MZYPF v Minister for Immigration
[2011] FMCA 985
•15 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 985 |
| MIGRATION – Offshore processing – application for judicial review of Independent Merits Review Assessment – extension of time – whether necessary in the interests of the administration of justice – extension refused – application dismissed. |
| Federal Magistrates Act 1999 (Cth), s.45 Federal Magistrates Court Rules 2001, r.14.02 Migration Act 1958 (Cth), s.477 |
| Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 AZABO v Minister for Immigration & Anor [2011] FMCA 772 AZABN v Minister for Immigration & Anor [2011] FMCA 809 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Darabi v Minister for Immigration & Anor [2011] FMCA 371 DZAAG v Minister for Immigration & Anor [2011] FMCA 866 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Gosford Christian School Ltd & Anor v Totonjian & Ors [2006] NSWSC 725 Kioa v West [1985] 159 CLR 550 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 NAAX and Another v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 SZBHT v Minister for Immigration [2005] FMCA 622 SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 SZQEK v Minister for Immigration & Anor [2011] FMCA 628 SZQFU v Minister for Immigration & Anor [2011] FMCA 599 SZQGA v Minister for Immigration & Anor [2011] FMCA 672 SZQGV v Minister for Immigration & Anor [2011] FMCA 743 SZQJP v Minister for Immigration & Anor [2011] FMCA 759 SZQKC v Minister for Immigration & Anor [2011] FMCA 848 SZQJH v Minister for Immigration & Anor [2011] FMCA 845 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869 Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | MZYPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1108 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 16 November 2011 |
| Date of Last Submission: | 16 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burchill |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for an extension of time is dismissed.
The application for judicial review filed on 28 July 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1108 of 2011
| MZYPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for declaratory and injunctive relief in relation to a recommendation by an Independent Merits Reviewer (“IMR”) that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1697 Protocol Relating to the Status of Refugees (the “Convention”).
The applicant is an Afghan of Hazara ethnicity and Muslim religion (Court Book “CB” 6). He arrived on Christmas Island by boat on
13 March 2010 (CB 72). He requested a Refugee Status Assessment (“RSA”). On 25 June 2010, an assessor found that the applicant is not a person to whom Australia owes protection obligations (CB 80). On 20 July 2010, the applicant sought an Independent Merits Review
(CB 82). That review was determined adversely to the applicant on
30 March 2011 (CB 126).
The applicant filed an application for judicial review of the Independent Merits Review Assessment (the “IMRA”) in this Court on 28 July 2011. An amended application was filed on 7 November 2011.
At the hearing on 16 November 2011 Ms Burchill appeared for the applicant and Mr Horan for the first respondent.
Grounds
The grounds in the amended application are that:
(1)The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer failed to accord the applicant procedural fairness.
Particulars
(a)The recommendation contained 3 ¼ pages of detailed country information from a range of sources, covering a range of areas in Afghanistan.
(b)The Reviewer failed to prove any of this detail to the applicant and/or failed to sufficiently put the substance of it to him.
(2)The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer failed to accord the applicant procedural fairness.
Particulars
(a)The primary decision maker, who made his decision on 25 June 2010 considered, amongst other information, the UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Afghanistan July 2009.
(b)The applicant’s advisor, in submissions to the Reviewer dated 16 September 2010, quoted from the same guidelines [CB 108].
(c)On 17 December 2010, UNHCR issued new Guidelines, which superseded and replaced the earlier Guidelines.
(d)The applicant was interviewed by the Reviewer on 27 January 2011.
(e)The Reviewer referred to and relied on the new Guidelines.
(f)The Reviewer failed to bring the existence of the new Guidelines to the attention of the applicant.
(3)The Reviewer denied procedural fairness or failed to apply correct legal principles in that she relied on irrelevant material or made a finding for which there was no evidence in finding that the applicant could relocate to Kabul.
