SZQEC v Minister for Immigration

[2011] FMCA 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQEC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 543

MIGRATION – Independent review of refugee claims of off-shore entry person – Pakistani Shia Hazara applicant – Reviewer’s consideration of real chance of persecution – whether affected by sub-classification error – whether erroneous consideration of real chance of future Convention-related persecution – procedural fairness by reviewer – whether failure to warn issues under consideration – no legal error affecting reviewer’s report – application dismissed.

Constitution, s.75(v)
Migration Act 1958 (Cth), ss.36(2), 46A, 476

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 216 ALR 1, [2005] HCA 29
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, [1994] FCA 1074
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572
SZPZI v Minister for Immigration & Anor [2011] FMCA 530

Applicant: SZQEC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 794 of 2011

Judgment of: Smith FM

Hearing date: 14 July 2011

Delivered at: Sydney

Delivered on: 1 August 2011

REPRESENTATION

Counsel for the Applicant: Ms Sera Mirzabegian

Solicitors for the Applicant: Gilbert + Tobin

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,865. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 794 of 2011

SZQEC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN, IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant most recently arrived in Australia by boat which was taken to Christmas Island in September 2009. On 24 September 2009 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 10 December 2009, and the applicant then applied for ‘independent merits review’ under those procedures.

2. On 23 March 2010, Mr Keher (“the First Reviewer”) recommended that the applicant should not be recognised as a refugee, but the Minister directed a second review following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”).  Mr Griffin became the second Independent Merits Reviewer, and delivered a report making the same recommendation on 14 March 2011.  Throughout the administrative proceedings, the applicant was assisted by migration agents at the Refugee Advice + Casework Service (“RACS”), in Sydney. 

3. The applicant filed his present application to the Court on 21 April 2011, seeking a declaration that Mr Griffin’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’. The Minister concedes that Mr Griffin’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61 at [51]. No issues as to time limits or the availability of relief are raised by the Minister.

4. The applicant claimed refugee status on the ground that he is a national of Afghanistan with no rights of nationality or residence in Pakistan.  He claimed to have lived in Pakistan since he was 11, and to fear persecution in both countries by reason of his Hazara ethnicity and Shia religion.  He claimed that his family had fled to Pakistan to avoid persecution, and that he had experienced threats and other incidents of attempted harm on those grounds in recent years while living in Quetta, in Pakistan.  Before Mr Griffin, he also claimed that his “profile as a property dealer puts him at heightened risk” if he returns to Pakistan. 

5. Acceptance of the applicant’s claimed history faced major difficulties, due to his previous statements to the Department of Immigration.  In short, the applicant had previously arrived in Australia by boat in 1999, and had been given a temporary protection visa on the basis that he had a different name, was younger, and had recently been mistreated by the Taliban in Afghanistan.  However, his visa was cancelled and he was voluntarily returned to Pakistan in 2002, after he acknowledged having lived and worked in Pakistan under a different identity, and he presented Pakistani nationality documentation under that identity.  Moreover, he maintained his assertion of Pakistani nationality, when he unsuccessfully sought humanitarian visas for himself and his family in Pakistan in 2005. 

6. In the face of these circumstances, the implications of which were squarely put to the applicant, no challenge was made before me to Mr Griffin’s conclusion “that the claimant was born in Pakistan and not in Afghanistan and that Pakistan is the country of reference for assessment of his claims for protection”.  Nor was any challenge made on grounds of error of law, including rights of procedural fairness, to Mr Griffin’s conclusions that the applicant “is not a witness of truth”, and that his claims personally to have encountered persecution or threats of persecution in Pakistan and elsewhere “are fabrications”. 

7. The applicant challenges the legality only of how Mr Griffin addressed whether the applicant had a well‑founded fear of persecution if he returned to Pakistan, based upon his findings that the applicant was a nationality of that country and had not previously personally encountered Convention‑related persecution.  In short, the present grounds of review concern how Mr Griffin addressed whether the applicant faced a risk, amounting to a ‘real chance’ (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572 (“Guo”)), of future Convention‑related persecution if he returned to his previous life in Pakistan merely by reason of attributes of Hazara ethnicity and Shia religion. 

