MZYPK v Minister for Immigration

[2012] FMCA 95

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPK v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 95

MIGRATION – Application to review a decision of an Independent Merits Reviewer – Applicant seeks declaration the recommendation of the Reviewer was not made in accordance with law and an injunction restraining the First Respondent from relying on the recommendation – Applicant seeking extension of time for making the application – Applicant is a citizen of Afghanistan of Hazara ethnicity and a Shia Muslim.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(1)(b)
Migration Act 1958 (Cth), s.46A, s.418(3), s.477

Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41
R v Criminal Injuries Compensation Board; Ex Parte A [1999] 2 AC 330
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563
SZMYO v Minister for Immigration and Citizenship [2010] FMCA 963
SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123
SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628
SZQNF v Minister for Immigration and Citizenship[2011] FMCA 965
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413

Applicant: MZYPK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1113 of 2011

Judgment of: Whelan FM

Hearing date: 14 December 2011

Date of Last Submission: 14 December 2011

Delivered at: Melbourne

Delivered on: 16 February 2012

REPRESENTATION

Counsel for the Applicant: Mr Watters

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Rebikoff

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application to extend time pursuant to s.477 of the Migration Act is dismissed.

2. The substantive application filed 28 July 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1113 of 2011

MZYPK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of an Independent Merits Reviewer (“the Reviewer”) made on 22 December 2010 that the Applicant not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention.

2. The Applicant seeks a declaration that the recommendation of the Reviewer was not made in accordance with law and an injunction restraining the First Respondent from relying on the recommendation.

3. The Applicant also seeks an extension of time for making the application under s.477 of the Migration Act 1958 (Cth) (“the Act”).

Background

1. The Applicant is a citizen of Afghanistan. He is a Hazara and a Shia Muslim. He arrived in Australia on 28 February 2010 and on 1 May 2010 made a request for refugee status.

2. On 28 June 2010, the delegate of the Minister found that the Applicant did not meet the definition of a refugee set out in Article 1A of the Refugees Convention.

3. On 9 July 2010, the Applicant requested an Independent Merits Review (“IMR”) of his assessment and he was interviewed by the Second Respondent, the Reviewer, on 12 October 2010. On 22 December 2010, the Reviewer recommended that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention. The Applicant was notified on 17 January 2011 of the recommendation and on 28 July 2011 filed an application for judicial review.

4. The Applicant claimed that he had been born in the Bamyan province of Afghanistan and that he had moved to Kabul with his family when he was 14 years old. He left Afghanistan when he was 16 to live in Iran in order to get away from the war. The Applicant claimed to have lived illegally in Iran, where his wife and children continue to live, until he was deported in 2009.

5. The Applicant claimed to fear that he would be killed if he returned to Afghanistan because he is a Hazara and a Shia and because his father was a member of the Communist Party who worked for the former Communist regime.

6. The Reviewer accepted that the Applicant was a citizen of Afghanistan and of Hazara ethnicity and a Shia Muslim. Based on country information, the Reviewer concluded that neither the Applicant’s ethnicity nor religion by themselves meant that he faced a real chance of harm amounting to persecution by the Taliban or Pashtuns.

   
   

   In reaching that conclusion, the Reviewer accepted that this did not mean that a Hazara Shia could not be found to be a refugee on the basis of his own personal profile, experiences or activities.

7. The Reviewer rejected the Applicant’s claim to fear persecution on the basis that his father had been a member of the Communist Party and had worked for the Communist regime.

The Grounds

1. The Applicant raises two grounds in the application for review.

The first ground of review

1. The first ground is that the Reviewer failed to make a decision based on the most current material, which constituted a jurisdictional error.

2. In making her decision, the Reviewer expressly relied upon the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers published in July 2009 (“the 2009 Guidelines”). On 17 December 2010, the UNHCR published a new set of guidelines, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers (“the 2010 Guidelines”) which:

   a)expressly superseded the 2009 Guidelines; and

   b)implicitly superseded the expression of the United Nations High Commission for Refugees’ (“UNHCR”) views contained in the Department of Foreign Affairs and Trade’s (“DFAT”) document ‘Afghanistan: Situation of the Hazara Minority’, published in February 2010 and also relied on by the Reviewer.

