SZQEL v Minister for Immigration and Anor (No.2)
[2011] FMCA 582
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEL v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2011] FMCA 582 |
| MIGRATION – Review of decision by Independent Merits Reviewer – persecution – applicant who is a Hazara Shia from Afghanistan – reasons of race or religion – Migration Act 1958 (Cth) s.91R – procedural fairness – where applicant claimed letter in support of his claim not taken into account or dismissed by Reviewer – whether letters in fact taken into account – where genuineness of documents implicitly accepted – whether adverse credibility finding need be made – hearsay – bias – whether a finding that persons of a particular ethnicity or religion generically do not face persecution for a Convention reason has the effect of ruling out the significance of such attributes to “the essential and significant” reason for the applicant’s fear of persecution pursuant to s.91R(1)(a) – merits review – whether use of a template for coming to conclusions about the generic claims by Hazara Shias by Reviewer constitutes bias – whether the use of such a template constitutes failure to give proper, genuine and real consideration of applicant’s claims – where templates relate to findings derived from independent country information – whether template was not the original formulation of Reviewer’s views – inferences. |
| Migration Act 1958 (Cth), s.91R |
| Kioa v West (1985) 159 CLR 550 WAIJ v Minister for Immigration [2004] 80 ALD 568 Minister for Immigration v SZNPG [2010] 115 ALD 303 Khanam v MIAC [2009] FCA 966 SZQEL v Minister for Immigration (No.1) [2011] FMCA 581 LEK v Minister for Immigration [1993] FCR 100 WAFK v Minister for Immigration [2003] 133 FCR 209 Richards Evans & Co Ltd v Astley [1911] AC 674 Luxton v Vines (1952) 85 CLR 352 Minister for Immigration v SZJSS & Ors [2010] 273 ALR 122 |
| Applicant: | SZQEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 822 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 July 2011 |
| Date of Last Submission: | 21 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gormly |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Counsel for the Respondents: | Mr H. Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 822 of 2011
| SZQEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who claimed to be a citizen of Afghanistan, having travelled to Australia by boat, arrived at Christmas Island in or around late January 2010. On 5 April 2011 he was sent a letter by the Department of Immigration & Citizenship informing him that his request for an independent review of the refugee status assessment made by the Department of Immigration & Citizenship on 8 June 2010 had recommended that he not be recognised as a person to whom Australia has protection obligations under the 1951 Convention and the 1968 Protocol relating to the status of refugees. The applicant was advised:
“You may be aware that on 11 November 2010 the High Court of Australia found that irregular maritime arrivals (people who travel to Australia by boat without a visa and who arrive at or are transferred to Christmas Island) can seek judicial review if they are found not to be a refugee…”
The applicant took advantage of this advice by filing an application for review in this court on 28 April 2011.
The grounds upon which the applicant claims to be a person to whom Australia owes protection obligations can be divided into two categories. The first is what I shall refer to in these reasons as the generic ground described by the applicant in his initial interview [CB 24] in the following way in response to a question “Do you have any reason for not wishing to return to your country of nationality (residence)”
“First of all I am a Hazara. It is an offence to be a Hazara in Afghanistan. Second I am a Shia. No matter where you go there fundamentalists don’t accept it. Some are threatening death, I have this fear. We cannot move around freely - can’t work - they hurt us.”
This generic ground was expanded in the applicant’s statutory declaration commencing at [CB 58]:
“My main reason for seeking the protection of the Australian Government are based on fear of returning to Afghanistan because I will face persecution because of my Shia religion and Hazara ethnicity. Also the fact that I am a Hazara male puts me in danger of being harassed or severely persecuted by the Taliban. I live in fear of attack and possible death from the Taliban if forcibly returned.”
The second claim will be referred to by me in these reasons as the “specific ground”. I believe that it first appears in the statutory declaration but nothing turns on the fact that it may or may not have been contained in a rather difficult to read handwritten original document.
“[5]My brother, Daoud, had a private car in which he drove people from SM to K. One day in early 2007, my brother was taking four passengers from SM to K. When my brother’s car reached J, the Taliban stopped my brother’s car and inspected the passengers who were all Hazaras. The Taliban then beheaded my brother and his four passengers and left their bodies behind. I think the reason for the killing was because one of my brother’s passengers had an identification card which indicated that he was working for a government agency. Later, a Hazara driver who was also driving passengers between SM and K found the bodes of my brother and four passengers and delivered them back to SM.
