MZYOX v Minister for Immigration
[2012] FMCA 526
•22 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYOX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 526 |
| MIGRATION – Independent Merits Reviewer – whether the reviewer failed to take into account relevant information – whether the reviewer was obliged to take into account a particular report – whether the reviewer afforded the applicant procedural fairness – whether the review process was fair – whether the reviewer asked the wrong question. |
| Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1; [2005] HCA 29 Craig v State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; [1995] HCA 58 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; [2010] HCA 41 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; [1986] HCA 40 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39 Minster for Immigration and Citizenship v SZQHH [2012] FCAFC 45 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 2009 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11 MZYOS v Minister for Immigration and Citizenship [2012] FMCA 422 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63 SZQDZ v Minister for Immigration and Citizenship(2012) 286 ALR 331; [2012] FCAFC 26 SZQEK v Minister for Immigration and Anor [2011] FMCA 628 SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45 VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 [2002] FCA 161 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 91 (2005) 141 FCR 291 |
| Applicant: | MZYOX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | MLG 1099 of 2011 |
| Judgment of: | Riley FM |
| Hearing dates: | 29 March 2012 and 14 May 2012 |
| Date of last submission: | 5 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 22 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | A.M. Sheehan |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Sharon Burchell |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 28 July 2011, amended on 15 March 2012 and further amended on 10 April 2012 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1099 of 2011
| MZYOX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a declaration and injunction in respect of a recommendation made by an independent merits reviewer.
The reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant claimed that:
a)he was an Afghan citizen of Hazara ethnicity and of Shia Muslim religion;
b)he was born in 1983 in the Jaghori district of Ghazni province;
c)his brother, “X”, had worked in Iran but was deported back to Afghanistan;
d)“X” was killed by the Taliban in 1997 or 1998 when crossing the border;
e)the applicant went to Iran in 1999, at the age of 16, because his parents told him to;
f)the applicant stayed in Iran for six years;
g)he was deported back to Afghanistan in 2005;
h)in the following two and a half years, when the applicant had to go to Ghazni for supplies for his work, the Taliban would take him and hit him;
i)on one occasion, he was stabbed with a bayonet and left unconscious;
j)on another occasion, the Taliban shot at the car the applicant was in;
k)in 2007, the applicant returned to Iran for another six months but was again deported back to Afghanistan;
l)the applicant left Afghanistan about two weeks later for Pakistan and eventually Australia;
m)none of the applicant’s other family members had been harassed or threatened by the Taliban as they do not leave their local area;
n)the applicant only had trouble on the road; and
o)the Taliban did not come looking for him at home.
The reviewer’s recommendation
The reviewer accepted the applicant’s claims as set out above, except that the reviewer considered that the attacks on the applicant had been the result of generalized violence and crime rather than targeted attacks by the Taliban. The reviewer considered that any difficulties that the applicant might face in Afghanistan would not be for a Convention reason.
Ground 1.a
Ground 1.a in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law in that he failed to accord to the Applicant procedural fairness:
a.in that the Second Respondent had no regard to [the] 2nd submission of the Applicant’s legal advisors which contained relevant and recent material not considered at the interview. (CB: 116-136)
This ground arises from the circumstances that:
a)
the applicant’s solicitor provided written submissions dated
1 October 2010 to the reviewer;
b)the reviewer conducted an interview with the applicant and his solicitor on 29 October 2010;
c)at that interview, the reviewer asked the applicant and his legal adviser if they wished to say anything else, and the response was negative;
d)the applicant did not seek, and the reviewer did not give, leave to lodge any additional written submissions;
e)the reviewer signed and dated his report on 1 March 2011;
f)the first respondent’s department sent a copy of the report to the applicant by post on 11 March 2011;
g)the applicant’s legal adviser sent an email to [email protected] at 2.19pm on 11 March 2011;
h)the email attached separate generic written submissions relating to about 18 matters that were before the present reviewer, including the present matter;
i)the email asked the recipient to send all of the submissions, including the submissions relating to the present matter, (“the second submissions”) to the reviewer as a matter of urgency;
j)the second submissions described their content as “an update to the independent information noted in our previous submissions”; and
k)the second submissions did not make any new claims about the applicant’s personal circumstances.
In fact, the second submissions are not submissions in the usual sense. Eighteen of the twenty pages of the second submissions are summaries and extracts of country information. (The remaining two pages are irrelevant. They are summaries of decisions of the Refugee Review Tribunal that were no doubt decided on their own facts.) Consequently, the “second submissions” are better described as further evidence consisting of country information.
Moreover, the “second submissions” are not entirely an update of recent material. Much of the “second submissions” consists of material that predates the first submissions and predates the interview between the reviewer and the applicant on 29 October 2011.
There is no reason to conclude that the “second submissions” contained up to date material and the recommendation only referred to out of date material. The reviewer listed in paragraph 10 of his recommendation at CB146 numerous articles and reports that he referred to, including a large number of articles and reports published in 2010. The most recent report referred to in the “second submissions” is a UNHCR report dated 17 December 2010 (“the 2010 report”). However, while that is the date of publication, there was no evidence about how current the information in it might have been.
It is clear that the reviewer could not have looked at the “second submissions” before signing his recommendation on 1 March 2011. The “second submissions” were not emailed to the department until
10 days later.
There was some debate about whether the email enclosing the “second submissions”, which was sent at 2.19pm on 11 March 2011, might have arrived at the department before a departmental officer posted the reviewer’s recommendation to the applicant at an unknown time on
11 March 2011. There was no evidence either way on this issue.
To the extent that it might be relevant, it was for the applicant to prove that the email arrived before the recommendation was despatched.
In the absence of evidence, I conclude that the email was not received before the recommendation was posted. In the alternative, I infer that the email was not received by anyone in a position to action it before the recommendation was posted. That is because, as a matter of common knowledge, the department is large, it processes a lot of correspondence, and it has numerous officers in numerous different areas to undertake discreet tasks. It seems most unlikely that the email would have reached anyone on 11 March 2011 who was in a position to do anything about it before the recommendation went into the post on 11 March 2011.
The court invited submissions on whether Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 2009 CLR 597 (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11 might have some bearing on this case. However, on reflection, I consider that Bhardwaj is of no assistance in the present matter. That is because the regime which applies to tribunal decisions, as was the case in Bhardwaj, is substantially different to the regime that governs the decision making process of independent merits reviewers.
