MZYNV v Minister for Immigration
[2011] FMCA 790
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 790 |
| MIGRATION – Offshore entry person – judicial review of Independent Merits Review Assessment – extension of time to lodge application – whether extension necessary in the interests of the administration of justice – whether denial of natural justice. WORDS & PHRASES – “Interests of the administration of justice” – meaning defined. |
| Federal Magistrates Act 1999 (Cth), s.45 Federal Magistrates Court Rules 2001 (Cth), r.14.02 Migration Act 1958 (Cth), ss.36(2), 46A, 357A, 422B, 477 |
| Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Kioa v West [1985] HCA 81, 159 CLR 550 Luu & Anor v Renevier (1989) 91 ALR 39 Milne v Minister for Immigration and Citizenship (2010) 120 ALD 4053 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Ethnic Affairs vWu Shan Liang (1995) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] 204 CLR 1 Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 MZYLE v Minister for Immigration & Anor [2011] FMCA 589 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 Periannan Murugasu v Minister for Immigration and Ethnic Affairs (28 July 1987 unreported) Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZAVT v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBHT v Minister for Immigration [2005] FMCA 622 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs UCAR v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 [2003] FCA 1069 VACC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, 129 FCR 168 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | MZYNV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 947 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 3 October 2011 |
| Date of Last Submission: | 3 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watters |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
An extension of time is granted until 7 July 2011 for lodging the application for judicial review.
The application for an injunction is dismissed.
THE COURT DECLARES THAT:
The Independent Migration Reviewer by failing to identify correctly an issue relevant to the Independent Migration Review Assessment denied the applicant a fair hearing and thereby natural justice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 947 of 2011
| MZYNV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the Independent Merits Review Assessment (the “IMRA”) dated 23 February 2011 that the applicant does not meet the criteria for a protection visa set out in s.36(2) of the Migration Act 1958 (the “Act”) and should not be recognised as a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the “Convention”).
The applicant is 28 years old and is a citizen of Afghanistan (“A”).
He arrived by boat at Christmas Island on 6 April 2010 (Court Book “CB” 169). On 18 June 2010 he lodged an application for a Refugee Status Assessment (a “RSA”) alleging that he was a refugee and therefore Australia had protection obligations to him under the Convention
(CB 35 – 54).
On 19 August 2010 he was assessed by a delegate of the first respondent as not meeting the definition of “refugee” under the Convention (CB 167). He sought a review of that decision and on
23 February 2011 the second respondent, the Independent Merits Reviewer (the “IMR”) recommended that the applicant not be recognised as a person to whom Australia has protections obligations under the Convention (CB 237). The IMR is not an employee of the Department of Immigration, but is a contractor employed pursuant to an arrangement between the Department and a corporation.
The applicant filed an application for judicial review of the IMRA on
7 July 2011.
Extension of Time
The applicant seeks an “enlargement of time” to file his application to the Court.
The applicant was advised by letter dated 25 February 2011 (CB 212) that the IMR had recommended that he not be recognised as a refugee and that it was the practice of the first respondent to accept such recommendations. He was advised that he had 35 days from the date of the letter to seek judicial review (s.477(3)(d) of the Act); that is, by
1 April 2011. The application for judicial review was filed over three months late on 7 July 2011.
Section 477 provides as follows:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or
(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or
(d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The applicant filed an affidavit on 7 July 2011 which restates his reasons for the delay set out in his application. In summary, he states that he found it difficult to contact a lawyer as he was moved from Villawood Detention Centre to Silverwater Metropolitan Remand and Reception Centre and then to Maribyrnong Immigration Detention Centre, from where he “managed to supply my decision to Victoria Legal Aid for review”. In his application he states that:
“The subject of my proceedings is crucial, and touches on my rights to remain in Australia as an applicant for refugee status”.
Lucev FM referred to authorities on the meaning of the phrase “interests of the administration of justice” in the Act and Rules of the Court in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [7 – 11] as follows:
Legislation
Section 45 of the Federal Magistrates Act 1999 (Cth) (“FM Act”) provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant,
Rule 14.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) provide (sic “provides”) as follows:
(1) A declaration may be made under subsection 45 (1) of the Act to allow discovery on the application of a party or on the Court’s own motion.
Note Discovery is not allowed in relation to a proceeding unless the Court or a Federal Magistrate declares that it is appropriate in the interests of the administration of justice: see section 45 of the Act.
