the IMR Recommendation the discussion[69] complained about by the applicant was of little significance to the relevant finding. The country information considered most relevant and significant was the February 2010 DFAT Report,[70] the 2010 UNHCR Guidelines,[71] and Professor Saikal’s article in The Canberra Times.[72] The applicant’s attention was specifically directed to each of these documents;[73]
k)the IMR’s comments[74] require careful analysis to ascertain their meaning. The IMR commences with a qualification (“absence of evidence does not necessarily constitute evidence of absence”), but considers it “reasonable to draw an appropriate inference”. That inference is not expressly stated but is to be gleaned from the words of the final sentence – that the persecution of Hazaras and Shias is not “as generally pervasive as claimed” by the applicant. The inference is not that Hazaras and Shias are not generally persecuted, or even that such persecution is not generally pervasive. It is simply that it is not as generally pervasive as claimed by the applicant. Such an inference is barely adverse to the applicant and could not have been considered significant by the IMR when coming to a conclusion; and
l)read in the context of the whole of the relevant section of the IMR Recommendation, the observations[75] as to the absence of any mention of Hazara persecution by the Taliban in the Two Reports are properly construed as of marginal significance, or certainly not critical or decisive, in the way the relevant information was in SZQEK and SZQJP.
[54] CB 140-143.
[55] CB 124.
[56] Contrast SZQEK at paras.31-34 and 49-50 per Smith FM; SZQJP at 18-22 per Smith FM; SZQHC at paras.29, 43-49 and 51-67 per Smith FM; SZQNF at paras.58-60 per Smith FM and DZAAZ at paras.50-87 per Brown FM.
[57] CB 124.
[58] IMR Transcript, 24-26; SZQEK at para.11 per Smith FM.
[59] CB 433-490 (“2009 USDS Country Report”).
[60] CB 491-521.
[61] CB 103.
[62] CB 124.
[63] CB 387-432, footnotes 51, 53, 66, 77, 81, 84, 86, 100, 115, 116, 119, 122, 127, 129, 209, 215, 218, 220, and 229.
[64] “SCB”.
[65] CB 124.
[66] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 501 per Kirby J; [2001] HCA 77 at para.54 per Kirby J; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALD 559 at 563 per Gyles and Conti JJ; [2004] FCAFC 82 at paras.15-16 per Gyles and Conti JJ; Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 at paras.52-54 per Weinberg J; SZQNF at paras.56-57 and 60-64 per Smith FM.
[67] CB 176 at para.101.
[68] CB 178 at para.110.
[69] CB 176 at para.101.
[70] CB 176 at para.98; report at CB 125-128.
[71] CB 176-177 at paras.102-104; report at CB 387-432.
[72] CB 177-178 at para.108; article at CB 134-137.
[73] CB 124.
[74] CB 176 at para.101.
[75] CB 176 at para.101.
Consideration
There is no doubt that the common law rules with respect to procedural fairness apply to the hearing and determination resulting in the IMR Recommendation.[76]
[76] Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In Plaintiff M61 the High Court said, in respect of the requirement to provide procedural fairness in relation to country information, that:
… 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 Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. 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.[77]
[77] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
The obligation to disclose and invite comment in relation to significant new country information relied upon in a refugee determination was referred to in Miah as follows:
99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.[78]
[78] Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J.
What was required of the IMR was to give the applicant a reasonable opportunity to present his case and to answer any material that the IMR had which ran contrary to his case, and for the IMR to then determine the applicant’s case in the particular circumstances of the case. That required that the applicant be afforded the opportunity to deal with adverse country information which the IMR proposed to take into account. In cases such as Miah and Muin v Refugee Review Tribunal & Ors[79] the Refugee Review Tribunal failed to afford an opportunity to deal with new information on fundamental matters.[80]
[79] (2002) 190 ALR 601; [2002] HCA 30 (“Muin”).
[80] Miah CLR at 80 and 86 per Gaudron J; HCA at paras.77 and para.99 per Gaudron J; Muin ALR at 634 per Brennan J; HCA at para.137 per Brennan J.
The basic rule as set out above with respect to procedural fairness applies. There is no rule that adverse country information must be disclosed only if it is “of crucial importance”, “determinative” or “decisive” of an application.[81]
[81] Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2005) 214 ALR 310 at 319 per Kenny J; [2005] FCA 23 at para.28 per Kenny J.