[6]After this incident, the Taliban suspected that my brother was working for the government because he was driving a government employee. The Taliban told the Pashutuns in a tea house that, if they found any family member of the driver, they would kill. Someone overhead this conversation in the tea house who then told the drivers who are driving the same route of this conversation. One of the drivers who heard this informed me that the Taliban was looking for my family. This caused a grave concern to my family.”
After the incident referred to the applicant remained for a further period in Afghanistan to commence cultivation of the piece of land that his family owned and then in December 2007 engaged a people smuggler and crossed the border into Pakistan where he remained until January 2010 when he commenced his journey to Australia.
The applicant, together with his representative, attended a hearing with the Reviewer who at [11] [CB 159] set out what it understood as the applicant’s claims:
“[11]The claimant, in short, claimed he was fearful of being returned to Afghanistan where he would suffer persecution in the form of abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture and possible death, at the hands of the Taliban, and/or anti-Hazara/Muslim extremists on account of, either cumulatively or separately:
· His Hazara ethnicity and membership of the particular social group “the Hazara community”;
· His Shia religion;
· His membership of the particular social group(s) “Afghans who have returned to Afghanistan after living abroad”, Afghans who have returned to Afghanistan after living in a Western country” and/or Afghans who have sought asylum in a Western country”;
· His actual and/or imputed political opinion in favour of the West, the coalition forces and/or the Afghan government and/or in opposition to the Taliban and/or other anti-government elements on account of his presence in Australia, his Hazara ethnicity/membership of the Hazara community, his Shia religion and/or his refusal to support the Taliban.”
In turning to the applicant’s evidence the Reviewer noted at [14] [CB 61]:
· “After his father died some 5 years ago he bought a car for his brother. His brother would work the car while the claimant farmed the land.
· One day when his brother was taking passengers from SM to K. He was stopped on the way by armed Taliban. He and the passengers were searched and one of the passengers was found to have a government card and all were beheaded by the Taliban and the bodies were thrown on the side of the read. The local Pashtuns in the area were told to tell the diners who stopped for tea that the Taliban will kill any members of the family of people in that vehicle as those people worked for the government and are infidels. This occurred in the spring of 2007. Other drivers who were also his brother’s friends were told of this by the Pashtuns when they stopped for tea. They collected the bodies and took them to SM. They were informed and he went and got the body and went to the government office in SM to tell them of his brother’s death by the Taliban. He was told they could do nothing as they are unable to protect themselves.”
In considering the applicant’s claims the Reviewer had before him its notes of the interview with the applicant and also a letter from the Refugee and Immigration Legal Centre Inc who were representing the applicant dated 7 February 2011. That letter at [CB 102] commenced as follows:
“We refer to the above application and, in reliance on all oral and written evidence and submissions previously provided by or on behalf of the applicant, now wish to provide the following further submissions in support of his claims for refugee status.
In support of the applicant’s claims we enclose the following further documentation:
· Statement made by the applicant in response to the DIAC delegate’s decision to refuse him refugee status and providing further information.
· A letter from eight residents of the applicant’s home village of KS, verifying the killing of the applicant’s brother in spring of 2007 and petitioning the district Governor of Jaghori to also verify the event.”
In the Reviewer’s decision record he sets out under the heading “Independent Evidence” details of a large quantity of country information upon which he relied for his opinions as to the position of Hazaras in Afghanistan. It is accepted that much of this information was known to and used by the applicant. This is not a case where it is alleged that the Reviewer did not put to the applicant independent country information that was adverse to his claim and was credible, relevant and significant; Kioa v West (1985) 159 CLR 550 at [38].
Under the heading “Findings and Reasons” at [53] [CB 177] the Reviewer states:
[53]In particular, taking into account the established historical background and the undoubted animosity of many 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.
[54]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.”
At [56] the Reviewer states:
[56]The Reviewer attaches particular weight to the recent report by the Department of Foreign affairs and Trade (DFAT) a copy of which was handed to the adviser on 11 February 2011, 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 of the situation of the Hazaras there.