8. Mr Griffin’s reasoning in this respect was expressed shortly: 

   32.It is beyond doubt that there is widespread sectarian violence in Pakistan.  It is apparent that many minority groups in Pakistan, including Hazara Shia, experience discrimination and that high profile individuals may be directly targeted by various groups with serious consequences.  However, there is no reliable evidence that the claimant is of particular adverse interest to the Pakistani authorities, or to any of the groups perpetrating violence in the country.  On his evidence nothing in particular had ever happened to him.  I find that the alleged dealings with the FIA and subsequent attacks and detention are fabrications.  The claimant was in regular employment in a hotel for 8 years before he left for Australia in 1999 and since his return to Pakistan he operated, with some success, for 5 years as a property dealer.  Indeed, he claims his success as a dealer brought him to the adverse interest of a particular group led by a man named [the man] who he said wanted to kill him and who was known to kidnap hostages for ransom.  However, his evidence about this man was not credible.  On the one hand he claimed to be in fear of his life from this man who had wanted to kill him since 2007.  On the other hand he claimed to have continued to operate his business from a shop for the next 2 years and never to have met this man.  He said his friends told him that [the man] was looking for him and asking about him but this interest and search did not extend to [the man] simply coming to the shop.  I find this claim about [the man] and his group to be fanciful and I do not accept it. 

   33.I accept that some, possibly most, Hazara Shia (and other minority groups) experience discrimination and hardship in many forms in Pakistan.  However, negative discrimination and even exposure to random generalized violence perpetrated by terrorist groups such as Lashkar‑e‑Janghavi, does not necessarily amount to persecution for a Convention reason.  In this instance the claimant has been able to work all his life, to save money and to raise a family and has not been the direct target of any violence or serious harm from the authorities or from anyone else.  I find that his circumstances do not amount to serious harm for the purposes of the law. 

   34.I have carefully considered the claims, evidence and independent country information.  In all the circumstances, I find that there is not a real chance of harm to the claimant for a Convention related reason. 

   35.I find that the claimant, [SZQEC], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.

9. The three grounds in the application to the Court, were summarised by the applicant’s counsel in her written submission as: 

   3.The orders sought by the Applicant should be granted because the Decision was affected by one or more of the following jurisdictional errors: 

   (a)first, when assessing whether the Applicant had a well‑founded fear of persecution, the Second Respondent erred in drawing a false distinction between high profile members of the relevant targeted groups and other members, in circumstances where that distinction was not supported by the country information;

   (b)secondly, the Second Respondent failed to afford the Applicant procedural fairness in that he did not give the Applicant the opportunity to make submissions or provide evidence on whether there was a distinction between the treatment of high profile members of the targeted groups and other members; and

   (c)thirdly, by confining himself to the question of whether the Applicant had suffered serious harm in the past, the Second Respondent asked himself the wrong question when determining whether there was a real chance that the Applicant would suffer persecution in Pakistan. 

10. In counsel’s oral submissions, she conveniently labelled these as “the false distinction ground”, “the procedural fairness ground”, and the “wrong test ground”.  I shall examine them under those headings, but shall consider the first and third grounds, before the second ground.  This is convenient, since they require me to make findings as to Mr Griffin’s course of reasoning shown on a fair reading of his report.  My conclusions about his reasoning will then assist my consideration of the challenge to the fairness of the procedures preceding his adoption of that reasoning. 

11. When examining Mr Griffin’s reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]‑[13]).

The false distinction ground 

1. The applicant’s counsel submitted that Mr Griffin’s reasoning followed a course, in effect, of finding on general country information that only ‘high profile’ members of minority groups in Pakistan including Shia Hazaras faced a real chance of persecution, and that members of the residual subgroups of ‘low profile’ members did not face such a risk. She submitted that Mr Griffin then dismissed the applicant’s fears as not being well‑founded, on the ground only that he was a member of the non‑high profile subgroup of Shia Hazaras, without addressing the proper questions arising under the Convention definition and s.36(2) of the Migration Act. She submitted that he failed to consider whether, even if the applicant’s claims to have a history in Pakistan raising a ‘heightened’ risk profile were rejected, he would still be exposed to risks of serious harm generally facing Shia Hazaras, which was suggested by the country information. He then failed to consider whether there was a real chance that the applicant, in his individual circumstances, would encounter that harm merely by reason of his own ethnic and religious attributes.