In M1015 the Federal Court observed as follows:
Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.[82]
[82] M1015 at para.54 per Weinberg J.
In M1015 the application was dismissed because the Federal Court accepted that there was no practical injustice arising by the applicant not being afforded the opportunity to comment upon country information to which the Refugee Review Tribunal had referred, and accordingly there was no denial of procedural fairness.[83]
[83] M1015 at para.61 per Weinberg J.
In SZQEK the Court, having cited various passages from Plaintiff M61 and Miah, concluded that prerogative relief ought to be granted, and then went on to observe that:
… 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.[84]
[84] SZQEK at para.31 per Smith FM.
SZQEK shows that it is possible for the obligation to afford the applicant procedural fairness with respect to relevant country information to be met by that country information being referred to in the reasoning in, and the list of country information consulted set out in, the decision the subject of the independent merits review. In SZQEK it was the 2010 UNHCR Guidelines concerning Afghanistan, which contained new and up-to-date information which had not been put to the applicant, whose case had been run on the basis of the equivalent 2009 Guidelines.[85] SZQEK is but an example of a circumstance where an application for prerogative relief was granted on the grounds of denial of procedural fairness because the decision maker failed to invite an applicant to comment upon new information.
[85] SZQEK at paras.11, 22, 24, 37 and 44-48 per Smith FM.
The issue in these proceedings is whether the failure of the IMR to draw to the attention of the applicant the manner in which it proposed to use the Two Reports was a denial of procedural fairness.
The applicant relied upon a general claim that the applicant would face persecution because he was a Hazara and a Shia Muslim because Hazaras and Shia Muslims are generally persecuted by the Taliban in Afghanistan.
The RSA Decision addressed the question of whether there was a well founded fear of persecution having regard to the general risk of persecution for Hazaras.[86] The RSA Decision noted that:
a)by reference to the 2010 UNHCR Guidelines, “the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone”;[87]
b)a “wide range of sources indicate that the socio-political situation for Hazara Shi’as in Afghanistan has improved significantly since the fall of the Taliban in 2001”;[88]
c)Hazaras gained official status as a national ethnic minority in the new Afghanistan Constitution and have full citizenship rights, and had voted in large numbers in the September 2010 elections and won a disproportionately high number of parliamentary seats, which had been heralded as a significant milestone on the Hazara journey to equality;[89]
d)the USDS 2010 International Religious Freedom Report had observed that Shias were generally free to participate fully in public life;[90] and
e)the DFAT February 2010 Cable suggested that “the current period is perhaps the best in several hundred years for Hazaras in terms of personal and community freedoms, opportunities and human security.”[91]
[86] CB 108.
[87] CB 108.
[88] CB 109.
[89] CB 109.
[90] CB 109.
[91] CB 109.
The RSA Decision then went on to consider some other country material, and in particular country information in relation to the possibility of persecution in the location to which the applicant wanted to return, and found that there was a likelihood of him being persecuted by the Taliban in that location.[92] The RSA Decision went on to find, however, that it was reasonable for the applicant to relocate to Kabul where he would not have the same well founded fear of persecution.[93]
[92] CB 109-110.
[93] CB 114.
The IMR having specifically advised of information upon which it intended to rely, being the March 2011 DIAC Country Guidance Note, the 2010 UNHCR Guidelines and the DFAT February 2010 and September 2010 Reports, and Professor Saikal’s article, the applicant referred the IMR to the Two Reports in support of its contention that there was generalised persecution against Hazaras and Shia Muslims by the Taliban in Afghanistan.
It was in the 3 July 2011 Submissions that the applicant, through his lawyers, replied to the IMR’s indication that he was to rely on the abovementioned country information, in addition to the information before the RSA, and the applicant specifically cites the Two Reports in support of its submissions on behalf of the applicant. Those reports were cited under the heading “The Situation in Afghanistan in 2009 and 2010”.
An examination of the materials cited under this heading in the 3 July 2011 Submissions shows that it referred generally to violence in Afghanistan, but did not specifically deal with violence directed against Hazaras or Shias.[94] Of course, the reason for that is that the Two Reports failed to specifically identify that Hazaras and Shias in Afghanistan as groups are generally subjected to persecution by reason of their ethnicity or religion.[95] The fact that the Two Reports contained no such specific identification of persecution cannot be something which can be said to take the applicant by surprise. The Court is entitled to assume that the applicant read the Two Reports carefully before citing them in support of the application, and quoting very general material, not specific to the applicant’s circumstances, in support of the application.
