SZQEK v Minister for Immigration & Anor

[2011] FMCA 628

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQEK v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 628

MIGRATION – Independent merits review of refugee claims of offshore entry person – obligation to afford procedural fairness – failure to invite comment on December 2010 UNHCR guidelines concerning Afghanistan – application for judicial review upheld – declaration of legal error.

Migration Act 1958 (Cth), ss.46A, 476, 477

Annetts v McCann (1990) 170 CLR 596
Kioa v West (1985) 159 CLR 550
Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252

Applicant: SZQEK

First Respondent: Minister for Immigration & Citizenship

Second Respondent: Steve Karas in his capacity as Independent Merits Reviewer

File Number: SYG 821 of 2011

Judgment of: Smith FM

Hearing date: 12 August 2011

Delivered at: Sydney

Delivered on: 12 August 2011

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Koutzoumis Lawyers

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to observe the requirements of procedural fairness in relation to the disclosure of country information.

2. Application otherwise dismissed.

3. The first respondent pay the applicant’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney

SYG 821 of 2011

SZQEK

Applicant

And

Minister for Immigration & Citizenship

First Respondent

Steve Karas in his capacity as Independent Merits Reviewer

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia by a boat which was intercepted and taken to Christmas Island in February, 2010. He was interviewed at that time, and made claims seeking refugee protection in Australia. On 26 April 2010, assisted by Florin Burhala & Associates, lawyers and migration agents of Melbourne, he lodged an application for 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 protection visa.

2. The applicant’s refugee claims included a general claim to be at risk in his country of nationality, Afghanistan, as a person of Hazara ethnicity and Shia religion who had been residing in the District of Jaghori in Ghazni Province.  I shall refer to this as his ‘general refugee claim’.  He also made additional claims to have been personally targeted by the Taliban on grounds of his perceived political opposition to their insurgency.  I do not need to narrate the history upon which these ‘individual refugee claims’ was based, since I have decided that the present IMR review has miscarried by reason of a failure of procedural fairness in relation to its reliance on an undisclosed source of general country information when rejecting the applicant’s general claim.

3. The applicant was again interviewed at Christmas Island on 29 April 2010, and the Department of Immigration received a submission from the applicant’s agent dated 21 May 2010, in relation to the applicant’s claims and those of other Afghani claimants.  The submission drew attention to an opinion given by Professor William Maley “on the position of the Hazara minority in Afghanistan” dated 20 May, 2010.  In his five page opinion, Professor Maley discussed information which had been previously relied upon by decision-makers, including information contained in a four page cable from the Department of Foreign Affairs and Trade, number CX240092 dated 21 February, 2010 headed “Situation of the Hazara Minority” (‘the February 2010 DFAT cable’).  The cable cited several sources, including UNHCR “Eligibility guidelines for assessing the international protection needs of asylum seekers from Afghanistan” published in July 2009 for Afghan asylum seekers (‘the July 2009 UNHCR guidelines’), which the DFAT cable said supported an approach that “not all Afghans abroad were refugees or in need of international protection. Case-by-case analysis was needed”. 

4. Professor Maley said that there were problems relying on the February 2010 DFAT cable and the July 2009 UNHCR guidelines, and gave his opinion in relation to the risk of persecution by the Taliban of ethnic Hazaras that:

   No part of Ghazni can realistically be considered safe for Hazaras, even in districts where they might seem numerically predominant.

   In support of his opinions, Professor Maley cited a number of sources in relation to the situation of Hazaras.  It is plain from his opinion, and from the other country information and reviews which are in evidence before me and are cited in the RSA and IMR decisions concerning the applicant, that the risks facing both the general population and minority groups in Afghanistan, including the Hazara Shia minority, have been constantly changing in recent years, and that an assessment of the refugee claims of members of this group required careful attention to the currency of previously expressed opinions and their sources of information.

5. The Department of Immigration made a determination in relation to the applicant’s RSA application on 18 June, 2010.  The determination was:

   the Australian government has determined that you are not a refugee as defined in the 1951 Convention and the 1967 protocol relating to the Status of Refugees (the Refugees Convention).

6. The statement of reasons for the RSA determination first discussed the applicant’s general refugee claim based on his Hazara ethnicity and Shia religion alone.  It listed a number of published sources and reviews of relevant country information concerning the situation of the Hazaras in Afghanistan, including the DFAT cable and the July 2009 UNHCR guidelines.  Some of this material was discussed over five pages, which I shall extract as Schedule 1 to this judgment.  The RSA  concluded:

   Conclusion

   The claimant is an ethnic Hazara Shi’a Muslim and as such belongs to the ethnic majority (94%) in his home province of Ghazni.  UNHCR in Kabul advised on 10 December 2009 that it would only be of concern to UNHCR if the claimant belongs to a minority ethnicity in the area where he or she resides.  Furthermore, as a Shi’a Muslim, the claimant does not belong to one of minority religious groups, (Christians, Sikhs, Hindus and Bahai) identified by UNHCR as being at risk.  Accordingly, the claimant’s profile as the ethnic Hazara Shia Muslim from Ghazni Province does not fit the category of people who are currently of concern to UNHCR as being at risk of human rights abuses either by the state and non state agents [4.15]. 

   While I note that Hazaras have been historically the subject of persecution on account of their ethnicity and religion, UNHCR advises that there is no evidence of a current campaign by the insurgency to target Hazaras and that the Hazaras were experiencing a relatively “golden age” in light of their tragic past [4 15].

   I am not satisfied that the claimant faces a real chance of persecution for the Convention reasons of race, religion should he return to Afghanistan.  I therefore, assess his fear of persecution is not well founded for the following reasons. 

7. The subsequent parts of the Department’s Refugee Status Assessment (“RSA”) applied this general conclusion, and also examined the applicant’s individual claims.  The author of the RSA was not satisfied that the applicant had established that he faced a real chance of persecution should he return to Afghanistan.  This discussion included a further reference to the February 2010 DFAT cable:

   I accept the information from the Department of Foreign Affairs and Trade that Afghanistan’s Hazaras do not live in fear of violence or systematic persecution as they did under Taliban rule.  Hazaras appear to have embraced the political process and are focussed on education as a way of advancing their community.  I also accept that there is no evidence of a campaign of insurgency to target the Hazaras.  I note that over 3 million Hazaras live in Afghanistan and there has not been any significant exodus from the country due to the security situation.  I accept the view that much of the migration out of Afghanistan is ‘more in keeping with economic imperatives associated with labour migration’.  I believe that economic factors, such as the drought and the lack of employment opportunities, appear to be the main factor causing the movement of Hazaras to Iran and Pakistan in recent years.  This is not to say that Hazaras do not face certain amounts of social discrimination and that poverty does not affect the Hazara community, as it does Afghanis of all ethnic groups.  I am conscious there is always the possibility that an individual may suffer violations of human rights at the end of local thugs but I do not believe these incidents amount to persecution for a Convention reason.

   The present Afghan government does not have in place policies or practices intended to persecute Hazaras, on the contrary, they are trying to improve the lot of the Hazaras to atone for the inhumane treatment inflicted upon them by the previous Taliban government.  The late incidents to which Hazaras refer are the result of actions by rebel or lawless groups operating in certain areas of Afghanistan which the government is still unable to fully control.  The action of these groups against the Hazaras, or anyone else for that matter as Hazara are not only victims of criminal acts in Afghanistan do not constitute persecution as defined in the Convention but are criminal acts that are possible and go unpunished because of the unstable security situation in Afghanistan.

   In conclusion I find that the claimant’s does not have a genuine subjective fear of being harmed or killed by the Afghan government, the Pashtuns or the Talibans and his fears do not amount to persecution as defined in the Convention.

The IMR proceedings

1. The applicant, assisted by his migration agent, lodged an application for an independent merits review, which was available under the same administrative procedures under which the RSA assessment had occurred, that is, for the purposes of informing the Minister in relation to his discretions under section 46A of the Migration Act. Mr Karas, the second respondent to the present proceedings, was then engaged to perform the function of independent merits reviewer in relation to the applicant’s refugee claims.

2. Mr Karas received a submission from the applicant’s agents dated 6 September 2010.  It contained 57 pages of analysis and extracts from reports and other sources of country information, including Professor Maley’s May 2010 opinion which had previously been given to the Department of Immigration.  It also included extracts from other recent sources, including a June 2010 report from the Security Council, and press reports concerning events during 2009 and 2010.  Many of these extracts concerned information published subsequent to the material considered in the RSA assessment.  All this material was submitted to Mr Karas in support of an introductory submission:

   Background

   By way of brief background the applicant is a 26 year old male, born in (his town), Jaghori in the Province of Ghazni, Afghanistan.

