SZQHC v Minister for Immigration & Anor

[2011] FMCA 851

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 851

MIGRATION – Independent merits review of refugee claims of offshore entry person – Hazara Shia Afghan from Jaghori – citation of country information relevant to rejection of ‘generic’ refugee claim – denial of procedural fairness in relation to one piece of new information but not others – no other errors of law established – declaration of error made.

Constitution, s.75(v)
Migration Act 1958 (Cth), ss.46A, 430, 476, 477(1), 477(2)

Alami v Minister for Immigration & Anor [2011] FMCA 623
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541, [2003] FCAFC 298
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Re Drake and Minister for Immigration & Ethnic Affairs (No.2)(1979) 2 ALD 634
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZQEK v Minister for Immigration & Anor [2011] FMCA 628

Applicant: SZQHC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: STEVE KARAS, IN HIS CAPACITY AS INDEPENDENT REVIEWER

File Number: SYG 1109 of 2011

Judgment of: Smith FM

Hearing date: 21 October 2011

Delivered at: Sydney

Delivered on: 30 November 2011

REPRESENTATION

Counsel for the Applicant: Ms J McDonald

Solicitors for the Applicant: Rodney Lewis Solicitor

Counsel for the First Respondent: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 31 May 2011.

2. 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 cited at paragraph 88 of his report. 

3. Application otherwise dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1109 of 2011

SZQHC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

STEVE KARAS, IN HIS CAPACITY AS
INDEPENDENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia without travel documents on a boat which was taken to Christmas Island in March 2010.  At an arrival interview, he said he was a national of Afghanistan, of Hazara ethnicity and Shia Muslim religion, who had left his home in Jaghori district in early 2010, after encountering the Taliban in two incidents on the road to Ghazni city. 

2. On 26 June 2010 he requested an assessment by the Department of Immigration of his refugee status (“RSA”) under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was made on 19 July 2010, and the applicant then applied for ‘independent merits review’ (“IMR”) under those procedures. 

3. Following the High Court’s judgment in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41, the IMR procedures were completed when, on 11 January 2011, Mr Karas recommended that the applicant should not be recognised as a person to whom Australia has protection obligations. Throughout the administrative proceedings, the applicant was assisted by a Sydney migration agent.

4. His current application to the Court was filed in Sydney on 31 May 2011 by a Sydney solicitor, and he was represented before me by counsel.  He is currently held in immigration detention in the Scherger detention centre.  He seeks relief by way of a declaration that Mr Karas’ report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. 

5. The Minister concedes that Mr Karas’ report attracts judicial review, and that the present application is within the Court’s jurisdiction under s.476 of the Migration Act based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61 at [51] in relation to IMR decisions concerning ‘offshore entry persons’. 

6. I have held in another case that an IMR report and recommendation is itself a ‘migration decision’, which is subject to the 35 day time limit under s.477(2) of the Migration Act in relation to relief of the type sought in the present application (see Alami v Minister for Immigration & Anor [2011] FMCA 623 at [48] to [67]). The present applicant needs such an extension for a period of about 10 weeks, but he has filed evidence explaining his delay (or, rather, that of his legal advisors), and the Minister consents to an extension. I am satisfied that it is appropriate to exercise the power in view of the Minister’s consent.

7. Under the judicial review jurisdiction upheld in Plaintiff M61 it is the function of the Court to consider whether Mr Karas’ report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making.  The relief sought in the present application can only be contemplated if I am satisfied that Mr Karas made such an error.  It is not the function of the Court to engage in a merits review of Mr Karas’ findings on the risks the applicant would face if he returned to Afghanistan, nor to form its own opinions on whether he should be permitted to reside in Australia. 

8. When examining Mr Karas’ reasons for legal error, I consider that the Minister’s instructions as to the content of an IMR report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal under the Migration Act (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12] to [13]). These principles involve the obligation not to read Mr Karas’ statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).

The applicant’s refugee claims 

1. The applicant’s refugees claims were based on a history which was set out in a statement attached to his RSA application.  In essence, this history was consistent with his evidence given at his entry interview and later interviews, although its details received some embellishment.  The applicant said that his family lived in a village in Jaghori district in the province of Ghazni, and that he supported his family in recent years by operating two shops in a local bazaar, which he stocked in weekly visits to Ghazni city.  Neither he nor his family were involved in politics, and he encountered no significant threats until recently.  He described two incidents, which he claimed caused him to fear for his life and seek refuge in Australia. 

2. He said that in late 2009, he was stopped by the Taliban at a roadblock when returning with building supplies.  He was ‘accused of working for an NGO’, detained for 3 or 4 nights, and beaten and interrogated continuously.  However, he was taken back to his truck and released with all its load intact. 

3. In early 2010, a second incident occurred, when he was travelling in a different vehicle towards Ghazni.  The driver did not stop at a road block, and a passenger was shot at and killed, and the driver was injured.  The applicant “dropped to the floor” and was uninjured by the gunfire.  However, he said: “I believe that they identified me and opened fire at me.  I believe the Taliban are after me because they think I work for or with an NGO”.  He also said: 

   Why I left that country. 

   …

   16.There have been several other incidences.  I have been stopped by the Taliban because I am a Hazara.  I have been beaten several times just for being a Hazara.  They say that they hate Hazara and Shia and that we do not belong in Afghanistan and that we are infidels. 

   What I fear may happen to me if I return to that country and why.  

   17.I believe I will be killed by the Taliban if I return to Afghanistan.  I believe that they are after me because they think that I am working with and supporting NGOs.  They think NGOs are western companies that want to change Afghanistan and make things modern which they do not believe in.  I understand that the roads are currently blocked and people warned not to work for NGOs.  They will punish anyone with death found to work with or supporting NGOs and the government. 