(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.”
Interests of the administration of justice
The Court dealt with the phrase “interests of the administration of justice” in Genovese v BGC Construction Pty Ltd[3]. In Genovese the Court said:
“In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
[3] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 (“Genovese”)
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258]”.[4]
[4] Genovese at paras 24-25 per Lucev FM
and further said:
“In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM] Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.”.[5]
[5] Genovese at para 28 per Lucev FM
Although Genovese was a case concerning transfer of proceedings to the Federal Court under s.39(3)(d) of the FM Act, the consideration of the phrase “interests of the administration of justice” there is apposite in this case.
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration.
And further in Abrahams at [17 – 19]:
In SZBHT v Minister for Immigration[6], the Court was dealing with an application for discovery of all documents, electronic or otherwise in the possession of Minister for Immigration and the Refugee Review Tribunal (“RRT”) containing or relating to country information in respect of Bangladesh”[7]. The purpose of the application was to find information supporting the applicant’s claim that homosexuals faced persecution in Bangladesh, the RRT having found that there was no country information supporting a claim that homosexual people are persecuted in Bangladesh.[8] The RRT was not satisfied that the applicant was in fact homosexual, but that finding was challenged.[9] It was clear that contrary to the RRT’s finding that there was independent country information in a data base maintained by the Immigration Department which showed that homosexuality was not accepted or condoned by society in Bangladesh.[10]
The Court in SZBHT determined to follow the approach adopted by the Court in NAQR & Ors v Minister for Immigration (2002) FMCA 271. The Court in SZBHT went on to consider the discretionary nature of the declaration to be made as to the interests of the administration of justice under s.45(1) of the FM Act, and the matters referred to in s.45(2) of the FM Act to be mandatorily considered when deciding whether to make a declaration.[11]
The Court determined that an examination of the relevant departmental data base would not produce evidence to support the applicant’s claim that he was in fact homosexual, and would therefore be of “no benefit” in establishing that he might be persecuted in Bangladesh on the basis of his alleged homosexuality. The Court concluded that:
“It will not contribute to the fair and expeditious conduct of the proceedings, and it will not assist the applicant in the long run. If it will not assist, then it is not in the interests of the administration of justice for me to make such a declaration.”
[6] [2005] FMCA 622 (“SZBHT” )
[7] SZBHT at para 3 per Scarlett FM
[8] SZBHT at paras 13 and 19 per Scarlett FM
[9] SZBHT at paras 12 and 49 per Scarlett FMM
[10]SZBHT at paras 14 and 17-21 per Scarlett FM
[11] SZBHT at paras 39-42 per Scarlett FM
In the present matter the Court is satisfied that although the three month delay is significant, the cause of the delay in seeking judicial review was due to factors not wholly within the applicant’s control.
The applicant’s application for an extension of time was listed for hearing on 3 October 2011. Submissions were made by the applicant in support of an extension.
The first respondent submitted that an extension of time should be denied. The first respondent submits that it is not in the interests of the administration of justice to make the order extending time as:
·The three month delay is significant; and
·The merits do no justify an extension.
In considering an extension of time, the Court has considered the merits of the substantive application.
An applicant must prove their case.
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.
And at [84]:
“Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].
Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.
The Court finds that the above decisions apply also to the IMR.
On a consideration of the merits, the Court finds that the applicant was denied natural justice. The Court finds that an extension of time will assist the applicant in the long run (SZBHT). It is therefore in the interests of the administration of justice to make an order extending the time for lodging the application for judicial review until 7 July 2011, and the Court so orders.
Section 46A of the Migration Act 1958
In MZYLE v Minister for Immigration & Anor [2011] FMCA 589 Reithmuller FM stated:
5. The result of section 46A of the Migration Act 1958 is to preclude the applicant from making an application for a protection visa as a result of his unlawful entry into Australia. However, the Minister has a discretion to give written notice, with the effect that s.46A would not preclude the applicant from making an application for a protection visa. Importantly, that discretion is unfettered, and the Minister does not have a duty to consider whether or not to exercise that discretion (see ss.46A(2) to (7)). Similarly, s.195A of the Act provides the Minister with a discretion to grant a visa if the Minister concludes that it is in the public interest to do so. Put simply, unlawful entrants are not able to apply for a protection visa unless the Minister exercises a discretion to allow them to do so…
7. In Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14; (2010) 85 ALJR 133 the High Court identified the purpose of the refugee status assessment processes, saying:
[41] The purpose of the RSA process was described in the RSA Manual as being "so that the Minister ... can be advised whether Australia's protection obligations under the Refugees Convention are engaged". It was said that "[c]onsideration of the exercise of the Minister's power under s 46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual".
