Minister for Immigration and Citizenship v SZQHI
[2012] FCAFC 160
•14 November 2012
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160
Citation: Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160 Appeal from: SZQHI v Minister for Immigration & Anor [2012] FMCA 72 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZQHI and STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 331 of 2012 Judges: MARSHALL, NICHOLAS & YATES JJ Date of judgment: 14 November 2012 Catchwords: MIGRATION – Independent Merits Review of claims for refugee status – use of template paragraphs in reasons for decision by Independent Merits Reviewer (IMR) – where template paragraphs used by IMR in a series of decisions involving claims for refugee status by Hazara/Shia claimants from Afghanistan – similarities in structure and content of reasons for rejecting generic and particular claims by such claimants – similarities between generic and particular claims of such claimants – whether Federal Magistrate erred in finding use of template paragraphs by IMR gave rise to reasonable apprehension of bias – no reasonable apprehension of bias established – appeal allowed Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) s 36(2), s 91R
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, Art. 1A(2)
UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267Cases cited: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, [2012] FCAFC 45
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507Queen v The Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546
SZQHH v Minister for Immigration and Citizenship [2012] HCATrans 220
Transurban City Link Ltd v Allan (1999) 95 FCR 553
WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209Date of hearing: 23 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 64 Counsel for the Appellant: Mr G Johnson SC Solicitor for the Appellant: Australian Government Solicitor Counsel for the First Respondent: Mr J Gormly Solicitor for the First Respondent: Carroll & O'Dea Lawyers Solicitor for the Second Respondent: The second respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 331 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: SZQHI
First RespondentSTEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGES:
MARSHALL, NICHOLAS & YATES JJ
DATE OF ORDER:
14 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The declaration and order 2 made by the Federal Magistrates Court on 9 February 2012 be set aside.
3.The amended application filed on 7 October 2011 in the Federal Magistrates Court be dismissed.
4.The first respondent pay the appellant’s costs of the appeal and of the proceeding below.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 331 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: SZQHI
First RespondentSTEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGES:
MARSHALL, NICHOLAS & YATES JJ
DATE:
14 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MARSHALL J
INTRODUCTION
The appellant Minister appeals from a judgment of the Federal Magistrates Court (“FMC”) delivered on 9 February 2012. The Court below granted the first respondent’s application for judicial review of a recommendation by the second respondent (“the Reviewer”) that he not be granted a protection visa. The Federal Magistrate made a declaration that the Reviewer’s recommendation was not made in accordance with the law. The judgment below turned on the Federal Magistrate’s view of one paragraph in the Reviewer’s reasons. His Honour found that the use of language by the Reviewer in the particular paragraph was very similar to language used by him in other matters “even though the facts are different”. The issue for determination in this appeal is whether the Court below erred in holding that the use of a template paragraph in the reasons of the Reviewer raised a reasonable apprehension of bias.
BACKGROUND
The first respondent is a citizen of Afghanistan. He entered Australia by boat on 11 January 2010. He claimed to fear persecution by reason of his Hazara ethnicity, his Shia Muslim religion, his membership of several social groups and his actual or imputed political opinion. On 16 April 2010, the first respondent received a negative refugee status assessment. He requested an independent merits review of the decision. The review recommended that the first respondent not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). The Reviewer did not accept that there was a real chance that the first respondent would suffer persecution for a Convention reason if returned to Afghanistan.
THE COURT BELOW
The sole ground of review before the FMC was that the Reviewer did not afford procedural fairness to the first respondent because of a reasonable apprehension of bias on the part of the Reviewer. The perceived bias was said to arise from the use of template paragraphs in a manner which would cause a fair-minded, informed observer to reasonably apprehend that the Reviewer might not have brought an impartial mind to bear on the decision.
The Federal Magistrate upheld the first respondent’s claim of apprehended bias. In doing so, his Honour fastened on a particular paragraph in the Reviewer’s reasons. At [23] of the judgment below, his Honour said:
That paragraph has been shown in the analysis to be very similar to paragraphs in other decisions where only the different factual circumstances have been inserted. In other words the decision upon those facts is in all cases identical even though the facts are different. That to my mind does raise the apprehension that the Reviewer has not brought an impartial mind to the process…and raises the apprehension that he wishes to fit this applicant into the template he has previously prepared.
At [24], the Federal Magistrate acknowledged that, in earlier paragraphs, the Reviewer made “some important and unique findings in relation to the credibility of the applicant”. His Honour was troubled by the way in which those findings and the conclusions were structured or expressed. Despite this, his Honour said that generic claims may be dealt with by reviewers in a standard form way, without demonstrating apprehended bias; see [21] of the judgment below.
THE FULL COURT DECISION IN SZQHH
In the absence of leave to adduce additional evidence on appeal, the first respondent concedes that the judgment of the Full Court in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 stands in the way of him resisting the Minister’s appeal. The judgment in SZQHH concerned a recommendation of the same Reviewer whose decision was the subject of the judgment below. A majority of the Court (Rares and Jagot JJ) rejected the submission that the use of the template revealed a reasonable apprehension of bias. Their Honours held that the Reviewer was prepared to consider the individual circumstances of the matter before him despite the use of a template; see esp [50]-[52] in SZQHH.