Particulars
(a)The Reviewer denied procedural fairness or failed to exercise jurisdiction in failing to consider the following matters when answering the question of whether the applicant could reasonably relocate to Kabul:
(i)Ethnic discrimination against Hazaras in Afghanistan;
(ii)The generalised violence throughout Afghanistan;
(iii)The inability of the Afghani government to provide protection from generalised violence;
(iv)The evidence before the Reviewer that persons without family or community connections in Afghanistan, such as the present applicant, were unable to lead a life without undue hardship.
(b)The Reviewer at [75] [CB 143] made a finding that the applicant could find work in a large city, possibly self employed as a painter or tailor. There was no evidence to support this finding.
(c)The independent country information before the Reviewer instead showed that returnees face significant issues of finding a livelihood, support, shelter and land and that the police and armed forces are unwilling to provide security and the Hazaras have a history of persecution in Afghanistan [CB 107-109].
(d)The Reviewer denied the applicant procedural fairness in failing to put her view about Kabul to him for comment.
Extension of Time
The applicant seeks an extension of time for lodging his application for judicial review.
The applicant was advised by letter dated 12 April 2011 (CB 124) that the IMR had recommended that he not be recognised as a person to whom Australia has protection obligations and that it is 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 Migration Act 1958 (the “Act”)]; that is, by 17 May 2011. The application for judicial review was filed over two months late on 28 July 2011.
Section 477 of the Act 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 has not specified in writing why he considers that it is “necessary in the interests of the administration of justice” to make the order extending time [s.477(2)(a)], but the affidavit of Mr Stuart Webb affirmed on 14 November 2011 is accepted by Mr Horan as setting out those reasons.
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[1]. 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.
[1] 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]”. [2]
[2] 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.”.[3]
[3] 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[4], 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”[5]. 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.[6] The RRT was not satisfied that the applicant was in fact homosexual, but that finding was challenged.[7] 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.[8]
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.[9]
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”.
[4] [2005] FMCA 622 (“SZBHT” )
[5] SZBHT at para 3 per Scarlett FM
[6] SZBHT at paras 13 and 19 per Scarlett FM
[7] SZBHT at paras 12 and 49 per Scarlett FM
[8]SZBHT at paras 14 and 17-21 per Scarlett FM
[9] SZBHT at paras 39-42 per Scarlett FM
In the present matter the Court finds that the two month delay is significant.
The applicant’s application for an extension of time was listed for hearing on 16 November 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 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.
In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 the High Court decided at [88]:
“One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as “Australian legislation and relevant case law” had, therefore, to be treated as binding upon those who made the assessments and those who reviewed those assessments, not just as ‘aid[s] to the interpretation of the Refugees Convention’”.
Ms Burchill relied on the affidavit of Stuart Webb (supra), which sets out the reasons given by the applicant for the delay in filing. The applicant had 35 days from the date of the written notice (12 April 2011) to file his application with the Court, and instead of actively pursuing legal advice decided to wait until June 2011 to “see lawyers who were to visit Scherger Immigration Detention Centre”. The delay in filing was therefore caused by the applicant. The Court will however review the merits of the application.
Procedural Fairness/Natural Justice
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”.
In SZQGV v Minister for Immigration & Anor [2011] FMCA 743 Driver FM decided:
“Ground 6 contains two complaints of denial of procedural fairness. Both would fail for want of evidence because the applicant has not filed a transcript of the interview, and the Reviewer’s reasons alone do not provide a sufficient evidential basis for the breach of procedural fairness he alleges of matters not being put to him: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]”.
The Merits
Submissions by the applicant
Ms Burchill summarised the grounds of the application as; first, that the IMR failed to accord procedural fairness by failing to put to the applicant the substance of detailed country information; secondly, that the IMR failed to accord procedural fairness by failing to bring to the applicant’s attention the existence of the UNHCR Eligibility Guidelines of 17 December 2010, and finally, the IMR denied procedural fairness, or failed to apply correct legal principles, in finding that the applicant could relocate to Kabul.
The grounds were run together substantially in the submissions.