   18.I also fear being hurt or killed by the Taliban only for the reason that I am Hazara and Shia Muslim as they do not believe that Hazara belong in Afghanistan or that the Shia Muslim religion is a Muslim religion. 

   Who I think may harm/mistreat me in that country and why. 

   19.I will be killed by the Taliban because they think that I have been supporting the government by supplying NGOs with cement and building material. 

   20.The Taliban will harm me just for being Hazara and Shia Muslims as they do not believe we belong in Afghanistan. 

   Why I think the authorities of that country cannot or will not protect me if I were to go back to that country. 

   21.The government cannot protect themselves, they are a victim of the Taliban so they cannot or will not protect me.  The Taliban control most of Afghanistan and the Government cannot stop them or control them.  There is no protection or government or authority around my area. 

   Why I think relocation to another area in my country is not a reasonable option. 

   22.There is no place safe in Afghanistan for Hazara and Shia because we will be attacked by the Taliban anywhere.  I cannot live anywhere in Afghanistan even in Kabul because I have now been identified by the Taliban for being someone that has worked with or supported NGOs. 

4. The applicant’s migration agent made a lengthy written submission to Mr Karas, dated 10 December 2010, shortly before an interview held on 17 December 2010.  The submission characterised the Convention grounds of the applicant’s claims:

   · [The applicant] fears persecution in Afghanistan on the following Convention grounds: 

   ○   Ethnicity as a ‘Hazara,’

   ○   Actual and/or imputed political opinion – ‘actual/perceived sympathizers/supporters of the government/coalition forces/foreign workers/NGO’s in Afghanistan’;

   ○   Membership of the following social groups: 

   §    - ‘failed asylum seekers returning from a western country’

   §    - ‘returnees from a western country’;

   ○   Religion, Shia Muslims 

5. The submission clearly maintained the applicant’s claim that he would be at risk everywhere in Afghanistan, purely by reason of his ethnicity and religion.  It cited various sources of information in support of the submission: 

   [The applicant], as a Hazara and Shia Muslim, particularly living in a district predominately of Pashtun ethnicity with areas operated by members of the Taliban, has lived in constant fear of being targeted due to his ethnicity and religion.  The findings made in recent RRT decisions as listed above and the available reporting on the current situation in Afghanistan support that [the applicant] would continue to face a real possibility, that is not fanciful or farfetched, of being targeted for reasons of his ethnicity or religion should he return to this area. 

   In particular, as supported by below information and commentary, available country information supports the following premises with respect to the situation of Hazaras in Afghanistan:  

   -Hazaras have been summarily killed and abused in large numbers in Afghanistan for over a century. 

   -Despite the US led invasion of Afghanistan in 2001, there are continuous reports of the resurgence of the Taliban and that they remain still influential in Afghanistan. 

   -The power of the Taliban is not diminishing. 

   -There is no basis for confidence that the Taliban will be defeated in the foreseeable future. 

   -The Taliban have been and remain persecutors of the Hazaras. 

   -The Taliban will continue to persecute the Hazaras at every opportunity.  This largely stems from the fact that the differences between the Taliban and Hazaras are as significant now as ever.  The fact that Hazaras may now have gains in political involvement and education, through their own efforts and not that of the current government, further enhances the reasons why this group would be targeted by insurgents operating in Afghanistan, including the Taliban. 

   (emphasis in original) 

6. Included in the cited information, were references to recent expert opinions and press reports, which were suggested to support the proposition that Hazaras continued to face significant risks of harm.  This passage included the submissions: 

   In June 2010, Reuters reported that Police confirmed that the Taliban beheading of 11 Hazaras in Uruzgan in June was “because they were ethnic Hazaras and Shi’ite Muslims”.  In September 2010, news reported of another Hazara man being beheaded by the Taliban in the Sai Ganj area of Ghazni.  The man was reported to be travelling to Ghazni city for a business trip. 

   These incidents provide support to predictions by Thomas Ruttig of The Afghanistan Analysts Network that the Taliban may attempt to push forward into the central region of Hazarajat.  This prediction was based on reports by the Kabul based Hasht‑e Sobh publication of Taliban night letters that had been distributed at the border between Qarabagh and Jaghori districts, Ghazni province, declaring the road linking Jaghori and Qarabagh closed, and warning residents not to resist Taliban entry into the area. 

   (citations omitted) 

7. The submission criticised the RSA assessor for giving “a high degree of reliance” on opinions and country information contained in a DFAT cable dated 21 February 2010 when the assessor concluded that “Hazaras are not being targeted by the insurgency”.  The agent submitted that “there is no available country information to warrant a conclusion that the Taliban’s historical hatred for Hazaras has disappeared and that the Taliban have reformed their modus operandi and attitudes towards Hazaras” (emphasis in original). 

8. A transcript of the interview held by Mr Karas is in evidence, and Mr Karas provided in his report a brief summary of the applicant’s evidence.  Both documents show that Mr Karas’ questions focused almost entirely upon the applicant’s personal history and the two incidents which led him to flee Afghanistan.  I was taken to some passages in the transcript in support of some of the grounds of review which I shall set out below. 

9. Otherwise, it is worth noting only that Mr Karas did not use the interview as an opportunity to put to the applicant and his agent any particular pieces of country information relevant to the assessment of the applicant’s claims.  In particular, he did not draw attention to sources of information which were ‘new’, in the sense of not being included in the lists and sources cited by the RAS reviewer nor in the information cited by the applicant’s agent in her written submissions.  Indeed, there was no reference in the course of the interview to any country information upon which Mr Karas might decide a clear and significant issue raised by the applicant’s refugee claims, i.e. whether the applicant should be found to satisfy the Convention definition purely based upon his ethnicity and religion, and regardless of whether he also had a heightened personal risk profile as a target for Taliban persecution based on his recounted history. 