On 7 September 2012, the High Court refused an application by the unsuccessful refugee claimant for special leave to appeal from the judgment of the Full Court; see SZQHH v Minister for Immigration and Citizenship [2012] HCATrans 220.
APPLICATION TO ADMIT FURTHER EVIDENCE
The first respondent sought to tender evidence consisting of the submissions which had been put to the Reviewer in nine other matters he dealt with. He attempted to do so to fill the void referred to at [7] and [22] in SZQHH in the joint judgment of Rares and Jagot JJ. It was contended that the evidence, if admitted, would show that the advisors’ submissions were not identical in all cases. Notably, it was not contended that the receipt of that evidence would contradict the view taken at [7] in SZQHH that “substantially the same material was relied on for the other nine generic claims considered by the reviewer”.
The Court declined to receive the further evidence on the basis that it was material which was available to be tendered before the Court below and no reasonable explanation was offered for the failure of the first respondent to do so. In addition, the Court considered that the receipt of such material into evidence would not have affected the result below, as it did not show that substantially different submissions were made in the nine relevant cases. Indeed, the Federal Magistrate considered that, generally, there is no legal error in a reviewer using generic or common language to deal with generic or common claims. Although s 27 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to admit further evidence on appeal, it was not a discretion which was appropriate to be invoked for the reasons explained above.
APPLICATION TO AMEND THE “CROSS-APPEAL”
The first respondent also sought to amend his “cross-appeal” to assert that the Reviewer had failed to give proper, genuine and realistic consideration to the claims before him. Counsel for the first respondent was unable to identify the circumstances under which this proposed argument would succeed if his apprehended bias argument did not due to SZQHH. The Court rejected the application to amend the “cross-appeal”. The cross-appeal was not a cross-appeal strictly speaking but a notice of points intended to be raised by the first respondent to support the result below.
CHALLENGE TO SZQHH
It has not been demonstrated that the judgment of the Full Court in SZQHH is clearly wrong; see Transurban City Link Ltd v Allan (1999) 95 FCR 553 at [26] to [31] and the cases referred to therein. Its status has been enhanced by the refusal of the High Court to grant special leave to appeal.
ORDERS
It is appropriate to allow the appeal, set aside the declaration and costs order made by the Court below and order that the first respondent pay the appellant’s costs of the appeal and of the proceeding below. The amended application filed on 7 October 2011 in the FMC should be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall Associate:
Dated: 14 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 331 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION & CITIZENSHIP
Appellant
AND: SZQHI
First RespondentSTEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGES:
MARSHALL, NICHOLAS AND YATES JJ
DATE:
14 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
NICHOLAS J
INTRODUCTION
The appellant (Minister) has appealed against the judgment of a Federal Magistrate (Raphael FM) given on 9 February 2012. The proceeding before his Honour involved a challenge by the first respondent to the decision of the second respondent (Reviewer) by way of Independent Merits Review (IMR) of a refugee review assessment adverse to the first respondent.
The primary judge made a declaration that the Reviewer’s recommendation dated 28 March 2011 that the first respondent 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 (Convention) was not made in accordance with the law.
The declaration made by the primary judge does not specify the way in which the decision was said not to have been made in accordance with the law. However, it is clear from the primary judge’s reasons that his Honour found that the decision was vitiated by a denial of natural justice in that it was given in circumstances that would give rise to a reasonable apprehension that the Reviewer was biased because it would appear as though the Reviewer wished to fit the first respondent’s case into a template that the Reviewer had previously prepared. The question that arises in the appeal is whether the primary judge erred in making that finding.
PROCEDURAL RULINGS DURING THE HEARING OF THE APPEAL
The first respondent filed what purported to be a notice of cross-appeal seeking to have us uphold the primary judge’s decision on grounds which include a point not raised below and a related application for leave to adduce further evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal the first respondent was refused leave to rely upon the point not raised below and was also refused leave to adduce the additional evidence. I was satisfied at the time that it was appropriate to refuse the first respondent such leave for the reasons stated in Marshall J’s reasons for judgment.
THE REVIEWER’S STATEMENT OF REASONS
The statement of reasons commences with a finding by the Reviewer that the first respondent does not meet the criteria for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) (the Act) and a recommendation that he not be recognised as a person to whom Australia owes protection obligations under the Convention. This is then followed by a brief discussion of the nature of the independent review, the definition of “refugee” in Art. 1A(2) of the Convention and various related provisions of the Act. The Reviewer noted, among other things, that the common law rules of natural justice apply to an independent merits review.
In a section headed “Claims and Evidence” the Reviewer sets out a list of materials that were before him. He then provides a summary of the first respondent’s evidence. According to this summary, the first respondent, who is originally from Afghanistan and of Hazara ethnicity and Shia Muslim faith, entered Australia by boat and was taken to Christmas Island on 11 January 2010.
The first respondent gave evidence to the Reviewer of two particular incidents involving the Taliban. The first occurred some time after the first respondent returned to Afghanistan from England in 2008. He was travelling in a taxi with four or five other Hazaras from Jaghori to Kabul. The Taliban stopped and searched the taxi and manhandled some of the passengers. However, the Taliban quickly left and the first respondent and other passengers resumed their journey to Kabul unharmed. The second incident occurred about three years before the first respondent’s arrival in Australia. He and five other Hazaras were travelling by car to Kabul when the Taliban fired at them from a distance. Neither the driver nor the passengers were hurt and they continued their journey.