The Reviewer continues at:
“[57]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) report have had extensive access to a range of local sources.
[58]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.
[59]That does not mean that an 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).
[60]It is therefore necessary to turn to the claimant’s particular experiences and claims.”
In this way the Reviewer dismissed the applicant’s generic ground.
After discussing these claims the Reviewer expressed his understanding of the provisions of s.91R of the Migration Act 1958 (the “Act”):
“[76] For the purposes of Australian law the concept of “persecution” in Article 1A(2) of the Convention is qualified by s91R of the Migration Act 1958 (the Act). Section 91R(1) provides that for the purposes of the Act and Regulations, Article 1A(2) does not apply in relation to persecution of one or more of the Convention reasons unless:
· That reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution; and
· The persecution involves serious harm to the person; and
· The persecution involves systemic and discriminatory conduct.”
The Reviewer then continued, noting that the applicant had not had any personal involvement or incidents with the Taliban when he and his family left for Pakistan in December 2007 but that his wife had heard of the brother of one of the beheaded passengers being allegedly killed by the Taliban some eight months ago. He also noted that the applicant had produced letters from his fellow villagers referring to the brother’s incident and the Taliban wanting to kill the claimant and his family. In regards to the specific ground the Reviewer noted:
“[79]The Reviewer notes that the claimant stated at his initial interview that the Taliban did nothing to him and he had no personal involvement with them. However, he referred to the Taliban beheading his brother and the other passengers in his car. He also indicated that he feared the Taliban because he was Hazara/Shia and the Taliban hate and hill Hazara/Shias and he went to Pakistan the first time due to financial hardship and restriction of movement in 2000. He had not had any personal involvement or incidents with the Taliban when he and his family left for Pakistan in December 2007 although the Taliban had killed his brother earlier that year and he had heard that the Taliban were interested in the families of those who had been beheaded. Later in Pakistan his wife had heard of a brother from one of the beheaded passengers returning to Afghanistan some 8 months ago and being allegedly killed by the Taliban. As well, he later produced letters from his fellow villagers referring to his brother’s incident and the Taliban wanting to kill the claimant and his family.
[80]In his Statutory Declaration in April 2010 he stated that his main reason for seeking Australia’s protection was based on his fear of the Taliban as a male Hazara/Shia. He also referred to his brother’s beheading indicating then that he thought the reason for his brother’s death was one of the passengers having a government agency ID card on him. As well he referred to a conversation in a teahouse by the Taliban being overheard that if the Taliban found any family member of the driver they would be killed. He was told of this by another driver. It caused his family grave concern. The family decided to go to Pakistan but delayed going until December 2007 as it was in part the cultivation season and the claimant wanted to cultivate his land. He also indicated they delayed the departure “so that people may start forgetting about this news and the Taliban may not be so alert”. The incident (news) was the beheading of his brother and the other passengers. The Reviewer notes there have been some inconsistencies in his version of events relating to his leaving Afghanistan in December 2007 and the reasons for the delay following his assertion of fear after the reported teahouse conversation by the Taliban that they would kill the driver’s family. As well, there was some confusion and vagueness regarding the killing of the passenger’s brother some 8 months ago and the family hearing of this. At first there was some equivocation on the part of the [MISSING SECTION]
[81]The claimant believes as a Shia and Hazara and as a member of his brother Daoud’s family that he is still a target for the Taliban (even though he delayed his leaving Afghanistan for months in 2007 following the death of his brother at the hands of the Taliban) and as such he would suffer persecution in the form of abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture and possible death, at the hands of the Taliban and/or anti-Hazara Muslim extremists if he were to return to Afghanistan. The Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant who claimed that he had no personal involvement with the Taliban and who had left Afghanistan for Pakistan in December 2007 some months after his brother’s death, and who has lived outside of his country of nationality since then would suffer persecution now or in the foreseeable future for a Convention reason. Indeed, I do not accept that the Taliban are interested in him as alleged notwithstanding the latter [sic letter] from his fellow villagers to the contrary and his own claims in this regard from what he has also been told or heard from others.”
The Reviewer then dealt with some other claims that are not in issue in these proceedings before concluding that he was not satisfied that the applicant warranted Australia’s protection on any of the grounds put forward.
