MZYPW v Minister for Immigration

[2012] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPW v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 112

MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – error of law – relocation – procedural fairness.

Migration Act 1958, ss.5, 36, 46A, 195A

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319
SZRPA v Minister for Immigration & Citizenship [2012] FMCA 91
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953
NBLC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 151
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Kioa v West (1985) 159 CLR 550
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
SZQFY v Minister for Immigration & Citizenship [2011] FMCA 996

Applicant: MZYPW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: GINA TOWNEY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1154 of 2011

Judgment of: Cameron FM

Hearing date: 17 February 2012

Date of Last Submission: 17 February 2012

Delivered at: Sydney

Delivered on: 23 February 2012

REPRESENTATION

Counsel for the Applicant: Ms L. Doust

Solicitors for the Applicant: Santone Lawyers

Counsel for the First Respondent: Mr B. Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

MLG 1154 of 2011

MZYPW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

GINA TOWNEY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 10 March 2010. On 21 May 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). He is currently in immigration detention and, it may be presumed, has been so since he landed at Christmas Island.

2. The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the first respondent (“Minister”) may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:

   46A  Visa applications by offshore entry persons

   (1)An application for a visa is not a valid application if it is made by an offshore entry person who:

   (a)     is in Australia; and

   (b)     is an unlawful non‑citizen.

   (2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

   (3)The power under subsection (2) may only be exercised by the Minister personally.

   ...

   (7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

   195A  Minister may grant detainee visa (whether or not on application)

   Persons to whom section applies

   (1)This section applies to a person who is in detention under section 189.

   Minister may grant visa

   (2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

   (3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

   Minister not under duty to consider whether to exercise power

   (4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

   Minister to exercise power personally

   (5)The power under subsection (2) may only be exercised by the Minister personally. …

3. It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].

4. By letter dated 29 June 2010 an officer in the Minister’s department advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 8 July 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.

5. The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.  In order to succeed he must demonstrate that the Reviewer’s decision is affected by jurisdictional error: see SZRPA v Minister for Immigration & Citizenship [2012] FMCA 91 at [5]-[9].

6. For the reasons which follow, the application will be dismissed.

Proceedings before the Reviewer

1. The recommendation made by the Reviewer was supported by written reasons which have been reproduced in the Court Book at pages 141-156. The facts alleged in support of the applicant’s claim for protection were set out by the Reviewer in those reasons and are relevantly summarised below.

2. At his interview with the Reviewer on 1 May 2011 the applicant made the following claims:

   a)he was a Shia Muslim of Hazara ethnicity;

   b)he was born in the Jaghori district of Ghazni province in Afghanistan. His village, although situated in a Hazara area, was only about half an hour’s walk away from where the Pashtuns lived;

   c)the neighbouring Pashtuns believed that Hazara Shias did not belong in Afghanistan. They killed his grandfather as well as other Hazara Shias in the village. Those who remained, including his father, were told to leave the area or they would be killed;

   d)as a result of these events, his family moved to Pakistan in 1980 (when he was about ten years old). As far as he was aware, he did not have any relatives left in Afghanistan and his connection to the village had been cut;

   e)he felt that he would be persecuted by the Taliban, Pashtuns, militants or other extremist groups if he returned to Afghanistan;

   f)his family supported itself in Pakistan by selling clothes at the market. He started his own garment shop in 1990;

   g)when he first arrived in Pakistan he had been able to pray freely. However, the situation changed in 2000 with an attack on a mosque and Hazaras had been the subject of attack ever since;

   h)the Baluch Liberation Army were opposed to Hazaras living in Pakistan. During the one and a half months preceding his departure from Pakistan he was not able to go to the bazaar to sell his clothes because of targeted killings. Leaflets were also being distributed telling Hazara Shias to leave the area;  

   i)he did not know where Jaghori was located or how he should get there in order to start a new life. He had been away from Afghanistan for a long time and did not know which areas were safe. It would be difficult for his family to live there because of the changes in their language, appearance and lifestyle; and

   j)if he returned to Afghanistan he would stand out as being different. He also had no papers. If he were to be pulled up by the police or the Taliban he would be interrogated and killed.