According to the Reviewer’s summary of the evidence, the first respondent told the Reviewer that for a Shia/Hazara, Afghanistan was not a safe place. He also told the Reviewer about a protest demonstration that took place outside a detention centre in Darwin in which he became involved. He said that a friend in Afghanistan had told him that he had been seen on television in Afghanistan. The first respondent told the Reviewer that he is now “famous” in Afghanistan and that he will be recognised and caught by the Taliban if he is returned there.
The Reviewer’s account of the first respondent’s evidence is followed by a summary of various submissions made on his behalf by his legal adviser. This is followed by a lengthy account of relevant country information. Much of this information is of a historical, demographic and political nature, and a large portion of it relates to the security situation in Afghanistan and the activities of the Taliban in Ghazni, a province overwhelmingly populated by Hazaras.
The Reviewer’s account of the country information also includes a lengthy discussion of the risks of violence, harassment and discrimination against refugees returning to Afghanistan. This includes information identifying particular groups who may be targeted by the Taliban. It also includes information as to the security situation in districts within the Ghazni province including Jaghori. The security situation along roads leading to Jaghori and other districts is the subject of particular attention.
In the same section of the statement of reasons there is also some discussion concerning internal displacement within Afghanistan, lack of access to basic services and border crossings prompted by socio-economic concerns. This is followed by a short discussion concerning the targeting by the Taliban of Shias including Shias of Hazara ethnicity.
The next section of the statement of reasons is headed “Findings and Reasons”. Early on in this section there is a discussion by the Reviewer of the risks posed to Hazaras, especially Hazaras of the Shia religion, by the Taliban. There are then various findings made. In this section of the statement of reasons the Reviewer explains why he was or was not satisfied as to various matters relevant to the review. These matters relate to the prospect that Hazara Shias would be specifically targeted by the Taliban or otherwise the subject of “social discrimination” amounting to persecution. At para [60] of the statement of reasons the Reviewer indicates that he “does not accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large and is not satisfied that Hazaras face a real chance of harm amounting to persecution by non-state actors.”
The findings made by the Reviewer in relation to the situation facing Hazaras or, in particular, Hazaras of the Shia religion contained in para [60] of the statement of reasons deal with what I shall refer to as the first respondent’s generic claims based upon his Hazara ethnicity and Shia religion. The Reviewer then considers the first respondent’s individual circumstances and experiences. Paragraphs [63] to [78] of the Reviewer’s reasons discuss the first respondent’s particular circumstances.
At para [63] the Reviewer states that the first respondent was never harmed or threatened by the Taliban in the two incidents previously described in the statement of reasons. The Reviewer then considers various other matters including publicity surrounding the first respondent’s return to Kabul from England in 2008 and various encounters he had with the Taliban after his return to Kabul in 2008.
At this point it is desirable that I set out some paragraphs in the statement of reasons which are central to the first respondent’s complaint about the Reviewer’s statement of reasons. In setting out these paragraphs, I have italicized and placed in bold those parts of the reasons which the first respondent contends have been drawn from a previous statement of reasons provided by the Reviewer in response to another person’s request for independent merits review. In paras [70], [74], [76], [77] and [78] the Reviewer states:
[70]The Reviewer notes that the claimant referred to his fears of the Taliban because of his being Hazara/Shia and given his imputed political opinion as a supporter of the Americans and foreign forces and as a non supporter or sympathizer of the Taliban. As well he could be regarded as a spy for returning from a Western country and his life is in danger if returned to Afghanistan. He stated that the Taliban have sent a letter to his mother and family threatening to kill him although the letter produced refers to his recent return from Britain and was not mentioned by the claimant until well into the RSA process. Indeed, the Reviewer does not accept that the Taliban are interested in the claimant as alleged and his statements that he is a marked man by the Taliban as evidenced in the alleged letter from the Taliban and the letter from the village elders dated in January 2011 are self serving fabrications in the circumstances. The Reviewer is not satisfied that the claimant was a witness of truth and I am satisfied that he has fabricated and embellished his position and situation as he has gone along in this process and he is not averse to telling untruths to better his position for asylum. It is clear from the material before the Reviewer that the claimant was not forthcoming about the alleged incidents involving him and the Taliban during the process and later references to alleged incidents, happenings and occurrences involving him the media in Kabul and the Taliban and his excuse that he forgot to mention a number of significant and important details is not accepted in the circumstances. Although he had ample opportunity and was invited and asked by the interviewees if he had anymore to say or add during the process as recorded, he continually said no and had never consistently raised the incidents concerning his situation and fears although given many opportunities to do so.
…
[74]In this instance there were significant inconsistencies and the emergence of substantial new information during the RSA process and at the hearing of this matter in Curtin in a manner which caused the Reviewer concern. It was not just a question of vagueness or inconsistencies in recounting peripheral details. Having heard the claimant’s evidence at the hearing and his explanations the Reviewer was not satisfied that these difficulties are reasonably explicable or without significance for the substance of his account. The Reviewer did not find the claimant to be a satisfactory witness in this regard.