10. Nor was any ‘new’ country information raised by Mr Karas with the applicant after the interview, and before he made his report to the Minister.  The only exception to this, was an email to the applicant’s agent with a reference to a passage from a previously cited Finnish Immigration Service report, which Mr Karas had imperfectly referred to at the interview, with the suggestion that it might discredit the applicant’s claimed motives for leaving Afghanistan (see transcript pages 26‑27, and 31‑32).  The agent responded to this (see Court Book page 129), and Mr Karas appears in his report to have accepted their submission (see paragraph 73 at Court Book page 163). 

11. The applicant’s agent indicated at the end of the interview that she relied upon her written submission in support of the applicant’s claims based on his ethnicity and religion (see transcript pages 33‑38).  She submitted that no part of Ghazni province would be safe for him.  She concluded with a request: “if any adverse information comes up, that you have concerns about including country information that you believe detracts from the information we have put forward about relocation or any of the other issues, that you put that to us in writing to give the client a chance to respond to those”.  

The IMR report 

1. In his report, Mr Karas referred to the Refugees Convention definition of ‘refugee’ and to relevant provisions of the Migration Act which adopt and modify the definition for the purposes of the criteria for protection visas. He sufficiently identified the applicant’s claims made in his evidence and in his agent’s submissions.

2. Under the headings “Independent Evidence.  Country Information”, Mr Karas listed “a large number of documents, articles, reports and the like on Afghanistan” which “have been consulted by the Reviewer”.  He then gave an outline of “country information by way of background”, concerning the Taliban insurgency, and the situation of the Hazaras as a substantial part of the population of Afghanistan. 

   
   

   He noted that they are a “distinct community in Afghanistan” because they are “members of an easily identifiable ethnic group, and mostly followers of Shia rather than the more prevalent Sunni Islam”. 

   
   

   He then briefly summarised some information concerning the security situation in Ghazni Province and Jaghori District, and the road from Ghazni City to Jaghori.  In the course of these summaries, Mr Karas cited and quoted some specific sources, of which some – but not all – had previously been mentioned in the course of the RSA and IMR proceedings. 

3. Under the sub‑heading “return of refugees”, Mr Karas referred to “detailed UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Afghan Asylum‑Seekers (17 December 2010)”.  He noted that these guidelines identified “the groups specifically targeted by the Taliban in Afghanistan”. 

   
   

   He referred to the part of the guidelines concerning ethnically‑motivated tension and violence, and said: 

   49.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. 

1. He also referred to the situation of Shia Muslims generally:  

   52.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 … 

   (emphasis in original) 

2. Mr Karas then set out his “Findings and Reasons” concerning the applicant’s refugee claims.  They can be summarised: 

   i)Mr Karas was satisfied that “when Hazaras come to the adverse attention of the Taliban for some other reason … the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion”. 

   ii)However, Mr Karas was not satisfied that “the Taliban now specifically targets Hazara Shias on a general and indiscriminate basis”, nor that “Hazaras face a real chance of general social discrimination amounting to persecution”.  He said that when forming these conclusions he preferred “the findings of DFAT” found in its February 2010 report.  He also noted that “while UNHCR in Afghanistan noted that case‑by‑case analysis was needed, it said that there was no evidence of a campaign by the insurgency to target Hazaras”.  He also noted that the UNHCR Guidelines did not suggest that “a person’s identity as an Hazara Shia of itself causes him or her to fall within the Refugee Convention definition” (emphasis in original). 

   iii)Mr Karas accepted that “an Hazara/Shia [could] 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)”, and that it was “necessary to turn to” the applicant’s “particular experiences and claims”. 

   iv)Mr Karas noted that the applicant “claims refugee status on the basis that he fears harm from the Taliban on the basis of his Hazara ethnicity, his Shia religion and on account of his actual/imputed political opinion of being opposed to Taliban rule and supportive of the government” because of the events involved in the two incidents described by him. 

   v)Mr Karas examined the incidents, and did not accept that the Taliban had been able to identify him in the second incident.  He said this and another shooting incident were “isolated unconnected incidents in a troubled country and not systematic persecution for a Convention reason”.  He made findings: 

   81.    …  The Reviewer does not accept in the circumstances of this case that there is a real chance that the claimant whose family remains in Afghanistan without incident or contact with the Taliban would suffer persecution now or in the foreseeable future for a Convention reason.  Indeed, I do not accept that the Taliban are personally interested in him as alleged and claimed and for the reasons put forward by the claimant.  As well, the harm claimed does not appear to differ in some degree from the generalized type of violence that is reported from time to time in Afghanistan. 

