SZQEM v Minister for Immigration
[2011] FMCA 662
•25 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 662 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer did not give the applicant an opportunity to be heard on an issue which was decisive to the Reviewer’s conclusion and recommendation. |
| The Constitution, s.75 Migration Act 1958, ss.5, 13, 14, 36, 46A, 195A, 476, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 |
| Applicant: | SZQEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ANTHONY MICHAEL CARWARDINE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 823 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 August 2011 |
| Date of Last Submission: | 8 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.F Gormly |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for the commencement of these proceedings be extended to 28 April 2011.
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.
Application otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 823 of 2011
| SZQEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ANTHONY MICHAEL CARWARDINE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Afghanistan, arrived by boat at Christmas Island on 16 February 2010. On 26 April 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). On 23 June 2010 he was assessed by a delegate of the first respondent (“Minister”) as not meeting the definition of a “refugee” under the Convention. This decision was reviewed by the second respondent (“Reviewer”), who on 17 March 2011 recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant has applied to this Court for judicial review of the Reviewer’s decision. He also seeks an extension of time to bring these proceedings.
The Court’s jurisdiction to consider the application arises out of the prayer for an injunction against the Minister made in the applicant’s amended application: s.476(1) Migration Act 1958 (“Act”), s.75(v) Constitution.
In the “Personal particulars for character assessment” form which he completed on 26 April 2010, the applicant was asked what type of visa he held. He answered that he was an unlawful non-citizen, i.e. that he held no effective visa for entry to Australia when he landed at Christmas Island: vide ss.13 and 14 of the Act. Section 5(1) of the Act provides that Christmas Island is an “excised offshore place”. Consequently, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However, and notwithstanding that limitation, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such a valid application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his or her case. That right requires the independent merits reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, there will be a declaration to the effect 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 by failing to observe the requirements of procedural fairness. The failure arose out of the Reviewer’s failure to identify to the applicant an issue which was determinative of the review.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 2-13 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 14 March 2010:
a)he operated a hire car service in Afghanistan;
b)in 2009 he was stopped by the Taliban whilst taking passengers from Angori to Dahmardah. They wanted him to take other passengers to Gowaar instead. When he refused, they pulled him out of the car, threatened him with a rifle and told him that they would kill him. After further argument the Taliban agreed that he could take his passengers back to Angori on the condition that he return. They took a copy of his “taskera” (identity card) and his car registration details and told him that if he did not return they would find him and kill him;
c)he took his passengers back to Angori but did not return to the Taliban as instructed; and
d)he is a Shia Muslim of Hazara ethnicity and this is another reason why he cannot return to Afghanistan.
RSA application
The applicant made the following additional claims in a statutory declaration dated 26 April 2010 which he submitted in support of his application for an RSA:
a)the Taliban targeted him because he was a Hazara and a Shia; they would never have taken a Pashtun’s car;
b)the Taliban confiscated the ownership and registration documents for his car, significantly decreasing its value. They thought that this would lure him back to them;
c)he cannot return to Afghanistan because the Taliban have his details and his photograph. He also insulted them by escaping;
d)he has no access to protection in Afghanistan because the authorities are weak; and
e)he fled to Pakistan following the incident in 2009.
Proceedings before the Reviewer
In submissions dated 9 August 2010 the applicant claimed, in addition to fearing persecution on the basis of his race and religion, that he fell within the group of asylum seekers regarded as “prima facie”, that is, that there is no evidence that returnees to Afghanistan are safe. He submitted that the situation in Afghanistan remained highly unstable. He cited various materials in support of his claims, including a report by Professor William Maley of the Australian National University relating to the position of the Hazara minority in Afghanistan and an essay by a Thomas Ruttig who referred to the possibility of a Taliban advance into Hazara areas.