There was filed in court on the day of the hearing a Further Amended Application upon which the applicant proceeded through his Counsel Mr Gormly. The three grounds of application are:
“[2]The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer dismissed or rejected a letter from the applicant’s fellow villagers without regard to the probative value of the letter in circumstances where:
· The credibility of the applicant had not been destroyed by findings of untruthfulness;
· The letter was not found to be inauthentic or not genuine;
· The contents of the letter were corroborative of the applicant’s central claim that the applicant and his family are being pursued by the Taliban.
[3]The second respondent (the reviewer) did not afford procedural fairness to the applicant in that in he failed to give proper, genuine and realistic consideration to the applicant’s individual claims of fear of persecution as a Hazara Shia.
Particulars
· The reviewer considered the aspect of the applicant’s claims as Shia Hazara Shia generically, ie prior to his consideration of the applicant’s individual circumstances.
· In concluding from this generic consideration that he was not satisfied that Hazaras face a feal chance of harm amounting to persecution from non-state actors simply by reason of their ethnicity or religion (IMR para 58), while also finding that Hazaras generally may face persecution from the Taliban for other reasons of which their ethnicity or religion may only be a relevant or exacerbating factor (IMR paras 53, 54 and 59), the reviewer has effectively, before considering the applicant’s individual circumstances, ruled out the applicant’s ethnicity and religion as being the “essential and significant reason” for the applicant’s fear of persecution pursuant to s 91R(1)(a) Migration Act.
[4]The second respondent (the reviewer) did not afford procedural fairness to the applicant for reasonable apprehension of bias.
Particulars
· See particulars to Ground 3 above.”
Although the ground of reasonable apprehension of bias is said to depend on the particulars in ground 3 it was in fact argued on the basis of what will be known in these reasons as “the template issue”. I have divided the applicant’s submissions into three issues being the letter issue, the individual claims issue and the template issue.
The letter issue
The two letters which the applicant relied upon as corroborating his claim for continuing fear are found in translation at [CB 150] and [154]. The first is a letter to the District Governor of Jaghori which states:
“In Spring of 2007, while MDA son of MAA, resident of KS, carrying passengers by his vehicle to Kandahar, along the way between Janda and Kandahar, his vehicle was stopped by armed Taliban and searched. After finding a government card from one of the passengers, the passengers were taken away by Taliban and then beheaded. The Taliban also threatened that they will persecute their families in accusation of cooperating with the government. We, the residents of KS verify the event and ask the honourable district governor to verify the fact as well.
Regards
Resident of KS
Signed by [various names}
I, EA KMI certify the event. Signed EA”
The second letter states:
“We residents of KS, confirm and certify that MDA was killed in the spring of 1386 [2007] on the way between Janda and Qalaat by the Taliban since he was accused of cooperation with the government by them. All of his family members including applicant are seriously pursued by the Taliban and if captured they will kill them.
Regards”
The applicant produced a transcript of the hearing before the Reviewer. At [T26] the following conversation takes place between the Reviewer and the applicant’s agent:
“Agent:The other thing, Mr A has provided, we have provided one letter from the people in his village signed by the district –
Mr Karas:I don’t have – or do I?
Agent:I think it was sent.
Mr Karas:The one on the back, yeah, this one?
Agent: That’s right. He has another letter –
Mr Karas: And the translation?
Agent: The translation, yeah. He has another letter from I think villagers which is of similar effect. I do have the translation on my computer, I just don’t have any ink in my computer so I can give it to you tomorrow.
Mr Karas:Alright.
Agent:I’ll hang on to the scan.
Mr Karas: Yeah, alright, no problem. Have you sighted the originals or so or have you just – how are we getting these things?
Agent: Can you ask him where he got this one from?
Mr Karas: Even this one here, I don’t know – do you have the original of these letters?
Agent: No it was sent through the internet.
Mr Karas: Okay. I take it now that all the information that you wanted to give me in relation to your claims we have now done so Mr Applicant?”
The applicant says that the Reviewer did not engage with the letters in any meaningful way and there is nothing in his reasoning as to why he dismissed the claims made in them or why he effectively impugned the authenticity of the letters or attacked their credibility. The applicant relied heavily on what fell from the Full Bench Lee, Moore and RD Nicholson JJ in WAIJ v Minister for Immigration [2004] 80 ALD 568 at [25] – [27]:
“[25] In the instant matter it was not in issue that if events had occurred as claimed by the appellant, the appellant had a well-founded fear of persecution.