   … 

   84.    Overall, based on all the information available to me, including the available evidence about his experiences and the fact that it was his and his family’s decision to leave Afghanistan to seek protection in Australia, I am not satisfied that the claimant has a well founded fear of persecution for reason of his race, as a Hazara, and his religion, as a Shia Muslim, should he return to Afghanistan now or in the reasonably foreseeable future.  Indeed, given the circumstances of this case, the claimant may have been affected in part by the incidents of an armed insurgency in terms of general insecurity and hardships, but this does not amount separately or cumulatively to a well founded fear of persecution for a Convention reason.  …

   vi)Mr Karas cited High Court authorities concerning the assessment of refugee claims by people fleeing from countries facing general insecurity. 

   vii)Mr Karas was not satisfied “as to the assertion that persons returning or returned from Western countries as failed asylum seekers are for that reason targeted and persecuted by the Taliban or others”. 

   viii)His concluding paragraphs were: 

   88.    The Reviewer has considered other relevant material provided like press reports of recent killings of 9 (or 11) Hazaras by the Taliban in the Khaz Uruzgan district of Uruzgan province, an area “so remote that [the provincial police chief] and the intelligence representatives said that they had not been able to verify the account” (New York Times, Taliban Kill 9 Members of Minority in Ambush, 26 June 2010, at  Although one report stated that the men had been killed because they were Hazaras and Shias (Press TV, 26 June 2010, Taliban behead 11 Shia Afghans, at the more detailed and circumstantial New York Times account quoted Afghan law enforcement officials saying that the men had been suspected informants to NATO troops and special operations forces who had recently targeted a house in the area and killed several Taliban militants.  The Taliban was itself quoted as saying the elders had been killed because they were trying to form a traditional local militia in defiance of Taliban warnings.  From the available evidence, the Reviewer is satisfied that they were killed in relation to specific actions they undertook or were suspected of in Khaz Uruzgan, and that this has no direct relevance or parallel to the claimant’s circumstances.  

   89.    Overall, based on the information available to the Reviewer, including the available evidence about his experiences, I am not satisfied in the circumstances of this case that the claimant has a well founded fear of persecution for reason of his Hazara race or ethnicity, his Shia religion, or on account of his actual/imputed political opinion of being opposed to Taliban rule and supportive of the government in Afghanistan or of the NGOs there by supplying them with building materials including cement at the hands of the Taliban who are Pashtuns and Sunni Muslims, should he return to Afghanistan now or in the reasonably foreseeable future. 

The grounds of review 

1. Counsel for the applicant addressed her written and oral submissions to five grounds contained in an amended application.  These contained, in effect, numerous discrete sub‑grounds.  Although invited to identify her best grounds, and to concentrate on these, counsel declined to do this.  As a result, the hearing and my consideration of the matter became protracted and diffuse. 

2. Omitting two sub‑grounds which were not pressed, counsel relied upon the following grounds: 

   Grounds of Review

   That the decision of the Independent Protection Assessment Reviewer (Reviewer) was affected by legal error in that: 

   1.The Reviewer, in reaching his recommendation dated 11 January 2011, did not observe procedural fairness requirements in that he did not bring to the attention of the Applicant or allow the Applicant an opportunity to consider or comment on information known to the Reviewer which the Reviewer considered may bear upon the Applicant’s claim and from which the Reviewer drew conclusions adverse to the Applicant’s claims.  

   Particulars 

   The information was drawn from the following material, which material had not been cited or referred to in the Refugee Status Assessment (RSA) dated 19 July 2010 and the substance of which was not put to the Applicant either in the course of the review or at any other time prior to the recommendation:  

   a)Conflict Analysis Jaghori and Malistan districts, Ghazni province, Co‑operation for Peace and Unity (CPAU), April 2009, referred to in the Independent Merits Review (IMR) recommendation at paragraphs [34] ‑ [36];

   b)‘A major report by Afghan expert Gilles Dorronsoro’ published by the Carnegie Endowment in 2009, referred to in the IMR at [38];

   c)Situation for Hazaras in Ghazni, Uruzgan and Dai Kundi Provinces, Australia: Department of Foreign Affairs and Trade (DFAT), 03/02/09, (CX21 9955: Afghanistan: CIS Request No, AFO 9509), referred to in the IMR at [44];

   d)UNHCR Eligibility Guidelines far Assessing the International Protection needs of Afghan Asylum‑Seekers (17 December 2010) (UNHCR Guidelines), referred to in the IMR at [30], [47] ‑ [51], [58];

   e)International Religious Freedom Report for Afghanistan, US State Department, 26 October 2009, referred to in the IMR at [52];

   f)Taliban Kill 9 Members of Minority in Ambush, New York Times, 26 June 2010, referred to in the IMR at [88];

   g)Taliban behead 11 Shia Afghans, Press TV, 26 June 2010  

   FURTHER OR IN THE ALTERNATIVE  

   2.The Reviewer, in reaching his recommendation did not observe procedural fairness requirements in that he failed to give proper, genuine and realistic consideration to the Applicant’s individual circumstances of his claims of fear of persecution by the Taliban as a Hazara Shia and/or as a result of imputed political opinion as a perceived sympathizer/supporter of the government/coalition forces/foreign workers/NGOs in Afghanistan:  

   Particulars  

   a)The Reviewer considered the aspect of the Applicant’s claims as a Hazara Shia generically, without taking into account the Applicant’s individual circumstances.  

   b)From this generic consideration the Reviewer concluded that he was not satisfied that Hazaras face a real chance of harm amounting to persecution from non‑state actors simply by reason of their ethnicity and/or religion (IMR at [59]).  

   c)In arriving at this conclusion the Reviewer had 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 section 91R(1)(a) Migration Act 1958.  

   d)The Applicant’s individual circumstances included, significantly, that he:  

   i.      was required for his occupation to travel between Jaghori and Ghazni City along roads which the Reviewer found, at [35], [36], [45] and [49] were targeted by the Taliban;

   ii.     his occupation involved the transportation and sale of goods used for construction in circumstances where the Reviewer accepted that the Taliban had been involved in “killing Hazara labourers from Jaghori working in Pashtun areas” (at [35]) and construction workers were targeted by armed anti‑government groups [at 48]; and

   iii.         had been kidnapped by the Taliban who had accused him of supplying construction products to ‘institutions’, in circumstances where the UNHCR Guidelines referred to by the Reviewer at [48] indicated that ‘persons associated with, or perceived as supportive of, the government and international community and forces including … workers on construction/development projects, may … be at risk on account of their (imputed) political opinion, particularly in areas where armed anti‑government groups are operating or have control.’  

   e)The Reviewer failed to take into account the Applicant’s individual circumstances as summarised above, and in particular that the Taliban suspected him of giving support to the ‘institutions’ when considering the Applicant’s claims of fear of persecution by the Taliban as a result of imputed political opinion as a perceived sympathizer/supporter of the government/coalition forces/foreign workers/NGOs in Afghanistan.  