[94] CB 142-143.
[95] CB 106 at para.101.
At the IMR Interview the IMR specifically put to the applicant that Hazaras and Shias are not generally systematically persecuted by the Taliban in Afghanistan, although an individual Hazara Shia might be. The matter was put in various ways, but after observing that the situation was complicated, the IMR said to the applicant:
It is not established that Hazaras as such are generally targeted and persecuted by the Taliban on a systematic basis, although of course individual Hazaras may encounter persecution because of their ethnicity.[96]
[96] IMR Transcript, page 25.
Having referred to the 2010 UNHCR Guidelines and the USDS Reports on religious freedom the IMR said:
I want to stress that even if I do eventually conclude that Hazaras and Shias are not generally systematically persecuted by the Taliban in Afghanistan, an individual Hazara Shia may still be found to be a refugee on the basis of his own individual circumstances and experiences to which his ethnicity as a Hazara may well be relevant.
…
The insecurity and violence and risk of harm in a situation like Afghanistan doesn’t by itself either establish or exclude refugee status for an individual. The test or the definition in the Refugee Convention must still be applied to the individual circumstances of a claimant and that is what I will be doing.
I just want to make it very clear again that even if I come to the view that there is not systematic persecution in targeting of Hazaras now, that still leaves open the question of your own personal situation and whether you face a real chance of persecution for a relevant reason and that is the question to which I will be giving very careful and serious consideration. Is there anything you would like to say about those matters before I go on to some other material?[97]
[97] IMR Transcript, pages 25-26.
The applicant’s response was not to dispute what was put, but rather was as follows:
[Applicant]: No, because I agree with what you said that everyone’s case is different and even the Pashtuns have their good and bad, [indistinct] have their good and bad and the Hazaras, so you just can’t generalise everything.[98]
[98] IMR Transcript, page 26.
In the 21 July 2011 Submissions the applicant, through his lawyers, provided a further submission as to why it was that in the reasonably foreseeable future Hazara Shias face a real chance of being targeted by the Taliban throughout Afghanistan for a Convention related reason. Essentially, those submissions put that the Taliban were becoming increasingly powerful, and that the particular characteristics of Hazara Shias as a group were likely to lead to them being persecuted by the Taliban as supporters of Western interests or supporters of the current Afghanistan government, or as simply being anti Taliban. The response was a direct response to the proposition put by the IMR at the IMR Interview that there was no general targeting or persecution of Hazara Shias by the Taliban.[99] The applicant was therefore:
a)aware that the issue of whether or not Hazaras and Shias in Afghanistan were generally subjected to persecution by reason of their ethnicity and religion, and in particular by the Taliban, was:
i)raised in the RSA Decision; and
ii)not noted in the Two Reports which the applicant himself put before the IMR;
b)specifically put to the applicant by the IMR at hearing;
c)the subject of an acknowledgement by the applicant at the hearing which indicated that the applicant acknowledged that it was the particular circumstances of an individual applicant, and not the generalised position, that had to be taken into account; and
d)the subject of a specific response in relation to the material put to the applicant by the IMR at the IMR Interview, that response being by the applicant’s lawyers directly in relation to whether or not Hazaras and Shias in Afghanistan are generally subjected to persecution by reason of their ethnicity and religion, by the Taliban, or are likely to be so in the reasonably foreseeable future.
[99] CB 158.
