DZACD v Minister for Immigration
[2012] FMCA 373
•27 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 373 |
| MIGRATION – Review of decision of IMR – whether IMR was required to bring to the attention of applicant part of a document submitted by applicant that was utilised to negate his claims as apparently supported by what appeared in the others parts of the document. |
| DZABZ v Minister for Immigration [2012] FMCA 372 SZQHH v Minister for Immigration & Anor [2012] FCAFC 45 Minister for Immigration and Citizenship v Kumar [2009] 238 CLR 448 SZQNO v Minister for Immigration & Anor [2012] FCA 326 SZQHC v Minister for Immigration & Anor [2011] FMCA 851 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152 |
| Applicant: | DZACD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 65 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 April 2012 |
| Date of Last Submission: | 27 April 2012 |
| Delivered at: | Darwin |
| Delivered on: | 27 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T Anderson |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 65 of 2011
| DZACD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This application, like that of DZABZ v Minister for Immigration [2012] FMCA 372[1] heard on 26 April 2012, calls into question for the purposes of elucidation, the principles of procedural fairness that have been touched on by courts in Australia over a lengthy period of time but most lately in the decision of the full Court; Rares, Flick and Jago JJ in SZQHH v Minister for Immigration & Anor [2012] FCAFC 45 where at [30], after reminding readers of what the High Court opined in Minister for Immigration and Citizenship v Kumar [2009] 238 CLR 448 at [91] 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 full bench noted and then said at [30] of SZQHH:
“[30]However, 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.”
[1] “DZABZ”
In the instant case, like that of DZABZ the applicant’s advisors in their submissions to the reviewer made reference to an incident that occurred on 24 June 2010 when 11 Hazaras were murdered in Khaz Uruzgan Province by the Taliban. The reference can be found at [CB 157] and it notes that the incident was reported in the New York Times on 25 June 2010. There is a difference between this reference and that in DZABZ where instead of referring to the incident and noting the article the actual article was paraphrased. In both cases the submission was responded to by the reviewer in identical form found in this case at [80] of the reviewers reasons [CB 206]:
“[80]The Reviewer has considered other relevant material like press reports of recent killings of 9 (or 11) Hazaras by the Taliban in the Khaz Uruzgan district of Uruzgan province, an area “so remote that [the provincial police chief] and the intelligence representatives said that they had not been able to verify the account” (New York Times, ‘Taliban Kill 9 Members of Minority in Ambush’ 26 June 2010 at Although one report stated that the men had been killed because they were Hazaras and Shias (Press TV, 26 June 2010, ‘Taliban behead 11 Shia Afghans’, at the more detailed and circumstantial New York Times account quote Afghan law enforcement officials saying that the mean had been suspected informants to NATO troops and special operations forces who had recently targeted a house in the area and killed several Taliban militants. The Taliban was itself quoted as saying the elders had been killed because they were trying to form a traditional local militia in defiance of Taliban warnings. From the available evidence, the Reviewer is satisfied that they were killed in relation to specific actions they undertook or were suspected of in Khaz Uruzgan, and that this has no direct relevant or parallel to the claimant’s circumstances.”
Counsel for the applicant seeks to build upon the dicta of the Full Bench and previous iterations of the same rule that to cover not just information about which the applicant has no notice but to cover information about which he may have notice but in respect of which he could not be expected to know the use to which that information would be put. He supports his submission by reference to a decision of Katzmann J in SZQNO v Minister for Immigration & Anor [2012] FCA 326. It is important to remember that that case referred to undisclosed information. Counsel relied upon what fell from her Honour at [40]:
“[40]While on its face the undisclosed material was not indeed adverse to the appellant, it does not follow that there was no obligation in the circumstances to disclose it. In Plaintiff M61 the Court said (at [91]) that procedural fairness required the reviewer to put to an applicant the substance of matters the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [30]–[31] Rares and Jagot JJ observed that procedural fairness did not require the reviewer to put to an applicant every piece of information the reviewer was considering, merely the substance of it, but acknowledged that the reviewer may have to go further in certain circumstances.”