There was some debate about whether the reviewer was functus officio, and, if so, when he became functus officio. There seems to be no authority on this point. However, I do not consider that the reviewer was functus officio on 1 March 2011 or, indeed, on 11 March 2011. The reviewer is not a court or tribunal. The recommendation of the reviewer is not even a decision, but a step towards the making of a decision: SZQDZ v Minister for Immigration and Citizenship(2012) 286 ALR 331 [2012] FCAFC 26.
Indeed, in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; [2010] HCA 41, the High Court noted at [48] that the Independent Merits Reviewer Manual expressly contemplates a reviewer reopening his consideration of a recommendation after sending it to the department if a departmental officer invited the reviewer to “consider more up to date country information”.
Paragraph [48] of M61 is as follows:
The IMR process was subject to what the Department described as "a quality assurance check before an offshore entry person would be notified of the outcome of the IMR review". That process, now supervised by the Registrar of the Refugee Review Tribunal (while on secondment to the department), was said to "primarily [involve] checking IMR recommendations for spelling, grammatical, cut and paste or other obvious errors". But it was a process that may "result in a suggestion being made to an independent reviewer that he or she may wish to consider an additional matter, consider more up to date country information, or clarify parts of a decision-record or recommendation".
The IMR Manual was not put into evidence in the present case. I am not entirely sure that the IMR Manual considered in M61 was still in use at the times that mattered in this case. However, the IMR Manual, in my view, simply proceeded on the obvious basis that a reviewer signing his recommendation does not represent a final decision, such as a court might make, but is an administrative step that may be further considered in appropriate circumstances. For the same reason, the recommendation remained an administrative step, that could be reopened, even after it was dispatched to the applicant.
Consequently, it is clear that there was no bar to the reviewer reopening his recommendation in appropriate circumstances. It is also clear that the reviewer did not recall the matter for further consideration after the “second submissions” were received by the first respondent’s department on 11 March 2011.
The applicant said in paragraph 19 of the submission filed on 10 April 2012:
It is assumed by the Applicant, having had no response to … the additional information, that the [second] submission was not considered by the First Respondent or his delegates.
The first respondent noted that the covering letter sent to the applicant with a copy of the reviewer’s recommendation said that, if the applicant decided not to seek judicial review of the reviewer’s recommendation, the department will:
give you 35 days from the date of this letter to provide any new or additional information which you would like to have taken into consideration. Such information may relate to humanitarian concerns or to circumstances raising international human rights obligations that may affect your return to Afghanistan. Any information you wish to be taken into consideration must be emailed to the International Obligations mailbox ([email protected]).
On 26 April 2012, Katherine Elizabeth Whittemore, a solicitor employed by the solicitors for the respondents, swore and filed an affidavit in which she said, in paragraph 10, that:
On 24 April 2012, I was informed by an officer of the Department of Immigration and Citizenship, and I believe, that the ITOA [International Treaties Obligations Assessment] process in respect of the applicant is ongoing.
However, the fact that the ITOA process may still be ongoing does not necessarily mean that anyone in the department is looking at the “second submissions”. Annexure C to Ms Whittemore’s affidavit is an outline of the ITOA process. It requires a consideration of whether Australia has non-refoulement obligations “beyond the Refugees Convention” (emphasis added) under various treaties. It says that the ITOA process applies to any case in which a reviewer gave a negative recommendation, regardless of whether the claimant has sought judicial review.
Ms Whittemore’s evidence was not challenged. However, the ITOA process does not, on the face of Annexure C, provide for a further consideration of issues arising under the refugee Convention, and, in particular, does not provide a mechanism for the consideration of any material that was overlooked by the reviewer in his consideration of the applicant’s claims under the refugee Convention.
Be that as it may, the fact is that there was no bar to the reviewer reopening his recommendation. However, that fact alone does not mean that the reviewer was legally obliged to reopen the matter, or that failing to reopen the matter meant that the reviewer fell into jurisdictional error, or that an injunction ought to issue restraining the first respondent from relying on the recommendation.
In Craig v State of South Australia (1995) 184 CLR; (1995) 131 ALR 595; (1995) 69 ALJR 873; [1995] HCA 58; the High Court said at [14]:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
The country information contained in the “second submissions” could, in theory, have been relevant material as described in Craig. However, the applicant did not point to any particular country information in the “second submissions” that constituted “relevant material”. A good deal of argument in the present matter went to whether the reviewer took into account a particular passage in the 2010 report (i.e. the UNHCR report published on 17 December 2010), which is discussed at length below, and which was set out in a statement of agreed facts filed by the parties. That passage seems to be the crucial evidence in the 2010 report from the applicant’s point of view. However, in oral submissions, the applicant conceded that the particular passage was not alluded to in the “second submissions”[1].
[1] Transcript page lines 19 to 32.
The applicant made no submission about exactly how or why any particular item of country information that actually was contained in the “second submissions” was material. Consequently, it is not possible for the court to conclude that the country information contained in the “second submissions” was “relevant material”, within the meaning of Craig.
It is not enough, in an application of this nature, to say that 20 pages of material of some sort were overlooked. The applicant needed to show that something was overlooked that was of actual significance to the case, such that a jurisdictional error had been made, and such that an injunction ought to be granted.
If particular country information in the “second submissions” had been identified as having been overlooked, then the first respondent would have had an opportunity to respond to the specific allegations.
The court would have the opportunity to consider other important questions such as:
a)whether there was other country information that the reviewer did consider that made the same point;
b)whether there were findings of greater generality that rendered irrelevant the country information that was overlooked; and
c)whether the country information that was overlooked could otherwise have made a difference to the decision.
It is important to recall that the “second submissions” did not contain any new claims about the applicant personally. It is also important to recall that, as a rule, it is for the decision-maker to select the country information that seems most pertinent, and it is for the decision-maker to give that country information such weight as he or she sees fit.
In this connection, see for example:
a)the decision of the High Court in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1; [2005] HCA 29 at [8], where Gleeson CJ said:
… Naturally, the country information was not related specifically to the case of the appellant, and it was necessary for the Tribunal to deal with it as best it could or, alternatively, dismiss it as entirely unhelpful. That was a choice to be made by the Tribunal in its role as a finder of fact [;] and
b)the decision of the Full Court of the Federal Court where the court (Gray, Tamberlin and Lander JJ) said at [13]:
Both the choice and the assessment of the weight of such material [country information] were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
Moreover, even assuming there was relevant material in the “second submissions” that was ignored, that does not necessarily mean there was a jurisdictional error. See the decision of the Full Court of the Federal Court in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 [2002] FCA 161 at [17] where the court (Sundberg, Marshall and Weinberg JJ) said:
The evidence of the appellant's brother in his case, if viewed as relevant material in the appellant's case, can be said to have been ignored by the RRT. However, it is another thing to say that relevant material has been ignored "in a way that affects the exercise of power". For that element to be satisfied it must be shown that the RRT was bound to take into account the evidence which it ignored; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 per Mason J. We can discern no basis upon which it can be said that the RRT was so bound.