It is clear that the issue in question, namely whether or not Hazaras and Shias in Afghanistan as groups are generally subjected to persecution by reason of their ethnicity and religion, particularly by the Taliban, and whether this can found a well founded fear of persecution in the applicant, was not only an issue raised by the RSA Decision and the country information, but, particularly in the context of the IMR Interview, an issue which was put directly to the applicant and directly responded to in post-hearing submissions. In those circumstances, the failure to put to the applicant that the Two Reports did not deal with this issue, and that an inference might therefore be drawn that the persecution was as generally pervasive as was claimed, cannot be said to be a denial of procedural fairness. The inference drawn is consistent with the proposition which was squarely put to the applicant by the IMR, and squarely responded to by the applicant in the 21 July 2011 submissions. In the particular circumstances of this case, the failure to suggest to the applicant that a negative inference might be drawn from the absence of material in the Two Reports, but a negative inference consistent with a proposition squarely put, and squarely answered, cannot be a denial of procedural fairness. Even if, viewed in isolation, the failure to put that inference was a denial of procedural fairness, there was no practical injustice, for the central proposition was put and answered in the circumstances of this case. There was nothing more that could particularly have been said by the applicant in relation to the question of general persecution of Hazaras and Shias. It is significant in that regard that there was no evidence put on to suggest what further information the applicant might have provided if the negative inference had been put to him, and further, that in oral submissions the only information to which Counsel for the applicant could point which might have been put to the IMR was, like the 3 July 2011 Submissions, generalised material about the general level of violence in Afghanistan. That information did not specifically relate to persecution of Hazaras or Shias.
The various cases pointed to by the applicant in support of its submission do not assist, as they deal generally with genuinely new information which was not put an applicant. Nor does the negative inference drawn undercut the applicant’s reliance on material in the Two Reports, because it must have been within the knowledge of the applicant (or the applicant’s lawyers) that the Two Reports did not specifically deal with the issue of generalised persecution of Hazaras and Shias by the Taliban, and that in those circumstances, taking the country information referred to it by the applicant, the IMR would have been in a position to draw a negative inference, as the IMR ultimately did.
For all of the above reasons, the Court is of the view that ground 1 is not made out.
Ground 2
Ground 2 is as follows:
2. In that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration Act and/or failed to consider an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim
PARTICULARS
a) The Second Respondent failed to correctly apply the test for it to be satisfied that the Applicant is someone to whom protection obligations are owed pursuant to s36 and/or misunderstood and/or misconstrued the Convention test and/or failed to consider the Applicant’s claims once it had found that the Applicant had a real chance of persecution by the Zei family both in Balkh and Kabul for a non-Convention-related reason. It failed to give any consideration to the question of State protection in the sense of unwillingness to protect Hazara victims of crime/land disputes, or condonation or toleration of such conduct. Its failure to do so involves a misconstruction of the Convention test and/or a failure to consider a part of the Applicant’s case.
Applicant’s submissions
The applicant submits that:
a)the finding of a real chance of persecution by the Zei family both in Balkh and Kabul[100] but for a non-Convention related reason, without more, and without any consideration of State protection in the sense of unwillingness to protect Hazara victims of crime or land disputes, or condonation or toleration of the conduct, involves a misconstruction of the Convention test and a failure to consider an implicit part of the applicant’s case. It should be noted that this issue (albeit in the context of feared Taliban harm) was directly raised in the 3 July 2011 Submissions,[101] arguing that the Afghan government lacked the will to protect its citizens;
b)given the historical view of the Hazaras and available country information regarding the local administration’s on-going anti-Hazara discrimination,[102] it was incumbent on the IMR to go further than it did and consider the issue of State protection given its finding of well-founded fear for non Convention reasons because of the land dispute;[103] and
c)the IMR being a specialist administrative decision maker is taken to have a body of knowledge regarding the issue of State protection in Afghanistan.
[100] CB 181 at paras.127-128.
[101] CB 148-149.
[102] CB 146.
[103] Citing Minister for Immigration & Citizenship v SZONJ & Anor (2011) FCR 1; [2011] FCAFC 85 (“SZONJ”); MZYLR v Minister for Immigration & Citizenship & Anor [2011] FMCA 633.
Minister’s submissions
The Minister submits as follows:
a)the issue of state protection only arises for determination if there is a finding that the applicant faces a real chance of serious harm in the future, and if such a case is made. Otherwise, there is no obligation to consider state protection;[104]
b)the applicant contends that it was necessary for the IMR to consider state protection in light of his finding that “there is a real chance that members of the Zei family would seek to harm the claimant should he return to Afghanistan”,[105] notwithstanding the lack of a Convention nexus;
c)the applicant’s claim was that his fear of the Zei family was Convention related and that State protection would not be available because of the relationship between the Zei family and the Taliban.[106] As the Minister understands it, the applicant now claims that the IMR failed to consider an implied claim of inadequate state protection for a Convention reason against non-Convention related harm at the hands of the Zei family;[107]
d)the IMR rejected the applicant’s claim to have a well founded fear of future harm from the Taliban, or from the Zei family for a Convention related reason. It was therefore unnecessary for him to consider the adequacy of state protection from the Taliban;
e)it was also unnecessary for the IMR to consider any alleged inadequacy of state protection from the Zei family for a Convention related reason unless “a substantial clearly articulated argument [to that effect] relying upon established facts” clearly emerged from the material before him.[108] There is no hint of such an argument in the material, let alone a clearly articulated one, and no relevant facts in support of any such argument were established; and
f)this ground has significant parallels with Ground 2 in DZAAZ.[109] The same conclusion should be reached.