   His ethnicity is Hazara, and he is a Shia Muslim.

   Our client instructs that Afghanistan continues to be unsafe.  He instructs that there are many groups that continue to target Hazaras in Afghanistan.

   Our client instructs that he fled Afghanistan to Pakistan as he feared for his life from the Taliban.  Our client relies on his statement which qualifies the systematic persecution that Hazaras are subjected to by the Taliban in Afghanistan.

   And in support of the conclusion of the submission:

   Conclusion

   Collectively, all the preceding extracts illustrate that the situation for Hazaras living without protection in Afghanistan involves a well founded fear of persecution within the framework of the Convention.

   Based on the facts before us and the applicant’s submission of the events surrounding his case there is little doubt that he does hold a well founded fear of persecution in Afghanistan and is therefore outside it.

   On the very day that Ms Gillard took office, the Taliban attacked Hazaras in an ambush for the simple reason they were Hazaras.

   We emphatically deny on behalf of our client that Afghanistan is safe or even certain areas are safe for Hazaras to relocate or return.

   We strongly submit that the above country information and news articles qualify that Hazaras have a well founded fear and will face a real chance of persecution.

   We submit that the applicant cannot be refouled to Afghanistan.

3. No other written submission was made by the applicant’s agents, nor was any further written submission invited by Mr Karas in relation to the country information which he proposed to rely upon or otherwise.

4. Mr Karas interviewed the applicant in the company of his migration agent at Curtin Immigration Detention Centre on 11 February 2011.  A transcript of the interview is in evidence.  It shows that Mr Karas confined the hearing to his questioning of the applicant about his own particular claimed history, and to other matters specific to his own particular circumstances.  At no stage did Mr Karas put to the applicant or his agent any general country information upon which he might rely adversely in his assessment of the applicant’s claims for refugee status.  Nor did he suggest that he might rely upon sources of information which had not been canvassed in the RSA assessment or in the agent’s submission.  In particular, he did not draw the applicant’s attention to the fact that he intended to rely upon new UNHCR eligibility guidelines which had been recently published in December 2010.

5. Mr Karas made a report dated 29 March, 2011 in which he found that:

   The applicant does not meet the criteria for a protection visa set out in s 36(2) of the Migration Act, 1958. I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

6. The applicant was notified of that adverse report by way of a letter dated 5 April 2011 from an officer of the Department of Immigration in its “Onshore Protection” section.  The letter informed the applicant that:

   It is the Department’s practice to accept such recommendations.

   And informed the applicant that if he decided not to seek judicial review of the assessment:

   The Department will make arrangements for your return to Afghanistan.  This will include obtaining travel documents on your behalf.  Your case manager will contact you to discuss the process.

7. The letter also informed the applicant that, as a result of the High Court’s judgment in Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”), he was able to seek judicial review of whether Mr Karas had made any legal error in writing his report or in following fair procedures before doing so. 

8. The applicant filed his present application in the Sydney registry of this Court on 28 April 2011, seeking a declaration in relation to error of law or denial of procedural fairness, and an injunction to restrain reliance on Mr Karas’ recommendation and report. No issues are now taken by the Minister as to the competency of the proceedings, and the existence of this Court’s jurisdiction under s.476 of the Migration Act based on the High Court’s reliance on section 75(v) of the Constitution in Plaintiff M61 at [51]. No issues as to the application of the time limit under s.477 are raised.

9. The applicant’s grounds of review, as relied upon by his counsel today in a further amended application, have as their first ground a contention of failure of procedural fairness by Mr Karas.  He is alleged to have failed to draw to the applicant’s attention and invite comment upon four pieces of general country information upon which he relied, when addressing the applicant’s the general refugee claim based on his ethnicity and religion.  At the commencement of the hearing, counsel for both parties accepted that it would be an efficient use of today’s hearing for me to address that ground, before considering the admissibility of evidence and the merits of the other two grounds raised by the further amended application.  After completing their submissions, I concluded that the applicant’s submissions in relation to one of the particulars under ground 1 should be upheld, and that sufficient relief could be granted based only on that ground.  It therefore was not necessary for me to continue the hearing to address the other two grounds.

Mr Karas’ relevant reasoning

1. The applicant’s first ground in the further amended application is:

   That the decision of the second respondent (the reviewer) was affected by legal error in that:

   1.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information from which the reviewer drew conclusions adverse to the applicant’s claim.

   Particulars

   ·    The information was drawn from the following material:

   a.The Christian Science Monitor, referred to in the Independent Merits Review (IMR) recommendation at para. 54.

   b.DFAT Cable dated 21.02.10 CX240092, IMR 28 and 55-56 including information referred to from:

   ·    Human Rights Unit UNAMA, IMR 56

   ·    Unidentified UNHCR source, IMR 28, 56

   c.UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Hazaras December 2010, IMR 57, 45 – 49 (UNHCR 2010 Guidelines)

   d.material referred to as the “range of material about Afghanistan”, IMR 50 including:

   ·    “The Finnish Immigration Service Report” (FIS), IMR 56

   ·    The material was used decisively in relation to the applicant’s claims relating to his fear of persecution as a Hazara Shia in Afghanistan.

   ·    The reviewer did not put the substance of the information relied upon to the applicant either in the course of the review or at any other time prior to the recommendation.

   ·    Part 4.1 and Annexure D of the Independent Merits Review Guidelines (IMR Guidelines) are a source of the requirements of procedural fairness in relation to this ground of review.

   ·    Although some information in the DFAT Cable and The Finnish Immigration Service Report was also referred to in the RSA decision the IMR is a review de novo and the IMR is not bound by findings or characterization of the relevant issues by the RSA.

   ·    UNHCR 2010 Guidelines came into existence after the Refugee Status Assessment (RSA).

   ·    Circumstances of this case affecting the requirements of procedural fairness in this case include that:

   ….

   ·    The totality of the country information which the IMR consulted or to which the IMR had access was equivocal and represented differing views.

2. To understand my reasoning in relation to this ground, it is necessary for me to set out the entirety of how Mr Karas identified and discussed the country information which he regarded as significant to the applicant’s general refugee claim.  This covers eleven pages of his report, including paragraphs 25 to 59.  It is convenient to reproduce this part of his report as Schedule 2 to this judgment, and to narrate only a brief summary of his reasoning. 

3. Mr Karas said that “a large number of documents, articles, reports and the like on Afghanistan have been consulted by the Reviewer, including…”.  He then listed a number of these, including the February 2010 DFAT cable, and the July 2009 UNHCR guidelines.  He then gave a brief history of Afghanistan, leading to the current Taliban insurgency.  He then, in the part extracted in Schedule 2 to this judgment, discussed country information under headings “Hazaras”, “Ghazni”, “Jaghori District”, and “Return of Refugees”, before explaining his “Findings and Reasons” leading to his conclusion in relation to the applicant’s general refugee claim:

   57.    On the basis of available current and authoritative material, and notwithstanding the claimant’s general assertions to the contrary, the Reviewer does not accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large and is not satisfied that Hazaras face a real chance of harm amounting to persecution by non-state actors (i.e. Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and/or religion.  The Reviewer does not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the Refugee Convention definition.  Nor do the UNHCR Guidelines suggest that it should.

   58. That does not mean that a Hazara/Shia cannot be found to be a refugee on the basis of the person’s own individual circumstances and experiences (to which his ethnicity or religion may be relevant).

   59. It is therefore necessary to turn to the claimant’s particular experiences and claims.

1. As I have noted, it is unnecessary for me to examine how Mr Karas addressed the applicant’s ‘particular experiences and claims’ to have a personal profile which gave rise to a real chance of persecution at the hands of the Taliban.  In short, he disbelieved the history upon which the applicant based these claims.

2. In the course of his discussion of the applicant’s general refugee claim, Mr Karas made specific reference to the February 2010 DFAT cable at paragraph 28, and this cable was then cited in his ‘findings and reasons’ at paragraph 55.  He said “The Reviewer attaches particular weight to the recent report by the Department of Foreign Affairs and Trade (DFAT) which squarely addresses the issue of persecution of Hazaras, while not dismissing the historical background and concerns articulated by Professor Maley and his caution regarding future developments.”  This paragraph and paragraph 56 appear to address the submissions made by the applicant’s agent to both the RSA and IMR assessments, which invited the decision-makers to discount the February 2010 DFAT cable in the light of Professor Maley’s subsequent reasoned opinions.

3. It is also clear that Mr Karas drew particular significance from a new documentary source which had not been in existence at the time of the DFAT cable, Professor Maley’s opinion, nor the submission of the applicant’s agent on the general country situation facing Hazaras.  He described this at paragraph 45 as “the detailed UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Afghan Asylum-Seekers (17 December 2010)”.  He then purported to quote from this document in paragraph 3, and to summarise other parts of it in his paragraphs 46 to 49, which constitute a very substantial part of Mr Karas’ outline of the ‘independent evidence’ relied upon by him. 