And in particular at [41]:
“[41]Here, much, if not all, of the undisclosed material was no different in substance from the material to which the appellant referred in the generic submission of 5 April 2011. Yet, the appellant submitted, the information was used in a way that was adverse to the appellant’s case – something he could not reasonably have expected – and, for this reason, it should have been disclosed. I agree, although disclosure of the reports alone would not have been enough. The point the reviewer was implicitly, if not explicitly, making was that, although there were (credible) reports confirming that there had been attacks by the Taliban on (unsuccessful) asylum seekers, the fact that the reports did not establish that the victims had been attacked only because they had returned from a western country meant that the reports could (and should) be discounted, if not disregarded. That was a matter upon which the appellant was not heard although it was part of the reason his application was dismissed. As McHugh J observed in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 (which concerned the power of the Minister in s 56 of the Act to obtain information he thinks relevant) at [141]:
“In some cases, exercises of the power [to obtain relevant information under s 56 of the Act], although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.””
(Emphasis added.)At [42] her Honour noted:
“[42]Here, some of the material was arguably equivocal and if not equivocal, contained information that the applicant can not reasonably have expected to be used in the way the reviewer used it.”
Counsel also relied on what fell from her Honour at [46] of the decision:
“[46]In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 298; (2003) 133 FCR 541 at [91] the Full Court approved a statement of Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1069 at [34] that if an applicant is not informed of the case he has to meet, that is sufficient to establish “practical injustice” without him having to prove what he would have done had he been informed of the case. The Minister submitted that these cases were distinguishable as they dealt with cancellations of visas on character grounds where the applicant had a case to meet whereas here, the applicant was not meeting any case. While that may be true, it does not mean that the appellant had to take the next step. Here, the reviewer had regard to information, relied upon it to dismiss one of the appellant’s claims, and did not give him an opportunity to be heard before she did so. That is enough to amount to practical injustice. Had he had that opportunity he would, at least, have been able to remind the reviewer that merely because the Convention reason was not the sole reason for the chance of persecution, it might still be the essential and significant reason.”
The information which was the subject of the applicant’s complaint was the same information as was considered by Smith FM in SZQHC v Minister for Immigration & Anor [2011] FMCA 851. In that case, reference was made to the beheading of the 11 Hazaras but no reference was made to the New York Times article. His Honour said of the reviewers remarks, which essentially are identical to those utilised in this case at [81] of the reviewers reasons at [41] of his Honour’s reasons:
“[41]It is a paragraph which clearly, in my opinion, was directed at countering the submissions by the applicant’s agent which I have extracted above, in which it was suggested that a reported incident in June 2010 of the Taliban beheading of 11 Hazaras in Uruzgan, evidenced that all Hazaras in Afghanistan were still at risk of being targeted by the Taliban for reason of their ethnicity. Mr Karas was able to discount that submission, and to give no weight to the evidence it cited, by relying on what he said was “the more detailed and circumstantial New York Times account” (“the NYT report”).
As well as saying at [43]
[43]It is common ground that the existence of the NYT report of the beheading incident, and the possibility that it would be relied upon adversely in relation to this claim of the applicant, was not drawn to the attention of the applicant nor his agent. Neither party has presented evidence to me in these proceedings to show whether or not the applicant or the person who assisted him had knowledge of any other press reports of the beheading incident, including the NYT report.
It will be difficult for this Court to guess at the weight that Katzmann J put upon the fact that the report to which her attention had been drawn was not disclosed as opposed to the weight that she gave to the fact that it was utilised in a manner that the applicant might not have expected. The fact is that all the cases that have been heard to date in matters of this nature, where relief has been granted, are cases in which the documentation or evidence had not been disclosed. Where evidence has been disclosed it seems to me that some different considerations come into play. As I said in my decision in DZABZ I would not cavil with what her Honour said about the use to which information is put and I might well find in a case where information known to an applicant is used in a way quite unexpectedly adverse to him, that it is information of which he should be made aware. Although I am equally cogniscent of the fact that a tribunal’s reasoning processes are not available for review; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152.
The information in the instant case was contained in the New York Times report that the applicant concedes the representative would have been aware of and could be taken to have read in its entirety. I would find it very difficult to come to a conclusion that by using the report in the way this reviewer did he utilised it in a way that the applicant would find to have been totally unexpected. I cannot speculate why the advisor set out the information in a way he did but it would certainly have been open to him to include within his submission some ameliorating factors to the final parts of that article upon which the reviewer eventually relied. In those circumstances I am unable to see how the process could be held to have been unfair vis ̀a vis the applicant.
I have concluded that I can not support the submissions made by the applicant. I believe that in the facts of the instant case they are a step too far in the pursuit of procedural fairness. The application shall be dismissed. Subject to any submissions being received within the next seven days concerning the payment of costs by persons like the applicant who are legally aided in the Northern Territory the applicant shall pay the First Respondent’s costs assessed in the sum of $6,240.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 4 May 2012
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