   3.The Reviewer, in reaching his recommendation did not afford procedural fairness to the Applicant for reasonable apprehension of bias.  

   Particulars  

   a)The following exchanges during the IMR gave the appearance that the Reviewer was biased:  

   ChairAnd was the driver Pashtun or was he Hazaras?  

   [Applicant]I got the driver from Ghazni.  I really did not recognise whether he was Pashtun or Hazars?

   ChairWhy I ask you that is because the Hazaras are supposed to have distinct features and everyone knows who are Hazaras and who aren’t.  Was your driver Hazara or wasn’t he?  If he wasn’t, just tell me he wasn’t.

   [Applicant]   He was not Hazara.  

   ChairOK.  So you unload your stock?  What do you do, go home and say “look you won’t believe this the Taliban just stopped me, beat me for four or five days but they let me go?”  

   [Applicant]   Yes.  

   b)The Reviewer gave the appearance of bias by reason of the matters set out in Grounds 2, 4 and 5.  

   4.The Reviewer, in reaching his recommendation did not afford procedural fairness to the Applicant when he found, without any evidence before him, that:  

   a.the Applicant’s family had decided that he should leave Afghanistan to seek protection in Australia (IMR at [84]); and

   5.The Reviewer, in reaching his recommendation did not afford procedural fairness to the Applicant when he found that the Applicant had embellished or fabricated parts of his story without giving adequate or any reasons for this finding.  

3. For reasons which follow, I have concluded that a denial of procedural fairness is established by reason of the applicant not being afforded an opportunity to address the country information concerning the recent beheading incident relied upon by Mr Karas in his reasoning in paragraph 88, extracted above, at the conclusion of his “Findings and Reasons”. 

4. I shall therefore first explain my reasons for upholding Ground 1 in relation to particular (f).  I consider that a declaration in relation to this error should be sufficient to lead to the Minister to direct a further IMR review, and that it is unnecessary for me to address the other grounds in detail.  I shall, however, indicate briefly why I did not find the other grounds as persuasive as Ground 1(f). 

Principles of procedural fairness in relation to country information 

1. Counsel for the Minister did not dispute that none of the pieces of country information cited by Mr Karas in the course of his report, and which are particularised under Ground 1, were drawn to the attention of the applicant or his agent in the course of the RSA and IMR procedures, either by way of their general citations or in relation to particular information drawn from them by Mr Karas. 

2. It is established by High Court authority that Mr Karas was bound by an obligation of procedural fairness to allow the applicant a reasonable opportunity to address the substance of information taken from general ‘country’ information, which was ‘credible, relevant and significant’ evidence, and which would support an adverse assessment of the applicant’s refugee claims.  If such a failure occurred, and might have been material to the outcome of Mr Karas’ review, then the applicant would have established a ground for the relief sought.  This was established by Plaintiff M61 and previous authorities which I recently explained in SZQEK v Minister for Immigration & Anor [2011] FMCA 628:

   27.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. 

   28.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 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 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.  

   (citations omitted) (emphasis added) 

   29.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 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.  Mason J in Kioa v West 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) 

   30.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 (2001) 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.  Mr Miah 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: 

   143   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.  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.  

   196   It follows that the prosecutor ought not to have been taken by surprise, as he was.  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.  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) 

1. Significant difficulties of applying the above principles can arise, because it is clear that not every citation of ‘new’ country information which has not been expressly raised with an applicant necessarily evidences a material failure of procedural fairness.  The particular information, its relationship to the refugee claims and how they have been presented, and its relevance to the reasoning which was adopted by the decision‑maker, need to be examined closely. 

2. The implications of Miah, divided the High Court in its second important authority in the area: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30. It is useful to analyse the reasoning in Muin, in order to address the numerous particulars of Ground 1 in the present case. 

3. In both cases, the assessments of the claimants’ refugee status turned upon findings as to the effect of general information as to the level of State protection to be expected after a change of government occurring subsequent to the adverse decision of a delegate.  In Muin, undisclosed new country information from DFAT had suggested to the RRT that the post‑Suharto government was willing and able to provide protection for Indonesians of ethnic Chinese background.  It was an agreed fact that, if the claimant had been made aware of new information cited by the RRT, he would have addressed it with submissions and evidence. 

4. In the majority, Gleeson CJ at [30] and Gaudron J at [64] both regarded the failure to invite comment on the new information as indistinguishable from Miah.  Gleeson CJ did so, notwithstanding that he acknowledged the “practical problem” facing refugee determinations, when numerous similar cases turn upon an assessment of the same general background information, resulting in “the repetitive nature of the work of delegates and tribunal members, the accumulation by them of a store of knowledge and experience, the availability to them of a kind of reference library, and the need to disclose their sources of information” (see [7] and [12]). 