4. Although the accuracy of his summary of the December 2010 UNHCR guidelines was not directly challenged, it is useful to extract as Schedule 3 to this judgment the passages of the December 2010 UNHCR guidelines from which Mr Karas appears to have drawn when assessing the applicant’s general refugee claim.  It is apparent from this extract, that the opinions of the authors of the new UNHCR guidelines had drawn upon many very recent publications and events during 2009 and 2010, and that their opinions were capable of being regarded as particularly authoritative in early 2011 due to the currency of the guidelines and of their cited sources.  So much appears from the guidelines’ discussion of the situation of ‘minorities’ including the Hazaras, which I have extracted.  The remainder of the 45 page document shows a similar level of research into very recent sources of information and analysis.  The document purports, and plainly is, a research document of great substance and authority in relation to the assessment of the situation of potential refugee claimants from Afghanistan, including Hazara Shias.

5. Significantly, the new UNHCR guidelines commenced with the introductory statement:

   These Guidelines supersede and replace the July 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. They are issued against a backdrop of a worsening security situation in certain parts of Afghanistan and sustained conflict-related human rights violations as well as contain information on the particular profiles for which international protection needs may arise in the current context in Afghanistan. UNHCR’s recommendations, as set out in these Guidelines, are summarized below.

6. It appears to me clearly that Mr Karas’ subsequent reference to the UNHCR Guidelines in his concluding paragraph 57 of his ‘findings and reasons’, extracted above, must have been to something he drew from these new guidelines, rather than being a reference to the superseded July 2009 UNHCR guidelines.  I am also inclined so to read his reference to “UNHCR in Afghanistan” in his paragraph 56.

Ground 1(c) is established.

1. As I have noted Ground 1 contends that there was a failure of procedural fairness arising from Mr Karas’ failure to disclose and invite comment upon four documents containing general country information upon which he expressly relied when addressing the applicant’s general claim to face a real risk of persecution by reason of his being a member of a general group constituted by persons with Hazara ethnicity and Shia religion, or, perhaps, a sub-group of such persons who come from Jaghori District of Ghazni Province.

2. The obligations of Mr Karas to disclose and invite submissions on pertinent undisclosed country information are undoubted in the light of Plaintiff M61.  Their Honours found such an error in one of the matters before their Honours, which had been governed by the same IMR guidelines which I am asked to infer were being followed by Mr Karas. 

3. At paragraph [74] and following, the High Court referred to Annetts v McCann (1990) 170 CLR 596 and other authorities supporting the implication of obligations of procedural fairness in relation to statutory inquiries, and found that they applied to an independent merits review of an RSA determination of the present sort. They concluded at [77] that the consequence of the RSA and IMR claimants being held in custody and subject to removal after consideration of their refugee status was that “the assessment and review must be procedurally fair and must address the relevant legal question or questions”.  They said:

   [91] Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides[44] that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend[45] to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.

   …

   [98] As for want of procedural fairness, it may well be that some of the facts said to be revealed by country information were sufficiently put to the plaintiff or his adviser for comment. It is plain, however, that the reviewer did not put to the plaintiff country information she had before her concerning the treatment of failed asylum seekers returning to Sri Lanka. Not putting the substance of the country information to the plaintiff for his consideration and comment denied him procedural fairness.

   (emphasis added)

4. In this reasoning, their Honours should be understood to be applying the well understood tests cited recently in Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [19]:

   Brennan J in Kioa v West[25] said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[26]. Mason J in Kioa v West[27] went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case. (citations omitted)

5. The obligation to disclose and invite comment was notably applied in relation to significant new country information relied upon in a refugee determination, by a majority in the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57, where Gaudron J concluded:

   98. In the present case, the delegate did not simply reject the claims made by Mr Miah. Indeed, he barely considered them. Rather, he had regard to the recent elections and change of government in Bangladesh and drew inferences from limited and, to some extent, equivocal information which he seemed to think rendered Mr Miah's claims virtually irrelevant. A question, thus, arose whether, as subdiv AB contemplates, he should have invited further information or submissions from Mr Miah to ensure procedural fairness.

   99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her[42]. MrMiah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.

   McHugh J concluded:

   The rules of natural justice are flexible and adaptable to the particular circumstances of each case. In the particular circumstances outlined above, they required the delegate, in exercising power under subdiv AB, to inform the prosecutor that he was contemplating using information about the election results and to offer the prosecutor an opportunity to comment. There was, accordingly, a breach of the rules of natural justice. The "code" argument fails.

   Kirby J concluded:

   [195]  I do not agree that the prosecutor was obliged, speculating on the delegate's decision-making processes, to provide the delegate with a running commentary on events in Bangladesh that might influence the decision[161]. The fact that the political intelligence about the situation in Bangladesh, relied on by the delegate, was said to be powerful and convincing did not relieve the delegate of a duty to disclose it. In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment[162].

   [196]  It follows that the prosecutor ought not to have been taken by surprise, as he was[163]. To conclude in this way does not imply that every delegate, receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment[164]. That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act. But, in this case, the combination of circumstances which I have mentioned rendered it substantially unjust for the delegate, as the repository of statutory power, to proceed in the way that he did. The prosecutor has therefore established that, in reaching the decision to refuse him a visa, the delegate acted in breach of the rules of natural justice.

   (citations omitted)

6. As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker.  The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness.  Underlying the assessment is a basic concern for a fair procedure.

7. Considering the four documents containing country information which are identified in the particulars to Ground 1 of the present matter, in my opinion, a breach of procedural fairness is made out only in relation to the third particular, being the December 2010 UNHCR eligibility guidelines for assessing asylum-seekers from Afghanistan.  I shall explain that conclusion, before briefly considering the other three documents.

8. I have above described the December 2010 UNHCR Guidelines and the parts from which Mr Karas appears to have drawn when writing his report.

9. It is conceded by the Minister that the existence of the new UNHCR guidelines, and the possibility that Mr Karas might give particular weight to their currency and draw adverse conclusions from their contents, were not drawn to the attention of the applicant or his agent at any stage prior to his report.  In particular, it is undisputed that neither the applicant nor his agent were, or should have been, aware that this document existed and might be treated as significant to Mr Karas’ reasoning.  It is undisputed that he did not draw any attention to the document at the interview, nor subsequently, by inviting comment upon its implications in relation to the critical issue previously addressed in the RSA and in the agent’s written submissions.

10. It is undoubted that Mr Karas regarded this document as being a very important source of country information which “bears upon the claims of that the plaintiff made” (cf. Plaintiff M61 quoted above).  Indeed, as a matter of law, Mr Karas may have been bound to give the UNHCR December 2010 guidelines significant weight, once he became aware of them.  The document appears to have been the most recent and thorough source of authoritative opinion and review of all recent country information concerning the applicant’s general claims which was available to Mr Karas.  Its opinions and advice to refugee decision-makers, in the language of the guidelines, “superseded and replaced” the July 2009 UNHCR guidelines, which had been referred to in the RSA determination, and which had been cited in the February 2010 DFAT cable. 

11. It is clear from Mr Karas’ discussion of ‘independent evidence’ in paragraphs 45 to 49 which I have extracted in Schedule 2, that he both quoted a significant passage from the new guidelines, and attempted to summarise other relevant parts of the document concerning the situation of Hazaras.  He may have also relied upon it in some of his other statements which are lacking in citation of their source. 

12. More significantly, in my opinion, Mr Karas has shown in his ‘findings and reasons’ that he gave very material weight to the December 2010 UNHCR guidelines.  As I have noted, I take his reference in the last sentence of 57, to be a reference to those guidelines.  His reference to UNHCR in paragraph 56 is less clear, but I am inclined to think that he was referring to the UNHCR’s most recent guidelines at that point also.  It is clear that Mr Karas has drawn information from the guidelines which he regarded as being adverse to the general claim of the applicant for refugee status based only on ethnicity and religion.  He has taken those guidelines, in effect, to support his rejection of the claim that:

    A person’s identity as an Hazara Shia of itself causes him or her to fall within the refugee convention definition.

    That was the very proposition which the applicant’s agent sought to persuade him as to in their very lengthy submission, based on the country information to which they referred in that submission.  In my opinion, the document clearly meets the character of Brennan J’s test in Kioa v West (1985) 159 CLR 550 as “credible, relevant and significant material”.