The second ground of review

1. Secondly, insofar as the Department of Immigration and Citizenship (“the Department”) did not provide a copy of the 2010 Guidelines to the Reviewer, this amounted to a denial of natural justice.

The Applicant’s submissions

1. In relation to the extension of time, the Applicant submits that essentially the question is one of the substantive merits of the case. While the application was filed approximately five months out of time, the delay arose because the Applicant was detained in the Sherger Immigration Detention Centre in far north Queensland with limited means of communicating with the outside world and little, if any, access to legal advice. The Respondent agreed that substantially the decision in relation to an extension of time lay with the merits of the case.

2. The Applicant firstly addressed the second ground of review. The Applicant contends on the basis of the decision in R v Criminal Injuries Compensation Board; Ex Parte A [1999] 2 AC 330 (“Ex Parte A”) that a failure by a third party to provide information may amount to a denial of natural justice if three conditions are met:

   (1)The third party must know, actually or constructively, the information;

   (2)The third party must be in a ‘special position’ in relation to the decision maker; and

   (3)The information must be favourable.

3. The Applicant conceded that the particular Ex Parte A case had not been decided in Australia but submitted that guidance could be had from the judgment of French J (as he then was) in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 391 where his Honour says:

   The application of the general principles emerging from the authorities discussed above, establishes that procedural unfairness affecting a person’s right to a hearing before an administrative tribunal can be a ground for judicial review without any fault on the part of the tribunal. Whether there has been a reviewable failure of procedural unfairness will depend upon the circumstances. On the basis of the cases discussed above, it may arise where:

   …

   4. A third party fails to provide to the tribunal and the person to be affected by the decision with documents in its possession or power which would be favourable to that person. 

4. The Applicant distinguished the comments in SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 (“SZOIN”) at paragraph 71 where the Court stated:

   given that the nature of the obligation of procedural fairness is to be gauged by reference to the statutory framework in which the obligation arises, we consider that Ex parte A is not part of the law in Australia on this topic

   on the basis that in Ex Parte A there was, as the Court in SZOIN noted, no identified statutory requirement for the police to provide particular documents to the Board while in SZOIN there was an express statutory provision in s.418(3) of the Act.

5. The crucial difference, on the Applicant’s submission, is that in the circumstances in SZOIN the Act provided “a prescriptive regime as to rights and obligations”[1] that regulates the Refugee Review Tribunal (“RRT”) process but is not applicable to the IMR process.

   [1] SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at paragraph [71].

6. Further, the Applicant submits that the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 (“S134”) at pages 459-460 considered Ex Parte A commenting that the Board in that case was set up not under statute, but by the Executive Government acting under the prerogative, which the Applicant says is more akin to the IMR. The Court went on to say:

   The Board had been entitled to rely upon the police to obtain relevant evidence. Seen in the light of the provisions in s5 of the ADJR Act respecting applications for judicial review, the English case may perhaps best be characterised as one where, in the terms of para(b) of s5(1), "procedures that were required by law to be observed in connection with the making of the decision were not observed".[2]

   [2] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441At paragraph [42].

7. The Applicant points out that the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) only applied to decisions made under an enactment. What we are looking at here might be called comparable statutory and common law obligations. There is nothing to prevent the Court from recognising and applying Ex Parte A in the absence of a statutory obligation.

8. In this case it does not appear to be denied that the Department or the Minister was actually or constructively aware of the information.

9. The Applicant submits that the Department or the Minister was in a special relationship with the Reviewer. The Applicant referred to two memoranda of understanding between the Department of Immigration and Citizenship (“the Department”) and the Migration Review Tribunal–Refugee Review Tribunal. These memoranda place an obligation on the Department’s Country Research Section to provide the Tribunals with ongoing access to CISNET and provide to the Tribunals’ Country Advice and Information Section any other relevant country research products or information. The second memorandum refers to the services to be provided to the IMR including ‘advice on country information pertaining to the review of refugees’ status assessments’.

10. The Guidelines for the Independent Merits Review of Refugee Status Assessments[3] state that:

    ·Independent Reviewers should take into consideration the country information available through CISNET and legal advice supplied by the Refugee Review Tribunal; and

    ·Independent Reviewers must also refer to current and reliable country information available through CISNET and through the RRT.[4]

    [3] Exhibit A3, Guidelines for the Independent Merits Review of Refugee Status Assessments, 1 April 2010.