8. Importantly, if the refugee status assessment process was favourable to an applicant, the Department would make a submission to the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s.46A of the Act” (see paragraph [44]). The Independent Merits Reviewer process was a review system in place with respect to the refugee status assessment.
The Refugee Status Assessment (the “RSA”)
The applicant was born in A and is an ethnic Hazara (CB 169).
He moved to Pakistan with his family in 1997 and claims to be unable to return to A.
The applicant claimed that in A he faced persecution by reason of his Hazara ethnicity, Shia religion and/or (real or imputed) political opinion. He also claimed fear for being a member of a social group of “failed asylum seeker returning from a Western country” (CB 173).
The RSA did not accept that the applicant would have a well founded fear on this ground for the purposes of the Convention (CB 174.2) or that his several month stay on Christmas Island, would necessarily impute him on return to A with a pro-West or pro-Government political opinion (CB 174.3 and 179.10).
The RSA considered whether the applicant would face a real chance of Convention-related persecution should he return to A in the reasonably foreseeable future.
The RSA summarised the country information considered (CB 174 – 180) which indicates that “in recent years following the fall of the Taliban, the situation for Hazaras in Afghanistan has generally improved” (CB 179.4). The RSA stated correctly that the Convention definition “does not encompass those fleeing or subject to generalised violence, internal turmoil or civil war” (CB 179.5).
In Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] 204 CLR 1 per Gummow J at [141]:
“… it is generally accepted that the Convention definition, based on individual persecution, limits the humanitarian scope of the Convention. The definition does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention (155). For example, it appears that in 1986 the number of civilians fleeing their countries of origin by reason of internal armed conflict exceeded the number of Convention refugees (156). In Applicant A v Minister for Immigration and Ethic Affairs [(1997) 190 CLR 225 at 248] Dawson J observed:
‘No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention…
It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them’”.
The Court refers to the decision of the Federal Court in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (28 July 1987, Wilcox J at [13] unreported):
“The word ‘persecuted’ suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances”.
The RSA stated that “having to cope with difficult social and economical circumstances, of itself, does not establish a claim under the Refugees Convention” (CB 181.1).
The RSA stated that it “is safe and reasonable for the claimant to return to and reside in Kabul” and that “he does not face a real chance of Convention related serious harm in Kabul in the reasonably foreseeable future. Given this finding, it is not necessary to assess whether relocation elsewhere within Afghanistan is also a safe and reasonable option for him” (CB 181.2).
The RSA concluded that the applicant’s fear of persecution in A is not well founded (CB 181.5).
The Independent Merits Review Assessment (the “IMRA”)
The applicant sought a review of the RSA through his agent Playfair Visa and Migration Services. The submission in support of the application for review commences at CB 182. The submission referred to extensive country information. The submission claims that the applicant fears persecution in A on account of:
·His actual/imputed political opinion of being opposed to Taliban rule and supportive of the government in Afghanistan and the coalition forces; and/or
·His membership of a particular social group namely:
(a)actual/perceived sympathizers or supporters of the coalition forces or foreign workers/NGO’s in Afghanistan; and or
(b)returnees from a Western country;
(c)failed asylum seekers returning from a Western country.
The applicant disagreed with the findings of fact of the RSA (as set out at CB 187 – 188) and submitted that the RSA was in error as it is “artificial and unrealistic to divide the country into small regions so far as security and safety is concerned. A Hazara located in any part of Afghanistan faces a real risk of persecution” (CB 189.4).
It was alleged that the RSA should be overturned because of:
(1)The Delegate’s failure to properly consider the Applicant at risk of persecution because of his actual/imputed political opinion and membership of a particular social group/s. Returnees from a western country.
(2)The Delegate’s failure to consider the Applicant’s claims cumulatively and failure to consider whether there was a real chance the Applicant would suffer harm by reason of his return to Afghanistan from a western country such as Australia and his failed refugee claim.