2. Counsel pointed out that Mr Griffin appeared to accept that all Shia Hazaras faced some risks of harm in Pakistan, and Quetta in particular, in his references to the country information which had been very thoroughly drawn to his attention in numerous written submissions by RACS on behalf of the applicant.  In this respect, as well as statements in the reasons which I have extracted above, Mr Griffin said:  

   24.The claimant provided several documents detailing incidents of violence and attacks against members of the Hazara community in Pakistan in recent years, including a photograph of an injured person said to be his former business partner.  The agent’s submissions contained extensive material concerning the situation of Hazaras both in Afghanistan and Pakistan.  I will not rehearse the entirety of that material, suffice it to say that there is evidence of widespread sectarian violence in Pakistan, with particular emphasis on targeting Shia and minority groups such as Hazaras.  It is also apparent that the Pakistani authorities are having difficulty in maintaining the rule of law. 

3. In short, the applicant’s counsel submitted that Mr Griffin had fallen into a ‘sub‑classification’ error when assessing risk of persecution, of the type which was found by the majority justices in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”), and was found by the dissenting justices in Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 216 ALR 1, [2005] HCA 29 (“NABD”).  She submitted: 

   18In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, a majority of the High Court accepted that classifying members of a particular social group into sub‑categories may invite jurisdictional error. McHugh and Kirby JJ stated (at [58]):

   It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted.  The central question is always whether this individual applicant has a “well‑founded fear of being persecuted for reasons of ... membership of a particular social group”. 

   19Gummow and Hayne JJ similarly observed (at [76]‑[77]): 

   There are dangers in creating and applying a scheme for classifying claims to protection.  Those dangers are greatest if the classes are few and rigidly defined.  But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class. 

   Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant’s claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen.  That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. 

   Counsel noted that this ‘sub‑classification’ error was found to have vitiated the Tribunal’s reasoning in Appellant S395 (see McHugh and Kirby JJ at [58], Gummow and Hayne JJ agreeing at [90]).

4. Counsel submitted that the possibility of the same error had been acknowledged in all the judgments in NABD (supra), and I accept that this is so.  However, I do not accept her submissions that the majority justices in NABD distinguished Appellant S395 on the basis that the Tribunal in NABD had correctly reasoned by reference to a ‘sub‑classification’ approach which was open on the relevant country information, nor that they held, as she submitted, that “a distinction between members of a group of people by sub‑classification may be relied upon where the classification is supported by country information”. 

5. Rather, in my opinion, the majority in NABD emphasised that in all cases the application of the ‘real chance’ test of future Convention persecution requires assessment of the future circumstances of the particular refugee claimant as an individual, in the light both of his past history and general country information bearing on his likely situation if he returned.  They found in the particular case that the Tribunal had followed that reasoning, and that no challenge had been made that its adverse assessment was not open on country information suggesting variable risks faced – in that case – by practising Christians in Iran. 

6. Gleeson CJ said: 

   10Once the Tribunal accepted, as it was entitled to do on the basis of the country information, that not all Christians in Iran suffer persecution, or a real chance of persecution, then it was required to consider the individual circumstances of the appellant in the light of the available information.  It could hardly be contended that, whether they realise it or not, all Christians in Iran are being persecuted by reason of the fact that, if they were ever to turn to “aggressive outreach through proselytising” (even though they may have no intention of doing so), they would suffer retribution.  That would be to debase the currency of the language which the Tribunal was bound to apply.  Nor could it be contended that any Iranian who becomes a Christian of any denomination suffers a real chance of persecution if he or she ever returns to Iran.  That would be tantamount to saying that the country information was completely misleading, and was based on a misunderstanding of what amounts to persecution.  No such case was argued. 

   11The Tribunal gave proper consideration to the particular circumstances of the appellant.  In considering what might happen if he were to return to Iran, it applied a distinction which was neither meaningless nor irrelevant.  Its process of factual reasoning was open on the evidence.  No jurisdictional error has been shown. 