    [4] Ibid at page 8.

11. On this basis the requisite connection exists to establish a special relationship between the Department and the IMR. It is clear that the Reviewer placed significant reliance on the country information and where there was conflict between the Applicant’s evidence and the country information, almost invariably preferred the country information. While the Court in SZOIN found that s.418(3) of the Act excluded the operation of any common law obligation, it found that the Minister and the Secretary held a special position in respect of the RRT.

12. The Applicant further submits that the 2010 Guidelines were favourable in that they were materially more pessimistic about the situation in Afghanistan and referred to the worsening security situation. This must give some support to the Applicant because if a person is at risk of persecution they are more likely to be at risk of persecution in an unstable security situation.

13. The Applicant submits that it is not relevant that the information was generally available on the Internet. There was no obligation on the Reviewer to search out the information but there was an obligation on the Department to bring it to their attention.

14. With respect to the first ground, the Applicant submits that a decision maker is required to have regard to the most current material in making a decision.

15. In SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628, Smith FM expressed the view that:

    Indeed, as a matter of law, Mr Karas may have been bound to give the UNHCR December 2010 guidelines significant weight, once he became aware of them.[5]

    He described the Guidelines as:

    the most recent and thorough source of authoritative opinion and review of all recent country information concerning the applicant’s general claims which was available.[6]

    [5] SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628 at paragraph [35].

    [6] Ibid.

16. The Applicant submits that the Department was aware of the 2010 Guidelines and it is appropriate to impute the Department’s knowledge to the IMR. The role of the IMR is to give the Minister advice on whether to exercise his powers under s.46A of the Act. This requires a Reviewer to make a decision that is consistent with the legal obligations on the Minister (Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41).

17. Where a Department has knowledge of a matter, the Minister in charge of the Department is taken to have that knowledge and the Minister must act on the most current information available to him.

18. The Applicant concedes that SZMYO v Minister for Immigration and Citizenship [2010] FMCA 963 (“SZMYO”) suggests that the Department’s knowledge should not be imputed to the RRT. The role of the RRT is however a materially different one to that of the IMR.

    
    

    In addition, s.418(3) of the Act applies to the provision of information to the RRT by the Department and does not apply to the IMR.

19. In SZMYO, Nicholls FM made the distinction between the relationship between the Minister and the Department and the Department and the Tribunal in the following terms:

    But far more importantly, it is distinguishable because the relationship between the Minister and his department is different to the relationship between the department and the Tribunal. Underlying the applicant’s argument now is the presumption that what was before the department can also said to be before the Tribunal. While this argument may in certain circumstances have validity as between the department and the Minister, it does not, in my view, apply to the department and the Tribunal. The former is created by administrative arrangements made by the Governor-General. The latter is a creature of statute (Pt 7 of the Act).

    They are two separate entities. This for current purposes, and specifically for the purpose of what is said to be before the Tribunal, is emphasised by s 418 of the Act itself. In particular s 418(3) makes specific provision for the giving of documents from the department to the Tribunal that are relevant to the review.[7]

    [7] SZMYO v Minister for Immigration and Citizenship [2010] FMCA 963 at paragraphs [66] and [67].

20. SZMYO says nothing about the IMR. To the extent that WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 (“WAGP”), SZOIN and SZYMO reject Ex Parte A they do so because they are dealing with the RRT and the relationship between the RRT and the Minister is clearly and exclusively regulated by s.418(3).

21. If the 2010 Guidelines were not taken into account, was this material? The Applicant submits that given the weight placed by the Reviewer on the 2009 Guidelines and given that it is clear that the 2010 Guidelines supersede the 2009 Guidelines, it cannot be said that consideration of the 2010 Guidelines could not have lead to a different result.

22. The Applicant referred to the decision of SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 and in particular to the following paragraphs:

    In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention. An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there. And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded.

    Often, circumstances can change radically in the applicant for review’s country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d’état and continuing governments may change their domestic policies to become more or less oppressive.[8]

    [8] SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at paragraphs [38] and [39].

23. The Applicant submits that it is not necessary to show that the result would have been different but that there was reliance on a matter that is affected materially by the change in the Guidelines.