(3)The Delegate’s denial to the Applicant of procedural fairness by:
(a)Failing to provide him with a complete copy of the country information reports referred to in the decision, (which were) adverse to the Applicant’s case, in order to afford him an opportunity to respond;
(b)Failing to bring to the Applicant’s attention the critical issues contained in the country information reports and on which its decision would turn.
(4)The Delegate applied the wrong test in finding that the Applicant did not have a well-founded fear of persecution in Afghanistan but went on to consider whether he could relocate within Afghanistan.
(5)“The process was affected by apprehended bias” by the delegate’s “refusal to release the full text of “updated information” used to reject Afghan asylum seekers” (CB 190).
The IMR was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention, and therefore, he does not meet the criteria for a protection visa set out in s.36(2) of the Act (CB 237.7).
The grounds of the applicant’s original application for judicial review are as follows:
(1)The Independent Merits Reviewer (IMR) did not afford me procedural fairness.
No particulars were given.
(2)The IMR applied the wrong legal test.
No particulars were given
Amended Application
The applicant filed an amended application on 6 September 2011 that contains the following grounds:
(1)The Independent Merits Reviewer (IMR) did not afford the Applicant procedural fairness.
Particulars
(a)On 7 December 2010, the Applicant was interviewed by the Second Respondent in the course of a review of an initial Refugee Status Assessment.
(b)On 17 January 2011, the Second Respondent caused to be sent to the Applicant’s representatives a ‘natural justice letter’, which stated, relevantly:
I am writing about the merits review concerning your client. The reviewer has requested that your client be invited to comment on certain information that is relevant to the merits review.
The attached information is relevant to the merits review as it may lead the reviewer to conclude that:
1. The claimant’s ethnicity and/or minority religion by itself does not mean that in Afghanistan he faces a real chance of serious harm amount (sic “amounting”) to persecution by non-State agencies or government authorities.
2. Returnees to Afghanistan do not face persecution for that reason alone.
3. There is no a situation of generalise violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there.
4. The claimant’s ethnicity and/or minority religion do not prevent the claimant from relocating to Kabul. Kabul is government controlled and there is not a situation of generalized violence there.
(c)The letter gave rise to a legitimate expectation by the Applicant that the Second Respondent would:
(a)Consider Ghazni province as a place of residence; and
(b) Consider Kabul as a place of relocation.
(d)On 6 February 2011, the Applicant’s representatives made submissions in which they:
(a)Argued that the Applicant would face a real chance of persecution in Ghazni; and
(b) Argued that it would be unreasonable for the Applicant to relocate to Kabul.
(e)On 23 February 2011, the Second Respondent gave a decision in which it treated Kabul as the Applicant’s place of residence and did not consider relocation.
(f)Accordingly, the Applicant was denied natural justice in that:
(a)The Second Respondent failed to accurately identify the relevant issues in the case; or
(b) The Applicant suffered practical injustice in that the Second Respondent did not adhere to the representations contained in the ‘natural justice letter’ and, as a result, the Applicant lost an opportunity to make submissions on Kabul as a place of residence, as opposed to a place of relocation.
Natural Justice/Procedural Fairness
The rules of natural justice are flexible and require the adoption of fair procedures which are appropriate to the circumstances of the particular case.
The Court refers to Kioa v West [1985] 159 CLR 550 at p.563 per Gibbs CJ:
“The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S. W v. Evans (51); National Companies and Securities Commission v. News Corporation Ltd”.
At p.584 per Mason J:
“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; National Companies and Securities Commission v. News Corporation Ltd.
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No.2](4), per Jacobs J”.
At 594 per Wilson J:
“As Stephen J. remarked in Salemi [No.2] (18) it is now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. They will depend upon what Kitto J. described, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (19), as "the particular statutory framework" within which they are to apply. His Honour continued:
“ ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth’”.
And at p.601:
“I have spoken of the dictates of procedural fairness because in the context of administrative decisions I think that such a phrase is an apt description of what natural justice requires. What is fair will depend, as I have already indicated by referring to the statement of Kitto J. in Mobil Oil (42) and to News Corporation (43), on the particular statutory framework within which the decision is taken. Even within the same statutory framework differing circumstances may call for a different response (cf. Stephen J. in Salemi [No.2](44)”.
And at p.610 per Brennan J:
“Gibbs J said (in Salemi No.2):
“The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando (56)”.
As Mason J said in Ratu (57):
"Whether the rules of natural justice apply to the making of a deportation order under s. 18 of the Act and what those rules require is fundamentally a question of statutory construction.