The applicant was interviewed by the Reviewer on 20 January 2011 and essentially repeated the claims made at his entry interview and in his statutory declaration. He also provided post-interview submissions dated 1 February 2011 addressing, primarily, the issue of relocation within Afghanistan.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer found that the applicant did not have a well-founded fear of persecution in Afghanistan on the basis of his ethnicity and/or religion because he did not accept that the Taliban specifically targeted Hazaras or Shias differently from the population at large. In reaching this conclusion the Reviewer placed particular weight on what he described as “current and authoritative material”, including the following:
a)a 2009 report from the United Nations High Commissioner for Refugees (“UNHCR”) advising that there was no evidence of a campaign by the insurgency to target Hazaras;
b)a 2010 UNHCR report listing the profiles of those who might be at risk. The report advised that the Hazara community continued to face some degree of discrimination, despite the government’s efforts to address historical ethnic tensions. The Reviewer noted that the report made no mention of Shia Muslims being at risk;
c)a February 2010 cable from the Department of Foreign Affairs and Trade (“DFAT”) which observed that Hazaras, although subject to unofficial discrimination, did not live in fear of violence or systematic persecution. It also noted that Hazaras were active in Afghan civil society, were well represented in government institutions, voted in proportionally high numbers, had made strong progress in education and lived mostly in areas where the insurgency was not active; and
d)a DFAT cable dated September 2010 advising that whilst the security situation in some Hazara areas had deteriorated in recent years, all religious and ethnic groups had been affected. Further, certain Hazara districts were relatively stable compared to others and were controlled by “Hazara strongmen”, making the possibility of wholesale violence against Hazaras unlikely.
In terms of the reasonably foreseeable future, the Reviewer noted that there were reported concerns at the pending reduction in western forces confronting the Taliban but observed that this had consistently been countered by the western allies’ observations that full withdrawal would not occur until the Afghan military and police had been trained to a level sufficient to deal with insurgent forces. The Reviewer noted the concerns of Professor Maley who, in his report, stated that the situation for Hazaras “could easily be dire” should the government of Afghanistan reach some kind of reconciliation with the Taliban. The Reviewer also referred to the views expressed by Mr Ruttig. However, the Reviewer found that the forecasts and contentions advanced by Professor Maley and Mr Ruttig were speculative and remote and, in the circumstances, did not accept that the applicant had a well-founded fear of persecution on the grounds of race or religion in the reasonably foreseeable future.
Given his findings in relation to the situation of Hazara Shias and the foreseeable future, the Reviewer was not satisfied that Hazara Shia returnees could, as a particular social group, be regarded as prima facie refugees. The Reviewer also had regard to the following matters in this connection:
a)information from DFAT indicating that the Taliban targeted people whom they considered to be “un-Islamic”, regardless of whether or not they had travelled to the west;
b)information from DFAT indicating that returnees would not be targeted for seeking asylum in the west;
c)information from DFAT indicating that while travel between Kabul and the applicant’s home region was difficult and lengthy, secure passage was nevertheless available; and
d)information from the UNHCR suggesting that theft and extortion were motivations for violent incidents affecting returnees from western countries.
In relation to the applicant’s personal claims and experiences, the Reviewer found that the alleged car incident did not occur in the manner described because, in his view, it was inconceivable that after being stopped the applicant would then be allowed to drive away under the proviso that he return, even if certain threats had been made. The incident as described was also unusual because the Taliban could have simply taken the applicant’s car instead of releasing him and trusting that he would return. Consequently, the Reviewer found that the applicant had not been targeted by the Taliban in respect of any car incident nor did he face a real chance of persecution on any Convention ground on the basis of his personal circumstances.
Proceedings in this Court
Extension of time
The applicant sought an extension of time to bring these proceedings, an application which the Minister did not oppose. In this regard, I note that although the date of the Reviewer’s recommendation was 17 March 2011, the applicant alleges that he did not actually receive it until 24 March 2011. I also note that the matter was commenced within 35 days of 24 March 2011, 35 days being the relevant time for the commencement of proceedings prescribed by s.477 of the Act. In the circumstances, and the procedural criteria prescribed by s.477(2) for the grant of an extension of time to commence the proceedings having been met, I am satisfied that it is in the interests of the administration of justice that the time for the commencement of these proceedings be extended to 28 April 2011, the date when the initiating application was filed.