…
[76]The way in which major new information regarding the claimant’s situation and alleged happenings and incidents with the Taliban and others even though he was vague and confused as to the happenings and times emerged was somewhat disturbing. Such major and distinct information and details by the claimant seems hard to overlook for such a time during the RSA process. After the entry interview, the claimant had further opportunities during the RSA process and with his legal advisers to raise these, alleged crucial matters - none of which mentioned the significant information regarding his alleged Taliban and media incidents in Kabul not to mention the cow sacrifice by his mother and the alleged results from that event. The reasons advanced by the claimant for these omissions and inconsistencies were unsatisfactory.
[77]The Reviewer is satisfied from the detailed contemporaneous note by the initial interviewer that the claimant was asked directly at the entry interview what his reasons were for leaving Afghanistan and being unable to return there and if he had any other events or reasons involving the Taliban or others that would cause him to leave and not want to return to Afghanistan. The Reviewer is satisfied that the claimant has been deliberately untruthful in this regard.
[78]Although the Reviewer felt the claimant had embellished and fabricated parts of his story, nevertheless, the Reviewer is prepared to accept that the claimant left Afghanistan in 2009 and his family remains in Afghanistan unaccosted or harassed by the Taliban who allegedly have his details and who the claimant believes are after him to kill him as evidenced in part from the copy letter allegedly by the Taliban produced at the Curtin hearing. However, the Reviewer has to assess whether he has a well founded fear of persecution for a Convention reason now and into the reasonably foreseeable future.
These paragraphs are followed by a general discussion of case law relevant to a decision-maker’s evaluation of evidence especially where issues of credibility may arise. They also explore concepts relevant to the scope of Art. 1A(2) and the significance of s 91R of the Act. The critical paragraph is in para [87]. The Reviewer states:
[87]The Reviewer notes that the claimant stated he had been involved in 2 incidents with the Taliban since being deported back to Afghanistan from the UK for being Hazara/Shia. The claimant expresses a fear of the Taliban who want to kill him for being Hazara/Shia, for being suspected of supporting the Americans and denying him the right and capacity to earn a livelihood. The claimant also relies on general reported happenings and incidents in Afghanistan by the Taliban as indicating, in part, that he believes that he as a Shia and Hazara who allegedly is being sought by the Taliban who have his details as reflected in the alleged letter given to his mother by the Taliban and that he would be a target for the Taliban and as such he would suffer severe harm and persecution from the Taliban if he were to return to Afghanistan The adviser also referred to a number of RRT decisions in support of the claimant’s claims for asylum, however, the Reviewer finds that those cases were decided on their own facts and circumstances. The Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant whose family remains in Afghanistan without incident with the Taliban would suffer persecution now or in the foreseeable future for a Convention reason. Indeed, I do not accept that the Taliban are personally interested in him as alleged and claimed and for the reasons put forward by the claimant. As well, the harm claimed does not appear to differ in some degree from the generalized type of violence that is reported from time to time in Afghanistan.
The Reviewer’s ultimate conclusion appears in para [95] and is in the following terms:
[95]Overall, based on the information available to the Reviewer, including the available evidence about his experiences, I am not satisfied in the circumstances of this case that the claimant has a well founded fear of persecution for reason of his Hazara race or ethnicity, his Shia religion, or on account of his actual/imputed political opinion of being opposed to Taliban rule and supportive of the government in Afghanistan or as a perceived supporter of the coalition forces, and/or as a returnee or failed asylum seeker from a Western country and imputed conversion to Christianity/anti-Islamic ways at the hands of the Taliban who are Pashtuns and Sunni Muslims, should he return to Afghanistan now or in the reasonably foreseeable future.
THE PRIMARY JUDGE’S REASONS
The sole argument advanced on behalf of the first respondent at trial was that the Reviewer’s use of a “formula or template” gave rise to a reasonable apprehension of bias. The particulars given in support of this argument were as follows:
·The formula or template was applied inflexibly by the Reviewer in relation to his review of the first respondent’s claims and the claims of several other IMR applicants;
·The Reviewer used the same formula or template as a precedent for recommendations in relation to other IMR applications prior to receiving the advisor’s submissions.
The primary judge’s reasons include a comparison of the structure and language used by the Reviewer in the statement of reasons provided in relation to the first respondent and the statements of reasons provided in relation to other claimants. The latter included a statement of reasons dated 11 January 2011 upon which the first respondent’s submissions concentrated.
In his reasons, the primary judge refers to a number of authorities that were concerned with a decision-maker’s use of “template” reasons. One of the decisions quoted by his Honour was that of French J in WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209. In that case a complaint was made by the appellant which was very similar to that made by the first respondent in this matter, except that rather than being framed as a case of apprehended bias, the appellant’s case was put on the basis that there had been a failure to give proper consideration to relevant information. French J said at para [38]:
[38]The coincidence in the text, so far as it related to independent country information, does not support the inference that the Tribunal took its text from the particular earlier Tribunal decisions which were referred to by counsel. It may be that in similar cases, eg, cases involving persons of Arab ethnicity coming from Iran, there will be a good deal of commonality in the independent country information referred to by various tribunals and that similar citations will be made. It may be the case that Tribunal members are using similar surveys of relevant country information in similar cases and adopting a “cut and paste” technique to incorporate those in their judgments. This does not, in my opinion, demonstrate, as a matter of fact, that a tribunal so doing fails to consider the country information for itself. In the case under appeal I do not consider that, even if a cut and paste technique were adopted, as seems likely, that this is indicative of a failure by the Tribunal to carry out its statutory function. No doubt it could be said that at [96] of its reasons the Tribunal goes beyond the mere recitation of independent country information to a conclusionary statement which is word for word the same as a conclusionary statement made in another Tribunal decision involving a person of Arab ethnicity from Iran. While I think it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so does not indicate that the Tribunal member has not applied his or her mind to the facts or that the Tribunal member does not in fact hold the view expressed in the reasons given.