13. I did not understand the Minister’s counsel to seriously dispute my above conclusion.  He, however, submitted that no obligations of procedural fairness arose, requiring Mr Karas to draw attention to the December 2010 UNHCR guidelines document, nor to his intention to rely upon it adversely in his assessment of the applicant’s principal claim.  This was because the document was considered by Mr Karas in circumstances where the earlier UNHCR July 2009 guidelines had been previously cited in the DFAT February 2010 cable, and in the RSA assessment.  Its earlier opinions had been relied upon in the DFAT cable, which had then been addressed by Professor Maley’s May 2010 opinion submitted to Mr Karas by the applicant’s agent.

14. In his written submissions, counsel for the Minister submitted:

    6.The requirements of disclosure depends on all the circumstances of the case, including the content of the information in question.  Thus, in Miah, McHugh J drew a distinction between information such as non-adverse country information that did not have to be disclosed and new material that did: 206 CLR at 97, [141]. In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, Wilcox J found, at 130, that there was no obligation to disclose what was already obvious: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 at 98. [143] per McHugh J; and SZATV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 54.

    7.Here, the applicant suggests that material that was expressly referred to in the reasons of the refugee status assessor (RSA) should have been disclosed by the IMR.  This material concerned the general situation affecting Hazaras in Afghanistan.  The submission, at that level of generality, does not engage with the basic principles of procedural fairness.  The RSA’s reasons, that included references to the relevant material, and the conclusions drawn from it, were given to the applicant and his adviser: CB 88.  The adviser made lengthy submissions to the IMR directly addressing the situation affecting Hazaras in Afghanistan: CB 113-169, especially at 118-168.  In this way, it can be seen that the applicant had the opportunity to address all of the information before the RSA.

    8.The information considered by the IMR (other than the material presented by the applicant) was no different.  The DFAT cable (CB 193[28], 201[55], and 202[56]) was set out at length in the RSA’s reasons (CB 99, 100, 103); the Christian Science Monitor (see CB 201 [54]) concerned social discrimination and added nothing to the DFAT cable; the 2010 UNHCR guidelines (CB 198[45]-[46]; 199[47]; 200[49]; 202[57]) added nothing new to the UNHCR material relied on by the RSA (102); and the Finnish Immigration Service Report (202[56]) added nothing new to the DFAT cable.

    9.The decision in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 85 ALJR 133 does not suggest anything different. That was a case decided on the facts before the court.

    10.The circumstances of this case are the polar opposite of those considered in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57. In that case, a radical change in the relevant country circumstances was critical to the delegate’s decision and yet this was not disclosed to the applicant. Here, there was no change. The applicant there had every opportunity to meet the case that was against him, namely, that Hazaras in general were not subject to persecution in Afghanistan. For that reason, there was no obligation on the IMR to give the applicant details of the material before him prior to making a decision.

    (citations omitted)

15. In his oral submissions, counsel submitted that the applicant had not identified any particular material difference between the June 2009 UNHCR guidelines and the December 2010 guidelines, and that no material difference had been shown to have affected Mr Karas’ assessment of the applicant’s claims.  He submitted that, although the December 2010 guidelines did refer to a deterioration in the general security situation facing the residents of Afghanistan, there is no evidence that there was any material difference to the UNHCR guidelines in their assessment of the situation of the Hazaras.

1. Neither counsel invited me to engage in a close comparison of the two UNHCR documents – and, indeed, only the 2010 document is reproduced in the evidence they tendered.  I am therefore not confident whether a close examination of the two reports would or would not show any material difference in relation to the UNHCR’s assessment of the situation of Hazara Shias.  It is at least manifest from a glance at the footnoted sources in the relevant extract in Schedule 3 to this judgment, that the conclusions of the authors of the new guidelines were based substantially upon 2009 and 2010 sources of information which, necessarily, could not have been examined in the July 2009 guidelines.

2. However, in my opinion, I do not need to engage in a close comparison of the relevant passages of the two UNHCR guidelines before I can find that there was a breach of procedural fairness in Mr Karas’ reliance on the December 2010 UNHCR guidelines document without inviting submissions on its perceived significance.

3. In my opinion, there was an aspect to that publication which undoubtedly provided an important new element of information, adding to the authoritativeness and weight of the UNHCR’s previous assessment, even if it had arrived at similar conclusions.  This is that its assessments and the information which it digested constituted an up-dating replacement set of guidelines for the guidance of decision-makers after December 2010, in a context where the issue which Mr Karas was addressing concerned a very fluid situation in the applicant’s country, affecting the assessment of his general personal security as well as his Convention ground of feared persecution as a Hazara Shia if he returned to Afghanistan.

4. In my opinion, the information that the UNHCR in December 2010 had issued a very recent re-assessment of the relevant situation in Afghanistan facing Hazara Shias, ‘superseding and replacing’ its previous assessment made in July 2009, was significant and material new information.  Its potential significance required Mr Karas to have drawn the applicant’s attention to the publication, its contents, its perceived authority, and its possible pertinence to his assessment of the issues previously addressed in the RSA determination by reference to the earlier DFAT cable and Professor Maley’s opinions.  The materiality of the December 2010 UNHCR guidelines, in my opinion, to Mr Karas’ decision turned as much upon the timing and dating of the guidelines, as upon any changes to their contents.

5. Moreover, Mr Karas’ report confirmed that, in fact, he gave the December 2010 UNHCR very material weight in paragraph 57 at the conclusion to his relevant discussion.  This is shown in his conclusion:

   The Reviewer does not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the Refugee Convention definition.  Nor do the UNHCR Guidelines suggest that it should.

6. Although this reference to the guidelines is framed in a backhand manner, I would understand Mr Karas to be implying that the very recent UNHCR review of the most recent country information had given apparent confirmation and currency to the opinion previously reached by the RSA assessment based on the February 2010 DFAT cable, and contrary to the subsequent submissions of the applicant’s agent made in September 2010.  When giving it this weight and effect, I consider it probable that Mr Karas relied as much upon its timing as its contents.  In effect, he was implying that the new UNHCR guidelines provided the ‘last words’ on the critical issue.  In my opinion, fairness required that this use of the document should have been put to the applicant.

7. I therefore do not accept the submissions of the Minister’s counsel that the new document ‘added no new element to the debate’, and was not significant or material new information relevant to Mr Karas’ adverse assessment of a very important factual issue raised in the review.

8. For all the above reasons, I have concluded that the applicant has made out his first ground in relation to its particular (c). 

9. In relation to the other three documents referred to in the particulars, the situation is, in my opinion, less clear, and I am not satisfied that a separate breach of obligations of procedural fairness attended Mr Karas’ failure to discuss their contents with the applicant or to invite submissions on the weight which he contemplated giving them. 

10. In relation to particulars (b) and (d), I am not persuaded that Mr Karas was obliged to draw the applicant’s attention to the fact that he might rely upon these two documents and might give “particular weight to” the DFAT cable of February 2010.  In short, they were both documents which had been cited in the RSA assessment, and the applicant was sufficiently on notice as to their existence and potential materiality.

11. In my opinion, consideration of the fairness of the procedures followed by Mr Karas requires consideration of the manner in which country information had been presented and addressed by the Department of Immigration in the course of the preceding RSA assessment.  It was plain, in my opinion, that the issues which Mr Karas would be addressing would continue to be the issues which had been addressed by the RSA assessment, and that the applicant’s refugee claims addressed in the RSA would be reviewed in the light of the material previously cited in the RSA and such additional claims, evidence and country information which might become available to Mr Karas.

12. In this respect, I accept the Minister’s submission that the contents of the DFAT cable, and the documents to which it referred, were sufficiently drawn to the applicant’s attention by way of the reasons attached to the RSA assessment, including its list of country information consulted at that stage.  This, it appears to me, included “the Finnish Immigration Service Report” which is identified in particular (d) under ground 1, as well as the DFAT cable itself which is particular (b).

13. In relation to particular (a) of ground 1, it is conceded by the Minister that this 2007 article appearing in the Christian Science Monitor had not been cited in any of the material referred to in the RSA assessment.  Counsel for the Minister suggested that there might have been an oblique reference to it in the RSA’s reference to “Hazaras were experiencing a relatively golden age in light of their tragic past.”  This appears to be a reference to something in the DFAT cable, and I would not draw the inference that it derived from the 2007 article, nor that the applicant’s agent could fairly be expected to be aware of the contents of the article, in so far as it was relied upon by Mr Karas in his reference to it at paragraph 54 of his ‘findings and reasons’. 

14. However, there is substance in the submission of counsel for the Minister, that the gist of what was taken from the 2007 article may have been sufficiently raised by the DFAT report, and that it did not provide a significantly ‘new’ piece of country information.  Mr Karas’ reference to the article was only as a cited “example” of unspecified “other material” indicating “a significantly lessening of such discrimination”.  I am inclined to find that the failure to invite the applicant to address the contents of that article did not concern a piece of information which was sufficiently ‘significant’ or ‘material’ to the decision, in a context where other more recent, authoritative and significant documents addressing the same issue had been addressed in the RSA process and in the submission of the applicant’s solicitor to Mr Karas.  I am therefore not fully persuaded that particular (a) of ground 1 is made out, although I do not need to arrive at a definite conclusion about that.