Amended application
The applicant relied on the following ground in his amended application:
1.That the decision of the second respondent (the reviewer) was affected by legal error in that the second respondent (the reviewer) did not afford procedural fairness to the applicant.
Particulars
a.In that the reviewer did not give the applicant an opportunity to ascertain or to be heard on the issue set out in paragraph b. which was relevant to the reviewer’s recommendation concerning the applicant’s following claim for protection:
·That a reconciliation between the Government of Afghanistan and the Taliban could result in a concession of local dominion to the Taliban in some districts which could easily result in a dire situation for the Hazara in which a fear of persecution would certainly not be ill-founded (IMR 81).
b.The reviewer concluded that the above claim was speculative and remote partly on the basis of the reviewer’s assumption that:
·Western allies have observed and will act in accordance with their observation that they will not fully withdraw until the Afghan military and police are trained to a level sufficient to deal with the Taliban (IMR 84).
c.The reviewer did not identify or otherwise put to the applicant either the assumption or the adverse conclusion which was not obviously open on the known material.
A second ground was included in the amended application but was not pressed.
Applicant’s submissions
The applicant referred to paras.81-84 of the Reviewer’s reasons. There the Reviewer, having already concluded that the applicant did not have a well-founded fear of persecution for a Convention reason were he to return to Afghanistan at that time, turned his mind to whether the applicant might have such a fear in the reasonably foreseeable future. As noted earlier in these reasons, the Reviewer quoted the concerns of Professor Maley referred to in the applicant’s migration agents’ written submissions of 9 August 2010 and to the views of Mr Ruttig in an essay entitled “A New Taliban Front?”, also cited in those submissions. Professor Maley was quoted by the Reviewer as saying:
81.… with the terms of such ‘reconciliation’ still unclear, there is a risk that one outcome of current political processes (should they amount to anything) could be a ‘spheres of influence’ agreement that would concede local dominion to the Taliban in some provinces. The situation for Hazaras in such provinces could easily be dire, and certainly a fear of being persecuted would not be ill-founded.
Mr Ruttig’s views were summarised and paraphrased by the Reviewer in the following terms:
82.He opines relevantly that having infiltrated northern and north eastern Afghanistan, there are signs the Taliban might attempt to push forward into mainly Hazara-settled areas in the central region. They might, he considers, plan an advance into Hazarajat, “one of the last areas of the country that have only been marginally affected by insurgent activities.” This has been reported on the basis of night letters distributed at the border of Qarabagh and Jaghori districts, which marks the limit between Pashtun and Hazara settled areas respectively. Conversely the Taliban have “at least officially” moderated their position vis-à-vis the Shia community. Mulla Omar has declared repeatedly that the movement would not tolerate any ‘sectarian’ bias. This can be interpreted as an attempt to woo the Hazara population that feels neglected by the central government in Kabul.
The Reviewer then commented:
83.There are also reported concerns at the pending reduction in Western forces confronting the Taliban. However the Western Allies have consistently countered this by observing that full withdrawal will not occur until the Afghan military and police are trained to a level sufficient to deal with the Taliban.
The Reviewer then rejected Professor Maley and Mr Ruttig’s views saying:
84.Given the foregoing and observing the use of the words ‘might, some kind of conciliation, unclear, should they (the political processes) amount to anything and could be’, the Reviewer finds these forecasts and contentions to be speculative and remote. Accordingly the reviewer finds the claimant does not have a well-founded fear of persecution on the Convention grounds of race and religion in the reasonably foreseeable future.
