DZABU v Minister for Immigration - [2012] FMCA 1194

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:

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 1194
Decision Date: 14 December 2012

CaseChat Overview and Summary

In DZABU v Minister for Immigration, the applicant challenged the decision of the Independent Migration Reviewer (IMR) to reject his claim for refugee status. The primary issue was whether the IMR had failed to provide procedural fairness by not disclosing material country information to the applicant. The applicant argued that the IMR had not drawn to his attention certain documents, including reports from Amnesty International and the United States Department of State, which were crucial to the IMR’s conclusions about the applicant’s fear of persecution based on his Hazara Shia identity. The applicant contended that these documents were not disclosed or commented upon before the IMR reached its decision, which resulted in a denial of procedural fairness.

The court examined whether the IMR had an obligation to disclose and invite comment on the undisclosed documents. The court noted that the common law rules of procedural fairness apply to IMR assessments, and that decision-makers have a duty to inform applicants of adverse, credible, relevant, and significant information. The applicant argued that the materiality of the undisclosed reports warranted their disclosure. However, the court found that the IMR’s reasoning process and the specific circumstances of the case did not necessitate disclosure of the undisclosed reports. The court held that the IMR’s conclusions did not solely rely on the undisclosed reports and that the applicant had not demonstrated a clear practical injustice resulting from the non-disclosure.

Ultimately, the court dismissed the application, finding that the IMR had not committed a procedural error by failing to disclose the Amnesty International and United States Department of State reports. The court held that the IMR’s decision-making process was fair, and the undisclosed reports did not materially impact the outcome of the application. Therefore, the applicant’s challenge to the IMR’s decision was unsuccessful.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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; andr)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.

Ratio Decidendi

Legal Principle Established

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