His Honour concluded at para [52]:
[52]It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind. While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error. It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review. I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable. However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate that the Tribunal was giving consideration to the appellant’s case.
In the present case the primary judge rejected the suggestion that similarities or even uniformity in the language used to explain why the Reviewer did not accept the “generic” claims made by the first respondent was sufficient to give rise to a reasonable apprehension of bias. However, the primary judge observed that he did “not feel similarly sanguine about the way in which the observer would view the treatment of the particular claims”. After quoting from para [87] of the Reviewer’s statement of reasons (set out above) the primary judge said at paras [23]-[24]:
[23]That paragraph has been shown in the analysis to be very similar to paragraphs in other decisions where only the different factual circumstances have been inserted. In other words the decision upon those facts is in all cases identical even though the facts are different. That to my mind does raise the apprehension that the Reviewer has not brought an impartial mind to the process to the process [sic] (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27], NADH of 2001 v Minister for Immigration [2004] FCAFC 328; (2005) 214 ALR 264) and raises the apprehension that he wishes to fit this applicant into the template he has previously prepared. That this may not be case [sic] is not to the point. As the Full Bench said in Chu:
“One of the circumstances for the court to take into account is that the decision making process is not held in public – a factor that may increase the likelihood of apprehension.” [At 338C]
[24]I acknowledge that at [74 – 77] … the Reviewer makes some important and unique findings in relation to the credibility of the applicant. But in the way in which the reasons are structured those findings do not appear to be tied into the substantive finding at [87]. In [87] he makes reference to the two incidents which it is reasonably clear from [74 – 77] he does not believe occurred but he does not say so and this raises the impression, even in the mind of an informed observer, that the Reviewer was more intent on fitting the case into the pre-existing template than ensuring comprehensible reasoning. That would indicate a predisposition to a particular outcome and exhibit the symptoms of jurisdictional error.
There was a total of nine other statements of reasons apart from those which relate to the first respondent’s case which were in evidence before the primary judge. All are reproduced in the appeal book and may be identified by reference to the tab number under which they appear. All were prepared by the same Reviewer. Six are dated 28 or 29 March 2011 (3a, 3b, 3c, 3d, 3e and 3f) and the three others (4a, 4b and 4c) are dated 11 January 2011. The particular statement of reasons upon which the first respondent’s arguments in this Court concentrated was 4c. The italicised parts of paragraphs [70], [74], [76], [77], [78], [87] and [95] from the statement of reasons relating to the first respondent also appear in the statement of reasons 4c. There are paragraphs in all nine statements of reasons that more or less resemble those paragraphs including para [87]. The relevant paragraphs that more or less resemble para [87] are as follows: 3a – para [77], 3b – para [78], 3c – para [68], 3d – para [64], 3e – para [72], 3f – para [82], 4a – para [81], 4b – para [70] and 4c – para [82].
THE GROUNDS OF APPEAL
The Minister’s grounds of appeal challenge the primary judge’s conclusion that the Reviewer’s decision was affected by apprehended bias. They also take issue with the primary judge’s statement that the Reviewer’s decision on the first respondent’s particular claims was “made in one paragraph”. The grounds of appeal also contend that:
Contrary to his Honour’s findings at [24], a mere preference for a pro forma structure or language to deal with common or very similar matters will not of itself show a reasonable apprehension of bias – at least where, as here, a reasonable and informed observer would note that the reviewer is prepared to vary his findings and reasons where considered appropriate to deal with differences between individual cases.
CONSIDERATION
In Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, Rares and Jagot JJ said (at para [37]):
[37]An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435 ([28]-[29]) per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at 268-269 ([14]-[21]) per Allsop J, with whom Moore and Tamberlin JJ agreed.
In that case the majority (Rares and Jagot JJ) held (contrary to the finding of the trial judge) that a reviewer’s use of a template to express his reasons for rejecting the generic claims of a claimant for refugee status (who was also a Hazara/Shia from Afghanistan) did not give rise to an apprehension of bias. Their Honours said (at paras [46]-[47]):
[46]The trial judge was in error in finding that the reviewer’s use of a template to express his reasons for rejecting the generic claims of the applicant and the other nine claimants would give rise to an apprehension of bias. As his Honour found, once the reviewer had excluded the possibility that Hazara Shias could have a well founded fear of persecution for reasons of their ethnicity and or religion, “it is very difficult for an individual applicant to establish such a fear based upon systematic [sic] persecution”. That may be so but it is a consequence of the fact that the reviewer had found, based on country information and after considering the generic submissions for the applicant and the other claimants, that Hazara Shias did not face a situation in Afghanistan that gave rise to a well founded fear of persecution for reasons of their ethnicity or race. And a fair-minded observer would be aware that the reviewer had arrived at his conclusion based on country information. The fair minded observer would also be aware that the country information had satisfied the reviewer that a generic claim had been made that did not depend on the individual’s circumstances beyond the fact that he was an Hazara Shia. The only matter for consideration in that context was the generic claim that Hazara Shias were being, or could have a well founded fear that they would be, persecuted for reasons of their ethnicity or race.