5. However, the breach of procedural fairness in Muin was less clear to McHugh J, who reasoned: 

   133The fact that Mr Muin addressed the question of the capacity of the government to protect him in those submissions and in his statement demonstrates that, unlike the circumstances of Miah, the question was an obvious one.  It was also obvious from the delegate’s decision, which he had the benefit of reading.  The delegate asserted that “when riots and anti‑Chinese violence occur, the Government can, and does exert its authority to control the situation and to protect the Chinese people”.  It would have been obvious to Mr Muin from reading the delegate’s decision that the government’s protection of Chinese Indonesians was an important issue.  Whether or not an issue is obvious is usually of fundamental importance in determining whether a person affected by the exercise of power should be given an opportunity to make submissions. 

   134In Miah I said: 

   In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material.  Examples of material that would not require comment by the applicant would include non‑adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application.  But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material.  An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status.  The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay.  It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it. 

   135The defendants argue that, even if there was a breach of the rules of natural justice, the tribunal found “the actions complained of by the applicant are not, in the tribunal’s view, sufficiently serious as to amount to persecution in a Convention sense”.  However, the tribunal member did tie in the question of “persecution” with the question of government protection: 

   Anti‑Chinese violence, even if orchestrated as in the case of the May riots, may not amount to persecution if the State does not condone it and can effectively protect its ethnic Chinese citizens against it … 

   That being so, it cannot be said that the country information was not critical to the outcome of the decision, even if less acutely so than it was in Mr Miah’s case. 

   (emphasis in original) (citations omitted) 

6. Kirby J also noted countervailing arguments, before finding that Miah was indistinguishable: 

   232Propounded excuses for non-disclosure:  Two propositions are advanced.  The first is that there has to be finality and the tribunal is entitled to rely on the applicant and the secretary each to put forward their respective best cases, each knowing the issue to be decided in the “review”.  Otherwise, so it is suggested, there would be an infinite regression of submissions as the applicant and the secretary commented successively on each other’s evidence and arguments. 

   233In some cases, that might be a fair point.  Certainly, the character and procedures of the tribunal are not controlled by the formalities of a court trial.  But the notion that the tribunal may act upon crucial new and adverse material, received in secret, is alien to the presupposition of the Act (save for the limited circumstances where secrecy can be fully justified).  The practice direction recognises this.  To that extent it, naturally enough, mirrors the justice of the common law. 

   234In Mr Muin’s case, effectively the undisclosed communication from the secretary to the tribunal proved decisive.  Especially in the circumstance that the documents favourable to Mr Muin’s proposition (the Part B documents) had not been “given” to the tribunal, as the Act contemplated, the communication distorted the fairness of the tribunal's decision‑making process.  It deprived Mr Muin of the effective chance to respond to the cable from DFAT with his own sources and arguments to contradict the secretary’s submission and the cabled information.  His submissions might, for example, have called in aid several recent decisions of the tribunal, differently constituted, that had upheld submissions similar to his own.  Necessarily, such decisions turned on their own facts.  However, Mr Muin could have asserted the relevance to his case of the factual findings recorded in those decisions. 

   235Secondly, it is said that the materials, although adverse, did not need to be disclosed because the tribunal is inquisitorial in character and expert in constitution.  Thus, it is suggested, the tribunal is constantly gathering information about countries in a way that would make it impossible, or at least impracticable, to draw the substance of all of its ever‑changing country information to the notice of an applicant.  One day, it may be necessary to consider that argument.  But it is irrelevant in this case.  The complaint here is not about the use by the Tribunal of adverse materials gathered from a multitude of sources at a high level of abstraction.  It is a specific complaint about the failure to disclose, as the tribunal’s practice direction indicated would be done, a specifically adverse submission concerning suggested conditions in Indonesia said to have occurred under that country’s new government and particular evidence tendered in support of that submission, comprising the DFAT cable. 

   (citations omitted) 

7. In dissent, Hayne J, with whom Gummow J agreed at [171], was able to distinguish Miah.  He said: 

   276Not only had the change of government in Indonesia taken place some months before Mr Muin gave evidence to the tribunal, the change of government and the circumstances in which the change occurred were very well known, and it was not, and could not have been, suggested that both Mr Muin and the Migration Agent whom he had retained to assist him in the preparation of materials submitted to the tribunal were unaware of these matters at the time that Mr Muin appeared to give evidence.  So notorious were these matters that in the absence of positive demonstration that Mr Muin and his adviser were either unaware of them, or were misled about their relevance to the claim he was making, the absence of some formal notification of their relevance would not constitute a breach of procedural fairness.  Because the ability and willingness of Indonesia to afford protection to Mr Muin was critical to his claim, there could be no doubt that the change in government, and the circumstances attending and following that change, were relevant to his claim to Australia’s protection.  Unlike Mr Miah, Mr Muin had a full opportunity to put his case to the tribunal by reference to the changes that had occurred. 

   (citations omitted) 

8. Callinan J also distinguished Miah: 

   301I would reject the first two basic submissions of the plaintiff.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, McHugh J described totally new material bearing on the applicant’s case which heavily influenced the decision‑maker’s adverse decision, and which the applicant was given no opportunity to deal with, as “decisive”.  His Honour added that the material there was not of such a kind that the applicant could reasonably have expected it to be used.  In my view, neither feature is necessarily present in this case. 

   (citations omitted) 

9. In my opinion, it is appropriate to consider all of the judgments in Muin as providing authoritative guidance whether an obligation arises to invite comment on pieces of general information which have not been cited by or to the applicant in the course of RSA and IMR proceedings.  Although different opinions emerged as to the application of Miah in the circumstances of Muin, a major difference in principle does not emerge clearly between the majority and minority judgments.  Underlying all of their assessments is a consideration of what is reasonably required in fairness in relation to the reliance on pieces of ‘country information’, in the common situation where the assessment of refugee claims requires the weighing of all general information bearing on the current and future situation facing a person with the claimant’s attributes if he returns to his country of nationality. 