It should also be noted that in VAO, the Full Court considered whether the Refugee Review Tribunal in that case had relied on outdated country information. The Full Court held at [25]:
… there was no obligation on the RRT to seek out or act upon more recent information.
Additionally, the Full Court of the Federal Court said in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 91 (2005) 141 FCR 291 at [41]:
In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied.
For these reasons, I do not accept that ground 1.a identifies a jurisdictional error.
Ground 1.b
Ground 1.b in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law in that he failed to accord to the Applicant procedural fairness:
...
b.in failing to put to the Applicant that his evidence that it was fear of the Taliban that caused him to go to Iran aged 16, was not accepted. The Second Respondent’s reasons relied upon Country information not put to the Applicant on this issue. (CB: 161 [62])
The reviewer said to the applicant in their interview, at page 20 line 39 and following of the transcript[2] of the interview:
Okay. Can I ask you, I’ve read somewhere where the borders are very porous, in other words, they’re not closed, between Afghanistan, Iran and Pakistan, and people, particularly Hazaras and others, go and come from these countries across the borders with no real difficulties, but they go for work and economic reasons. If I suggest that really was your case and that you weren’t going because of the Taliban and things like that, how would you react to that?
[2] Annexure to the affidavit affirmed by Stuart Webb on 15 March 2012.
The applicant replied that he left Afghanistan for Iran because of the Taliban and not for economic reasons. The reviewer provided a break in the interview a minute or two later. When the interview resumed, the reviewer asked more questions and then said, at page 25 of the transcript lines 37 to 39, that he had nothing more to ask, but asked the applicant and his solicitor if there was anything more they would like to say. The solicitor and the applicant said various things, including that the written submissions covered everything. They said nothing more about the applicant’s reasons for going to Iran. Then, at page 28 of the transcript at line 47, the reviewer asked if there was anything more they wanted to say. The interpreter said no.
The reviewer squarely raised the question of whether the applicant left Afghanistan for Iran for economic reasons rather than because of fear of the Taliban. The reviewer gave the applicant and his solicitor ample opportunity to respond to that question. There was no obligation on the reviewer to refer the applicant to a specific item of country information substantiating the reviewer’s understanding of the situation.
The reviewer was obliged to put the substance of the issue, which he did. I do not accept that there was a denial of procedural fairness in relation to this ground.
Ground 1.c
Ground 1.c in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law in that he failed to accord to the Applicant procedural fairness:
…
c.in failing to put to the Applicant that his evidence that he was beaten and scarred by the Taliban (CB:145[6]) was not accepted. The Second Respondent’s reasons relied upon Country information not put to the Applicant to reach the conclusion that the Applicant was robbed by criminal elements.
The applicant said in oral submissions in support of this ground that the applicant had previously been believed in relation to being beaten and scarred by the Taliban. That is not so. The initial assessment, contained in the refugee status assessment record dated 21 August 2010, states clearly at page 11, CB78, that:
I consider that incidents on the roads that may happen as a result of travel in and around Ghazni, including those experienced by the claimant, relate to civil unrest/war and generalised indiscriminate forms of harm with adverse impact on a large number of persons. The claimant does not appear to have developed any profile in the community that would warrant him being targeted by the Taliban and/or non government elements for the Convention based reason. (emphasis added)
Consequently, the applicant was alerted to the facts that generalised violence was an issue in the proceeding[3] and that the reviewer might consider that the applicant faced generalised violence, rather than persecution for a Convention reason. There was, accordingly, no denial of procedural fairness in this regard. It was not necessary for the reviewer to refer the applicant to a particular piece of country information to substantiate the reviewer’s understanding of the situation in circumstances where the initial assessment had clearly articulated the position.
[3] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63 at [35].
The applicant also seemed to suggest in oral submissions that the present reviewer had believed other applicants on this issue, and implied that it was a denial of procedural fairness to not believe this applicant. That is clearly an untenable argument. This ground is not made out.
Ground 2
Ground 2 of the amended application filed on 15 March 2012 was that the reviewer had “demonstrated bias by dealing with the application in the same terms as numerous earlier decisions by the same Reviewer”. The applicant abandoned that ground following the decision of the Full Federal Court in SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45. There was no ground 2 in the applicant’s last amended application, being the further amended application filed on
10 April 2012.
There was some suggestion at the second hearing before this court that the applicant wished to run another bias argument. However, there was nothing in the application that expressly raised such an argument, and the applicant did not formally seek leave to amend. Ultimately, the applicant indicated that he was content to rely on the other grounds that he had raised in the further amended application filed on 10 April 2012.
Ground 3
Ground 3 in the amended application filed on 15 March 2012 became ground 8 in the last application filed by the applicant, being the further amended application filed on 10 April 2012. There was no ground 3 in the further amended application filed on 10 April 2012.
Ground 4
Ground 4 in the further amended application filed on 10 April 2012 is:
The Second Respondent failed to provide to the Applicant the substance of the UNHCR 2010 report.
This ground was addressed by the applicant in his further submissions filed on 10 April 2012 beginning at paragraph 5 under the heading “Ground 1.4”.
The applicant’s submission begins by saying that while the recommendation did not refer to or rely on the 2010 report, it is clear from other cases considered by the same reviewer that he had the 2010 report when he was preparing the recommendation in this matter. However, the requirements of procedural fairness did not oblige the reviewer to provide the applicant with the substance of the 2010 report. The requirements of procedural fairness obliged the reviewer to provide the applicant with the substance of any information adverse to the applicant on which the reviewer intended to rely.
The applicant seemed to concede as much. He noted at paragraphs 6 and 7 of his submission that the 2010 report contained information that was not adverse to the applicant to the effect that the power of warlords was rising, they posed a particular threat to Hazaras, and:
… the security situation [around Jaghori] has been worsening. … some access routes [around Jaghori] are reportedly under Taliban control. There are reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads.
