MZYUW v Minister for Immigration - [2012] FMCA 831

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYUW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 831

MIGRATION – Application for judicial review of IMRA – applicant found not to be credible – independent basis for decision – relief withheld – no denial of procedural fairness.

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported)
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kamal v Minister for Immigration 126 FCR 467
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199
PlaintiffM61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091
SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant:

MZYUW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 143 of 2012

Judgment of:

Turner FM

Hearing date:

20 August 2012

Date of Last Submission:

20 August 2012

Delivered at:

Melbourne

Delivered on:

20 August 2012

REPRESENTATION

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Knowles

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review filed on 13 February 2012 and amended application filed on 29 May 2012 are dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 143 of 2012

MZYUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

This is an application for judicial review and declaratory and injunctive relief, in relation to a recommendation made by an Independent Merits Reviewer (“IMR”) that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The applicant is an Afghan of Hazara ethnicity and Shi’a religion. He arrived at Christmas Island on 12 June 2010 (Court Book “CB” p.46.5). The Court notes that in the submissions filed by the applicant on 29 May 2012, his arrival date is stated as “6 June 2010”. Which date it was does not really matter for this review.
The applicant requested a Refugee Status Assessment (“RSA”). On

1 February 2011, the RSA found that the applicant was not a person to whom Australia owed protection obligations. On 17 February 2011, the applicant sought an Independent Merits Review Assessment (“IMRA”). The IMRA on 1 December 2011 was adverse to the applicant.
The applicant filed an application for judicial review by this Court on 13 February 2012 and an amended application on 29 May 2012.
The grounds in the amended application are as follows:
(1)The second respondent omitted to rely on recent and relevant country information.
Particulars
The second respondent failed to take into account an extract of a report, of the International Crisis Group tiled The insurgency in Afghanistan’s Heartland, which outlined the spread of Taliban-led insurgency in Afghanistan, including geographical expansion into a number of urban centres including Kabul [CB 162]. This was information which might have had a direct bearing on the question of the risk of persecution faced by the applicant if he returned to Afghanistan.
(2)The second respondent failed to accord the applicant procedural fairness.
Particulars
The second respondent considered claims were raised on the material before her relating to persecution on the grounds of being a failed asylum seeker, returnee from a western country or returnee from Australia. The second respondent was bound to accord the applicant procedural fairness in the disposition of those claims, including giving the applicant an opportunity to be heard in relation to the claims, but failed to do so.
The IMR did not find the applicant to be a credible or a truthful witness (CB p.287.9 [128]).
In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.