15. However, for the reasons given above, in my opinion Mr Karas’ report was significantly affected by a material failure of procedural fairness in relation to his failure to invite the applicant’s comment upon his proposed substantial reliance upon the December 2010 UNHCR guidelines.  I consider that it is appropriate to grant the relief which the High Court granted in Plaintiff M61 in relation to that failure of procedural fairness. 

16. I consider that such a declaration should be sufficient to cause the Minister and his Department not to rely upon Mr Karas’ report, and to procure a further review of the applicant’s refugee status by a different IMR reviewer.  It is therefore unnecessary for me to examine the applicant’s other grounds for seeking similar relief.  As did the High Court in Plaintiff M61, I do not consider that any other relief is necessary, in particular, by way of injunction.  Costs should follow the event.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  18 August 2011

SCHEDULE 1
(Extract from RSA reasons)

The assessment of whether or not an asylum seeker is a refugee as defined by the 1951 Convention and 1967 Protocol relating to the Status of Refugees, may require a decision-maker to assess the credibility of a claimant’s testimony.  When assessing credibility, a decision-maker must be sensitive to the difficulties often faced by asylum seekers and the benefit of the doubt should be given to those who are generally credible, but are unable to substantiate all of their claims.  However, a decision-maker is not required to accept uncritically any and all allegations made by a claimant, nor is it necessary for a decision-maker to have rebutting evidence before he or she can find that a particular factual assertion by a claimant has not been made out.  Nor is a decision-maker required to accept claims that are inconsistent with the independent evidence regarding the situation in the claimant’s country of nationality.

Country Information (Background)

Afghanistan’s human rights record remains poor due to a continuing insurgency by Taliban and other armed militia, weak governmental and traditional institutions, corruption and drug trafficking (4.8).  While the government has deepened its authority in provincial centres since the fall of the Taliban regime in 2001, the Taliban or factions operating outside government authority continue to control a number of areas.  Since their resurgence in 2006, the Taliban has increasingly attacked civilian and international targets using targeted suicide bombings, automatically and remotely detonated bombs and landmines, and used civilians as shields.  The majority of the casualties were insurgent fighters killed in combat.  Taliban and anti-government elements continued to threaten, rob, attack, and kill villagers, government officials, foreigners, and nongovernmental organization (NGO) workers.  The instability caused by the continuing insurgency and the difficult operating environment resulting from the Taliban’s strategy of targeting government offices and workers has contributed to ongoing weaknesses in government institutions.  Poppy growing and related drug-trafficking have maintained criminal activity at a high level and decreased access to legitimate livelihoods.  Violence connected to counter-insurgency operations is affecting increasing proportion of the country and the reach of the central Government is limited in several districts (4.8 - 4.14). 

Notwithstanding the previous country information, the UNHCR have advised that the situation in Afghanistan fluctuates periodically and regionally.  The Department of foreign Affairs (DFAT) describe certain areas in Afghanistan that are relatively secure and many of these areas are occupied by Hazaras. The DFAT report also cites other credible sources that lend weight to the improving circumstances for Hazaras in recent times (4.15, 4.16). 

These issues are explored in the latter part of the following section.

Situation for Hazaras in Afghanistan

In considering current situation for Hazaras in Afghanistan, I have had particular regard to a very recent advice from DFAT and the UNHCR in Kabul and the quotations below are from that advice.

DFAT in Kabul had recently spoken to a range of contacts in Afghanistan including the UNHCR, UNAMA, the Afghanistan Independent Human Rights Commission (AIHRC), and Hazara advocates.  In summary, the reporting cable of 21/2/2010 advises that while unofficial discrimination of Hazaras still persists, the Bonn Agreement and subsequent Afghan Constitution of 2004 protect the rights of the Hazaras by enshrining “equality among all ethnic groups and tribes”...It further states that Hazaras have found some peace, since Shia representation has increased in the central government and there has been a decrease in hostility from Sunnis.  Furthermore, Hazaras are well represented in government institutions, vote in proportionally high numbers in political elections, make strong progress in education and live mostly in areas where the insurgency is not active.

On information provided by the UNHCR, DFAT noted (4.15);

·“...despite the situation in Afghanistan. not all Afghans abroad were refugees or in need of international protection,

·There was no evidence of a campaign by the insurgency to target Hazaras,

·There was a well organised Hazara people-smuggling operation in existence,

·…migration patterns that were out of sync with levels of threat and more in Ire eping with economic imperatives associated with labour migration.  The Hazaras seeking protection abroad were a reflection of this,

·Currently however, Hazaras were not being persecuted on any consistent basis.”

On information provided by the UN Assistance Mission in Afghanistan (UNAMA), DFAT noted (4.12);

·“UNAMA had not received reporting of Hazaras specifically being targeted or discriminated against in the current environment,

·Primary incidents of violence in Hazara communities over recent years had been with the Kuchis - a Pashtun nomadic minority - in Hazara dominated areas...These sorts of clashes, however, generally related to disputes over land and access to natural resources.”

On information provided by the US Embassy, DFAT noted (4.15);

·The Embassy considered that while discrimination against Hazaras did occur it was not a major systemic concern.”

In slight contrast to the above comments, the Afghanistan Independent Human Rights Commission (AIHRC) and various Hazara advocacy groups provided the following comments noted in the DFAT report.  The comments however, did not point to any persecutory treatment of Hazaras in recent times.

On information provided by the AIHRC, DFAT noted (4.15);

·“Hazaras outside of Hazarajat were more vulnerable to violent attacks and feared travelling beyond their immediate communities, in some cases even to the district centre,

·Development challenges in Hazarajat were significant and disproportionate to the rest of the country, despite the permissive security environment”

On information provided by Hazara advocacy groups, DFAT noted (4.15);

·‘Despite indications that Hazaras have made significant advances in recent years there are still strong perceptions of discrimination and systemic neglect from within the Hazara community, such as;

·The Hazarajat region was neglected by the government and donors in terms of development assistance in the areas of education…and public building,

·The failure of Parliament to yet confirm a single Hazara Minister in the recent rounds of cabinet,

·Hazaras were being denied academic posts in Afghanistan universities despite being qualified,

·Hazaras were anxious that current talks of re-integration and reconciliation was paving the way for further Pashtun dominance of the central Government”

The DFAT report also questioned Hazara advocacy groups on the success Hazaras have had in educational achievement.  Hazara advocates replied that it reflected the community “making the most of an opportunity” and could not be attributed to Government assistance.  On 3 January 2010, DFAT cited the New York Times who reported that the Hazara dominated Provinces of Bamiyan and Daykondi had the highest pass rates for University admission in Afghanistan and for final year high school students, three quarters and two thirds respectively passed compared to a national average of 22%.  Further, National Geographic (NG) supported numerous points raised in the DFAT report including Hazaras having better access to universities and civil service jobs.  NG continued that the Hazarajat is one of the safest regions in Afghanistan and mostly free of poppy fields, which were largely responsible for providing monetary support to the Taliban (4.15, 4.23, 4.24).

DFAT’S concluding remark in the report on the Hazara situation is noted below (4.15);

“While unofficial discrimination still persists, there is no doubt that Hazaras are today vey active in Afghan civil society, are well represented in government institutions, vote in proportionally high man bars in political elections (‘with women more represented than men), making strong progress in education and live mostly in areas where the insurgency is not active”.

Taliban

The Taliban first came to prominence in 1994.  Their objective was to restore peace and security and enforce the Islamic law.  After losing power in 2001, the Taliban is now re-emerging as a hardline Islamic Movement mounting an insurgence against the government.  Both the original Taliban and the neo-Taliban share a common faith in an extreme interpretation of Sunni-Islam.  The cohesion of the two Taliban groups, and their local support, is based on a common dislike of political leaders such as the warlords of the l990s, or the current US-backed Karzai government. The neo-Taliban has adopted high-impact terrorist tactics, and has indiscriminately targeted civilians, rather than specific groups of people like Hazaras [4.15, 4.16, 4.18, and 4.26].

Religion

Numerous credible sources state that the situation for Hazara Shi’as has improved over the years.  The reports continue that the persecution that prevailed against the Shi’as when the Taliban ruled, no longer exist.  Despite some incidents of harassment and discrimination, in recent times, Shi’as have not been targeted.  The International Religious Freedom (IRF) report for Afghanistan (2009), notes that the Afghan constitution permits Shi’a law to be applied in personal situations where all parties are Shi’a. (4.7, 4.8, 4.25).