The applicant then accepted in paragraph 7 of the written submissions that it is what the reviewer considered to be adverse to the applicant that is relevant. However, the applicant then went on to quote from the decision of Smith FM in SZQEK v Minister for Immigration and Anor [2011] FMCA 628 at [44], where his Honour said:
In my opinion, the information that the UNHCR in December 2010 had issued a very recent re-assessment of the relevant situation in Afghanistan facing Hazara Shias, “superseding and replacing” its previous assessment made in July 2009, was significant and material new information. Its potential significance required [the reviewer] to have drawn the applicant’s attention to the publication, its contents, its perceived authority, and its possible pertinence to his assessment of the issues previously addressed in the RSA determination by reference to the earlier DFAT cable and Professor Maley’s opinions. The materiality of the December 2010 UNHCR guidelines, in my opinion, to [the reviewer’s] decision turned as much upon the timing and dating of the guidelines, as upon any changes to their contents.
However, the applicant failed to mention that in the very first sentence of the next paragraph, Smith FM said:
Moreover, [the reviewer’s] report confirmed that, in fact, he gave the December 2010 UNHCR very material weight in para 57 at the conclusion to his relevant discussion. This is shown in his conclusion:
The Reviewer does not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the Refugee Convention definition. Nor do the UNHCR Guidelines suggest that it should.
Clearly, the fact that the reviewer in SZQEK gave the 2010 report significant weight distinguishes SZQEK from the present case, where the applicant concedes that the reviewer did not rely on the 2010 report at all. That brings us back to the original problem with this submission, namely, that procedural fairness requires the reviewer to provide to an applicant the substance of adverse information on which the reviewer intends to rely, not any information that the reviewer happens to have in his possession.
The applicant then submitted, in paragraph 8 of the submissions filed on 10 April 2012, that the respondent had ignored the guidelines issued to him by the Minister that required the reviewer to invite comment on adverse information that is credible, relevant and significant.
Again, the applicant conceded that the reviewer had not relied on any information in the 2010 report, so there was no obligation to invite comment on it. In any event, a failure to follow guidelines, that have no legal force, is not generally regarded as a jurisdictional error.
Fundamentally, the applicant has not pointed to any particular information in the 2010 report that the reviewer relied upon in this case and that was adverse to the applicant.
The essence of the applicant’s complaint in relation to this ground seems to be that the reviewer did not give determinative weight to the statement in the 2010 report that the Taliban was reported to be perpetrating crimes of violence on the relevant roads. Clearly, the 2010 report said that it was both the Taliban and criminal groups that were reported to be responsible for the crimes of violence.
It is very well established that findings of fact, and the weight to be given to different items of evidence, are matters for the decision-maker and are not amenable to judicial review, except in limited circumstances that have not been relied upon in the present case.
This ground is not made out.
The first respondent argued that there was no denial of procedural fairness in the reviewer’s failure to refer the applicant to the 2010 report because the applicant’s solicitor was aware of that report no later than 30 December 2010: see the affidavit sworn by Katherine Elizabeth Whittemore on 26 April 2012. However, the 2010 report contains a lot of information, some of it arguably in favour of the applicant’s case and some of it arguably adverse to the applicant’s case. The first respondent’s submission misses the point that the requirements of procedural fairness oblige the decision-maker to give the applicant the substance of the particular information that is adverse to his case on which the decision-maker intends to rely. It is not procedural fairness to give the applicant a 45 page treatise, such as the 2010 report, without giving any indication of the relevant point.
This is made clear by the Full Court of the Federal Court in Minster for Immigration and Citizenship v SZQHH [2012] FCAFC 45 where Rares and Jagot JJ stated:
30. ... the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
31. But the substance of such information is, generally, distinct from the particular mode or source of its expression, which could be in a book, a news or journal article, or in an audio or audio visual form, such as a radio or television program, or in a number of those. In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her. The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance. For example, a decision-maker might put to a person information that had been taken out of context. Depending on the circumstances, such conduct might fall short of what procedural fairness would require unless the decision-maker also identified the context or the way in which the context affected unless the decision-maker also identified the context or the way in which the context affected the information being put.
Ground 5
Ground 5 in the further amended application filed on 10 April 2012 is:
Alternative to Ground 4, the Second Respondent erred in law in failing to have regard to the relevant material, namely the UNHCR 2010 report.
The general position is that it is a jurisdictional error to fail to take into account a consideration that the decision-maker is bound to take into account because it was made relevant, expressly or impliedly, by the applicable statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; [1986] HCA 40.
In the refugee context, relevant considerations include each of the integers of the claim. The 2010 report is an item of evidence. It is generally not regarded as a jurisdictional error to fail to take into account an item of evidence, because the selection of evidence and the weight to be given to each item of evidence is a matter for the decision-maker, rather than the court on review. The applicant has not identified any reason that would warrant a departure from the general rule.
The applicant addressed ground 5 in his written submissions filed on 10 April 2012 at paragraphs 15 and 16. The applicant noted that the reviewer stated at paragraph 10 of the recommendation at CB147 that he had consulted the UNHCR 2009 report (“the 2009 report”). In itself, there is no obvious problem with the reviewer doing that, and, subject to the matters mentioned below, the applicant did not identify any particular deficiency in the reviewer doing so. It may have been that the 2009 report contained information about a particular matter that remained relevant and authoritative.
The applicant then said that the reviewer quoted from the UNHCR 2007 report at paragraph 36 at CB154. The applicant implied that the reviewer should have referred to the 2010 report, particularly in relation to point 3 in paragraph 36. Paragraph 36 deals with groups specifically targeted by the Taliban and lists 12 different groups that are targeted. Point 3 of that paragraph, taken from the 2007 report, says:
Afghans in areas where they constitute an ethnic minority
While attempts are being made by the Government to address the problems faced by Afghans residing in areas where they are an ethnic minority and improvements have taken place in some areas, such minorities may still in some regions face detention, physical abuse and intimidation by local commanders and power-holders. Discrimination amounting to persecution of ethnic minorities also occurs, most commonly in the form of denial of access to education and other services and political representation.
A similar paragraph is set out in the same reviewer’s decision in SZQEK, and is contained in paragraph 45 of Schedule 2 to the decision of Smith FM in SZQEK. The version of the paragraph in SZQEK is said to be from the 2010 report. The list in the reviewer’s decision in SZQEK, which is taken from the 2010 report, does not include point 3 of paragraph 36 in the present matter. The 2010 list does not include the topic of Afghans in areas where they constitute an ethnic minority.