   Hayne and Heydon JJ said: 

   150The determinative issue in the appeal to this Court is whether the Tribunal addressed the fundamental question that arose in its review of the decision to refuse the appellant a protection visa.  That question was:  did the appellant have a well‑founded fear of persecution on the ground of religion?  The appellant contended that the Tribunal did not address that question.  He submitted that the Tribunal had sought to categorise the way in which he expressed his belief, with insufficient regard to his individual circumstances, and had asked whether he could avoid persecution while practising his religion in a manner consistent with his core beliefs.  He submitted that the Tribunal had thus committed a jurisdictional error similar to the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, decided by this Court after the primary judge and the Full Court decided the present matter.  (citation omitted) 

   The majority then rejected the appellant’s submissions in relation to both the argued sub‑classification error and the avoidance of persecution error (see [151], [155]‑[156], and [165]‑[168], see also the discussion of the majority reasoning in NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195 at [65]‑[75]).

1. Counsel for the applicant sought to distinguish the reasoning of the majority in NABD, on the ground that the country information in NABD allowed a conclusion that there were Christians who were not at risk in Iran, whereas the country information before Mr Griffin suggested that all Pakistani Shia Hazaras might face a risk of persecution by reason of their ethnic and religious attributes.  However, as I have found above, I consider that the majority’s reasoning did not turn upon a finding of such a distinction in relation to country information. 

2. Counsel for the applicant did not contend, nor seek to establish by reference to the country information reproduced at great length in the Court Books, that Mr Griffin was bound to find, as a matter of law, that all Shia Hazaras in Pakistan faced a ‘real chance’ of persecution within the meaning of the Convention.  She would have had difficulty persuading me of this, if only because the reasoning of the First Reviewer had pointed to evidence suggesting that a more individual assessment of risk was necessary in fact, as well as law.  He said in his report: 

   50.The claimant comes from Quetta, Baluchistan.  Baluchistan is the largest province of Pakistan and occupies the south western part of the country.  It has a population of approximately 12 million people.  Quetta is the capital with a city population of about a million.  There is a major population of Hazaras in Quetta and many have achieved considerably high positions within the government and police force including Chief of the Army.  Hazara refugees from Afghanistan have settled in Quetta and Peshawar and reside with or near Pakistani Hazaras.  In Pakistan most of the Hazaras live in and around the city of Quetta, Hazara town and Mariabad (Mehr Abad).  Many hold high positions in the government of Baluchistan, the federal government, and the Police force.  A Hazara woman became the first female pilot in the Pakistan Airforce.  Many Hazaras are in business and have high education levels.  They are integrated into the local social dynamics of their communities.  Hazaras are politically active in Quetta and have a political party known as the Hazara Democratic Party.  Other significant Hazara settlements are in Karachi, Lahore and more recently in Multan.  The current Minister of Quality Education & Clean Drinking Water in Baluchistan is an Hazara and Hazaras have a Member in the National Assembly.  On January 26, 2009, Hussain Ali Yousafi, chairman of the Hazara Democratic Party, was shot dead by Laskar‑e‑Jhangvi in Quetta. 

3. Rather, as I understood her submissions, she submitted no more than that the country information before Mr Griffin could not support, as a matter of law, a finding that all members of the subgroup of ‘non‑high profile’ Shia Hazaras were not exposed to a real chance of Convention persecution.  In effect, she submitted, that, if Mr Griffin did make the contended categorisation error, then his finding would not only have revealed error of law in its reasoning, but would also not have been open on the evidence as a matter of fact.  The success of Ground 1 therefore depends upon the proper reading of Mr Griffin’s reasoning. 

4. In my opinion, a fair reading of his reasoning suggests that he did not fall into the sub‑classification error submitted. 

5. I accept that in paragraph 32 he found that “high profile individuals may be directly targeted …”.  As I understand his reasoning, he did so as part of his reasons in that paragraph for rejecting the claim that the applicant was one such individual. 

6. However, I would not draw any implication that he drew a converse general inference that everyone in the residual group of all non‑high profile Hazara Shia would not be ‘directly targeted’ nor exposed to a real chance of Convention persecution, and then stopped short from assessing the risks facing the applicant in his particular circumstances.  In my opinion, Mr Griffin’s discussion in paragraph 33 shows plainly otherwise.  In this paragraph, I consider that Mr Griffin shows that he was endeavouring to assess the applicant’s individual risk, based on an assessment of his individual past history and the general country information, notwithstanding the rejection of the applicant’s claims to have ‘heightened profile’. 