…
Observance of the principles of natural justice is a condition attached to the power whose exercise it governs. There is no freestanding common law right to be accorded natural justice by the repository of a statutory power. There is no right to be accorded natural justice which exists independently of statute and which, in the event of a contravention, can be invoked to invalidate executive action taken in due exercise of a statutory power”.
At p.612 per Brennan J:
“… is what the principles of natural justice require in the particular circumstances. In Salemi [No.2] (62) Jacobs J. said:
"The legislature is assumed by the courts to be aware of the principles of natural justice which are a part of the common law. The application of those principles depends on the circumstances of the case”.
…
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oftcited passage in his judgment in Russell v. Duke of Noifolk (63):
“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”.
…
In this Court the flexibility of the principles of natural justice was recognized by Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation·(67):
“What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business”.
…
“… not only will their effect and application thus. Vary (sic “and vary”) depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwin (71), per Lord Reid), they may also vary from case to case although each be conducted before one and the same tribunal or person”.
Gibbs CJ added to this line of authority in National Companies and Securities Commission v. News Corporation (72), saying:
“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise”.
The notion of natural justice is somewhat vague because of its variable content, but it is a notion which is hallowed by time
…
(See also per Lord Hodson (in Ridge v. Baldwin). To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. In Wiseman v. Borneman (75), Lord Reid said:
"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules”.
At p.615 per Brennan J:
“Yet Tucker L.J. said in Russell v. Duke of Norfolk (80), that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case”.
And at p.627 per Brennan J:
“What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly”.
The Court refers to, and agrees with, the following article published by the University of South Australia, which sets out what the Court regards as the “irreducible minimum” required by the principles of natural justice in this case.
Natural Justice in Investigations
Three common law rules are referred to in relation to natural justice or procedural fairness
The Hearing Rule
This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker.
When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.
The Bias Rule
This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.
Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision. A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another. Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias.
Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.
The Evidence Rule
The third rule is that an administrative decision must be based upon logical proof or evidence material. Investigators and decision makers should not base their decisions on mere speculation or suspicion. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based”.
The Hearing Rule
The IMR considered the applicant’s written submissions of
5 December 2010 (CB 218.2).
The IMR interviewed the applicant on 7 December 2010 with the assistance of an interpreter. The applicant’s migration agent was present (CB 218.7). The applicant stated that he “cannot always think straight”, but after a short break said, “he was fine and could answer questions” (CB 218.9). A summary of the interview is set out at CB 218 – 219.
The IMR sent an email to the applicant’s agent on 17 January 2011 (CB198 – 205) inviting him to comment on “information that is relevant to the merits review”, and explaining the relevance of the information (CB 198.3). Details of country information concerning A were attached (CB 199 – 205). The country information is described in sufficient detail for it to be understood.
In Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 the High Court determined that the RSA and IMR made a number of legal errors including that:
·The determination of whether Australia had protection obligations was not made according to law, namely the criteria and principles of Australia’s migration legislation as construed and applied by the courts of Australia had been specified in the Manuals as mere “aid[s] to the interpretation of the Refugees Convention”: at [87]-[89] and [94]
·Failing to address one of the plaintiff’s claimed bases of fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered, namely whether Australia owed the plaintiff protection obligations: at [90]
·Failing to put to the plaintiff for his consideration and comment those aspects of country information which the reviewer considered might bear upon the plaintiff’s claims: at [91], [94] and [98]
The IMR was bound to act according to law by applying relevant provisions of the Act and decided cases. Plaintiff M61/2010E (supra) at [8].
“… in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11].
“Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal” (NAHI [13]).
“The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item” (NAHI [14]).
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.
NAHI (supra) at [13 – 14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].
The Court finds the above decisions to be relevant to when an IMR is conducting an assessment.
The applicant submits that the IMR erred by not providing sufficient detail of country information to the applicant to enable him to respond. The Court rejects that submission. Extensive detail of the country information was provided to the applicant for comment with reference to where the full detail could be found.
The applicant’s agent responded by email on 6 February 2011 (CB 206 – 210). That response was considered by the IMR in detail (CB 220 – 222).
The first respondent wrote to the applicant on 25 February 2011 advising him that it accepted the IMRA, and gave him 35 days to provide additional information that he would like to be taken into consideration (CB 213.1).