The First Respondent’s submissions

1. The First Respondent submits that it is clear from the Reviewer’s decision that she did not have the 2010 Guidelines before her when she wrote that decision. This is unlike the situation in SZJTQ where it was apparent from another part of the report that the decision-maker had the most current material available.

2. The question that arises is; was the Reviewer obliged to consider the information and, secondly, was the Department obliged to provide it to her and what follows if it did not?

3. The First Respondent submits that there is no obligation to provide information which is not specifically about an applicant. The Guidelines are published on the internet. They are not specifically about this or any other applicant. There is an expectation contained in the Guidelines for the Independent Merits Review of Refugee Status Assessments that the Reviewers will have access to the Internet and will be able to source publicly available material. It is the character of the information in this case which distinguishes it from every other case in which a failure to provide information has been raised as giving rise to jurisdictional error. In Ex Parte A, S134, WAGP, SZOIN and SZYMO the information was specific to the individual. None involved the point of general publicly available information of the sort under consideration here.

1. What is apparent from Ex Parte A is that the obligation, if it does arise, must depend on whether there has been a failure to afford natural justice having regard to the particular information not provided. It is not a general obligation that arises by reason of the special relationship; the question of whether there was unfairness has to be answered by reference to the information in question.

2. Further, there would be a real question about whether the failure rises to the level of jurisdictional error. In S134, the High Court doubted as much, finding that in Australia if the same situation as in Ex Parte A arose there would not be a denial of natural justice although there might be relief available under the AD(JR) Act.

3. There was also discussion of the issue in WAGP. In that case, particular information known to the Department about the applicant was not given to the Tribunal. There was a failure to comply with s.418(3). The question before the Full Court was what was the consequence of that failure. The Full Court said it was not a failure to afford procedural fairness on the part of the decision maker. While in that case the Court was dealing with s.418(3), the principle is applicable. The Court says:

   Finally on the appeal, the appellant argued that the Tribunal had erred by not having regard to the missing letter, in effect in breach of s 418(3) of the Act. This too was not a matter argued at first instance[9]

   and then goes on to say:

   The essential question remains whether the failure by the Secretary to comply with s 418(3) will result in the Tribunal — even though it has conducted its review in accordance with Div 4 of Pt 7 and has provided the visa applicant with procedural fairness (in this matter it is not necessary to consider the significance of s 422B, introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)) — committing jurisdictional error, or in some way being disempowered from making a valid review.[10]

   [9] WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at paragraph [48].

   [10] Ibid at paragraph [62].

4. That decision did not specifically consider Ex Parte A, however the Court in SZOIN did. The Court considered if the Secretary’s breach could be a breach by the Tribunal:

   The circumstances in which a third party breach not known to the Tribunal may result in jurisdictional error would be extremely limited. One example is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, in which a third party represented himself to the then appellants to be a solicitor and migration agent duly licensed and received a substantial fee for acting for the family with respect to the Tribunal proceeding. The appellants followed the advice given by the third party, in particular, not to attend the Tribunal hearing. The High Court upheld the dissenting judgment of French J, as his Honour then was, in the Full Court. His Honour was of the view that the Tribunal had fallen into jurisdictional error because whilst it had made its decision blamelessly, its decision-making process was compromised by "third party fraud".

   The High Court (at [53]) emphasised that the consequences of its finding of jurisdictional error was limited and that bad or negligent advice to an appellant "or some other mishap" that applies to the appellant's detriment does not vitiate the decision made. The High Court referred to French J's decision at [125] and following. His Honour emphasised at [128] that it was not about unfairness but about the effect of fraud on the Tribunal's decision-making process.[11]

   [11] SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at paragraphs [60] & [61].

5. The Court then went on to consider other cases and said:

   We cannot agree that WAGP was clearly wrong. It is not only directly in point insofar as the crucial question is concerned but is also based on sound reasoning which is consistent with the approach taken by members of the High Court in Muin and also with S487 and SZNZK.

   Although it is regrettable (and in our view did not accord with the requirements of s 418(3)) that the Medical Reports were not made available to the Tribunal, the error on the part of the Secretary in complying with s 418(3) (including continuing compliance until completion of the review) does not give rise to the result that the Tribunal's decision is tainted with jurisdictional error.[12]

   [12] Ibid at paragraphs [65] and [66].