Ground 1(f) is established 

1. Counsel for the applicant submitted that a straightforward Miah error is demonstrated in the reasoning of Mr Karas in paragraph 88.  I have above extracted this paragraph in its context, where it was the penultimate concluding paragraph in his report. 

2. It is a paragraph which clearly, in my opinion, was directed at countering the submissions by the applicant’s agent which I have extracted above, in which it was suggested that a reported incident in June 2010 of the Taliban beheading of 11 Hazaras in Uruzgan, evidenced that all Hazaras in Afghanistan were still at risk of being targeted by the Taliban for reason of their ethnicity.  Mr Karas was able to discount that submission, and to give no weight to the evidence it cited, by relying on what he said was “the more detailed and circumstantial New York Times account” (“the NYT report”). 

3. Mr Karas also cited another press report of the beheading, which had not been cited by the applicant’s agent nor put to her for comment.  This is identified in particular (g) of Ground 1.  However, it appears to have supported, rather than otherwise, the agent’s submission, and for that reason its citation by Mr Karas could not establish a failure of procedural fairness as is alleged.  The additionally supportive press report did, however, lend additional weight to the agent’s submission and, perhaps, partly explains why Mr Karas felt it necessary to deal expressly with the agent’s submission. 

4. It is common ground that the existence of the NYT report of the beheading incident, and the possibility that it would be relied upon adversely in relation to this claim of the applicant, was not drawn to the attention of the applicant nor his agent.  Neither party has presented evidence to me in these proceedings to show whether or not the applicant or the person who assisted him had knowledge of any other press reports of the beheading incident, including the NYT report. 

5. On the evidence now before me, including the evidence showing how Mr Karas conducted his interview and the proceedings, and the manner in which the applicant had been represented by his IAAAS migration agent, I am prepared to find that it is likely that, if invited to comment, the applicant would have responded – at least – with a submission directed at persuading Mr Karas not to give the NYT report the weight and significance which he ultimately gave it.  No submission was made on behalf of the Minister pointing to the absence of express evidence to the Court to this effect from the applicant or his agent. 

6. Taking into account the apparent and direct relevance of the NYT report to Mr Karas’ rejection of the applicant’s submission which was reliant upon the beheading incident, I have concluded that this is not a case where it was necessary for the applicant to present better evidence of ‘practical injustice’ arising from the failure to invite comment (see Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541, [2003] FCAFC 298 at [91]‑[97]). On general principles, once I am satisfied that the adverse material was capable of being treated by Mr Karas as decisive in his reasons for rejecting the applicant’s claim that all Hazaras remained at risk of targeting by the Taliban by reason of their ethnicity, I am obliged to find a failure of procedural fairness unless persuaded that the breach “could have had no bearing on the outcome in this case” (cf. McHugh J in Muin (supra) at [140], also Kirby J at [236]).

7. I do not accept the submission of the Minister’s counsel that Mr Karas was not obliged to put the adverse information found in the NYT report to the applicant, because it contained only “general and relatively uncontroversial country information which, contrary to what is being alleged, was not relied upon by the Reviewer in an adverse manner; and which does not go to the issue relevantly posed by the Reviewer, that is, whether Hazara Shias are specifically targeted by the Taliban”. 

8. In my opinion, the NYT report was capable of being treated, and was in fact treated by Mr Karas in paragraph 88, as negating significant prima facie support in relation to the applicant’s ‘generic’ refugee claim, which he was invited to draw from the press report cited to him in the submission of the applicant’s agent.  Although the agent’s submission which did this also relied upon other pieces of information, and although clearly all the material went to a very well known and central issue in the matter, the particular adverse piece of information was capable of being treated as ‘decisive’ to Mr Karas’ decision on the applicant’s ‘generic’ refugee claim based only on his ethnicity.  It was actually treated by him as providing a decisive reason for rejecting the agent’s submission based on the other press report.  I am therefore not satisfied that the NYT article contained only ‘uncontroversial’ information. 

9. I accept that paragraph 88 reads somewhat awkwardly in its context in Mr Karas’ report, and that its relevance to his overall path of reasoning is not immediately obvious.  Particularly, since his consideration of the June 2010 incident of Taliban beheading had not been earlier touched upon, neither in his extracts and summaries of ‘independent information’ relevant to the applicant’s ‘generic’ claim, nor in the course of his earlier finding at paragraph 59 which did not “accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large”. 

10. However, when paragraph 88 is read fairly in context of Mr Karas’ report as a whole, I would conclude that Mr Karas thought that he should expressly explain why he had rejected a powerful submission made by the applicant’s agent, supported by a reported recent incident of indiscriminate gross violence by the Taliban, reportedly inflicted purely on grounds of race, before he gave his ultimate conclusion. 

    
    

    In my opinion, the position of this paragraph confirms that it formed an important reason why he rejected the applicant’s ‘generic’ refugee claim. 

11. I am therefore satisfied that paragraph 88 evidences a material breach of procedural fairness which, alone, justifies a declaration of error vitiating the whole of his report. 

The other particulars of Ground 1 

1. My above conclusion makes it appropriate that I give only brief reasons for not being persuaded that any other breach of procedural fairness contended in Ground 1 has the same level of substance.  The details of the parties’ submissions on these grounds can be found in their filed written submissions, and my concerns can be more fully discovered in the transcript of my exchanges with counsel for the applicant. 

2. Particulars (a), (b) and (c) of Ground 1 identify citations by Mr Karas in the course of his summary of relevant background concerning the security situation in Ghazni province and Jaghori District.  I accept that these sources had not been included in the list of sources in the RSA assessment, were not cited by the applicant’s agent in her submissions, and were not specifically drawn to the applicant’s attention. 