The IMR had regard to the country information provided by the applicant and in the RSA (CB 222.3).
The Court finds that the applicant was allowed an opportunity to present his case and respond to the material relied on by the IMR, but that his attention was diverted from the relevant issue by the natural justice letter (the “NJ letter”).
In his amended application the applicant alleges that he was denied natural justice by the IMR failing to indentify the relevant issues in the case; being that Kabul was to be considered as a place of residence, and not a place of relocation. It is claimed that the letter of 17 January 2011 (CB 198) gave the applicant a legitimate expectation that the IMR would consider Ghanzi Province as a place of residence, and Kabul as a place of relocation, whereas the IMRA on 23 February 2011 “treated Kabul as the applicant’ s place of residence and did not consider relocation”.
The applicant suffered injustice by being led to respond to the issue of “relocating to Kabul”.
The Applicant’s written submissions filed 6 September 2011
The applicant submits that the rules of natural justice apply to the IMR process: Plaintiff M61/2010E (supra) at [78] and [91]. The applicant submits that it is a fundamental principle that where the rules of procedural fairness apply, the right to be heard requires that the party affected be able to ascertain the relevant issues. The Court accepts that submission. It is alleged that the applicant was misled as to the issues in the case. It is alleged that he was misled into believing that the IMR was considering Kabul as a place to which the applicant could “relocate”, but instead the IMRA considered whether the applicant could, on going to A, “return to” Kabul (CB 235.1 and .5, 236.5).
It is submitted that, when considering whether the applicant can return to reside in Kabul, the question is “whether the applicant faces a real chance of persecution in Kabul”; it is submitted that the question of whether the applicant can relocate to Kabul is determined on the basis of the risk of persecution but that the other crucial issue is reasonableness, and that the applicant’s circumstances are relevant. It is submitted that the second issue is a complete answer as to whether a person can “relocate to” a place.
It is submitted that unfairness has resulted from the failure of the IMR to comply with the legitimate expectation of the applicant that the case would be dealt with on the basis of relocating to Kabul.
It is submitted that the conduct of the IMR changing from considering Kabul as a place of relocation to a place of residence denied the applicant the opportunity to make submissions on a relevant issue, in breach of the hearing rule.
The Applicant’s Oral Submissions
Mr Watters appeared for the applicant.
Mr Watters asserts that the NJ letter misled the applicant and that, as a result, submissions were made on the “basis of a wrong understanding of what the issues were”. He submits that the result was “non compliance with natural justice”. He submits that the Independent Merits Reviewer did not accurately identify the issues in the matter, and after representing that the IMR would act in a particular way, he acted in a different way, and the applicant suffered practical injustice. Mr Watters relies on SZBEL (supra) for the proposition that being given an opportunity to be heard would ordinarily require that the party affected have the opportunity of ascertaining the relevant issues.
Mr Watters states that the applicant was led to believe that the issue was relocation to Kabul rather than returning there. The Court accepts that submission (NJ letter CB 198.5). It is not alleged that the applicant was misled intentionally.
Mr Watters tendered a copy of the UNHCR Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan and referred to the test for relocation on page 39, being whether relocation is reasonable is to be determined on a case to case basis.
Mr Watters says that his next argument is based on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1, that where a representation is made that a particular procedure will be followed, and there is a failure to follow that procedure which results in practical injustice, that may constitute a denial of natural justice. Mr Watters alleges that the practical injustice here was the inability to make submissions on the proper issue.
Mr Watters referred to Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 for the proposition that if a breach of natural justice is established, an applicant would ordinarily be entitled to relief, unless the Court were satisfied that the breach could have no bearing on the outcome.
Here the Court is not satisfied that the breach could have no bearing on the outcome.
The first respondent’s written submissions filed on 27 September 2011
It was argued by the first respondent that the term “relocate” as used in the letter of 17 January 2011 was meant to mean “return to” Kabul, or could be read as having that meaning. The Court finds that it was reasonable for the applicant to take the view that “relocate” was used in the refugee law sense [Applicant’s written submissions 4(e) – 4(g)] and that it did not mean “return to”.
It was argued by the first respondent that as the issue of “returning to Kabul” had been raised during the hearing on 7 December 2010
(CB 219 [26]) it was raised sufficiently in the NJ letter on 17 January 2011 (CB 198). The Court rejects that submission. The letter refers to “residing in Ghazni province” or “relocating to Kabul”. It gave the impression that a distinction was being made. The applicant was led to believe that the relevant issue at the time of the assessment would be whether he could “relocate to Kabul?”.