[47]The fair minded observer would be mindful that the applicant had had his generic claims assessed in the course of the reviewer’s consideration of his and the nine other claimants’ generic submissions. The fair-minded observer would expect that the reviewer would evaluate each of the generic claims and country information for all those persons, including the applicant, and decide those generic claims generically; that is to say, consistently and fairly. The fair-minded observer would not think that the reviewer would fail to continue to bring a fair and unprejudiced mind to deciding each particular application, merely because he dealt with the later generic claims as he had already done in the absence of fresh material bearing on the generic claims being brought to the reviewer’s notice between his earlier and later decisions on the other claimants’ generic claims.
At the hearing of the appeal the first respondent challenged the correctness of SZQHH. Rather than seek to demonstrate that SZQHH was clearly wrong, the first respondent pointed to what was at the time a pending application for special leave to appeal. The High Court has since refused special leave to appeal: SZQHH v Minister for Immigration and Citizenship [2012] HCATrans 220.
I respectfully agree with the majority judgment in SZQHH. There is no reason why that decision should not be followed in this case. It provides the answer to the first respondent’s claim (rejected by the primary judge) that the Reviewer’s use of a template to express his reasons in relation to the first respondent’s generic claims would give rise to apprehended bias.
The hypothetical person whose state of mind must be considered when testing for apprehended bias is that of a fair-minded lay person who is properly informed as to the nature of the relevant proceeding, the matters in issue and the conduct which is said to give rise to an apprehension of bias. I shall refer to this hypothetical person as the “informed person”.
It is not necessary to show that the informed person would think that an administrative decision-maker would not bring a fair and impartial mind to the decision making process; it is enough in a case involving an allegation of apprehended bias that the informed person think that the decision-maker might not do so. However, “a vague sense of unease or disquiet” or a “mere lack of nicety” is insufficient: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 549 per Kirby J; Queen v The Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546 at 553-4. The circumstances must raise in the mind of the informed person an apprehension that the decision-maker might not bring a fair and impartial mind to the decision making process.
The primary judge’s conclusion that there was in this case a reasonable apprehension that the Reviewer might not have brought a fair and impartial mind to the decision making process was founded upon two particular features of para [87] of the Reviewer’s statement of reasons. The first of these was its similarity to paragraphs in the Reviewer’s statements of reasons in other cases. This similarity was itself said to give rise to a reasonable apprehension of bias. The second related to the clarity of para [87]. As to this, the primary judge drew attention to the reference in para [87] to the same two incidents involving the Taliban previously referred to by the Reviewer at paras [14], [63] and [74]-[76] which the primary judge considered the Reviewer did not believe occurred (even though, as his Honour accepted, the Reviewer did not say so) and which his Honour considered might be perceived by an informed person to be the product of the Reviewer’s desire to fit the first respondent’s case into a particular template, being a template that reflected a predisposition toward a particular result.
The introductory words to para [87] consist of a brief reiteration of the first respondent’s particular claims. This follows the quite lengthy discussion of “persecution” and “well founded fear of persecution” in the context of relevant case law and s 91R of the Act. In reiterating the first respondent’s particular claims at this point and in this way, the Reviewer no doubt followed a template. The question is whether this would raise in the informed person’s mind an apprehension that the Reviewer might not have brought a fair and impartial mind to the decision making process.
In answering this question it is important to put the similarities in structure and expression in context. The ten matters considered by the Reviewer had many elements in common. First, all ten matters involved applicants that are Hazara Shias from Afghanistan, and therefore involved similar generic claims arising from their common ethnic and religious background. Secondly, there were some significantly similar particular claims arising out of these ten matters. For example, in eight of the ten matters, each applicant made particular claims relating to encounters with the Taliban while travelling between Jaghori and Ghazni (3a, 3b, 3e, 4a), between Ghazni and Kabul (3c), or between Jaghori and Kabul (this matter and 3f, 4c). In four of the ten matters, each applicant claimed that he was involved in a protest demonstration in Darwin in September 2010 which may have been reported in the media (this matter) or at least accessible to the public via the internet (3b, 3c, 3d) in Afghanistan which meant that the particular applicant would be recognisable if returned there.
In particular, the references in para [87] of the statement of reasons in this case and para [82] of statement of reasons in 4c to the claimant being a Hazara/Shia and expressing fear of the Taliban accurately reflects the ethnicity and religion of the claimant in each case and the particular fear that each of them expressed. Both of them claimed to be Hazara/Shia from the Jaghori district of Ghazni who would be targeted by the Taliban. Similarly, the reference in paras [87] and [82] of the two statements of reasons to the submissions made by the advisor reflects, I infer, that similar submissions were put to the Reviewer in both cases and rejected by him on the basis that each case turns on its own facts. In this regard, the first respondent’s advisors provided the Reviewer with a written submission (included in the appeal book) that relied upon two particular decisions of the Refugee Review Tribunal that also involved claims by Hazaras from Afghanistan.