Reviewer’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:

   a)the Reviewer noted the applicant’s claim that he had been living in Pakistan illegally and did not have a right of return. Consequently, and accepting that the applicant was an Afghan national who did not have a right to enter and reside in any other country, the Reviewer assessed the applicant’s claims against Afghanistan;

   b)while the Reviewer accepted that the applicant might be subject to generalised violence in Afghanistan, she also noted country information which indicated that persecution in Afghanistan was based on an individual’s profile, for instance as a government supporter or as a person involved with redevelopment or the media, and that the applicant did not have such a profile. The Reviewer did not accept that the circumstances indicated that the applicant faced a real chance of serious harm in Afghanistan because of his Hazara ethnicity;

   c)the Reviewer accepted that there were examples of discrimination against Shias in Afghanistan such as book burning but also noted that there had been reports of open and peaceful celebrations of Shia religious festivals. The Reviewer found that, overall, the country information did not support a finding that the applicant would face a real chance of serious harm in Afghanistan because of his religion;

   d)the Reviewer found that the applicant’s family was a particular social group that had suffered serious harm in the past from the Pashtuns and/or the Taliban. She also found that the applicant would face a real chance of serious harm if he returned to his home village in Afghanistan. However, the Reviewer found that the risk of harm was localised because it was the result of direct clashes between the applicant’s family and people from an adjoining area. She found that, in the circumstances, it would be reasonable for the applicant to relocate to Kabul, noting the following in this connection:

   i)Kabul had a large Hazara community;

   ii)in some areas of Kabul, as many as one in three persons was a returnee;

   iii)with respect to the applicant’s submission that his children would be noticeable because they learnt their language in Pakistan, the Reviewer noted that Hazaragi was the language recorded for the applicant in his entry interview. She therefore assumed that the applicant communicated with his children in Hazaragi and that his children were fluent speakers;

   iv)with respect to the applicant’s submission that his wife had “very free ideas” incompatible with life in Afghanistan, the Reviewer noted that there was extensive cross-border migration between Pakistan and Afghanistan. With such a high level of migration, the Reviewer considered that the applicant and his family would be able to settle in and find work in such a large city; and

   v)given his work experience, the applicant would be able to find employment to support himself and his family.

Proceedings in this Court

1. The grounds of the amended application were relevantly pleaded as follows:

   1.The Independent Merits Reviewer (“the IMR”) erred in considering whether the Applicant was a person who fell within the definition of “refugee” in Article 1A of the Convention Relating to the Status of Refugees and 1967 Protocol, by concluding that notwithstanding that the Applicant had a well-founded fear of persecution for a Convention reason if he returned to his home village, the claimant could relocate to Kabul.

   2.The IMR denied the Applicant procedural fairness.

2. A third allegation made in the amended application was not pressed.

Relocation

Applicant’s submissions

1. The allegation that the Reviewer erred by finding that the applicant could relocate to Kabul was particularised as follows:

   a.The IMR concluded, on grounds that were irrational, illogical and not based on findings or inferences of fact supported on logical grounds that it would be reasonable for the Applicant to relocate to Kabul.

   b.Having accepted that the Applicant had no family members in Afghanistan, and found (at paragraphs 75 and 76 of her decision) that as a person without family members in Afghanistan the Applicant would not be able to relocate to Afghanistan without undue hardship, the IMR erred in concluding that it would be reasonable for the Applicant to relocate to Afghanistan;

   c.The IMR erroneously concluded that it would be reasonable for the Applicant to relocate to Afghanistan in circumstances where the IMR accepted that the Applicant would be subject to generalised violence (para 85);

   d.The IMR concluded that the Applicant would be able to settle and find work in Kabul in the absence of any evidence or country information to support that conclusion (para 84);

   e.The IMR erroneously concluded that the Applicant’s children were fluent Hazaragi speakers in the absence of evidence to support that conclusion (para 84);

   f.The IMR failed to take into consideration the likely risks to the Applicant’s wife and children if they returned to Afghanistan to live with him;

   g.The IMR failed to take into consideration the likely impact on the Applicant’s wife and children if they returned to Afghanistan to live with him.