The Court does not find that the IMR has failed to use, or has palpably misused, her advantage, or that she acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
The Court adopts the following statement of the law:
“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.
The Court notes that as a result of the decision in PlaintiffM61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, the provisions in the Migration Act 1958 (the “Act”), other than those that refer specifically to the Tribunals, apply also to IMRA’s.
As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
“If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
The IMR found inconsistencies on central issues, like the observation on the making of Taliban weapons, the applicant’s description of the Taliban pursuing him, and events since he had left Afghanistan (CB p.287.9) [Refer Taylor (supra)].
“It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated”.Kamal v Minister for Immigration 126 FCR 467 per Mansfield J at [36].
The IMR found that the applicant had not been rushed by his interpreter during his initial interview and it lasted for two and a half hours (CB p.288.2).
The IMR did not “accept the claimant’s evidence of his observations of his tenants constructing a suicide bomb or the presence of weapons” as plausible (CB p.288.4). The IMR did not accept the applicant’s claim that he observed the activities from his roof, as he was 400 metres away (CB p.288.7). The IMR found the explanation of why the Taliban chose the applicant’s house unconvincing (CB p.288.6). The IMR did not accept the applicant’s claim that “he was physically assaulted by his tenants” (CB p.288.8). The IMR did not accept that the applicant was “threatened with a pistol” (CB p.288.9). The IMR did not accept that hand grenades were thrown at the applicant’s house (CB p.288.9).
The IMR did not accept that the applicant’s “tenant’s pursued him and his family to Afshar” as the applicant gave conflicting evidence (CB p.288.10). The IMR did not accept the applicant’s claim that six weeks prior, Pashtuns had been inquiring after him in Kabul (CB p.289.3). The IMR did not accept that the Taliban had rented a house from the applicant (CB p.298.4). The IMR did not accept that the Taliban had directly engaged with the applicant (CB p.289.4).
The IMR did not accept that the applicant “has ever been threatened by the Taliban or accused of being a government spy” (CB p.298.4). The IMR found that there “is not a real chance that the claimant would be persecuted for reasons of an imputed political opinion were he to return to Afghanistan in the reasonably foreseeable future” (CB p.289.5). The IMR found that the dispute between the applicant and his tenants to be over non-payment of debt and “to be a personal dispute that did not involve convention-related grounds” (CB p.298.7).
The IMR did not find that the applicant’s “race was an essential and significant reason for his fear of retribution from his tenants” (CB p.298.7). The IMR found that as considerable time had elapsed, the chance of the tenants having any future interest in the applicant is remote (CB p.298.9). The IMR found that the applicant “would be of no further interest to his tenants if he were returned to Afghanistan in the reasonably foreseeable future” (CB p.289.9).
The IMR did not find that the applicant is without protection, as he had gained assistance from the community, the Mullah and from a lawyer (CB p.289.10).
The IMR was not satisfied that the “state would be unwilling to protect the claimant on a convention related ground” (CB p.290.1).
The IMR found that the applicant “does not have a well-founded fear of persecution on the basis of his imputed political opinion if he were returned to Afghanistan now of (sic “or”) in the reasonably foreseeable future” (CB p.290.3).
The IMR did not accept that the beheading of eleven men goes to suggest that the Taliban target all Hazara Shias (CB p.290.9).
The IMR did not accept that “the Taliban or other insurgent groups today generally target Hazaras or Shias systematically and discriminately, from the population at large” (CB p.291.3).
The IMR did not accept that the applicant “personally experienced severe discrimination from Pashtuns in the several years prior to his leaving Afghanistan”, as this was inconsistent with him relocating his family to Kabul (CB p.291.8).
The IMR was not satisfied that this was the first and only time the applicant had rented a house to Pashtuns (CB p.291.9).
The IMR was not satisfied that the applicant’s “children experienced harassment at school for a convention reason” (CB p.292.1).
The IMR found that the applicant will not be subjected to serious harm on the basis of discrimination in the reasonably foreseeable future if he is returned to Afghanistan (CB p.293.1).
The IMR found that the applicant “does not face a real chance of convention related harm if returned to Kabul” (CB 293.2).
The IMR found that “it would be reasonable and practicable for the claimant to relocate to Jaghori” (CB p.293.3).
The IMR was not satisfied that an attack on Jaghori was imminent (CB p.293.6).
The IMR found that the Taliban “is not specifically targeting the Hazara community in general” (CB 293.6).
The IMR found that the applicant had not claimed fear of persecution “on the grounds of membership of a particular social group being a failed asylum seeker, returnee from a western country or returnee from Australia” (CB p.293.7). However, the IMR proceeded to deal with that claim and dismissed it (CB p.293.9).
The IMR found that the applicant “does not have a profile which would make him the target of serious harm on the basis of being a failed asylum seeker or a returnee from a western country or returnee from Australia” (CB p.294.2).
The IMR found the applicant does “not have a well-founded fear of persecution in Afghanistan for a convention reason where (sic “were”) he to be returned now or in the reasonably foreseeable future” (CB p.294.3).
The above are findings of fact that are not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
The Court refers to previously quoted paragraphs about credibility and findings of fact.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. The Court does not make that finding in this case.