7. I am therefore not satisfied that Mr Griffin’s reasons exhibit the ‘sub‑classification’ error which was found in Appellant S395. 

The wrong test ground 

1. Nor can I find in Mr Griffin’s reasoning extracted above any error of the type argued under Ground 3.  This is the error of treating findings as to past history as necessarily determinative of the existence of a ‘real chance’ of future persecution.  In this respect, counsel for the applicant cited warnings from the dissenting judgment of Gaudron J in Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1:

   16The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution.  The Convention test is simply whether the individual concerned has a “well‑founded fear of persecution”.  Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member.  On the contrary, a well‑founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion. 

2. She also cited from the judgment of Gummow and Hayne JJ in Appellant S395: 

   74Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution. 

3. I respectfully accept the points made in these extracts.  However, the relevance and weight which can properly be given to past experiences when assessing future risk has been very clearly approved.  Thus in the judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo (supra) at 575:

   Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.  In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC. 

4. In NABD (supra), at [4] Gleeson J commenced his judgment with the reminder: “In many, perhaps most, cases, the primary basis for what is said to be a well‑founded fear of future persecution is an account of past persecution, usually given as the reason for leaving a country of nationality.  So it was in this case”.  See also Hayne and Heydon JJ at [161]. 

5. In the light of these authorities, I am able to read Mr Griffin’s reasoning quoted above as doing no more than attempting, initially, to assess the future risk of persecution faced by the applicant in Pakistan by reference to the truth of his claims of past persecution.  Having found the applicant’s credibility totally discredited and his claims of past persecution to have been ‘fabricated’, Mr Griffin was left with nothing more than the applicant’s past undisturbed residence in Quetta despite being (as Mr Griffin appears to have accepted or assumed) a Shia Hazara. 

6. It was then, in my opinion, open to Mr Griffin to find that “there is not a real chance of harm to the claimant for a Convention related reason”, having taken into account the applicant’s individual circumstances and the generally uncertain risks facing the applicant, as shown in the country information. 

7. Notwithstanding the brevity of the reasoning leading to the conclusion expressed in paragraph 34 of Mr Griffin’s report, I do not accept that it exhibits a failure to address the future, nor to take into account all relevant evidence bearing on the assessment of the future.  It is difficult to see how his conclusion could have been further amplified, beyond Mr Griffin’s explanation as to what he drew from the applicant’s personal history as found by him.  I am not prepared to conclude that any particular piece of other relevant evidence was overlooked, and I consider it likely that he read and considered all of the submissions and supporting material submitted by RACS on behalf of the applicant. 

8. In this respect, I do not accept the submission that Mr Griffin failed to consider the evidence given by the applicant at his interview with Mr Griffin which is set out at pages 20‑22 of the transcript.  It seems to me that this evidence probably included the ‘photograph’ which Mr Griffin expressly noted at paragraph 24.  If it did not, I am not persuaded that it was not encompassed in his reference at paragraph 34 to ‘evidence’ which he ‘carefully considered’. 

9. Nor do I accept that there is any analogy with the reasoning of the Tribunal in SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572 (“SZGHS”) at [28], in which Allsop J detected “a failure to address the reasonably foreseeable future in the context of the claims made”.  Essentially, his Honour found error because the Tribunal did not explain how it had addressed three past incidents which it accepted, and which had a logical bearing on the assessment of the future risk.  In the present case, Mr Griffin’s findings did not raise any need for the consideration which Allsop J found lacking in SZGHS.  In my opinion, Mr Griffin’s report shows that he did address the applicant’s future risk if he returned to Pakistan, and his reasons for his adverse conclusions reported in paragraphs 34 and 35 are not shown to be affected by any error of law. 

10. I am therefore not persuaded that Ground 3 is made out. 

The procedural fairness ground 

1. Ground 2 was supported by reference to principles of procedural fairness applied in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at 162, by reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, [1994] FCA 1074. These include the duty on a decision‑maker to “identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  … [the opportunity to be heard] would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues …” (see also Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [51], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9]).