6. The Court then went further to specifically discuss Ex Parte A and concluded:

   There is in the Act a prescriptive regime as to rights and obligations. The point of principle that this appeal engages has been the subject of consideration in another Full Court decision with which we agree (WAGP). In those circumstances and given that the nature of the obligation of procedural fairness is to be gauged by reference to the statutory framework in which the obligation arises, we consider that Ex parte A is not part of the law in Australia on this topic. The High Court has not seen the need to embrace it when the opportunity to do so has arisen. Further, as the decision in Ex parte A makes plain, it was an exceptional case. While the Medical Reports in the present appeal should, in our view, have been forwarded to the Tribunal, the facts fall well short of those under review in Ex parte A.[13]

   [13] Ibid at paragraph [71].

7. Notwithstanding that that case involved much more relevant information than we are considering here, it was held to fall far short of those under review in Ex Parte A.

8. The next ground is the Reviewer’s failure to take account of the 2010 Guidelines.

9. The Applicant identifies the obligation to have regard to the most current material in making a decision as the High Court’s decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”). It is clear from a review of Peko-Wallsend that such an obligation only extends to information which is, in fact, before the decision maker.

10. The Respondent referred to the facts in Peko-Wallsend.  The issue was whether the Minister was obliged to have regard to the most up to date information that, on any view, was in his possession where the Aboriginal Land Commission had made a recommendation prior to that information becoming available. At page 44 of the judgment, Mason J said:

    The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand[14]

    and further at page 45:

    It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.[15]

    [14] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at page 44.

    [15] Ibid at page 45.

11. The First Respondent also referred to how his Honour dealt with the issue of the obligation to go out and search for information:

    They say that it cannot be inferred that the Minister is obliged to engage in a further fact-finding exercise, which is a function more appropriately performed by the Commissioner. The answer to this submission is that the Minister is obliged only to take into account additional submissions that have been made to him. He is not required to initiate an independent inquiry to verify the accuracy of the Commissioner's findings or to update them.[16]

    [16] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at page 46.

12. The point that any obligation only extends to material actually before the decision maker was reiterated by Rares J in SZJTQ:

    If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (ie before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered[17]

    and at paragraph [42]:

    Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45.[18]

    [17] SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at paragraph [40].

    [18] SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at paragraph [41].

13. SZJTQ was a case where the Tribunal did have more recent material available to it, but it was not taken into account. The Applicant seeks to get around this by relying on constructive notice. That is precisely the argument which was rejected by the High Court in S134. The whole Department file had, in that case, been provided to the Tribunal but it was apparent that the Tribunal had not noticed or relied on the information said to be relevant. The Court distinguished Peko-Wallsend in that case where constructive notice of specific information was imputed to the subsequent Minister. There was no suggestion that such information should be imputed to the Commissioner, who was the person, like the Reviewer in this case, making the recommendation.

14. That the Reviewer is in a different position to the Department was accepted by Smith FM in SZMYO where his Honour says at paragraph [78]:

    Further and in addition, the evidence is that the audio recording was in any event not actually before the delegate. As to whether it could be said to be constructively before the delegate, I agree with Ms Clegg that in the authorities relied on by the applicant the circumstances presented involved information provided for the purpose or object of the relevant decision. Here, what was relevantly provided by the applicant for the purpose of the protection visa application and as to why he was a refugee cannot, on its own, be said to include information provided for the purpose of consideration of the cancellation of another and quite separate visa

    Neither the audio recording of the airport interview nor any transcript was actually before the Tribunal. Nor, for the reasons above, was it constructively before the Tribunal. As Ms Clegg also submitted, even if any factual error arose from the Tribunal’s decision in these circumstances this would not reveal jurisdictional error in any event (Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321).[19]

    [19] SZMYO v Minister for Immigration and Citizenship [2010] FMCA 963 at paragraphs [78] and [79].

15. There is simply no basis for saying the Reviewer was constructively aware of everything relevant to the situation in Afghanistan that may or may not be in the Department’s possession. In the absence of such knowledge there is no error.