If anything, the 2007 list, used by the reviewer in the present case, is potentially more favorable to the applicant than the 2010 list used in SZQEK. However, more fundamentally, the applicant does not come from an area in which Hazaras constitute an ethnic minority.
The reviewer found at [27] of his recommendation that:… Jaghori … is a predominantly Hazara district and therefore not dominated by the Taliban.
Consequently, to the extent that point 3 in paragraph 36 of the present decision differs from any of the points in paragraph 45 of the reviewers’ decision in SZQEK, the difference appears to be irrelevant. Certainly, the applicant did not point to any relevant difference between the two paragraphs.
The applicant then said that the reviewer’s summary of the 2010 report set out in paragraph 47 of schedule 2 to SZQEK was markedly different from the 2009 report and the 2010 report
… paint[s] a very different picture of the likelihood of serious harm from the Taliban for Hazaras on the roads in Ghazni province.
The applicant and the first respondent filed a statement of agreed facts which said that the 2010 report was materially different from the 2007 and 2009 reports in that the earlier reports did not include the following paragraph from the 2010 report:
The Guidelines note that although marginalized during Taliban rule the Hazara community continues to face some degree of discrimination, despite significant efforts by the government to address historical ethnic tensions. Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province including on access routes to and from these districts, has been worsening. Jaghori district is increasingly isolated given that some access routes to and from the district including large stretches of the strategic Kabul-Kandahar road are reportedly under Taliban control. There are regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads.
The reviewer dealt with the question of the applicant’s claimed experiences with the Taliban predominantly in paragraph 62 of the recommendation. Paragraph 62 is as follows:
The Reviewer notes that the claimant has not had any personal involvement or incidents with the Pashtuns/Taliban in Afghanistan the country he first left when 16 years of age except for the 2 incidents in about 2007 2008 when he was beaten and robbed of his money when taken from a car and shot at on another occasion by the Taliban before going to Iran again after those incidents. Nevertheless, the claimant expresses a general fear of the Pashtun/Taliban who kill Hazaras and Shias. The Reviewer notes that the claimant submitted there are a number of general reported happenings and incidents in Afghanistan by the Taliban as indicating, in part, that he believes that he as a Shia and Hazara 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 Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant who had little personal involvement with the Pashtun/Taliban, who left Afghanistan for Iran on 2 occasions, in 1999 and 2008 would suffer persecution now or in the foreseeable future for a Convention reason. Indeed, I do not accept that the Taliban/Pashtuns are personally interested in him given the 2 incident [sic] when he was allegedly personally involved with the Taliban before leaving for Iran on the second occasion. It is plausible given the country information that the claimant was robbed by criminal elements on the road from Ghazni. As well it is plausible that he went to Iran when 16 to help the family for economic reasons and not necessarily because of fear of the Taliban and the death of his brother [X] who was returning from Iran where he had also worked. The claimant’s family continues to live in the family village in Afghanistan and have not been harassed, threatened or contacted by the Taliban at all. They have not been harassed or questioned as to the claimant’s whereabouts. Indeed, the claimant maintained that he was the only family member (other than his deceased brother [X]) that had any contact with the Taliban and that contact involved 2 incidents when he was outside his area and on the road. The claimant indicated that he had to go to Ghazni for iron and materials for his door and widow [sic] business or shop in the village. He stated that the goods he ordered would be delivered in another car and not with the one he travelled in. The 2 incidents referred to may have been the result of general disorder or criminal activity in the area as there was some suggestions that the claimant’s money was taken when he was stopped and beaten. Also, the claimant maintained that that the family was able to support itself and occasionally resorted to selling things from his shop as needed although he also stated that he sold the material in his shop before leaving to raise the money for the smuggler. As well, on the claimant’s return after being deported from Iran the second time he stayed in his area for some 2 weeks and left for Pakistan without incident. He had also been in his area of Afghanistan at other times even when and after the 2 incidents on the road had occurred. It appears that had he been a person of profile that was of interest to the Taliban/Pashtun they with their informants would have been able to move against the claimant had they any interest in him or had they indeed wanted to as he claimed. Further, there was no evidence that the Taliban sought the claimant in the time he was in Iran on the second occasion. On the contrary, the claimant maintained that his family had no contact with the Taliban/Pashtun and the Taliban did not harass or threaten any family member because of the claimant or because of their ethnicity and religion. The harm claimed does not appear to differ from the generalized type of violence or criminal activity that is reported from time to time in Afghanistan.
The reviewer, at the beginning of paragraph 62, seems to have accepted that it was the Taliban who beat, robbed and shot at the applicant. It is true that the reviewer went on to say that it was plausible that the applicant was robbed by criminal elements, and that he went to Iran for economic reasons. But, as I read the reviewer’s reasons, it was irrelevant whether it was the Taliban or criminal groups who had attacked the applicant because the reviewer considered that neither of them perpetrated the attacks, or targeted the applicant, for Convention reasons.
Consequently, the applicant has not explained how the reviewer having regard to the 2010 report could have made a difference to the decision.
The applicant then argued that the reviewer was obliged to access and apply the 2010 report. The applicant relied in oral submissions on the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39, and, in particular, the first of the two sentences in paragraph 25 that are set out below in bold. The whole passage of SZIAI that relates to this issue is as follows:
[20] The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
[21] Observations by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs, which were said by his Honour to be tentative and unnecessary for the decision in the case, may support such a proposition. However, Wilcox J was dealing with the grounds of review provided by s 5 of the ADJR Act; in particular s 5(1)(e) and s 5(2)(g), which he described as concerned with the manner of exercise of the power in question. Nevertheless, the inquiry under these provisions, as he framed it, was ultimately directed to the unreasonable exercise of a power within the meaning of para(g) of s 5(2).
[22] The discussion by Wilcox J in Prasad has been adopted or cited in a number of later cases in the Federal Court. The decisions, not all of which were founded upon the ADJR Act, were collected by Kenny J in Minister for Immigration and Citizenship v Le. In the course of deciding to grant prohibition and certiorari in Ex parte Helena Valley/Boya Association (Inc), the Full Court of the Supreme Court of Western Australia cited Prasad as authority for the necessity for a decision-maker to make inquiries in order to discover appropriate material if it be readily available.