The Court finds that the applicant was misled by the “natural justice letter” (CB 198) into believing that the IMR would consider Kabul as the place that he could relocate to, and not the place that he could “return” to.
The applicant’s response to the NJ letter gives reasons why it would be “unreasonable” for him to relocate to Kabul, being:
·The problems for Hazaras going to live there (Kabul) without support.
·The competition for scarce resources.
·The lack of housing (resulting in areas of squats and squalid camps).
·Education and health facilities are amongst some of the hurdles facing Hazaras trying to live there (CB 210.2).
The applicant’s response did not deal with the primary issue that would be relevant to the question of his ability to return to Kabul, being the risk of persecution. That also was an issue relevant to relocation, but the applicant was entitled to rely on it being unreasonable for him to relocate as a complete answer to the possibility of him relocating.
It is clear that the issue of the applicant being able to return to Kabul to live was raised with him (CB 217.4, 219.2, 219.5, 219.6 and 220.9). However the IMR did not raise the issue with the applicant in the NJ letter. The tests, of whether a person can “return to live at”, or “relocate to” a place, are different. The test of whether a person can return to a place of residence is whether they would face a real chance of persecution in that place. The additional test for relocation is “whether it is practicable in the particular circumstances of the particular applicant?”
As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46:
“The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 at 442–443, especially at 443C–D.
We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged
In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated”.
In Randhawa (supra), Black CJ observed that the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. At 441, Black CJ considered that the reason for this was that:
“If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders”.
In Randhawa, Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonably be expected to do so”. His Honour stated at [442]:
“...a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person”.
Justice Beaumont agreed that relocation must be a reasonable option, stating at [451]:
“…that is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution”.
As stated by Justice Hayne in Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21 – 22]:
Consideration may be given to the possibility of a claimant for protection if relocation is a reasonable (in the sense of practicable) response to a fear of persecution[12]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship[13], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person…It is evident that the particular circumstances of the plaintiff were not considered by the delegate… By not correctly identifying the relevant question, the delegate made a jurisdictional error”.
[12] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
[13] (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]–[102] per Kirby J, 49 [105] per Callinan J.
The Court accepts that procedural fairness requires that a decision maker bring to a party’s attention the critical facts on which the decision is likely to turn so that the party may have the opportunity to deal with it: Kioa v West (supra) and VACC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, 129 FCR 168 at [177 – 178].
In the ultimate, the IMR considered Kabul as a place that the applicant could return to live at. The applicant was diverted from the relevant issue and thereby denied the opportunity to respond to it, which resulted in practical injustice to him.
The first respondent’s oral submissions
Mr Hill appeared for the first respondent and stated that a consideration of the merits is relevant when determining an application for an extension of time.
Mr Hill submitted that the issue of returning to Kabul had been raised with the applicant (CB 219.5). That is correct, but that was during an interview on 7 December 2010 (CB 218). The NJ letter was sent on
17 January 2011 and diverted attention to the issue of “relocation to Kabul”.
Mr Hill submitted that the words “relocate to Kabul” could have been read as “returning to”. The Court rejects that submission. “Relocation to” somewhere involves an overlay of considerations of reasonableness or practicability, and they are what were dealt with in the applicant’s response (CB 210.5).
Mr Hill relied on Minister for Immigration and Ethnic Affairs vWu Shan Liang (1995) 185 CLR 259 to say that the NJ letter should be “given a fair reading, and the expressions ‘residing in Ghazni province’ and ‘relocation to Kabul’” should not be given their precise technical meaning.
Mr Hill referred to UCAR v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 at [22] that “procedural fairness involves the giving of a fair opportunity for those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”.
Mr Hill referred to SZBEL (supra) and the use of the words “sufficiently identified” at [34] and [47] to submit that the NJ letter sufficiently identified the issue of returning to live in Kabul. The Court rejects that submission; reading the NJ letter fairly, in the context of the Act, the letter made a clear distinction between “residing in Ghazni”, and “relocating to Kabul”.
Mr Hill submits that “returning to Kabul” was the critical issue in the prior decision (by the RSA) (CB 180) and therefore was well in the applicant’s mind when it came to reviewing the decision. That may have been so had the NJ letter not been expressed as it was – the applicant alleges that his attention was diverted away from the relevant issue, and the Court can see how that occurred.