The first ground is failing to put to the applicant the substance of detailed country information. Ms Burchill submits that, although the IMR set out the independent evidence/country information she relied on (CB 134), she did not set out the passages about relocation, and when interviewing the applicant on 27 January 2011 (CB 130), she did not discuss with the applicant the country information relied on in reaching her findings, being the UNHCR Guidelines of 17 December 2010, and the New York Times Report of 3 February 2010 (CB 141.3).
It has not been shown to the Court that the material is adverse to the applicant.
In SZQFU v Minister for Immigration & Anor [2011] FMCA 599 Driver FM decided at [44]:
“However, only (country) information which is adverse, credible, relevant and significant to rejecting the applicant's claims is required to be put. The applicant does not identify in his ground or submissions what information was relied upon which was required to be put. Much of the information cited in the recommendation is uncontentious and not adverse to the applicant's claims”.
See also Kioa v West [1985] 159 CLR 550 at 628-629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [15] per curiam.
The IMR “only need to put for comment country information that was adverse, credible, relevant and significant”. SZQGV (supra).
As decided by Raphael FM in SZQGA v Minister for Immigration & Anor [2011] FMCA 672 at [9]:
“The advisors were not only on notice that the Guidelines were a relevant matter, they made reference to them on page 4 of their first submission to the IMR [CB 80]. In their second submission, made after the hearing, they utilised them for their advantage [CB 83 – 84]. The IMR is not required to provide an applicant with a running commentary on her thought processes: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]. I cannot see any lack of procedural fairness in not specifically putting to the applicant a particular adverse comment from a document known to and quoted by his own representatives in his favour. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 the High Court held (at [9]) that,
“Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material”.
In the present case, the adverse nature of the information was clear from the face of the document. It is for the applicant to satisfy the IMR that he is a person to whom Australia owes protection obligations and whilst there is no burden of proof to be overcome the applicant must make out his or her own case: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 per Kirby J at [78]; Abebe v Commonwealth (1999) 197 CLR 510. I am not satisfied that the IMR fell into jurisdictional error…”
The New York Times article of 3 February 2010 was an issue in the RSA (CB 74 Item 8). All that the IMR relied on from that article was the statement that “Kabul has a large Hazara population – perhaps 1 million people, a quarter of the city” (CB 141.3). The level of the Hazara population in Kabul was raised in the written submissions by the applicant’s agent (CB 109.2).
Ms Burchill submits that the IMR should have put the UNHCR Guidelines to the applicant, which the IMR knew would bear upon the applicant’s claim for refugee status. The statements from those Guidelines relied on by the IMR were:
“General guidance about relocation has been published by UNHCR which notes that “in order for it to be a relevant consideration in any given case, the area must be found to be accessible and without factors that could contribute to a well-founded fear of persecution”. (CB 141.2)
And
“The traditional extended family and community structures of Afghan society constitute the main protections and coping mechanism. Afghans rely on these structure and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence”.
These statements were not adverse to the applicant and did not have to be put to him for response.
Ms Burchill relied on the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 about an applicant having a right to be heard in response to critical issues on review. Ms Burchill submits that the critical issue of relocation to Kabul was not raised with the applicant. The Court rejects that submission. The submissions by the applicant’s migration agent deal specifically with the issue of relocation (CB 107-109, 112-113). Mr Horan submits that the applicant’s migration agent put information in the course of the RSA that went to the issue of relocation. The RSA shows that relocation was an issue (CB 79.10 – 80.1).
Ms Burchill sought to distinguish the decision in SZQEK v Minister for Immigration & Anor [2011] FMCA 628 where at [39] Smith FM noted that the relevant information was set out in the RSA’s reasons. In the present case the New York Times article was referred to in the RSA (CB 74.8).
Ms Burchill returned to the issue of relocation and the tests she submits needed to be applied, being “whether there was no appreciable risk of occurrence of fear of persecution in Kabul” and “whether it was reasonable, in the sense of being protectable, for the applicant to relocate….”