The burden of the applicant’s allegation is that the Reviewer had concluded that the forecasts of Professor Maley and Mr Ruttig were “speculative and remote” after having taken into account, but not having put to him, the possibility of a reduction in the number of western forces in Afghanistan and the circumstances in which such a reduction might occur. He described this as “the issue [concerning] the timing and circumstances of the full withdrawal of Western forces confronting the Taliban”. While at least some of the information in question appears to have been derived from United Nations Security Council reports to which the applicant’s representatives had referred in a limited way in their submissions to the Reviewer in the context of a deteriorating situation in Afghanistan generally, those matters were not discussed at the Reviewer’s interview with the applicant, particularly in the context discussed by Professor Maley and Mr Ruttig, i.e. the possible deterioration in the situation of Hazaras in Agfhanistan. The applicant submitted that procedural fairness required the Reviewer to give him the opportunity to be heard on the issue of a possible western withdrawal, citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9], and other cases.
Minister’s submissions
The Minister submitted that the applicant’s allegation could be approached in two ways: either the claim was that circumstances would deteriorate, in which case the issue was dealt with, or the claim was related to current political processes in which case the status of western forces was a non-issue. The Minister approached the argument on the basis that the latter was the correct characterisation of the claim. The Minister submitted that, in terms, neither Professor Maley nor Mr Ruttig specifically linked the possibility of a deterioration in circumstances to a pending reduction of western forces and that, in any event, the applicant had not claimed that the pending reduction of western forces was a reason for a future deterioration of circumstances in Afghanistan. In that context he submitted that the possible withdrawal of western forces was not an issue which needed to be identified to the applicant, the relevant issue being whether concerns that circumstances in Afghanistan would deteriorate in the reasonably foreseeable future, as opined by Professor Maley and Mr Ruttig, were justified such that the applicant would therefore have an objective basis for any subjective fear which he might hold.
The Minister submitted that the applicant was well aware of the relevant issue and was also constructively aware of the contents of the United Nations Security Council reports because his advisers had quoted from them. He submitted that it was in that context that the Reviewer dealt with issues relating to concerns expressed by Professor Maley and Mr Ruttig.
Consideration
The essence of the opinion expressed by the Reviewer in para.84 of his reasons was that the observations made by Professor Maley and Mr Ruttig did not lead him to conclude that the situation of Hazaras in Afghanistan was likely, in the reasonably foreseeable future, to present new risks to the applicant. As already observed, in the Reviewer’s opinion the forecasts and contentions expressed by Professor Maley and Mr Ruttig were speculative and remote. While the speculative nature of Professor Maley and Mr Ruttig’s forecasts and contentions was apparent from the terms in which they were expressed, the conclusion that their forecasts and contentions were also remote was plainly based on the information referred to by the Reviewer at para.83 of his reasons.
The source of the information cited at para.83 of the Reviewer’s reasons is not stated although some of it would appear come from United Nations Security Council reports cited by the applicant’s advisers in the context of the general security situation in Afghanistan. The Minister submitted that the following passages from those reports were the relevant ones:
Furthermore, the participants in the London conference agreed to develop a plan for a phased, province-by-province transition to Afghan-led security starting by late in 2010 or early in 2011, provided that necessary conditions are met. A significant increase in the number of international forces to support the training of Afghan forces was also confirmed. For the army, 21 teams of 20 to 30 trainers are required, with 119 such teams required for the police. In addition, approximately 1,300 instructional trainers are required for such capacities as officer training, Staff College, weapons training and the country-insurgency academy. (United Nations Security Council report dated 10 March 2010)
and
The growth and reform plans of the Government for development of the Afghan National Security Forces continue to be strategic objectives supported by international military forces and donors alike. Both the Afghan National Police and the Afghan National Army are slightly ahead of the interim targets, progressing towards the goals of 109,000 Afghan National Police, and 134,000 Afghan National Army by October 2010 and 134,000 Afghan National Police and 171,600 Afghan National Army by October 2011, as agreed at the London Conference.