[23] The proposition which may emerge from Prasad has not been the subject of full consideration in this court, whether in litigation under the ADJR Act, or any other statutory regime or under s 75(v) of the Constitution. Some observations by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs have been taken as an indication of a need for decision-makers to make inquiries in relation to claimed changes in the political circumstances in the home country of a person seeking protection as a refugee. However, the legal consequences of a failure to inquire were not discussed in that judgment. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J accepted the correctness of the approach in Prasad in "an appropriate case". Teoh was not such a case as reliance was not placed on the ground of review under the ADJR Act which was considered in Prasad. McHugh J also made reference to Prasad and other Federal Court decisions to similar effect. But, like Mason CJ and Deane J, he found them inapplicable in Teoh. In Abebe v Commonwealth, Gummow and Hayne JJ rejected a submission that the Tribunal in that case should have made further inquiries. They did so on the basis that "[n]o plausible and possible line of inquiry was suggested". They did not think it necessary to consider the premise of the submission, namely that the Tribunal was under an obligation to make further inquiries. Nor was it necessary to consider the limits of so-called Wednesbury unreasonableness.
[24] Mason CJ and Deane J in Teoh also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (emphasis added)
[26]The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error. (citations omitted)
The High Court in SZIAI said particularly in [25] that:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.
However, the High Court expressly refrained from determining that question because there were other reasons in that case that meant that the relevant argument could not succeed. However, assuming that the passage set out in the previous paragraph is the law, the applicant would say that the reviewer could have easily obtained the 2010 report because he had referred to it in previous recent decisions of his own. That may be so. Assuming that the 2010 report is not so long and dense that the reviewer could have easily ascertained the relevant material within it, the next question is whether the 2010 report actually contained a critical fact.
The applicant argued that the 2010 report, as opposed to the 2007 and 2009 UNHCR reports, which the reviewer seems to have referred to, did contain critical material. As stated above, the applicant and the first respondent filed a statement of agreed facts which said that the 2010 report was materially different from the 2007 and 2009 reports in that the 2010 report relevantly included the following:
The Guidelines note that although marginalized during Taliban rule the Hazara community continues to face some degree of discrimination, despite significant efforts by the government to address historical ethnic tensions. Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province including on access routes to and from these districts, has been worsening. Jaghori district is increasingly isolated given that some access routes to and from the district including large stretches of the strategic Kabul-Kandahar road are reportedly under Taliban control. There are regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads.
The applicant argued that the 2010 report contained critical material because, compared to the earlier reports, it showed that the Taliban had increasing power on the roads around Jaghori. The applicant argued that the material was critical because the case turned on whether he was believed about whether he was attacked by the Taliban or by criminal elements.
I fail to see how this material is critical in the required sense.
Most importantly, the 2010 report indicates that both the Taliban and criminal groups perpetrate crimes of violence along the roads near Jaghori. The 2010 report is not so definitive and one sided that, when considering the question of who attacked the applicant, the reviewer could be regarded as being under an obligation to obtain the 2010 report, even if the law did require a decision-maker “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”.
The applicant also relied on SZQEK at [35] where Smith FM said:
Indeed, as a matter of law, [the reviewer] may have been bound to give the UNHCR December 2010 guidelines significant weight, once he became aware of them.
However, Smith FM did not actually decide the point, because SZQEK was determined on another basis. His Honour found at [34] that the reviewer had denied the applicant in SZQEK procedural fairness because the reviewer had in fact given the adverse aspects of the 2010 report significant weight but had not sought comments on those aspects from the applicant in SZQEK. Consequently, Smith FM’s statement extracted above from [35] of SZQEK was just a passing comment.
Moreover, Smith FM formed the view that the 2010 report should have been given significant weight in SZQEK because the reviewer himself said in SZQEK that it bore upon the claims the applicant made.
The claims made by the applicant in this case have some common features with the claims made by the applicant in SZQEK. However, it is very well established that it is for an administrative decision-maker to choose the country information that he or she considers is the most helpful and give it the weight he or she sees fit.
The applicant argued that the reviewer was under an obligation to obtain up to date information. That obligation was said to spring from the Minister’s guidelines issued to Independent Merits Reviewers. Guidelines are not generally regarded as imposing legal obligations. However, even if it were a legal obligation to obtain up to date information, the fact is that the reviewer listed in paragraph 10 of his recommendation a good many reports from 2010 that appear to be from authoritative sources. It is not for the court to say that one recent report should have been given more weight than another recent report. I am unable to see how the reviewer could have made a jurisdictional error by not obtaining a particular up to date report and giving it more weight than other up to date reports.
Additionally, the applicant’s submission seems to be saying that the reviewer should have given significant weight to a particular part of the 2010 report, namely, the part that said the Taliban were perpetrating crimes on the roads near Jaghori, and should have ignored the fact that the report actually said that both the Taliban and criminal groups were perpetrating crimes on the roads near Jaghori. That submission crosses the boundary into merits review.
The applicant’s submission also misses the point that the reviewer considered that, even if it was the Taliban who attacked the applicant, the attacks were not discriminatory and were not for a Convention reason. The reviewer noted in paragraph 62 of his recommendation that the applicant claimed the Taliban had been involved in the attacks on him. The reviewer appears in the first half of paragraph 62 to accept that it was the Taliban who perpetrated the attacks on the applicant. However, the reviewer then went on to say:
62. … The Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant who had little personal involvement with the Pashtun/Taliban … would suffer persecution now or in the foreseeable future for a Convention reason. Indeed, I do not accept that the Taliban/Pashtuns are personally interested in him given the 2 incident[s] when he was allegedly personally involved with the Taliban … . It appears that had he been a person of profile that was of interest to the Taliban/Pashtun they with their informants would have been able to move against the claimant … had they indeed wanted to … . … On the contrary, the claimant maintained that his family had no contact with the Taliban/Pashtun and the Taliban did not harass or threaten any family member because of the claimant or because of their ethnicity and religion. The harm claimed does not appear to differ from the generalized type of violence or criminal activity that is reported from time to time in Afghanistan.
…
64.The general proposition that no one is safe in Afghanistan given the fighting and bloodshed there does not support a claim for refugee status under the Convention because it does not point to any discrimination.
The first respondent argued that the reviewer in the present case did in fact have regard to the 2010 report. That submission was based on the fact that in both SZQEK at [57] and in the present case at [44], the reviewer used the words:
… The Reviewer does not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the Refugee Convention definition. Nor do the UNHCR Guidelines suggest that it should.
The first respondent said that Smith FM in SZQEK had found at [45] that those words were a reference to the 2010 report, so they should be understood as a reference to the 2010 report in the present case.