2. The applicant submitted that the following propositions concerning the question of relocation arose out of the cases:

   a)the fact that the precise Convention-related based persecution from which a claimant flees is unlikely to occur in one area of the claimant’s country of nationality does not mean that the claimant will therefore be disentitled to Convention protection;

   b)if a claimant has a well-founded fear of persecution for a Convention reason, protection must be afforded to that claimant unless there are proper grounds for concluding that the claimant might reasonably relocate elsewhere; and

   c)in considering whether it is reasonable for a claimant to relocate, the particular circumstances of the claimant must be considered carefully.

   In oral submissions the applicant, in effect, summarised these considerations to be whether a claimant’s home country afforded reasonable and proper protection in the alternative location and, if so, whether that protection was reasonably accessible. He submitted that the Reviewer misunderstood or failed to apply the test properly.

3. The applicant submitted that the country information accepted by the Reviewer described a country in which law and order had broken down so comprehensively that it was all but a failed state and one in which there was generalised violence which was worsening. He also pointed to evidence before the Reviewer including:

   a)the 2010 United Nations High Commissioner for Refugees (“UNHCR”) Guidelines which:

   i)identified members of minority religious groups and minority ethnic groups as persons requiring particularly careful examination of possible risks;

   ii)referred to the “intensification and spread of the armed conflict” said to have taken a heavy toll on the civilian population in 2009 and to have worsened in 2010; and

   iii)stated that extended family was Afghans’ main protection and coping mechanism and that they rely on it for their safety and economic survival, including access to accommodation and an adequate level of subsistence.

   b)a 2011 UNHCR report which:

   i)noted that security in Afghanistan remained a major problem, that its capacity to absorb returnees was stretched to its limits and that achieving sustainable return and reintegration was becoming more difficult; and

   ii)stated that there had been a steady deterioration in the security situation since 2006. The applicant incorrectly submitted that this report also stated that there had been an increase in violence in the preceding twelve to twenty-four months and that Taliban shadow governments had been established.

4. The applicant submitted that as the Reviewer had accepted that he had no extended family in Afghanistan, let alone in Kabul, it followed that she accepted that he and his family would not be able to live a life without undue hardship.

5. The applicant submitted that, given these matters, the Reviewer could not have been satisfied that meaningful protection was genuinely available to him in Kabul and that, in such circumstances, she had applied the wrong test to reach her conclusion that he and his family would be able to settle in and find work in Kabul and that he would be able to support his family.

6. After referring to a passage from the transcript of his interview with the Reviewer, the applicant submitted that the Reviewer had required him to demonstrate that he faced a real chance of Convention-related harm in Kabul in order to make out his claim for a protection visa.

   
   

   He submitted that this demonstrated that the Reviewer had “misunderstood the reasonableness test articulated in Randhawa”.

7. In the alternative, the applicant submitted that protection involved more that the absence of persecution and, implicitly, that protection could not be found in a location to which it would not be reasonable to relocate. It was submitted that the Reviewer had failed to consider the practical realities facing the applicant were he to consider relocating to Kabul and that the matters expressly referred to by the Reviewer when considering the reasonableness of expecting the applicant to relocate to Kabul, summarised above at [9(d)], reflected an erroneous approach. The applicant submitted that the Reviewer’s assumptions concerning his children’s language skills were unfounded given that his evidence was that his own language was a mixture of Urdu, English and Hazaragi and that he had really been saying in his evidence to the Reviewer that his Hazaragi was different from that spoken by other Hazaragi speakers in Afghanistan. He submitted that the Reviewer had also not considered the dislocation which his children would suffer were they to relocate to Kabul or the danger they would face on the journey there.

8. The applicant further submitted that as part of her consideration of his claim the Reviewer should have made a finding on whether his wife would be at risk in Kabul as a result of her “free ideas”, but had not.

   
   

   It was submitted that it could not be reasonable for him to relocate in circumstances where his options were to:

   a)live alone in Afghanistan without his wife and family in order to avoid his wife being at risk; or

   b)ask his wife to return to Afghanistan where she would be at risk because of her ideas.