It is also important to recognise that the statement of reasons in this case includes a detailed discussion of both the generic and the particular claims of the first respondent. So far as the particular claims are concerned, these are dealt with not only in para [87] but also in paras [14], [63] and [74]-[76].
Apart from the relevant factual similarities, the Reviewer was required to apply the same legal test in all ten cases. The similarity between para [87] and like paragraphs in the statements of reasons given in some of the other matters, is partly explained by the use of language which tends to mirror the language of the legal tests the Reviewer was attempting to apply. It is also partly explained by similarities in the facts.
The primary judge’s finding of apprehended bias did not depend upon his Honour having found that any aspect of the first respondent’s claims was not considered by the Reviewer. His Honour was not asked to make any such finding. The case must therefore be approached on the basis that there was nothing about the decision making process or the Reviewer’s legal and factual analysis of the first respondent’s claims that would excite a concern on the part of the informed person apart from the Reviewer’s use of the same template in a series of ten matters that raised some significant legal and factual issues common to all of them.
I do not think an informed person who is taken to be familiar with the claims made by the first respondent in the present case and those made by the claimants in the other cases would have reason to think that the Reviewer had pre-judged the merits of the first respondent’s case or that he might not bring a fair and impartial mind to resolution of the issues raised. To say, as the primary judge did, that the decision in each case was the same even though the facts were different does not really advance the matter unless one also has regard to the factual and legal issues that were common to all ten cases.
The primary judge considered that para [87] of the statement of reasons reflected an intention to fit the case into the pre-existing template rather than ensure comprehensible reasoning. The key element of this criticism was that the reference to the first respondent’s involvement in two incidents with the Taliban was misplaced because the Reviewer did not actually believe that either incident occurred. I do not accept that the Reviewer did not believe the first respondent’s evidence in relation to these particular incidents. It is true that he did not find the first respondent to be a satisfactory witness, and he drew attention at various points to omissions, inconsistencies and embellishments that led him to form that view. However, the Reviewer never expressly rejected the first respondent’s evidence in relation to the two particular incidents and in those circumstances I do not think it can be inferred that he was satisfied that the relevant incidents never occurred. This may be contrasted with the Reviewer’s treatment of the particular claims in the statement of reasons in 4c where the Reviewer made clear at para [66] that he was satisfied that the claimant had not been beaten and tortured by the Taliban as he claimed.
I do not consider the particular matters which the primary judge found gave rise to a reasonable apprehension of bias do so. The appeal should be allowed and the declaration and order 2 made by the Court below set aside. The first respondent’s amended application should be dismissed. The first respondent should be ordered to pay the appellant’s costs both of the proceeding below and the appeal.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 14 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 331 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: SZQHI
First RespondentSTEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGES:
MARSHALL, NICHOLAS & YATES JJ
DATE:
14 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
YATES J
The case on appeal was relatively confined. It related, substantially, to [21]-[25] of the presiding Federal Magistrate’s reasons which dealt with the first respondent’s contention that the second respondent’s use of template reasons to express his findings and conclusions in the instant case gave rise to a reasonable apprehension that the second respondent had not brought an impartial mind to bear on his decision, in the sense that the second respondent was predisposed to a particular outcome.
The first respondent’s claims of feared persecution were based, first, on so-called generic claims and, secondly, on individual claims that were specific to his circumstances.
As to the first of these matters, the presiding Federal Magistrate was not satisfied that, to the extent that a template was used to deal with the generic claims, the second respondent did not bring an impartial mind to bear on his decision: see at [21]. In my view the presiding Federal Magistrate did not err in so concluding. His Honour’s finding is now supported by the reasoning of the majority in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; special leave refused on 7 September 2012 in S104/2012: see SZQHH v Minister for Immigration & Citizenship [2012] HCATrans 220. The first respondent advanced a formal submission that SZQHH was wrongly decided and should not be followed. There are significant limitations on that argument succeeding on this appeal. In general terms, this Full Court would have to be persuaded that the majority decision in SZQHH was clearly erroneous. I am not so persuaded.
As to the second matter, the presiding Federal Magistrate was satisfied that, to the extent that a template was used to deal with the individual claims, the second respondent had indicated a “predisposition to a particular outcome” and might not have brought “an impartial and unprejudiced mind to the question to be decided”: see at [22]-[25]. His Honour’s conclusion in that regard centred on [87] of the second respondent’s reasons, which was expressed as follows:
The Reviewer notes that the claimant stated he had been involved in 2 incidents with the Taliban since being deported back to Afghanistan from the UK for being Hazara/Shia. The claimant expresses a fear of the Taliban who want to kill him for being Hazara/Shia, for being suspected of supporting the Americans and denying him the right and capacity to earn a livelihood. The claimant also relies on general reported happenings and incidents in Afghanistan by the Taliban as indicating, in part, that he believes that he as a Shia and Hazara who allegedly is being sought by the Taliban who have his details as reflected in the alleged letter given to his mother by the Taliban and that he would be a target for the Taliban and as such he would suffer severe harm and persecution from the Taliban if he were to return to Afghanistan. The adviser also referred to a number of RRT decisions in support of the claimant’s claims for asylum, however, the Reviewer finds that those cases were decided on their own facts and circumstances. The Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant whose family remains in Afghanistan without incident with the Taliban would suffer persecution now or in the foreseeable future for a Convention reason. Indeed, I do not accept that the Taliban are personally interested in him as alleged and claimed and for the reasons put forward by the claimant. As well, the harm claimed does not appear to differ in some degree from the generalized type of violence that is reported from time to time in Afghanistan.