The Freedom House report (Freedom in the World 2009), cited in the UK Home Office report, covered events in Afghanistan in 2008, provided the following comment on religious freedom (4.6);

“Religious freedom has improved since the fall of the ultraconservative Taliban government in late 2001, but it is still hampered by violence and harassment aimed at religious minorities and reformist Muslims...

The following extract provided commentary from the IRF on the Shi’a minority (4.25);

“Historically, the minority Shi’a faced discrimination from the Sunni population.  Since Shi’a representation has increased in government, overt discrimination by Sunnis against the Shi’a community decreased.  The government made significant efforts to address historical tensions affecting the Hazara community, including affirmative hiring practices.  Although there were reported incidents of unofficial discrimination, and treatment varied by locality, Shi’a generally were free to participate fully in public life.”

The IRF report continued that there was no quota imposed on either the Sunnis or Shi’as for their participation in the Hajj. As evidence of the Government support for the Shi’as, the report outlined that the government sponsored approximately 2,000 Shi’as and 18,000 Sunnis for the Hajj in 2008 (4.25).

UNHCR advice

In July 2009, the UNHCR issued advice on the assessment of refugee status in Afghanistan.  This advice included the following guidelines on ethnic minorities such as the Hazaras (4.18);

·    “Generally, asylum-seekers originating from areas where they are an ethnic minority are at heightened risk if they attempt to reclaim land and property.

·    The rising power of warlords is also a concern for the Hazaras as they may pose a direct threat to the Hazara community given the absence of State presence and rule of law in many areas.”

In December 2009, a UNHCR Senior Protection officer conducted a presentation to European Union missions in Kabul.  The presentation noted that despite the deteriorating security situation in Afghanistan, “not all Afghans abroad are refugees” and that a case by case analysis using recent country information was required.  Further, on the profile of concern for minority ethnic groups, the presentation specified that (4.16);

“if the person belongs to a minority ethnicity in the area where he or she resides, the potential for problems exists, particularly in the land context; not currently a major cause of flight.”

I note that the New York Times stated that with the influx of Hazaras in Kabul since 2001, more than a quarter of the population are of Hazara ethnicity i.e. there are over 1 million Hazaras in Kabul (4.17).  In this context, and considering the ethnic distribution in Kabul, I consider that over 25% is a significant proportion of that population and therefore the claimant would not be seen as part of a minority ethnicity.  The claimant has also not declared that he has ever had any conflict involving land issues.

Furthermore, the profile of concern for minority religious groups did not segregate Shi’a Muslims and only considered Christians, Sikhs, Hindus and Baha’is (4.16).  The claimant’s profile also does not fit one of these religious minorities.

Return to Afghanistan

The UN Protection Officer submitted information in December 2009 that since March 2002, over 4.5 million Afghans have returned to their home country and in 2009, the UNHCR assisted 54,000 Afghans and 5,800 Afghans from Pakistan and Iran respectively.  A Finnish Fact Finding Mission reported that 200,000 to 300,000 people return to Afghanistan annually (4.16, 4.26).

In considering whether the claimant’s fear of persecution in Afghanistan is well-founded, I have considered whether the claimant would be able to return to his home area and whether internal relocation within that country is a viable means for the claimant to avoid persecution.  Extended family and community structures within Afghan society are the predominant means for obtaining protection and economic survival, including access to accommodation.  In UNHCR’s view it is very unlikely that Afghans would be able to lead a relatively normal life without undue hardship upon relocation to an area to which they have no family links, including in urban areas of the country.  In this context, UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe (is available) in the area of intended relocation (4.18).  Further, the UNHCR provided the following information in December 2009 for assessing the return of asylum seekers to Afghanistan (4.16);

“Given the ongoing situation of armed conflict in parts of the country and the significant protection role of traditional family and community structures in Afghanistan, UNHCR advises against the return of Afghans to areas other than their places of origin or previous areas of residence where they do not have effective family or tribal links and support”

I have also considered the security situation in Kabul.  Country information outlined that Kabul has been subject to some attacks by militants in the last few months but I consider the attacks were not targeted against Hazaras or Shia’s but were related to incidents of generalised violence (4.27, 4.28, 4.29).  Kabul also has a functioning airport and so the claimant would be able to fly directly to his home city and bypass roads that are insecure.

Internal Relocation

The law provides for freedom of movement within Afghanistan.  A judicial and legal system with limited function exists in Afghanistan and the police authorities in Kabul are generally willing to enforce the law, although their ability to do so is limited by inadequate resources and dependent to some extent on the loyalties of individual officers.  In addition, The International Security Assistance Force (ISAF) helps maintain security in and around Kabul and it works alongside the Afghan Security Forces and as result the general security environment there is much better than in other areas [4.7& 4.8].

The claimant was born in Ghazni Province and lived there until June 2009. At the RSA interview he was asked if he had any other experience with the Talibans beside the time when he was trying to locate his brother, he said no. However, he felt unsafe in Afghanistan, because it was and still is very dangerous there and he would be not safe in Afghanistan because the Talibans would kill him. 

While I acknowledge the claimant’s fears of general violence and instability in Afghanistan, these fears relate to the general population and do not necessarily fall within the UN convention.

Conclusion

The claimant is an ethnic Hazara Shi’a Muslim and as such belongs to the ethnic majority (94%) in his home province of Ghazni.  UNHCR in Kabul advised on 10 December 2009 that it would only be of concern to UNHCR if the claimant belongs to a minority ethnicity in the area where he or she resides.  Furthermore, as a Shi’a Muslim, the claimant does not belong to one of minority religious groups, (Christians, Sikhs, Hindus and Bahai) identified by UNHCR as being at risk.  Accordingly, the claimant’s profile as the ethnic Hazara Shia Muslim from Ghazni Province does not fit the category of people who are currently of concern to UNHCR as being at risk of human rights abuses either by the state and non state agents [4.15]. 

While I note that Hazaras have been historically the subject of persecution on account of their ethnicity and religion, UNHCR advises that there is no evidence of a current campaign by the insurgency to target Hazaras and that the Hazaras were experiencing a relatively “golden age” in light of their tragic past [4 15].

I am not satisfied that the claimant faces a real chance of persecution for the Convention reasons of race, religion should he return to Afghanistan.  I therefore, assess his fear of persecution is not well founded for the following reasons. 

I have considered the claimant s statements and comments at interview.

SCHEDULE 2

(Extract from IMR report)

Hazaras

25. The Hazaras were once the largest Afghan ethnic group, constituting nearly 67 per cent of the population before the 19th century.  More than half were massacred in 1893.  Today they constitute about 9 per cent of the population.  The Hazaras speak a dialect of Dari called Hazaragi and the vast majority of them are Shia.  The Hazaras traditionally occupied an area extending from the central spine of the Hindu Kush southward through the foothills to Ghazni, Mukur and nearly to Kandahar and from the Paghman Range, west of Kabul.  The name ‘Hazarajat’ has been given to the area south of the Hindu Kush.

26. Throughout Afghanistan’s history there have been many examples of conflicts between the Hazaras and other citizens.  The Hazaras accuse the government, led by Pashtuns, of providing preferential treatment to Pashtuns and of ignoring minorities, especially Hazaras. Hazaras have reportedly been asked to pay bribes at border crossings where Pashtuns are allowed to pass freely.  These conflicts have political and economic roots but also have religious dimensions.  The Afghan government made significant efforts to address historical tensions affecting the Hazara community, including affirmative hiring practices.

27. According to the US State Department in 2010, “Most Shia were members of the Hazara ethnic group, which was traditionally segregated from the rest of society for a combination of political, ethnic, and religious reasons, some of which resulted in conflict.  Relations between the different branches of Islam continued to be difficu1t.  Historically, the minority Shia faced discrimination from the Sunni population.  Since Shia representation has increased in Government, overt discrimination by Sunnis against the Shia community decreased…Although there were reported incidences of unofficial discrimination and treatment varied by locality, Shia were generally free to participate fully in public life.”

28. According to the Department of Foreign Affairs and Trade (DFAT) on 21 February 2010 (CX240092) Hazaras do not live in fear of violence or systematic persecution as they did under the Taliban.  The current situation was described in the reporting by DFAT as being perhaps the best for Hazaras for centuries.  Hazaras were said to still face barriers to economic, social and political development and acceptance but they are experiencing an upsurge of access to education.  UNHCR has advised that there is no evidence that the Taliban is targeting Hazaras.

29. According to the New York Times of 17 February 2010 (CX239852), Hazaras now make up 25 per cent of the population of Kabul.