16. Finally, the First Respondent submits that even if there was a failure to take into account the 2010 Guidelines, no relief ought to flow if that failure was not material to the decision, in the sense that it would not have affected the outcome of the review. That is a further distinction between this case and the other cases cited where there was really no question that the information was material.

17. In Peko-Wallsend, Mason J set out a number of general principles concerning the consequences of the failure to take into account a relevant consideration. He said:

    Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd.[20]

    [20] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at page 40.

18. The First Respondent submits that there is no relevant difference between the UNHCR material relied on by the Reviewer and the 2010 Guidelines. The First Respondent referred to page 168 of the Court Book where the Reviewer sets out the relevant country information.

19. The Reviewer relies on that information in her conclusions at paragraph [51] of her decision,[21] where she says:

    Given the information provided by the UNHCR, UNAMA, US Embassy, Afghan Human Rights organisations and Hazara advocates I accept the advice in the February 2010 DFAT report that while there are “strong perceptions of discrimination and a sense that development needs in the Hazarajat are being neglected the Hazara do not live in fear of “systematic persecution as they did under the Taliban and that currently Hazaras are not being persecuted on any consistent basis”. I do not accept that the claimant’s ethnicity and religion by themselves means that he faces a real chance of harm amounting to persecution by the Taliban or Pashtuns. This does not mean that a Hazara Shia cannot be found to be a refugee on the basis of his own personal profile, experiences and activities.[22]

    [21] Court Book at pages 181 – 182.

    [22] Court Book, page 182 at paragraph [51].

20. When you go to the 2010 Guidelines,[23] the discussion of who may face a risk of persecution on Convention grounds starts at page 29 and concludes at page 32. On page 32 of the 2010 Guidelines, it states:

    Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for social, economic and historical reasons, this does not exclude that others are forced to move for protection-related reasons. UNHCR therefore considers that members of ethnic groups, including, but not limited to those affected by ethnic violence of land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case.²³² However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant.[24]

    ²³² See, for example, RRT Case No. 1000358 [2010] RRTA 328, 30 April 2010, where the Australian Refugee Review Tribunal accepted, based on the available country information, that the appellant, who wanted to reclaim from a local politician land of which his family had been unlawfully dispossessed, was likely to be refused State protection because of his ethnicity (in this case, Hazara), which would amount to persecution under the 1951 Convention.

    [23] Exhibit A5, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010.

    [24] Ibid at page 32.

21. This is wholly consistent with the conclusions of the Reviewer in this case. In the recent decision of SZQNF v Minister for Immigration and Citizenship[2011] FMCA 965, Smith FM dealt with the question of whether there was any difference between the 2009 and 2010 Guidelines and concluded:

    Moreover, the absence of any such evidence, also leaves me not satisfied that the new guidelines did, in substance, alter the material effect of the 2009 guidelines, in so far as they had a bearing on an assessment of the refugee claims of the present applicant. Merely on my own comparison of the passages to which I was taken by the applicant’s counsel in the respective reports under the headings “members of (minority) ethnic groups”, I was not so persuaded.

    Rather, it appears to me that the general effect of the 2009 guidelines in relation to the position of Hazara Shias was the same as relevant passages in the 2010 guidelines, which had the effect found by Mr McDonald in para 38 of his report. That is, that the risks of Convention persecution facing Hazara Shia refugee claimants from Afghanistan needed to be assessed in their individual circumstances, and not upon the basis of a class or generic finding that all members of this ethnic group have a well-founded fear of persecution.[25]

    [25] SZQNF v Minister for Immigration and Citizenship[2011] FMCA 965 at paragraphs [62] – [63].

22. The same conclusion should follow here.

Conclusions

1. The Applicant in this matter contends that the recommendation of the Reviewer was not made in accordance with law for two reasons. It is contended that the failure of the Department to provide the Reviewer with a copy of the 2010 UNHCR Eligibility Guidelines for Assessing the Information Protection Needs of Afghan Asylum Seekers amounted to a denial of procedural fairness. Further, it is contended that the failure of the Reviewer to make a decision based on the most current material also amounted to a denial of procedural fairness.

2. The application in this matter was lodged out of time. The Court has a discretion to accept the application out of time and in determining whether to do so will apply the principles set out by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344. In this matter, both the Applicant and the First Respondent agree that the issue should be determined on the basis of whether the substantive application has merit.