As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court notes CB p.290 – 291 at [139] where the IMR gave particular weight to the views expressed by the Department of Foreign Affairs and Trade (“DFAT”) on 24 September 2011 (CB p.291.2).
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
And at [29]:
“…the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Quin (supra).
The Court refers to the following passages in Quin (supra) at [35]:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The Court does not find the Assessment of the IMR to be so unreasonable that no repository of the power could have taken it.
A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].
As stated by the Federal Court of Australia in Lee (supra) at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
Also in NAHI (supra) at [11]:
“It is not an error of law or a jurisdictional error for the tribunal to base a decision on country information that is not true. The question of the accuracy of the country information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review. The court does not have power to do that”.
It is clear from the IMRA that the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention was made because the IMR did not find the applicant credible and did not accept much of his evidence and claims. That is an independent and unimpeachable basis for the adverse IMRA.
Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Justice Kirby in SZBYR (supra) at [88]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case”.
Quoting from NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199 at [11]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90].
And at [12]:
As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
“the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld”. (emphasis added)
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3^rd ed, 2004).
The Court finds here, that no useful result could ensue from the granting of relief, because of the independent basis for the decision. The Court finds that the applicant was not found to be a credible witness by the IMR, and most of his evidence was not accepted.
The grounds advanced for the applicant are, firstly, that the IMR failed to take into account a particular piece of country information.
Mr Townsend for the applicant relies on the decision in SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938 where Rares J found that if the IMR has actual notice of recent and significant material as to whether there is a basis for fear of persecution, the IMR must base the decision on that information. Here, the Court finds that the IMR had notice of the International Crisis Group Report (the “ICGR”) (CB p.162).
That information was included in the submissions dated 29 September 2011 (CB p.153), and referred to the in letter to the applicant’s migration agent (CB p.213.10) (It appears as though there is a mistake in the date of 30 September 2011, which is on the third line of the last paragraph on CB p.213. That date should be 29 September2011).
The IMR stated that she would have regard to the country information insofar as it refers to the specific claims of the applicant, which are persecution on the following convention grounds:
·Race – being ethnic Hazara;
·Religion – being Shia Muslim; and
·Political opinion – being anti-Taliban and in support of the Government of Afghanistan.
The IMR stated at CB p.270 [40]:
“An additional larger submission dated 29 September 2011 was provided by the claimant’s agent which contained general country information about the situation for Hazaras in Afghanistan and Pakistan. It did not refer specifically to the particular claims of the claimant”.
The IMR therefore considered the ICGR, but did not rely on it, as it did not refer to the specific claims of the applicant. The Court cannot review that finding of fact, as that would be engaging in merits review. The Court refers to NAHI (supra) at [11].
In SZJTQ (supra) Rares J decided at p.574.1 that:
“The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information”.
The Court finds that to be exactly what happened here. The IMR had regard to country information referred to in the submissions of 29 September 2011, but found that she would not rely on that country information, as it did not refer specifically to the particular claims of the applicant (CB p.270 [40]).
As to the use of country information, the Court finds that “… the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”.NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11].
“Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”. (NAHI [13])
“The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item”. (NAHI [14])
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.
NAHI (supra) at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].
A decision maker must take into account the most current information available to her: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44 – 45. A failure to act upon the most current information available is a denial of natural justice: SZJTQ (supra).
However, the Court finds that there is no principle that a failure to refer to or accept the most recent country information is necessarily a legal error. As pointed out in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 (FC) at [41], such information may be from a less reliable source than older information.
Here, the country information sought to be relied on by the applicant in the ICGR (CB p.162), relates to a decrease in the security situation in Afghanistan. After considering extensive country information that was later than the ICGR (CB p.292.2), the IMR gave particular weight to the views expressed by DFAT and their advice on 24 September 2011 (CB p.291.1). That information related to whether Hazaras were targeted disproportionately (CB p.291.3). The IMR therefore considered and gave weight to later country information than that put forward by the applicant.
Even if the country information dealt with different issues, the Court would withhold constitutional writ relief, because the alleged departure from proper procedure would make no difference to the result, as the IMR did not accept most of the applicant’s evidence and the application failed for that reason. There is, therefore, an independent basis for the Assessment of the IMR. The Court refers to the applicant’s written submissions at [32], which refers to the decision in SZBYR (supra), and to that authority the Court adds VBAP and NAWZ (supra).
The Court finds no error of law in relation to the reliance on country information.
Ground one is dismissed.
Ground two complains of a denial of procedural fairness by not giving the applicant an opportunity to be heard in relation to his claims. Extensive written submissions were put to the IMR by the applicant’s migration agent (CB p.118 – 152). They are dated 30 March 2011. They were considered by the IMR (CB p.269 at [34] onwards). The next submission (CB p.153 – 212) dated 29 September 2011. They were referred to at (CB p.270 [40]). The next submission (CB p.224 – 230) dated 3 November 2011; They were post interview submissions, and were considered from CB p.280 [102] to [287]. The applicant was interviewed on 4 October 2011 (CB p.270 [41]).
It is apparent that the applicant and his migration agent were given extensive opportunity to be heard. The Court finds no denial of procedural fairness.
The applicant submits that the IMR was bound to consider the claim relating to persecution on the grounds of being a failed asylum seeker, returnee from a western country, or a returnee from Australia. That claim was considered specifically by the IMR (CB p.293.8) and rejected for the reason stated at CB p.294.2. That is, that the IMR found the applicant “does not have a profile which would make him the target of serious harm, or on the basis of being a failed asylum seeker or returnee from a western country or returnee from Australia”.
The applicant claims that he was not given an opportunity to be heard in relation to that claim. The applicant’s written submissions to the IMR on 29 September 2011 dealt specifically with that claim (CB p.209 – 210). The applicant therefore had the opportunity to deal with the claim. If the applicant or his migration agent chose not to deal with an obvious issue, which would be whether the particular social group existed, or whether the applicant fell within that social group, that does not show a fault in the way the IMR dealt with the claim. The applicant submits that by considering the particular circumstances of the applicant, the IMR deprived the applicant of any opportunity to present further material going to the claim.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished”.
Their Honours continued that:
“Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment”.
The Court refers to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:
“In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant’s evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said:
‘The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice’”.
The Court decides that the observations about the particular social group, or about having doubts about whether the particular social group existed, and about the profile of the applicant were obvious and natural to the circumstances of the case and, therefore, did not have to be specifically put to the applicant for comment.
It should have been obvious and natural that the IMR would examine whether there was a particular social group and would examine the particular circumstances of the applicant to determine whether he had a profile that placed him in a claimed particular social group. If there was an error of fact as to that, it was not a jurisdictional error, as there was no failure to consider the claim. It was considered and rejected.

In any event, there is an independent basis for the decision, being the general rejection of the evidence of the applicant.
The court finds no denial of procedural fairness.
Ground 2 is dismissed.
The application and amended application for judicial review are dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 11 September 2012