Mr Hill submits that, on the basis of SZBEL, “when seeking to review a decision, if the Court mentions that something was the issue below… before the original decision maker, then unless something changes, the applicant can assume that will be in issue on review”. The Court accepts that submission. Here the NJ letter changed the issue.
Mr Hill submits that the NJ letter was about the applicant’s own circumstances and that he “can’t be misled” about whether the issue is “returning to” or “relocating to” Kabul. However the applicant says that he was misled about the issue of relevance in the IMRA, and the Court can see how that occurred.
Mr Hill submits that “relocation” has two components – one of them is the risk of persecution in that place, and the second is the test of reasonableness. The Court accepts that submission.
Mr Hill referred to the decision in Milne v Minister for Immigration and Citizenship (2010) 120 ALD 405 at [33] to say that if practical injustice is asserted, an applicant has to show that the outcome was affected. At [97] the Court in that case stated that:
“… the applicant having established a breach of natural justice, was entitled to succeed unless the primary judge was satisfied that the breach could have had no bearing on the outcome”.
As found above the Court is not satisfied that the breach could have had no bearing on the outcome.
Mr Hills submitted that “the change of expression” in the NJ letter did not change what the issue was. The Court disagrees.
Mr Hill submitted that even if the issue changed, the new issue (of relocating to Kabul) would include the relevant issue. The Court accepts that the question of “returning to” or “relocating to” Kabul both involve the issue of the risk of persecution, but the ultimate test for relocation involves the test of reasonableness or practicability, and that is what the applicant was diverted to. Mr Hill referred to SZAVT v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 at [19] to establish that both issues are relevant to the question of relocation. That is so, but the ultimate test for relocation is reasonableness, which is not the test for returning to live somewhere. Mr Hill argues that the applicant was not denied the opportunity to put submissions on the risk of persecution in Kabul. The Court accepts that, but it was unfair to divert the applicant’s attention so that his submissions focused on the issue of reasonableness.
Mr Hill referred to Lam (supra) at [36] that there the applicant had not lost the opportunity to put information or argument (on an issue).
In this matter the applicant’s focus was diverted to the irrelevant issue of unreasonableness. Mr Hill referred to [106] and the statement “nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what has been put already”. It can be seen from the submissions (CB 210) that the applicant’s attention was diverted to an issue, irrelevant to the question of whether he could return to Kabul. Had that not occurred he may have concentrated on the risk of persecution and thereby affected the outcome of the IMRA.
Mr Hill conceded that in Lam, the applicant said that he would not have said anymore had he been given the opportunity. That is not the case here.
Mr Hill referred to UCAR (supra) at [33] as to whether the failure to accord natural justice vitiates a decision.
The tests there are:
·Whether is can be said that the breach had no bearing on the decision?
·Would a retrial be futile, in that, on a retrial, the same order will inevitably result?
In this case the answer to both questions is “no”.
The Hearing Rule
A breach of the hearing rule has been established.
The Bias Rule
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see Jia (supra) at 531 per 531 per Gleeson CJ and Gummow J.
A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia (supra) at [531] per Gleeson J and Gummow J and [546] per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”.
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.
The Court refers to the following passage in SCAA (supra) at [38]:
“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.
Further, the fact that the IMR did not believe his claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
In SZBEL (supra) at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that:
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Their Honours continued that:
“Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD (supra) at [22], citing Jia (supra). The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA (supra).
Bias has not been established.
The Evidence Rule
The Court finds that the IMRA is based on the evidence referred to, and identified, in the Assessment. A breach of the evidence rule has not been established.
Findings
It is appropriate and fair that the applicant have a full chance to respond to the proposal that he “return to live in Kabul”.
A denial of a fair hearing has been established.
The Court finds that an extension of time to 7 July 2011 for the applicant to lodge his application for judicial review is in the interests of the administration of justice, and so orders.
Declaration
The Court declares that The IMR by failing to identify correctly an issue relevant to the IMRA denied the applicant a fair hearing and thereby natural justice.
Injunction
There being no present threat to remove the applicant without a further assessment being undertaken, in which the law would be correctly applied and procedural fairness afforded, it is not now necessary to consider granting an injunction (Plaintiff M61/2010E and M69/2010 supra at [8]).
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 14 October 2011
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