[26] The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
[27] Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).” (emphasis added)
On the other hand a later Full Court North, Lander and Katzmann JJ said in Minister for Immigration v SZNPG [2010] 115 ALD 303 at [24]:
“[24]The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.” (emphasis added)
and continuing at [26]:
“[26]Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was "not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence". It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in "an active intellectual process of considering the corroborative material", and that the RRT "failed to engage in any meaningful consideration of the purported baptismal certificate". The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.”
A careful reading of the Reviewer’s decision reveals that this was not a decision which turned upon the applicant’s credibility. Nowhere in the Reviewer’s decision record does he find that the incidents relayed by the applicant did not occur. In my view what the Reviewer has done is to engage in a process of comparing the objective evidence from the independent country information and the matters raised in [81], in particular the applicant’s lengthy period away from Afghanistan and the fact that he was able to remain in his village for some months after the incident without himself coming to any harm, and come to the conclusion that these matters outweighed any evidence contained in the letters. The Reviewer did take the letters into account but implicitly found that they did not outweigh the objective circumstances that were referred to earlier in the paragraph. Because the Reviewer appears to accept the genuineness of the documents there is no requirement to make an adverse credibility finding against the applicant in order to give less weight to the letters than it would to the objective facts. A council of perfection would have had the Reviewer “explaining his rejection in greater detail”; per SZNPG but if one examines the letters one wonders what they really establish. Certainly they confirm the taxi incident and the subsequent beheadings which neither this court nor, it believes, the Reviewer intended to diminish in importance; but in regard to the threats of future persecution of the families, is this anything more than hearsay? The Reviewer would not have to have regard to the rules of evidence but he would be able to see the shortcomings in the report such as, who made the threats? When did they make the threats? To whom did they make the threats? And were the threats ever carried out?
I am of the view that there was no jurisdictional error in the manner in which the Reviewer dealt with these letters and that reference to cases where the principal concern is one of credibility is not of assistance.
The individual claims issue
The applicant stated that the Reviewer found from the independent country information that persons of Hazara ethnicity and Shia religion generically do not face a real chance of persecution by non-state agents simply by reason of their ethnicity and religion. The applicant argues that the effect of this finding is that the Reviewer has ruled out the applicant’s ethnicity and religion as being “the essential and significant reason” for the applicant’s fear of persecution pursuant to 91R(1)(a) of the Act:
“[44]Issues of procedural fairness arise because this process of ruling out was done prior to the reviewer’s consideration of the applicant’s claims. It is apparent that the reviewer’s consideration of the applicant’s claims is anodyne of the principle elements of the applicant’s claims that is that he and his family’s experiences, including the applicant being shot at and wounded, were because they were Hazara Shia.
[45]The creation of the a priori that Hazaras are not targeted and do not face a real chance of persecution meant that the reviewer closed his mind to the applicant’s ethnicity as being “the essential and significant reason” for his experiences. Hazaras may be bound to be refugees, but only by reason of other factors to which their ethnicity and religion may be relevant.
[46]The IMR reviewer’s conclusions on the applicant’s claims, though expressed to include his claims of being a Hazara Shi, should be read conformably with the implicit finding that a Hazara Shia cannot be found to be a refugee for the essential and significant reason of his or her ethnicity or religion.
[47]As a result of this generic approach and its establishment of an inhibiting a priori, the reviewer was unable to give real or genuine consideration of the applicant’s claims that his Hazara ethnicity and Shia relgion were the “essential and significant reasons” for his experiences.
[48]The approach adopted by the reviewer was the same as that identified by Collier J in Khanam v MIAC [2009] FCA 966 as amounting to jurisdictional error. In that case the MRT formed an opinion of the intentions of an applicant based solely on its view of the likely intentions of an ethnic group to which the applicant belonged, rather than basing its view on the circumstances of the visa applicant in the particular case: at [28].
[49]In so doing the Court found the MRT fell into jurisdictional error in that the IMR failed to give real consideration to the claims of the visa applicant and to the merits of his case: at [30.5].