1. The Reviewer’s recommendation is dated 22 December 2010. On

   
   

   17 December 2010, the UNHCR published a new set of guidelines which superseded the 2009 Guidelines referred to in the recommendation by the Reviewer.

2. The evidence does not indicate when the 2010 Guidelines were posted on CISNET. The evidence does reveal that because of memoranda entered into between the Department of Immigration and the Refugee Review Tribunal, ongoing access to CISNET was to be provided to Reviewers and the Guidelines for the IMR advised Reviewers to “take into consideration … the country information available through CISNET”.[26]

   [26] Exhibit A3, Guidelines for the Independent Merits Review of Refugee Status Assessments, 1 April 2010, page 8 at clause 2.3.

3. For the purposes of these proceedings, I accept that the Department was aware of the new Guidelines but that the Reviewer was not at the time she wrote her recommendation.

4. The Applicant relies on the English decision of Ex Parte A as basis for the argument that a failure by a third party to provide information may amount to a denial of natural justice. The Applicant seeks to distinguish the present case from those previously considered by Australian superior courts on the basis that in those cases there was applicable legislation which created a statutory regime dealing with the relevant obligations on the Department and the administrative tribunal – s.418(3) of the Act and s.5(1)(b) of the AD(JR) Act – which do not have application to the IMR process.

5. I am prepared to accept that Ex Parte A may have application to the IMR process. The question is would it have application in the circumstances of this case?

6. Firstly, it is not clear to me that there was a failure to provide the Reviewer with the information. The obligation on the Department, as set out in the memorandum was to provide the Reviewer with access to CISNET. There is nothing to suggest that it did not do so. We do not know when the 2010 Guidelines were posted on CISNET or if they were accessible to the Reviewer prior to 22 December 2010.

7. Secondly, the nature of the information we are dealing with in this case is general country information, not specific to the Applicant. If an obligation does exist to provide information to the Reviewer and the failure to provide such information is capable of producing procedural unfairness such as to justify the setting aside of a recommendation then the nature of the information must be a relevant factor. In Ex Parte A the Court was dealing with not only information which was directly about the individual concerned but information capable of influencing the Board’s decision. This is also true of the other cases referred to by both the Applicant and the First Respondent.

8. I am not of the view that a failure to provide such general information as we are dealing with in this case could meet the sort of ‘special facts’ considered in Ex Parte A or the ‘extremely limited’ circumstances referred to by the Court in SZOIN.

9. Further, I have considered the use of the information relied upon by the Reviewer and the relevant sections of the 2009 and 2010 Guidelines and concur with Smith FM in SZQNF that the general effect of both Guidelines is that the risks of Convention-related persecution facing Hazara Shia refugee claimants from Afghanistan need to be assessed on the basis of their individual circumstances and not upon the basis of any generic finding that all members of this group have a well-founded fear of persecution. I am not satisfied that the 2010 Guidelines are in those circumstances ‘more favourable’ to the Applicant.

10. For these reasons I would reject the second ground of the application for review.

11. The Applicant also claims a failure of natural justice based on the failure of the Reviewer to make a decision based on the most current material.

12. The crucial issue in relation to this ground is that it is apparent that the Reviewer was not aware of the existence of the 2010 Guidelines at the time of writing her recommendation. There is clearly an obligation on the Reviewer to consider the most recent and relevant information of which they have knowledge (Peko Wallsend; SZQEK). There is no obligation on the Reviewer to search out information, although clearly the guidelines provided to the Reviewer suggests that they “should take into consideration … country information available through CISNET”.[27] I am not satisfied that the Reviewer should be considered to be ‘constructively’ aware of what was known to the Department and which may have been available on CISNET at the relevant time.

    [27] Exhibit A3, page 8.

13. In any event, based on the conclusions I have reached about the content  of the 2010 Guidelines in so far as they are relevant to this case, I am not satisfied that a failure by the Reviewer to consider the 2010 Guidelines would have effected the outcome of the review.

14. For these reasons, I reject the first ground of the application.

15. Having determined that the application lacks merit, I am satisfied that an extension of time should not be granted in this case.

16. The application to extend time is therefore refused and the substantive application is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  16 February 2012