The IMR considered those issues (CB 141.2 and .4). Ms Burchill submits that there was no evidence before the IMR for her to find that the applicant has acquired two skills of painting and tailoring. That is incorrect – the applicant was employed as a painter from 1997-2001 and from 2003-2004, and as a tailor from 2005-2010 (CB 58). It was therefore a reasonable deduction that he had skills in those areas, and could be self employed in Kabul.
The applicant was aware of the issue of relocation to Kabul, and his migration agent put written submissions to the IMR (CB 107-109, 112-113). It was not necessary for the IMR to refer to those submissions in the IMRA as the issues raised in the submissions were considered by the IMR.
The IMR considered the security issues in Afghanistan throughout the IMRA.
The IMR considered the issue of employment in Kabul (CB 141.7).
The IMR noted that:
“The traditional extended family and community structures of Afghan society constitute the main protection and coping mechanism. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence”. (CB 141.4)
The IMR then noted that:
“the claimant has a close relative – his cousin…in Kabul”; and that “I am satisfied that there are family structures in Afghanistan that which would enable the claimant to establish himself in Kabul”. (CB 141.5)
Having made those observations it was not necessary for the IMR to consider “dramatic increases in rent in Kabul” (CB 108.1).
The IMR considered the issue of the applicant being able to find work in Kabul (CB 141.8). The IMR considered whether the applicant would have access to “an adequate level of subsistence in Kabul” (CB 141.5).
The submissions by the applicant’s migration agent (CB 109.5) refers to an article in the New York Times on 26 June 2010 which allegedly states that:
“Karzai is giving Afghanistan back to the Taliban, and he is opening up the old schisms”.
The IMR noted that Kabul has a large Hazara population and a religious and linguistic framework for Shia Muslims and Hazaragi speakers…. (CB 141.3).
The applicant’s migration agent referred to possible outcomes from the process of reconciliation in Afghanistan in general (CB 109.9). The IMR found that the applicant would have adequate support in Kabul. That finding of fact covered the issue of possible outcomes (CB 109.9).
The applicant’s migration agent referred then to ongoing safety concerns in Afghanistan (CB 112.10) and submitted that there is “nowhere in Afghanistan where our client could avoid being persecuted because of his religion or faith” (CB 113.2).
The Court finds that the IMR dealt with all the issues relevant to relocation to Kabul raised in the migration agent’s submissions of
16 September 2010 (CB 89). There was no need therefore for the IMR to refer directly to those submissions. The issues raised therein were considered by the IMR.
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641 at [47]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173”.
A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25].
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 applies the following decision in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”
Submissions for the first respondent
Mr Horan referred to the decision in NAAX and Another v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312, concerning the extent that the content of country information is required to be put to the applicant, and the “difficulties both in principle and practice in having to afford natural justice descend (sic “to descend”) to such a level of detail in this statutory context” p.333 [52] (being the statutory context of the Migration Act).
Mr Horan submits that “sensible limits” must be drawn as to the level of detail that an administrative decision maker needs to put to an applicant for their response. Mr Horan states that an issue of critical importance would have to be exposed… in order to provide fairness. The Court agrees – here the critical issue of relocation was exposed sufficiently for the applicant to be aware that he had to respond to it, and for written submissions to be made. The issues raised in the submissions were considered by the IMR.
Mr Horan referred to the decision in Darabi v Minister for Immigration & Anor [2011] FMCA 371. At [95] Nicholls FM sated that:
“… procedural fairness does not require that country information, even where it is perceived to be of relevance, be provided as long as the issues of concern are raised and the claimant has an opportunity to put his or her case….”
The Court agrees. Here, the issue of relocation was raised sufficiently for the applicant to be aware that a response was required. A response was made and the issues were considered.