[50]Khanam has recently been applied by the Federal Magistrates Court in SZOJV v MIAC [2011] FMCA and Ajaj v MIAC [2010] FMCA 873.
[51]The submission that the reviewer failed to proper, genuine and realistic consideration to the merits of the case in that sense used by Collier J in Khanam, Gummow J in Khan and Rares J in SZEJF has regard to the latter’s comments at [26]:
“I bear very much in mind the limited role of a court reviewing the exercise of an administrative discretion: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24 at 40-41 Mason J. It is not for the Court to study administrative decisions too finely or precisely; they are to be regarded carefully but sensibly, and not zealously in the pursuit of error (Smith v MIEA (1984) 53 ALR 551 at 554 per Lockhart J). Nevertheless, in my opinion, on the whole of the evidence, the applicants in question were not each given proper, genuine and realistic consideration upon the merits.”
This facsimile of the applicant’s argument has been made in order to ensure that it was not misunderstood by me from his counsel’s oral submissions. Those submissions referred to the applicant’s specific claims being “bleached” by the a priori finding. Khanam was a case decided by her Honour Collier J upon the refusal of the Migration Review Tribunal to grant the child of an Armadi Muslim who had obtained a protection visa a s.499 sub-class UL sponsored family visitor visa to visit his mother. The court held that the line of reasoning of the Tribunal could be summarised as follows:
1Armadi Muslims are persecuted in Pakistan and could claim asylum in Australia.
2The visa applicant is an Armadi Muslim and currently living in Pakistan
3Therefore the visa applicant’s real motive in visiting Australia is to claim asylum and not genuinely to visit Australia as required by sub-class 679 of the Regulations.
The court found that the Tribunal had based its view about the intentions of the visa applicant based upon the likely intentions of Armadi Muslims as a group applying for sub-class 679 visas rather than based on the circumstances of the visa applicant in this particular class at [28]. The court found that the Tribunal had not engaged with the question of this applicant’s real reasons for visiting Australia and hence had fallen into jurisdictional error.
In my view the instant case cannot be said to be comparable because it is clear from the Reviewer’s decision record that he understood that the applicant had both a generic and a specific ground. It is also clear that the Reviewer understood that whilst the consensus of the independent opinion he felt he should accept was of the view that Hazara Shias as a group were not a target he also accepted that Hazara Shias could be found to be refugees on the basis of their own individual circumstances to which their ethnicity or religion may be relevant. In other words a Hazara Shia may be more likely to be persecuted than some member of another ethnic or religious group in Afghanistan in similar circumstances. I am not satisfied that when the Reviewer looked at the applicant’s specific circumstances, in this case the death of his brother and the threats subsequent thereto, he came to his conclusions about those continuing dangers influenced by his finding on the generic claim. In my view it is clear from the extracted paragraph [81] that the Reviewer failed to find a real objective fear because of the applicant’s delay in leaving Afghanistan and the period of his absence from his homeland. These are findings of fact with which the court or another Reviewer may or may not agree. But they are matters solely within the domain of the Reviewer and to cavil with them would be effectively providing the applicant with impermissible merits review. I am not satisfied that the Reviewer fell into jurisdictional error in the manner claimed by the applicant in this regard.
The template issue
The applicant and his counsel set particular store by this issue and requested that because of it the court refer the matter to the Federal Court for decision. I declined to do this for the reasons explained in SZQEL v Minister for Immigration (No 1) [2011] FMCA 581 and for the reasons given below I am confident that that decision was correct and that this is not the case in which that ground should be argued.
I have extracted in these reasons paragraphs 53 – 60 of the Reviewer’s decision record. Put shortly the applicant has produced to the court by way of exhibits to an affidavit of his instructing solicitor and by way of one tender no less than four decisions of this Reviewer which contain identical or substantially identical paragraphs. The applicant argues that this use of what he describes as a template for coming to conclusions about the generic claims of Hazara Shias from Afghanistan indicates that the Reviewer has not brought an impartial mind to bear upon the decision and/or has not given proper, genuine and real consideration to the applicant’s claims. The respondent for its part relies upon what fell from Wilcox J in LEK v Minister for Immigration [1993] FCR 100 at [122]:
“I agree with counsel that the use by decision makers of reasons devised by others is a matter that should excite concern about the possibility that individual decisions were taken in accordance with an overriding rule or policy or at the direction or behest of others. But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use. It is necessary to consider the content of the adopted provisions. The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia. The full documentary material was before each delegate. He or she had to decide whether or not to accept it. It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment. It is significant that Ms Kikirekova's analysis does not suggest that the delegates relied on standard paragraphs in connection with claims relating to applicants' personal experiences or circumstances. It was by reference to these factors that the few who were granted refugee status achieved success.”