1. The applicant also submitted that the basis for the Reviewer’s conclusion that he would be likely to gain employment in Kabul was not clear given that the country information referred to by the Reviewer indicated a difficult labour market.

2. The applicant submitted that the factors impacting on his family were relevant to the reasonableness of expecting him to relocate to Kabul.

Consideration

1. In SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18, the High Court was called upon to consider the relocation principle which had been discussed in the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. In the latter case, Black CJ said:

   Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. (at 440-441)

2. In SZATV the appellant pointed to the absence of any reference in the text of the Convention definition to relocation to a safe area within a claimant’s country of nationality or former habitual residence. Gummow, Hayne and Crennan JJ, with the agreement of Callinan J, said that the process of reasoning found in the speech of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 demonstrated that the Convention definition incorporates the issue of relocation. Their Honours accepted the proposition that a person would be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of their country of nationality or former habitual residence: at 26 [22]. In this regard, the plurality said:

   The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. …

   However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. (per Gummow, Hayne and Crennan JJ at 26-27 [23]-[24])

3. A two-step process is therefore disclosed, namely:

   a)is there a locality in the claimant’s country of reference where he or she will not have a well-founded fear of persecution for a Convention reason; and

   b)if so, is it practicable for the claimant to seek refuge in that locality such that it is reasonable to expect him or her to relocate there?

   In this connection, the comments of the Full Court of the Federal Court in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 are also relevant:

   The test for relocation is whether it is practicable in the particular circumstances of the particular applicant … The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C-D. (at 438-439 [124])

4. Contrary to the applicant’s submissions, the first part of the test is not necessarily concerned with whether a claimant can access adequate state protection in the different locality. Although effective state protection in that locality may mean that a subjective fear of persecution is not well-founded, the facts may also demonstrate that a claimant has no need for state protection in that locality because, for other reasons, he or she does not have a well-founded fear of persecution there: Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7]. The issue is whether, for whatever reason, the claimant does or does not have a well-founded fear of persecution in an alternative locality.

5. The Reviewer demonstrated her accurate understanding of the two-step test. She did this first by recognising that once she had concluded that the persecution which the applicant feared was specific to his home locality in Afghanistan, and inferentially that it did not exist in Kabul, the question arose whether it might be reasonable to expect him to live in another part of that country where he would not have a well-founded fear of that persecution, specifically Kabul.

6. Further, the Reviewer correctly applied the test. In relation to its first limb she considered whether the applicant would have a well-founded fear of persecution for a Convention reason in Kabul. Although she did not express her consideration in those terms, that was its substance.  That was the appropriate question and the generalised violence and insecurity to which the applicant has referred was not the sort of circumstance which supported an affirmative answer to it. Further, the probable difficulties which the applicant would face upon a relocation to Kabul did not amount to the sort of Convention-related persecution to which the first limb of the test is directed. It is not sufficient to satisfy that aspect of the test that a claimant cannot live comfortably in the alternative location: SZATV at 27 [25]; see also NBLC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 151 per Graham J at 165 [62]-[63].

7. Finally on this point and contrary to the applicant’s submissions, because the issue presented by the first limb of the test is whether the claimant has a well-founded fear of persecution in an alternative locality, the Reviewer’s concern to identify any objective Convention-related fear of harm in Kabul was not erroneous.

8. In relation to the second limb of the test, the RSA assessor had already concluded at the first instance assessment that it was “open for” the applicant to relocate to Kabul and that for that reason he did not meet the Convention definition of refugee. As a result, the relocation question was an issue on the review. So much was acknowledged by the applicant’s then-solicitors who addressed the question at some length in their written submissions to the Reviewer dated 15 February 2011.  Consequently, the Reviewer’s consideration of the practicability of relocation is to be reviewed in light of the objections which the applicant made to relocation: SZMCD v Minister for Immigration & Citizenship.