I do not think that follows. The reviewer in SZQEK made express reference to the UNHCR 2010 Guidelines at [45] and [46] and then referred repeatedly to “the Guidelines”. It was very clear in SZQEK that the Reviewer referred to and relied on the 2010 report. The issue in SZQEK was whether the 2010 report was so different from the 2009 report that the reviewer should have drawn relevant aspects of it to the applicant’s attention and invited comment on them. In that context, Smith FM said the reviewer’s reference in [57] to “the UNHCR Guidelines” was a reference to the 2010 report.
There is nothing in the present case that leads to the same conclusion. The reviewer made no express references in the present case to the 2010 report. When the reviewer used the words “the UNHCR Guidelines” in the present case, he may well have been referring to the 2009 UNHCR report. However, for the reasons given above, the applicant has not identified a jurisdictional error in relation to whether the reviewer did or did not have regard to the 2010 report.
The first respondent noted that O’Dwyer FM considered a similar point to the ground presently under consideration in MZYOS v Minister for Immigration and Citizenship [2012] FMCA 422 at [40] to [47].
His Honour was prepared to infer in that case that the reviewer was in possession of the 2010 report. However, there is no principle of judicial comity that requires me to draw the same inference in this case. Inferences obviously depend on all the relevant evidence in each particular case.
In any event, for the reasons stated above, this ground is not made out.
Ground 6
Ground 6 in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law in failing to have regard to relevant materials, namely the material in SZQEK, Schedule 2 paragraphs [32] – [37].
The applicant first addressed this ground in paragraph 17 of his written submissions filed on 10 April 2012. While the ground alleges the reviewer failed to have regard to certain material, the written submissions say that the reviewer should have provided the material, presumably, to the applicant.
The applicant noted that the reviewer in this case was the same person as the reviewer in the matter that was considered by this court in SZQEK. Smith FM set out in schedule 2 to his Honour’s decision in SZQEK extracts from the reviewer’s recommendation.
That recommendation included paragraphs 32 to 37 under the heading “Ghazni”. The applicant’s complaints in the present case were that the reviewer in the present case did not reproduce those paragraphs in his recommendation in the present case and, presumably, did not have regard to the underlying material and did not provide them to the applicant for comment.
The applicant argued, in effect, at [3] of his submissions filed on 4 May 2012 that the reviewer completed his recommendation in SZQEK before he completed his recommendation in the present matter. Consequently, the applicant submitted that the reviewer was clearly aware of the relevant material when he prepared the recommendation in this matter.
The applicant provided to the court an annotated version of schedule 2 to SZQEK as an attachment to the submissions filed on 27 March 2012. The annotations highlighted certain aspects of paragraphs 32 to 37 of the reviewer’s recommendation in SZQEK that the applicant said were particularly relevant to the present case.
The annotations also indicated that the reviewer had repeated verbatim in the present recommendation certain paragraphs from his recommendation in SZQEK. The repeated paragraphs appear in the recommendation presently under consideration in paragraphs 17 to 23, dealing with Hazaras, and paragraphs 24 to 29, dealing with Jaghori. Paragraphs 35 to 37, in the present recommendation, which deal with returned refugees, are almost identical to certain paragraphs in SZQEK. (The applicant in the present case abandoned ground 2 of the amended application filed on 15 March 2012 that the reviewer had “demonstrated bias by dealing with the application in the same terms as numerous earlier decisions by the same Reviewer” following the decision of the Full Federal Court in SZQHH.)
It is true that the reviewer did not include in the present case the paragraphs from SZQEK under the heading “Ghazni”. However, instead, the reviewer added some apparently entirely new paragraphs, being paragraphs 30 to 34, under the heading, “Road from Ghazni City via Qarabagh to Jaghori”.
The applicant did not articulate any particular deficiency in the reviewer setting out the material in paragraphs 30 to 34 of the present recommendation, rather than paragraphs 32 to 37 of the recommendation in SZQEK. One would assume that the reviewer considered the material that he did rely on in the present case to be more pertinent than the material in SZQEK. The applicant has not stated anything to this court that would displace that assumption.
As stated above, the selection of, and the weight to be given to, country information is a matter for the decision-maker. The applicant’s submissions in relation to this issue do not appear to me to identify a jurisdictional error.
Ground 7
Ground 7 in the further amended application filed on 10 April 2012 is:
The review process was not fairly and lawfully conducted in that the process did not provide a mechanism for a person to consider material relevant to the report and recommendation received by the First Respondent prior to the delivery of the report of the Second Respondent.
The applicant purports to address this ground in paragraphs 1 to 4 of the applicant’s submissions filed on 27 March 2012 and in paragraphs
18 and 19 of the applicant’s submissions filed on 10 April 2012. However, those submissions do not appear to address ground 7 as it is framed. Ground 7, as it is framed, seems to be suggesting that the whole review process was bad because the reviewer was not required to provide all the material relevant to his recommendation to the applicant before the reviewer gave the recommendation to the Minister.
The applicant did not provide any authority in support of the proposition that the review process would be bad for that reason.
It appears to me to be contrary to principle. Obviously, the reviewer had an obligation to provide procedural fairness. That obligation included alerting the applicant to any issue on which the decision may turn and giving the applicant the substance of any adverse information on which the reviewer intended to rely.
The obligation to provide procedural fairness does not require the reviewer to provide all of the material relevant to his recommendation to the applicant prior to giving the recommendation to the Minister.
In the absence of any particular instance of a failure to afford procedural fairness, I am unable to accept that this ground as it is framed identifies a jurisdictional error.
Nevertheless, the applicant submitted in paragraph 19 of the submissions filed on 10 April 2010 that:
Relevant material was ignored.
There might be cases where ignoring a specific item of evidence, as opposed to a claim, might constitute jurisdictional error. However, the applicant did not identify with any particularity what material had been ignored. He seemed to suggest that what was ignored was the whole
20 pages of the applicant’s second submission, which was lodged on
11 March 2011. This complaint was addressed under “Ground 1.a” above.
This ground is not made out.
Ground 8
Ground 8 in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law in failing to find the facts relevant to the question of whether the Applicant had a subjective fear of persecution.