And upon the views expressed by French J, as he then was, in WAFK v Minister for Immigration [2003] 133 FCR 209 at [37] and [38]:
“[37] It was submitted that this coincidence of text made it clear that the Tribunal did not consider, or properly consider, the country information for itself.
[38] The coincidence in the text, so far as it related to independent country information, does not support the inference that the Tribunal took its text from the particular earlier Tribunal decisions which were referred to by counsel. It may be that in similar cases, eg cases involving persons of Arab ethnicity coming from Iran, there will be a good deal of commonality in the independent country information referred to by various tribunals and that similar citations will be made. It may be the case that Tribunal members are using similar surveys of relevant country information in similar cases and adopting a `cut and paste' technique to incorporate those in their judgments. This does not, in my opinion, demonstrate, as a matter of fact, that a tribunal so doing fails to consider the country information for itself. In the case under appeal I do not consider that, even if a cut and paste technique were adopted, as seems likely, that this is indicative of a failure by the Tribunal to carry out its statutory function. No doubt it could be said that at par 96 of its reasons the Tribunal goes beyond the mere recitation of independent country information to a conclusionary statement which is word for word the same as a conclusionary statement made in another Tribunal decision involving a person of Arab ethnicity from Iran. While I think it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so does not indicate that the Tribunal member has not applied his or her mind to the facts or that the Tribunal member does not in fact hold the view expressed in the reasons given.”
It also makes reference and relies upon what fell from his Honour at [52]:
“It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind. While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error. It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review. I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable. However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant's claims to indicate that the Tribunal was giving consideration to the appellant's case.”
In the instant case the common form texts do not relate to findings of credibility but to findings derived from independent country information. I can understand an argument that a merits reviewer required to deal speedily and informally with a large number of similar generic claims may feel that one expression of his or her view could suffice for all of those claims that come before him. I can also see the force of an argument that a fair minded, informed and instructed hypothetical lay observer might reasonably apprehend that the Reviewer might not be bringing an impartial mind to his consideration of this topic. However, I do not believe I have to wade into these deep waters because what is necessary as a condition precedent to the argument is proof that the impugned paragraphs are not the emanation of the Reviewer’s views. The applicant would have to establish that these views had been published prior to his own decision. In the instant case the applicant’s decision was dated 29 March 2011. The decision which is found as Exhibit B to the affidavit of Mr Hajjar is dated 28 March 2011 as is the decision which is found as Exhibit A to Mr Hajjar’s affidavit. The decision which is found as Exhibit C to Mr Hajjar’s affidavit is dated 29 March and the decision which has been given the number Exhibit 1 is dated 28 March. It is impossible to say which of these decisions contains the original formulation of the Reviewer’s views. I am not prepared to draw an inference that it was one other than the one in the instant case because an inference to the contrary is equally available on the very scant evidence before me: Richards Evans & Co Ltd v Astley [1911] AC 674 per Lord Robson at [687], Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [358].
I believe that it would be open for a court to find in cases where a number of decisions are published around the same time and where the same independent country information is utilised to substantiate (or disprove) a claim that there was nothing impermissible in utilising the same phraseology in reaching those conclusions. This would appear to be consistent with the authorities cited by the respondent. It would also be consistent with my view that the emanation of the phraseology is protected from the criticism that might be levied at later iterations of it. For these reasons I am not satisfied that the use of these paragraphs in this case would substantiate the claim of apprehended bias or of a failure to provide proper genuine and realistic consideration to the merits of the case (insofar as that requirement is understood following the decision of the High Court in Minister for Immigration v SZJSS & Ors [2010] 273 ALR 122).
The application shall be dismissed. The applicant shall pay the First Respondent’s costs which I assess in the sum of $7,500.00 to include the costs of the application to transfer and for an adjournment.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 29 July 2011
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