Mr Horan referred to the decision in SZQJP v Minister for Immigration & Anor [2011] FMCA 759 where at [27] Smith FM decided as follows:
“As both judgments emphasise, not every passing new citation of country information by a reviewer gives rise to breach of procedural fairness, merely because the possibility of that citation was not foreshadowed to an applicant with an invitation to comment. In every case, it is necessary to consider the significance of the absence of an invitation to comment through the prism of fairness in the particular circumstances, in particular by considering whether the undisclosed source contained information which was "credible, relevant and significant" to the decision to be made by the refugee assessor. When considering that issue, the actual significance given to the information in the reasons for decision may provide decisive evidence, but it is the Court’s assessment of the significance of the adverse information to the decision which is determinative (see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, [2005] HCA 7 at [16-17])”.
The Court finds that the failure to put the New York Times article and the UNHCR Guidelines to the applicant for comment did not deprive the applicant of the opportunity to respond to the issue of relocation.
Mr Horan referred to the decision in SZQEK (supra) at [50-52] where Smith FM decided that:
“50. In relation to particulars (b) and (d), I am not persuaded that Mr Karas was obliged to draw the applicant’s attention to the fact that he might rely upon these two documents and might give “particular weight to” the DFAT cable of February 2010. In short, they were both documents which had been cited in the RSA assessment, and the applicant was sufficiently on notice as to their existence and potential materiality.
51. In my opinion, consideration of the fairness of the procedures followed by Mr Karas requires consideration of the manner in which country information had been presented and addressed by the Department of Immigration in the course of the preceding RSA assessment. It was plain, in my opinion, that the issues which Mr Karas would be addressing would continue to be the issues which had been addressed by the RSA assessment, and that the applicant’s refugee claims addressed in the RSA would be reviewed in the light of the material previously cited in the RSA and such additional claims, evidence and country information which might become available to Mr Karas.
52. In this respect, I accept the Minister’s submission that the contents of the DFAT cable, and the documents to which it referred, were sufficiently drawn to the applicant’s attention by way of the reasons attached to the RSA assessment, including its list of country information consulted at that stage. This, it appears to me, included “the Finnish Immigration Service Report” which is identified in particular (d) under ground 1, as well as the DFAT cable itself which is particular (b)”.
In the present case, the applicant’s attention was drawn to the New York Times article of 3 February 2010 by its inclusion in the list of material before the RSA officer (CB 110), and the issue of the Hazara population in Kabul was addressed by the applicant’s migration agent (CB 108.10) and by the IMR; the correct tests for relocation were considered. The Court finds no error in the tests applied.
Mr Horan referred to the decision in SZQKC v Minister for Immigration & Anor [2011] FMCA 848 at [27-28] where Cameron FM decided at [27]:
“If an applicant’s presentation at an independent merits review is such that he or she demonstrates an awareness and appreciation of a particular matter, perhaps because of the attention it was given before or by the RSA assessor, then the Reviewer has no obligation to raise it further. The procedural fairness required by the rules of natural justice involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 per Mason J. At 587 his Honour noted the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it, but also suggested that such a step might not be required if the issue and relevant information had already been addressed in the applicant’s application. Later, in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, it was held by Gummow and Hayne JJ, Gaudron and Kirby JJ agreeing, that the Refugee Review Tribunal (“RRT”) did not breach the rules of natural justice by not putting to Ms Abebe that her claims of detention and rape might not be accepted, given that the credibility of those claims had been expressly doubted by the primary decision-maker and had also been the subject of submissions by her advisers to the RRT itself”.
In the present case the issue of relocation was raised and responded to. The IMR had no obligation to raise it further. Also, the issue of the Hazara population in Kabul was the subject of submissions (CB 107.8) and consideration by the IMR (CB 141.3).
Mr Horan referred then to the decision in SZQJH v Minister for Immigration & Anor [2011] FMCA 845 where Cameron FM decided at [13]:
“Although the fact that a matter has been raised before, or by, the RSA assessor does not, of itself, relieve a Reviewer from the obligation to put all material matters to an applicant, if the applicant’s presentation at the review is such that he or she demonstrates an awareness and appreciation of the matter in question, perhaps because of the attention it was given before or by the RSA assessor, then the Reviewer has no obligation to raise it further. The procedural fairness required by the rules of natural justice involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa’s case at 585 per Mason J. At 587 his Honour noted the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it but also suggested that such a step might not be required if the issue and relevant information had already been addressed in the applicant’s application. Later, in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, it was held by Gummow and Hayne JJ, Gaudron and Kirby JJ agreeing, that the Refugee Review Tribunal (“RRT”) did not breach the rules of natural justice by not putting to Ms Abebe that her claims of detention and rape might not be accepted, given that the credibility of those claims had been expressly doubted by the primary decision-maker and had also been the subject of submissions by her advisers to the RRT itself”.