30. Hizb-I Wahdat-lslami-Afghanistan (The Islamic Unity Party of Afghanistan) is the principal political party representing the Hazara population.  After the fall of the Taliban, it regained control of much of central Afghanistan, and party leader Karim Khalili is the second vice-president of Afghanistan.

31. As members of an easily identifiable ethnic group, and mostly followers of Shia rather than the more prevalent Sunni Islam, the Hazaras have always been a distinct community in Afghanistan.  They claim to be indigenous to large parts of the country but were pushed, including from Oruzgan, in the 17th century, (mostly) into the central highlands - an area often described as “Hazarajat’ which encapsulates Afghanistan’s Hazara dominated-region - by the Tajiks and Uzbeks from the north and by the Pashtuns from the south.  It is estimated that 60 percent of the Hazara population was killed or displaced in the late nineteenth century under the reign of the Emir Abdur Rahman Khan.  Mistrust between Hazaras and Pashtuns (and the central government usually associated with them) has been strong ever since.  They experienced windows of opportunity during Afghanistan’s experiment with constitutional monarchy and under the Communist regime, although higher education, foreign service and army service were all closed to them.  During the Muhajedin era the Hazaras experienced attacks from both sides of the conflict.  The Taliban regime with its anti-Shia attitude, severely restricted their movements by keeping them contained in Hazarajat and committed atrocities against them.

Ghazni

32. According to the Co-operation for Peace and Unity (CPAU): Around the end of 2005 there was a marked shift in the nature, frequency and scope of violent attacks in Ghazni and other south-eastern provinces.  This included a major increase in the number of suicide attacks, remote controlled car bombs and attacks on soft targets.  The use of these and other techniques has been widely attributed to the Taliban and anti-government elements (AGEs) learning from networks active in Iraq.  Mohammad Daud and Hamza Sangari are Taliban commanders who trained in Iraq and became active in Ghazni using the skills and techniques employed in Iraq against US forces…The Taliban and associated groups employ a range of tactics such as intimidating night letters or shabnamah, preaching, death threats, beatings and executions to gain control of areas, all of which have been used in Ghazni since 2004.

33. Developments in Taliban techniques over the past two years include an increased reliance on suicide and roadside attacks, and the exploitation of existing ethnic and cultural tensions to divide communities in regions, thus facilitating Taliban infiltration and control by weakening established social and leadership structures.  This approach is exemplified by reporting attacks on parts of Jaghori which included killing key community figures’ family members, kidnappings, and killing Hazara labourers from Jaghori working in nearby Pashtun areas.  These activities have also affected Malistan, as the Taliban target commuters travelling between Jaghori and Malistan districts.

34. Another factor is that Ghazni contains a key stretch of the Kabul-Kandahar road which is the only practical route to Kabul from the south and is seriously affected by insecurity. This stretch of road has been the target of numerous attacks by Taliban, including hijackings and ambushes, carried out almost always from motorcycles and often targeting government forces or police attempting to patrol or traverse the area…One of the secondary highways that joins Jaghori and Qarabagh is even more dangerous than the Kabul-Kandahar road, and reports indicate that this road is frequently targeted by Taliban patrols and attacks.

(Gina Bergh with Christian Deunys and Idrees Zaman, Conflict analysis: Jaghori and Malistan districts, Ghazni province, CPAU, April 2009, pp. 21-23).

35. Time magazine on 16 September 2009: “Behind the Taliban’s Resurgence in Afghanistan”.  The article notes that “The Taliban is surging into the vacuum created by Karzai’s government, which is based on patronage rather than competence, coupled with the international community’s often bungled and chaotic distribution of aid”.

36. A major report by Afghan expert Gilles Dorronsoro and published by the Carnegie Endowment in 2009 states unequivocally: “The Taliban are the dominant political force in numerous regions of Afghanistan, including Pashtun-majority provinces in the East and the South: Paktia, Paktika, Zabul, Kandahar, Uruzgan, Ghazni, Wardak, Logar, Helman, Farah, Kunar and Laghman…in Ghazni, Uruzgan and Wardak, the Hazara-populated areas exclude the Taliban”.

37. Ghazni province is overwhelmingly populated by Hazara with some sources giving a figure of 100 per cent Hazara.  It is predominately a poor, rural economy.  (According to the Food and Agriculture Organisation) some of the crops grown in Ghazni are: wheat, apples, apricots, potatoes.  Other crops which are grown in the Hazarajat are barley, legumes, cucumbers, melons and in some regions maize.

Jaghori District

38. The population of Jaghori varies between sources however an Afghanistan government source has estimated the population of Jaghori district at approximately 150,000.  The district is said to be 100% Hazara with some Pashtun enclaves in the border areas.  This is supported by a conflict analysis of Ghazni by the Cooperation for Peace and Unity (CPAU) in April 2009 which reports that Jaghori and Malistan are the only districts in Ghazni almost entirely populated by the Hazara.

39. According to NGO sources, Jaghori district is said to be controlled by the Afghanistan government, however, it has little presence in the district.  The district is reportedly effectively controlled by the Nasr and Khalili factions of Hizb-i Wahdat.  [Hizb-i-Wahdat (also referred to as the Wahdat, Unity) is a political party in Afghanistan informally representing the Hazara people.  It split into two factions during the reign of the Taliban.]

The main political parties in Jaghouri identified by the CPAU report are the
Hizb-i Wahdat/Khalili/Nasr faction, Hizb-i Wahdat Islami, Hizb-i Wahdat/Akbari, Sepah-i Pasdaran (Mohammad Akbari), Harakat-i Islami, Hizb-i Islami.  The Hizb-i Wahdat is a coalition of Hazara parties founded in 1990.  These parties the Nasr (Sazmani Nasr) and Khalili factions of the Wahdat party reportedly effectively control Jaghouri.

Khodadad Irfani is governor of Jaghouri.  Irfani is said to have been an important military commander and is aligned to President Hamid Karzai and the Vice-president Khalili.  The police chief, Ishaq Ali, is said to belong to the Khalili faction.  According to the Finnish report the district shura is described as passive and the Justice Department corrupt.

Economically, agriculture is the main income source in Jaghouri district.  Agricultural production includes wheat, potatoes, onions and walnuts.  Villages are also engaged in handicrafts.  According to FIS approximately a quarter of the population lives abroad and travels regularly - mainly for work in Iran.  It also stated that money from abroad was a vital for survival in Jaghouri district.

40. However, the Finnish Immigration Service (FIS), as part of a fact-finding mission in September 2009, identified that the people of Jaghori recognised the Taliban as a threat and noted that it had been responsible for carrying out disruptive activities in the district such as issuing warning night-letters in some villages.  In the FIS report titled The Current Situation in the Jaghori District of Ghazni, it is stated that:

People of Jaghori see Taliban as a serious threat: 95% of the population fear them according to Altai Surveys.  Although not able to act effectively in Jaghori, Taliban has showed interest in disrupting the area.  Members of the former police chief Bashi Habibullah’s family were killed in a Taliban raid to Angori in 2007.  Since 2007, the general escalation of violence in Ghazni has affected Jaghori, mainly by further isolating the area from the outside world.  Taliban militiamen from neighbouring districts have staged attacks against bordering police posts in Hutqul.  Taliban has also issued warning night-letters to villagers in the district.

[Night-letters are described by the Historical Dictionary of Afghanistan as “clandestine leaflets attacking Afghan rulers and government officials”.]

41. The Jaghori district of Ghazni province is a predominantly Hazara district and therefore not dominated by the Taliban.  Most sources indicate that the Hazara districts of Jaghori and Malistan have withstood infiltration by the Taliban and that overall, security in these districts is better than other areas in the province.  However, Professor Maley from the Australian National University commented as recently as May 2010 that “no pafl of Ghazni can realistically he considered safe for Hazaras even in districts where they seem numerically predominant.”

42. A February 2009 Department of Foreign Affairg and Trade (DFAT) report stated that the situation in Jaghori district was “peaceful” owing to the “absolute majority” Hazara population in the district.  The report also stated that the Nasr faction had “control over armed individuals, who [were] ready to counterattack or prevent possible attacks by the [insurgents].”

43. There have been no reports of insurgent fighting in the Jaghori district, however, a Cooperation for Peace and Unity (CPAU) paper on Ghazni province states that “Taliban presence in Ghazni has become a factor for serious consideration”.  Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of Hizb-i Wahdat Khalili/Nasr which seems to be robust across the Hazarajat.  Consequently, to date there are no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr as the Taliban has not yet taken steps to challenge groups in control of the Hazarajat region.

Return of Refugees

44. On refugees returning to Afghanistan, the UK Border Agency, quoting the Afghanistan Independent Human Rights Commission (AIHRC) stated: “Returnees, refugees and IDPs face many problems inside and outside Afghanistan, directly restricting their access to economic and social rights. According to UNHCR around 7 million Afghans registered lived in Pakistan and Iran in 2001.  From 2002 many Afghans have returned.  UNHCR has assisted 4.3 million people to return between 2002 and 2009. There are around 2 million refugees in Iran and around 1 million in Pakistan.