…
At the conference held in Tallin on 22 and 23 April, the foreign ministers of NATO member services agreed on a framework to enable a progressive handover of security responsibilities from international military forces to the Afghan National Security Forces, based on sustainable progress in security and Afghan National Security Forces capability, and taking into account other factors, including the status of development, governance, rule of law and representational balance between tribal and ethnic groups…While international partners continue to work with the Government of Afghanistan in accordance with the commitments of the London Conference, it is clear that transition arrangements must take into account and adapt to the diversity of local needs and conditions. It will be equally important to ensure that the non-security aspects of the transition plan reflect and are aligned with Afghan governance and development priorities. UNAMA will work closely with Afghan and International Security Assistance Force partners to support this effort. (United Nations Security Council report dated 16 June 2010)
It should first be observed that the United Nations Security Council reports were cited by the applicant’s advisers in the context of the general security situation in Afghanistan whereas the views of Professor Maley and Mr Ruttig were concerned with Hazaras in Afghanistan and their circumstances in the fact situations which Professor Maley and Mr Ruttig postulated. It should next be observed that when he did cite those reports, the applicant only quoted the third of the paragraphs quoted above. It should finally be observed that none of the passages on which the Minister relies, nor all of them in combination, says quite what the Reviewer said at para.83 of his reasons.
Given that the applicant’s written submissions cited the possibility of a future withdrawal of western military forces in the context of the general security situation in Afghanistan, not in the context of the particular position of Hazaras or the fact situations discussed by Professor Maley and Mr Ruttig, it can be accepted that the applicant did not allege that his claimed fear of persecution in Afghanistan by reason of his Hazara ethnicity was partly based on the possibility of that withdrawal. The claims which the applicant did relevantly make can be gleaned from the issues discussed by Professor Maley and Mr Ruttig, namely and respectively, that an accommodation between the Afghan government and the Taliban might severely disadvantage Hazaras and that the Taliban might be seeking to advance into Hazarajat to the implied disadvantage of the Hazaras.
Although the applicant may be imputed to have been aware of the entire contents of the United Nations Security Council reports by reason of his advisers’ knowledge of them, there was no reason for him, or his advisers for that matter, to have suspected that passages from those reports which were not quoted in the advisers’ submissions would be decisive in the Reviewer’s rejection of matters which were expressly raised in those submissions. Nor could the applicant have reasonably anticipated that passages raised in one context would be decisive in the Reviewer’s rejection of matters raised in a different context, particularly when the relevance of the former to the latter was not necessarily obvious, especially in the case of Professor Maley’s comments. Moreover, and in any event, I am not satisfied that the political position identified and expressed in para.83 of the Reviewer’s reasons correctly reflects what was contained in the United Nations Security Council reports in question. The position of the western allies referred to in the Reviewer’s reasons is considerably more emphatic than the United Nations Security Council reports would suggest.
In a passage which was quoted with approval by the High Court in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at 162 [32] it was said in Alphaone that
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material … (at 590-591)
In Minister for Immigration & Citizenship v SZGUR it was also said:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. (at 599 [9] per French CJ and Kiefel JJ, Heydon and Crennan JJ agreeing)
The Reviewer relied on the circumstances of western force deployment when assessing the weight to be given to the views of Professor Maley and Mr Ruttig concerning the position of Hazaras in the reasonably foreseeable future. In doing so he reached his decision on that question by reference to an issue which had not been raised in that context by the applicant in his claims or by the Reviewer in his conduct of the review. In such circumstances, and for more than one reason, the conclusion which the Reviewer reached on the position of Hazaras in the reasonably foreseeable future was not one obviously open on the known material. When the Reviewer decided that the deployment of western forces in the reasonably foreseeable future would determine the weight to be given to the forecasts and contentions of Professor Maley and Mr Ruttig, and thus would determine whether the applicant’s claim to fear persecution from the Taliban in the reasonably foreseeable future by reason of those matters was objectively well-founded, it became an issue which had to be identified to the applicant and which he had to be given an opportunity to address.
The Reviewer failed to do this and thus denied the applicant procedural fairness.
Conclusion
The Reviewer denied the applicant procedural fairness by reason of his failure to identify to the applicant an issue which was determinative of his review of the applicant’s application to be recognised as a person to whom Australia has protection obligations.
I accept that the Minister will act on a declaration to this effect and will arrange for a further independent merits review of the applicant’s claim to be performed. In the circumstances, it is unnecessary to grant the additional relief which the applicant seeks.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 25 August 2011
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