In the present case the issue of relocation was referred to in the RSA (CB 79.10 and 80.1), and the applicant’s presentation at the review demonstrated an awareness and appreciation of the matters in question.
Mr Horan submits that there is no obligation to disclose information that has been addressed in the applicant’s submissions, and referred to SZQJH (supra) at [27]; DZAAG v Minister for Immigration & Anor [2011] FMCA 866 at [9-11]; and WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869 at [6-8]. In the present case, the issue of relocation was addressed in the submissions by the applicant’s migration agent. Although the submissions were not referred to directly in the IMR, all the issues raised therein were considered (supra).
Mr Horan then addressed the tests for relocation. The Court has found that the correct tests were applied. To the extent that the applicant challenges findings of fact as to livelihood, support and, shelter (CB 141). Those findings of fact are not amenable to review.
Mr Horan referred to the decisions in AZABO v Minister for Immigration & Anor [2011] FMCA 772 and AZABN v Minister for Immigration & Anor [2011] FMCA 809 regarding relocation to Kabul, however those decisions are confined to their own facts and do not require consideration here.
Submissions in reply by the applicant
Ms Burchill submitted that the article in New York Times was used “in a new and unexpected way” to infer that the population of Hazaras in Kabul provided the necessary framework in Kabul. The Court finds that the applicant was aware of that article (CB 74) and its use in that way could not unexpected. Ms Burchill submitted that the material was used in “ambush, because he didn’t know that relocation was going to be an issue”. The Court finds that there is proof that the applicant knew that relocation was an issue, as his migration agent dealt with it in written submissions.
Ms Burchill submits that country information put by the applicant’s migration agent should have been taken into account.
“Both the choice and the assessment of the weight of” country information is a matter for the RRT (here “the IMR”). “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.” (NAHI post [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 post [14])
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].
Ms Burchill alleges a failure by the IMR to take into account relevant considerations as referred to in paras.31 onwards of the applicant’s written submissions. The Court has found that the IMR addressed the relevant considerations (CB 141). Those findings of fact by the IMR are not amenable to review.
The applicant’s migration agent put written submissions on relocation to the IMR. The IMR stated that she would take into account “information provided by or on behalf of the claimant…” (CB 127.2). It is to be presumed that she did.
There is a presumption of regularity. As decided in Gosford Christian School Ltd & Anor v Totonjian & Ors [2006] NSWSC 725 at [110]-[111]:
The gap in the evidence may be filled by resort to the presumption of regularity, omnia praesumuntur rite esse acta. The relevant principle was succinctly stated by Lindley LJ in Harris v Knight (1890) LR 15 P & D 170 at 179-180:
The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried in effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect. (See also Carpenter v Carpenter Grazing Co Ltd (1987) 5 ACLC 506 at 514).
The issues relevant to relocation including those raised in the written submissions were taken into account. The Court presumes that the written submissions of 16 September 2010 (CB 89) were taken into account.
Ms Burchill alleges that the issue of “ethnic discrimination in Afghanistan” was not taken in account. That is not correct; The IMR recorded that the RSA concluded that “Hazaras per se are not specifically targeted and that the Hazaragi region (including Jaghori) one of the safest in Afghanistan” (CB 129.5). Further, the IMR took account of generalised violence throughout Afghanistan in conducting the IMRA.
The applicant has not established that he was denied procedural fairness/natural justice. The grounds of the application are without merit.
The Court declines to extend time for the applicant to lodge his application for judicial review.
The application for judicial review is dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 15 December 2011
51
3