[104] Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 11-12 per Gleeson CJ, Hayne and Heydon JJ and 14 per McHugh J; [2004] HCA 18 at para.27 per Gleeson CJ, Hayne and Heydon JJ and paras.32-34 per McHugh J; Razai v Minister for Immigration & Citizenship & Anor [2011] FMCA 777 at paras.32-79 per Nicholls FM; DZAAZ at paras.88-131 per Brown FM.
[105] CB 181 at para.128.
[106] CB 147-148.
[107] Applicant’s Contentions of Fact and Law, para.51; SZONJ FCR at 10 per Emmett, Rares and Perram JJ; FCAFC at para.33 per Emmett, Rares and Perram JJ.
[108] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2005) 144 FCR 1 at 17-22; (2005) FCAFC 263 at paras.55-68 per Black CJ, French and Selway JJ.
[109] DZAAZ at paras.88-131 per Brown FM.
Consideration
In Minister for Immigration & Multicultural Affairs v Respondents S152/2003[110] the High Court discussed the issue of the absence of state protection from acts of violence from individuals, in the refugee context as follows:
When a person fears persecution for a Convention reason from the random and uncoordinated acts of private individuals, the ability of that person's country to eliminate or reduce the risk of persecution may be relevant in determining whether the person has a well-founded fear of persecution. It is likely to be relevant to that issue when the persecutor is known or readily ascertainable. But determining whether the government of the country of nationality is able to prevent harm from the random and uncoordinated acts of private individuals is not a necessary element in determining whether the person's fear of harm from random acts is well-founded. The need for such a determination is a variable factor that may be decisive in some cases but irrelevant in others. Nor is the absence of protection of the person by the State, in the context of a purported duty to protect, an element of persecution.
In determining the issue of well-founded fear, the critical question is whether the evidence established a real chance that the asylum seeker will be persecuted for a reason proscribed by the Convention, if returned to the country of nationality. If the evidence shows that the persecutors have targeted the asylum seeker, the ability of the country of nationality to protect that person will be relevant to the issue of well-founded fear. If the evidence shows no more than that private individuals randomly harm the class of persons to which the asylum seeker belongs but fails to show that that person has a real chance of suffering harm, the ability of the country to eliminate those acts is irrelevant.[111]
[110] (2004) 222 CLR 1; HCA 18 (“Respondents S152/2003”).
[111] Respondents S152/2003 CLR at 14 per McHugh J; HCA at paras.32-33 per McHugh J.
There being no Convention nexus to any of the conduct alleged to give rise to a well founded fear of persecution on the part of the applicant, and in any event no evidence of a Convention reason that motivates the Government from preventing the violence, the question of protection from persecution or harm, whether by the state or by third parties, does not arise.[112] There can therefore be no jurisdictional error, or legal or procedural error, in respect of such a matter. Ground 4 therefore fails.
[112] SZONJ FCR at 10 per Emmett, Rares and Perram JJ; FCAFC at para.33 per Emmett, Rares and Perram JJ.
In any event, the Court is also satisfied that the applicant did not clearly or squarely articulate a claim based on a well founded fear of the applicant suffering harm on the basis of alleged inadequacy of state protection from the Zei family for a Convention-related reason, that is what appears to be a claim that the IMR failed to consider an implied claim of inadequate state protection for a Convention reason against non Convention-related harm at the hands of Zei family. No argument to this effect was raised in the material, and no such argument was clearly articulated, the claim does not fit within the principles outlined in NABE (No. 2), and therefore must fail in any event.
In the above circumstances, ground 2 has not been made out.
Conclusions and orders
The Court has concluded that neither of the applicant’s grounds has been made out. The application must, therefore, be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 14 December 2012
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