2. The applicant’s counsel’s principal submission in support of this ground was that Mr Griffin failed to warn the applicant and his representative at the interview held on 17 January 2011, that he might conclude that the applicant fell within a subgroup of Hazara Shia persons without ‘high profile’ who were therefore not at risk of persecution in Pakistan.  She submitted that that reasoning could not have been anticipated, and had not been anticipated in the RACS submissions, which had sought to establish that all Hazara Shia faced a real chance of serious harm in Pakistan. 

3. Put this way, the contended breach of procedural fairness cannot be found, because – as I have explained above – I do not accept that Mr Griffin’s reasoning in fact followed a surprising or un‑anticipated (and legally erroneous) sub‑classification approach to the country information.  In my opinion, his eventual reasoning did no more than address an issue which was plainly raised by the applicant’s case, and which had been addressed by the applicant’s submissions and the country information which RACS tendered. 

4. The RACS submissions clearly showed an awareness that the credibility of the applicant’s relevant history was in issue, including the credibility of his claims to have encountered threatening incidents in Pakistan and to be at ‘heightened’ risk.  They clearly showed, at least in the submission dated 14 April 2010, a need to address the reasoning of the First Reviewer as to the general level of risk facing Hazara Shia in Pakistan.  His conclusion had been that the applicant did not “face a more serious risk of harm than the general population”, but was “at the same risk of harm as the overall general population from random and unpredictable violence”, and that “the risk of harm to the claimant is remote and insubstantial”.  The authors of the applicant’s submissions contended against such conclusions, by submitting additional country information seeking to establish a higher assessment of the applicant’s risk of Convention‑related harm in Pakistan. 

5. I therefore do not accept that there was any need for Mr Griffin, when interviewing the applicant or otherwise, to elucidate how he might reason in relation to the risks facing the applicant in Pakistan, and how he might assess the submissions and material tendered on the applicant’s behalf which was directed at an assessment of that risk.  I accept the Minister’s submissions that the applicant’s complaints now amount to no more than a desire for a warning as to eventual ‘thought processes’ on a known issue, which natural justice does not require.  A hope to have been given an additional opportunity to tender more material on an ‘extant issue’ does not establish a denial of procedural fairness, where ample opportunities to submit relevant material were given. 

6. Nor can I find any obligation to give any warnings arising from exchanges between Mr Griffin and the applicant’s representative at the interview.  I shall not extract the whole of the relevant exchanges from pages 17 to 20 of the transcript to which I was taken.  On page 19, the applicant’s representative enquired: “Is it possible to ask if you do require further information about the risk to [the applicant] in both countries?”, to which Mr Griffin responded: “I don’t require further information.  I’m happy to receive it but there’s quite substantial body of material that I’ll consider”.  He later told her: “if there is anything else you want to put in terms of further submissions or country information affecting [the applicant]”, she could do this after the interview.  She then took that opportunity.  There was nothing in this exchange which, in my opinion, gave rise to an obligation of procedural fairness which was not afforded. 

7. Nor, in my opinion, did Mr Griffin respond otherwise than appropriately to a request which, although made politely, might appear to have been bordering on impertinent: 

   AdviserIs it possible to ask you because of the density in this case and the number of issues, is it possible to ask you what you see as the significant ones, the most significant ones, that you are undecided about at this stage? 

   MemberWell clearly as I indicated to [the applicant] credibility is an issue because that is really going to have to drive whether or not I am considering him in relation to Pakistan or Afghanistan.  If it’s Afghanistan then relocation is a significant issue.  They are really the two most significant issues that I have in my mind.  Unfortunately there isn’t a lot you can do about the credibility aspect of it except make the submissions that you have about the history and the plausibility and I’ll take that into consideration but if there is anything else you want to put in terms of further submissions or country information affecting [the applicant] today is the 17^th, are there 31 days in this month?  Yes there are.  If that is sufficient time for you then I’m happy with that period of time because there is quite a bit here, a significant body of material to work through and issues for me so I’m happy to provide that date as a further date for any further submissions that you want.  Does that answer the thrust of your question? 

8. For all these reasons, I am not persuaded that Ground 2 is made out. 

9. Since I have not found any error of law or procedural fairness affecting Mr Griffin’s report to the Minister, I consider that the appropriate order is to dismiss the application. 

10. It is agreed that costs should follow the event, according to the scale under the Rules. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  1 August 2011