The presiding Federal Magistrate observed (at [23]) that this paragraph was “very similar to paragraphs in other decisions where only the different factual circumstances have been inserted”. He said that this did “raise the apprehension that [the second respondent] has not brought an impartial mind to the process …”. At [24] his Honour said:
I acknowledge that at [74 – 77], see [7] of these reasons, the Reviewer makes some important and unique findings in relation to the credibility of the applicant. But in the way in which the reasons are structured those findings do not appear to be tied into the substantive finding at [87]. In [87] he makes reference to the two incidents which it is reasonably clear from [74 – 77] he does not believe occurred but he does not say so and this raises the impression, even in the mind of an informed observer, that the Reviewer was more intent on fitting the case into the pre-existing template than ensuring comprehensible reasoning. That would indicate a predisposition to a particular outcome and exhibit the symptoms of jurisdictional error.
The presiding Federal Magistrate seems to have reasoned that the second respondent’s findings in [87] were disconnected from his findings in [74] to [77] of those reasons, leading to a failure to provide “comprehensible reasoning” thereby indicating “a predisposition to a particular outcome”.
In the course of oral submissions counsel for the first respondent advanced a colour‑coded copy of the second respondent’s reasons for the purpose of comparing those reasons with an earlier recommendation made by the second respondent in January 2011 in respect of another claimant. Red colour-coding was used to identify certain passages and parts of passages in the second respondent’s reasons when dealing with aspects of the generic claims made by the first respondent, and green colour-coding was used to identify certain passages and parts of passages in the second respondent’s reasons when dealing with aspects of the first respondent’s individual claims. Yellow colour-coding was used to identify other matters relating to the apparent use of a template, on which the first respondent placed no particular significance. All colour-coded passages were used to illustrate wording that was common to both the instant recommendation and the earlier one in January 2011 and, therefore, to illustrate the use of the “template”.
A number of matters emerge from the comparison thus presented. First, the first respondent did not suggest that the author of the “template” insofar as it was constituted by red and green colour-coding was anyone other than the second respondent himself. Secondly, there are significant parts of the second respondent’s reasons that are not colour‑coded and which deal in some detail with the first respondent’s claims. I refer in particular to [14]-[16], [18]-[19], [63]-[70] and [75]-[76] of the second respondent’s reasons. Thirdly, [87] of the second respondent’s reasons are only partly in “template” form. A significant part of [87] – which is not in “template” form – concerns factual matters relating to the first respondent’s claims.
The appellant submitted that the presiding Federal Magistrate misconstrued or misunderstood [87] of the second respondent’s reasons, which should be seen as dealing with three matters: first, a summary of the first respondent’s claims; secondly, a finding that the first respondent is not personally targeted and will not be in the foreseeable future; and, thirdly, a finding that the harm claimed by the first respondent does not appear to differ from the generalised type of violence that is reported from time to time in Afghanistan. The second and third of these matters were the subject of green colour-coding in the document that was handed up.
For my part, I do not see [87] of the second respondent’s reasons as being disconnected from [74]-[77] as the presiding Federal Magistrate found them to be, or otherwise incomprehensible. In my view the appellant’s overview of [87] is correct: the second respondent was merely summarising the first respondent’s claims and not dealing with any acceptance or otherwise of them, and otherwise expressing his findings in relation to the position of the first respondent as he considered it to be.
It may be accepted that the expression of the second respondent’s findings in [87] that:
·the first respondent’s adviser referred to a number of Refugee Review Tribunal decisions in support of the first respondent’s claims, but that those cases were decided on their own facts and circumstances;
·he (the second respondent) did not accept, in the circumstances, that there was a real chance that the first respondent, whose family remains in Afghanistan without incident with the Taliban, would suffer persecution now or in the foreseeable future for a Convention reason;
·he (the second respondent) did not accept that the Taliban were personally interested in the first respondent as alleged and claimed and for the reasons put forward by the first respondent; and
·the harm claimed by the first respondent did not appear to differ in degree from the generalised type of violence reported from time to time in Afghanistan,
used the same wording as in the earlier January 2011 decision. In my view, however, the use of common wording in these parts of [87] does not indicate that the second respondent had a predisposition to a particular outcome, as his Honour had found. This is particularly so when one has regard to other parts of the second respondent’s reasons which deal uniquely with the first respondent’s individual circumstances. Although common wording has been used in the second respondent’s conclusions in [87], these can be seen to be appropriate expressions of conclusion based on the second respondent’s findings and reasons expressed elsewhere in his decision record.
I am of the view, therefore, that the presiding Federal Magistrate erred in holding that the use of common language by the second respondent indicated a predisposition to a particular outcome and would give rise to a reasonable apprehension in the mind of the fair‑minded informed lay observer that the second respondent had not brought an impartial and unprejudiced mind to bear on his decision. For this reason the appeal should be allowed, with costs.
Finally, I agree with the reasons expressed by Marshall J in [8]-[10] for declining to receive the further evidence sought to be tendered by the first respondent at the hearing of the appeal and for rejecting the first respondent’s application to amend his “cross-appeal”.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 14 November 2012
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