45. The detailed UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Afghan Asylum-Seekers (17 December 2010) identify the groups specifically targeted by the Taliban in Afghanistan:

Based on currently available information on Afghanistan, persons with the following profiles might be exposed to a particular risk of violence, harassment or
discrimination and, depending on the circumstances of the individual case, could fall under the scope of Article 1A(2,) of the 1951 Convention Relating to the Status of Refugees.

UNHCR considers that individuals with the profiles outlined below require a
particularly careful examination of possible risks.  These risk profiles, while not necessarily exhaustive, include:
1. Individuals associated with, or perceived as supportive of the Afghan Government and the international community, including the International Security Assistance Force (ISAF).  Afghans perceived as critical of factions or individuals exercising control over an area;
2. Humanitarian workers and human rights activists;
3. Journalists and other media professionals;
4. Civilians suspected of supporting armed anti-Government groups;
5. Members of minority religious groups and persons perceived as contravening Shari’a law;
6. Women with specific profiles;
7. Children with specific profiles;
8. Victims of trafficking;
9. Lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals;
10. Members of (minority.) ethnic groups; and
11. Persons at risk of becoming victims of blood feuds.

46. The UNHCR December 2010 Guidelines note a broad spectrum of civilians, including community elders, humanitarian personnel, doctors, teachers and construction workers has been targeted by armed anti-government groups.  UNHCR considers that persons associated with, or perceived as supportive of, the government and international community and forces, including government officials, government-aligned tribal and religious leaders, judges, teachers and workers on reconstruction/development projects, may, depending on the individual circumstances of the case, be at risk on account of their (imputed) political opinion, particularly in areas where armed anti-government groups are operating or have control.

47. The UNHCR Guidelines indicate that since the fall of the Taliban regime in late 2001, ethnically-motivated tension and violence have diminished markedly in comparison to earlier periods.  Nevertheless certain concerns remain.  The Guidelines note that although marginalized during Taliban rule the Hazara community continues to face some degree of discrimination, despite significant efforts by the government to address historical ethnic tensions.  Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province including on access routes to and from these districts, has been worsening.  Jaghori district is increasingly isolated given that some access routes to and from the district including large stretches of the strategic Kabul-Kandahar road are reportedly under Taliban control.  There are regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads.  As well, a member of an ethnic group constituting a minority at national level is not likely to be at risk in areas where the ethnic group represents the local majority. The mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone.  The Guidelines indicate that in addition to those seeking international protection, there are large numbers of Afghans leaving the country due to socio-economic concerns.  Such movements to and through Pakistan and Iran are decades long, and include seasonal migration and, in some cases, repeated border crossings.  Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for, economic and historical reasons, this does not exclude that others are forced to move for protection-related reasons.

48. The Guidelines record that internal displacement remains a complex phenomenon in Afghanistan.  The number of conflict-induced internally displaced persons (IDPs) continues to rise and displacement is largely taking place in the southern and western regions of Afghanistan.  An estimated 131,984 people were displaced between June 2009 and October 2010 due to armed conflict.  Lack of access to basic services, lack of livelihood opportunities, conflicts over access to pasture and arable land, as well as general insecurity have particularly affected IDPs and have in some cases led to further displacement. In addition to those seeking internal protection, there are large numbers of Afghans leaving the country due to socio-economic concerns.  Such movements to and through Pakistan and Iran are decades long, and include seasonal migration and in some cases repeated border crossings.

49. The UNHCR Guidelines refer to minority religious groups as being largely adherents to the Baha’i faith and members of the Sikh and Hindu religions as being vulnerable to discrimination as non-Muslims.

50. In relation to that aspect of the claims relating to a Hazara’s religious identity as a Shia, one would expect to find evidence of targeting of other Shias in Afghanistan.  However, the range of material about Afghanistan does not support the suggestion that Shias are generally targeted or persecuted, including by the Taliban (although they have attacked some religious leaders, both Shia and Sunni, seen to be hostile or non-supportive).  In relation to abuses by rebel or terrorist organizations, the US State Department’s 2009 International Religious Freedom Report for Afghanistan, 26 October 2009, states only:

There were reported abuses targeted at specific religious groups by terrorist organizations, including al-Qa’ida and Taliban networks, during the period covered by this report.  As in previous years, killings of religious leaders and attacks on mosques were attributed to al-Qa’ida and Taliban members.  Sources report that anti-government elements continued to target religious leaders based on their links to the government or their particular interpretations of Islam.

According to the AIHRC, in 2008 insurgents assassinated at least ten religious leaders due to their links to the government.  In November 2008 the Taliban killed a religious leader in Farah Province days after he led prayers condemning suicide attacks.

There were also attacks on both Muslim and non-Muslim employees of international organizations, but it is unclear whether these attacks were politically or religiously motivated.  Political motivations appeared to be the primary impetus behind insurgent attacks on school…

FINDINGS AND REASONS
51. As with the earlier assessment by the RSA officer, the Reviewer finds that the claimant is an Afghani citizen of Hazara ethnicity and is a Shia Muslim.  The claimant is in Curtin as a non citizen of Australia and has made no claim for protection against
any other country.  Therefore, for the purpose of the Refugee Convention the Reviewer has assessed his claim against Afghanistan as his country of nationality.

52. In particular, taking into account the established historical background and the undoubted animosity of many Taliban/Pashtuns towards Shias for ethnic and religious reasons, the Reviewer is satisfied that when Hazaras come to the adverse attention of the Taliban for some other reason (for example, and most commonly, imputed political opinion of support for the government or foreign forces and/or antipathy towards the Taliban) the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion.  Furthermore, given the past history of Pashtun/Hazara relations in general, and Taliban/Hazara relations in particular, the Reviewer is satisfied that the Taliban have a predisposition to perceive Hazaras as potential political opponents.  Factors in a particular area may also be of significance.

53. The Reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a general and indiscriminate basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and its attacks on communications and facilities.

54. Nor was there evidence before the Reviewer to support the assertion that the “social discrimination” referred to in the US State Department Report is so severe as to amount to persecution; indeed, other material cited discussing the general post-2001 situation of Hazaras indicates a significant lessening of such discrimination (see for example The Christian Science Monitor, “Afghanistan’s success story: The liberated Hazara minority”, 6 August, 2007, at The Reviewer therefore does not accept that Hazaras faces a real chance of general social discrimination amounting to persecution.

55. The Reviewer attaches particular weight to the recent report by the Department of Foreign Affairs and Trade (DFAT) which squarely addresses the issue of persecution of Hazaras, while not dismissing the historical background and concerns articulated by Professor Maley and his caution regarding future developments.  While mindful of the comments of Kirby J in Re Minister for Immigration and Multicultural affairs; Ex parte A (2001) HCA 77, regarding the optimism of diplomatic officials about political conditions in countries where they are accredited and that Professor Maley is a well known academic commentator on Afghanistan and advocate for refugees, the Reviewer prefers the findings of DFAT on the Afghanistan situation as presenting an unbiased and informed view on the situation of the Hazaras there.
56. In particular, as already detailed, while UNHCR in Afghanistan noted that case-by-case analysis was needed, it said there was no evidence of a campaign by the insurgency to target Hazaras; and the Human Rights Unit of the United Nations Assistance Mission in Afghanistan (UNAMA) said that it had not received reporting of Hazaras specifically being targeted or discriminated against in the current environment.  Although Professor Maley commented that the ability of DFAT officers in Afghanistan to conduct field research of their own is extremely limited given the tight security constraints under which they operate, and that this applies also to a number of the organisational informants on whom they rely in other embassies and in international agencies such as UNHCR, there is no evidence that academic observers have had any better direct access in recent times.  On the other hand, it is evident that independent reports such as the Finnish Immigration Service (FIS) and CPAU reports have had extensive access to a range of local sources.

57. On the basis of available current and authoritative material, and notwithstanding the claimant’s general assertions to the contrary, the Reviewer does not accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large and is not satisfied that Hazaras face a real chance of harm amounting to persecution by non-state actors (i.e. Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and/or religion.  The Reviewer does not accept that a person’s identity as a Hazara Shia of itself causes him or her to fall within the Refugee Convention definition.  Nor do the UNHCR Guidelines suggest that it should.

58. That does not mean that a Hazara/Shia cannot be found to be a refugee on the basis of the person’s own individual circumstances and experiences (to which his ethnicity or religion may be relevant).

59. It is therefore necessary to turn to the claimant’s particular experiences and claims.

SCHEDULE 3