This ground is addressed in the applicant’s written submissions filed on 15 March 2012 under the heading “Ground 3”. The applicant there said:
A fair reading of the reasons is that the Second Respondent made finding[s] on the facts which demonstrated that he did not apply the correct legal test of persecution. The Second Respondent first correctly identified the issues relevant to assess the credit of the Applicant (CB: 159 [53]) but did not apply them. In particular the Second Respondent did not identify what evidence he found credible and act upon it. There were findings accepting the Applicant’s evidence that it was the Taliban who had killed his brother, beaten him on one occasion and shot at his car on another occasion. If the Second Respondent accepted, as he said at [57] that it was the Taliban who were responsible for what harm the Applicant and his family had suffered and was the source of the Applicant’s fear, the subjective test of persecution was clearly satisfied. It is not logical to apply a different set of conclusions from the same facts, which go directly to the credit of the Applicant on the question of whether that fear was
well-founded. The facts as found must be applied to both subjective and objective aspects of the test. It is this error in not applying the correct test to the facts as found which allows the Second Respondent to then jump to the conclusion the “harm claimed does not appear to differ from the generalised type of violence or criminal activity that is reported from time to time in Afghanistan” (CB; 162 [62]). In failing to make consistent and logical findings the proper test with respect to fear of persecution was not applied.
The applicant’s submissions assume that, if it was the Taliban, rather than criminal groups, that had attacked the applicant, the Taliban must have attacked him for a Convention reason. However, that is exactly what the reviewer did not accept. The reviewer was clearly of the view that, even if it was the Taliban who had attacked the applicant, they did not do so because the applicant was a Hazara or a Shia or for any other Convention reason. The reviewer clearly considered that anyone on the roads at the same time as the applicant could have been attacked in the same way.
The reviewer seems to have accepted that the applicant had a reasonable basis for having a subjective fear of being attacked on the roads near Jaghori. However, the reviewer did not accept that any such attacks would be for a Convention reason.
The applicant has not identified any proper basis for challenging the reviewer’s conclusions on this issue. This ground is not made out.
Ground 9
Ground 9 in the further amended application filed on 10 April 2012 is:
The Second Respondent erred in law by asking himself the wrong question when he asked whether the Applicant was “a person of profile” when he should have asked himself whether on the facts as established the objective well-founded test applied.
The applicant, in part, relied on the same written submission for ground 9 as he did for ground 8. There was nothing untoward in the reviewer asking whether the applicant was “a person of profile”. It was a legitimate enquiry in the process of determining whether the applicant had a well-founded fear of persecution.
The applicant also relied, in relation to ground 9, on paragraph 8 of the written submissions filed on 15 March 2012 under the heading “Ground 4”. Paragraph 8 is as follows:
The Second Respondent evaluated the Applicant’s claims applying the test of whether he was a “person of profile” (CB: 162 [62]) notwithstanding that he had not made that claim at any stage. The reasoning that it is only persons of profile that is (sic) of interest to the Taliban, is contrary to the early finding:
“when Hazaras come to the adverse attention of the Taliban….the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion…the Taliban have a predisposition to perceive Hazaras as potential political opponents (CB: 155[39])”.
The claim of the Applicant was that he had in the past come to the adverse attention of the Taliban and bore scars from that attention (CB: 145[8]). His claim needed to be examined on its merits, not on the basis of a claim not made.
The applicant submitted that he had never claimed to be a person of profile, and the reviewer should not have assessed his claims on the basis of a claim he had not made. As stated above, whether the applicant claimed to be a person of profile or not, it was open to the reviewer to consider whether the applicant was a person of profile, and conclude, partly on the basis that he was not, that he did not face a well-founded fear of persecution.
The reviewer did not say “it is only persons of profile who are of interest to the Taliban”. The reviewer referred to “a person of profile that was of interest to the Taliban”. That meant, “the sort of person who is of interest to the Taliban”.
In any event, the reviewer did not say that the applicant did not face a fear of persecution for a Convention reason only because he was not a person with a certain sort of profile. The reviewer gave a number of reasons for reaching that conclusion. In paragraph 62 alone, the reviewer gave the following reasons:
As well it is plausible that he went to Iran when 16 to help the family for economic reasons and not necessarily because of fear of the Taliban and the death of his brother [X] who was returning from Iran where he had also worked. The claimant’s family continues to live in the family village in Afghanistan and have not been harassed, threatened or contacted by the Taliban at all. They have not been harassed or questioned as to the claimant’s whereabouts. Indeed, the claimant maintained that he was the only family member (other than his deceased brother [X]) that had any contact with the Taliban and that contact involved 2 incidents when he was outside his area and on the road. The claimant indicated that he had to go to Ghazni for iron and materials for his door and widow [sic] business or shop in the village. He stated that the goods he ordered would be delivered in another car and not with the one he travelled in. The 2 incidents referred to may have been the result of general disorder or criminal activity in the area as there was some suggestions that the claimant’s money was taken when he was stopped and beaten. Also, the claimant maintained that the family was able to support itself and occasionally resorted to selling things from his shop as needed although he also stated that he sold the material in his shop before leaving to raise the money for the smuggler. As well, on the claimant’s return after being deported from Iran the second time he stayed in his area for some 2 weeks and left for Pakistan without incident. He had also been in his area of Afghanistan at other times even when and after the 2 incidents on the road had occurred. It appears that had he been a person of profile that was of interest to the Taliban/Pashtun they with their informants would have been able to move against the claimant had they any interest in him or had they indeed wanted to as he claimed. Further, there was no evidence that the Taliban sought the claimant in the time he was in Iran on the second occasion. On the contrary, the claimant maintained that his family had no contact with the Taliban/Pashtun and the Taliban did not harass or threaten any family member because of the claimant or because of their ethnicity and religion. The harm claimed does not appear to differ from the generalized type of violence or criminal activity that is reported from time to time in Afghanistan.
The passage from paragraph 39 of the recommendation quoted by the applicant in his written submission omits some significant words. The relevant passage actually says:
… the Reviewer is satisfied that when Hazaras come to the adverse attention of the Taliban for some other reason (for example, and most commonly, imputed political opinion of support for the government or foreign forces and/or antipathy towards the Taliban) the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion.
In addition, the reviewer said at [44]:
On the basis of available current and authoritative material, and notwithstanding the claimant’s general assertions to the contrary, the Reviewer 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 (i.e. Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and/or religion. The Reviewer does not accept that a person’s identity as an Hazara Shia of itself causes him or her to fall within the Refugee Convention definition. Nor do the UNHCR Guidelines suggest that it should.
Putting these two paragraphs together, it seems to me that the reviewer meant that anyone who is attacked by the Taliban for random reasons, as opposed to reasons such as support for the government, will not face a differential risk of harm by virtue of being a Hazara or a Shiite.
That was a question of fact for the reviewer to determine. I do not consider that the applicant has identified a jurisdictional error in relation to this matter. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 22 June 2012