9. No mention was made in the applicant’s written submissions to the Reviewer of the reasonableness of relocation being in any way dependent on the difficulties which a relocation to Kabul, or indeed to anywhere else in Afghanistan, would present to the applicant’s wife and children. At his interview with the Reviewer the applicant did refer to the difficulties which he, his wife and children would have because of the time they had spent in Pakistan, such as speaking Hazaragi differently and having a more liberal way of thinking. These were expressly considered by the Reviewer and found not to present a barrier to relocation. The applicant also referred to his children being conspicuous because they wore better clothes. The Reviewer did not refer to this claim in that part of her reasons entitled “Findings”. I infer that this was because a distinction which was superficial and easily addressed did not warrant separate express consideration as a barrier to relocation, particularly given the reasons given by the Reviewer for concluding that the other issues raised by the applicant did not present such a barrier. It may also be concluded that the applicant’s stated fears concerning threats to the safety of his family on any journey to Kabul were also implicitly addressed by these findings.

10. The applicant may dispute the conclusions which the Reviewer drew from the evidence but, contrary to his submissions, there was evidence from which those conclusions could be drawn and they were not illogical or unreasonable in the sense discussed by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. Similarly, her finding concerning the ability of the applicant to be gainfully employed in Kabul was logically open to her for the reasons she gave.

11. Additionally, the Reviewer did not find, as the applicant asserts in his particulars of this allegation, that he “would not be able to relocate to Afghanistan without undue hardship”. At para.75 of her reasons the Reviewer quoted from the 2010 UNHCR Guidelines which, relevantly, stated:

    Since the protection provided by families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres.

    However, she went on to distinguish the applicant from the vulnerable groups identified in the guidelines. Impliedly, she found that the absence of family networks in Afghanistan would not make a return to Kabul impractical for him.

Denial of procedural fairness

Applicant’s submissions

1. The allegation that the Reviewer denied the applicant procedural fairness was particularised as follows:

   a.The IMR did not give the Applicant a fair opportunity to make submissions as to the question whether the Applicant might reasonably relocate to Kabul.

2. The applicant submitted that at no time during their interview did the Reviewer indicate to him that she was considering whether it would be reasonable for him to relocate to Kabul or invite submissions from him on that matter. He submitted that he was, therefore, denied a fair opportunity to address that issue. In particular, it was submitted that the Reviewer never squarely put to the applicant for comment:

   a)the circumstances of his wife and children were they to relocate to Kabul;

   b)the proposition that reports about cross-border migration supported a conclusion that he would be able to find employment; and

   c)her conclusion that he would be able to find employment if he returned to Kabul.

3. The applicant submitted that, in the circumstances, he had been denied natural justice.

Consideration

1. A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests.

   
   

   In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to that party any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].

2. As noted earlier in these reasons, the question of relocation arose out of the RSA assessor’s decision and was an issue on the review and one which was addressed by the applicant’s solicitors in their written submissions to the Reviewer. It was therefore not an issue to which the Reviewer needed to alert the applicant: see SZQFY v Minister for Immigration & Citizenship [2011] FMCA 996 at [42]-[45].

3. In relation to the specific matters which the applicant submitted should have been put to him, the circumstances of his wife and children were they to relocate to Kabul was an issue which he raised with the Reviewer himself. The conclusion which the Reviewer reached in relation to these submissions was based on the applicant’s own evidence as well as on information concerning, relevantly, the large scale movement of people from Pakistan to Afghanistan. At their interview the Reviewer had raised with the applicant the fact that so many people had returned to Afghanistan that in some areas one in three people was a returnee. The applicant was given an opportunity to address the question of why his situation would, in the circumstances, lead to discrimination or persecution and accordingly he was afforded procedural fairness in that respect. Further, the Reviewer’s conclusion was not one which was not obviously open on the known material and therefore it did not need to be notified to him for comment before the Reviewer completed her review.

4. Similarly, the Reviewer’s factual conclusions on the applicant’s employment prospects were not ones which were not obviously open on the known material, in particular material quoted by the RSA assessor in his reasons for his recommendation, with the consequence they did not need to be notified to the applicant before the review concluded.

Conclusion

1. Jurisdictional error on the part of the Reviewer has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 23 February 2012