3. However, I am not satisfied that the information gleaned from them by Mr Karas contained any particular information adverse to the applicant’s claims, the substance of which could not have been generally known to the applicant and his agent.  The information cited in paragraphs 34 to 36, 38 and 45 does not appear to be particularly adverse to the applicant’s claims, since it confirmed a general state of insecurity facing the residents of Ghazni province and Jaghori, particularly when travelling on the roads frequented by the applicant.  It therefore tended to give support, rather than otherwise, to the applicant’s account of his two encounters with the Taliban. 

4. I am not persuaded that the general information in paragraph 40 as to the ethnic composition of the population of Ghazni province was at all ‘new’ or surprising. 

5. Nor am I persuaded that the failure to invite comment on the particularised ‘new’ information in paragraph 44 and 45 reveals a denial of procedural fairness, in its suggestion that Hazaras did not face a well‑founded risk of persecution by the Taliban within the area of Jaghori.  It appears to me that this information was generally of the same substance as other information which had been drawn to the applicant’s attention in the RSA assessment, for example found in the Finnish Immigration Service report cited by Mr Karas at paragraph 42 and in other sources previously canvassed in the RSA assessment at Court Book pp.90‑91, or was information cited in the applicant’s submissions directed at the DFAT report and in support of the opinions of Professor Maley. 

6. Moreover, I accept the submission of the Minister’s counsel that, apart from his ‘generic’ ethnic and religious claim, the applicant did not clearly claim to be at heightened risk in his home village and area, but rather that he was at risk when travelling to and from Ghazni city from that area, as a result of coming to the attention of the Taliban in the two recent road incidents. 

7. For all these reasons I am unpersuaded that any of this particularised ‘new’ information was adverse to the applicant’s refugee claims, or ‘decisive’ for the determination of those claims, or that it was so regarded by Mr Karas when he made his findings on those claims in his “Findings and Reasons”. 

1. Particular (d) alleges a failure to invite comment on the significance given by Mr Karas to the most recent UNHCR eligibility guidelines, when summarising relevant ‘independent evidence’ in paragraphs 47 to 51, and in his conclusion at paragraph 59 that Hazaras did not “face a real chance of harm … simply by reason of their ethnicity and/or religion”.Counsel for the applicant accepted that the superseded 2009 UNHCR guidelines had been cited previously in the RSA assessment, and by the applicant’s agent.  She accepted that the new 2010 guidelines may have contained similar conclusions as those in the replacement guidelines, and she made no attempt to establish otherwise. 

2. However, she submitted that Mr Karas made the same error of procedural fairness as I found had occurred when he made his later report which I considered in SZQEK (supra) concerning another Hazara Shia Afghan claimant.  She noted that Mr Karas repeated paragraphs 59 to 61 of his present report, containing a citation of the recent UNHCR guidelines, when he wrote the paragraphs of his later report which I extracted in SZQEK at [19].

3. In SZQEK, I was satisfied that Mr Karas had relied significantly on the new 2010 UNHCR guidelines when rejecting a ‘generic’ claim of a Hazara Shia Afghan, not only by reason of the contents of the guidelines, but also significantly by reason of their recent currency. 

   
   

   I said: 

   43.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. 

   44.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. 

   45.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. 

   46.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. 

4. In SZQEK, there was no suggestion that the applicant or his IAAAS agent had any reason to be aware that the UNHCR had published replacement guidelines for Afghan asylum‑seekers in December 2010.  However, this is not the situation in the present case. 

5. As I have noted above, there was an email exchange between Mr Karas and the applicant’s agent on 23 December 2010.  In the course of this the agent showed that she was aware of the new UNHCR guidelines, and had studied their contents.  She said: 

   In any case, I ask that the reviewer refer to the more recent information provided in the December 2010 UNHCR guidelines under the heading “Members of (Minority) Ethnic Groups” (a copy of which was provided during the IMR interviews).  The UNHCR state in these guidelines:  “Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for social, economic and historical reasons, this does not exclude that others are forced to move for protection‑related reasons.” 

6. I accept that this submission was not directed at the parts of the UNHCR guidelines relating to the situation of ethnic minority including the Hazaras, which Mr Karas cited as relevant ‘independent evidence’ and relied upon when rejecting the applicant’s ‘generic’ claim to refugee status.  However, in the absence of any evidence to the contrary from the agent, I am left unpersuaded that she was denied an opportunity to address the relevant parts of the new UNHCR guidelines, even assuming – as has not been shown to me – that they contained ‘new’ information which might be decisive against the applicant’s claims.  In so far as the new UNHCR guidelines carried additional weight due to the immediacy of their publication, the agent had herself drawn Mr Karas’ attention to this fact. 

7. I am therefore unpersuaded that any failure of procedural fairness occurred in relation to particular (d) of Ground 1. 

8. Particular (e) contends that Mr Karas was obliged to invite comment on a negative conclusion he drew from the US State Department’s 2009 report on religious freedom, when citing that report in the last paragraph of his discussion of ‘independent evidence’.  I have extracted this paragraph 52 above.  He made that reference, as added support for a broad conclusion that “the range of material about Afghanistan does not support the suggestion that Shias are generally targeted or persecuted, including by the Taliban” (emphasis in original). 

9. I accept the submissions of the Minister’s counsel, that this citation does not evidence any material departure from procedural fairness.  The citation was regarded by Mr Karas as supporting a proposition which appears to have had other support from a broad review of country information which must have been known to the applicant’s agent.  I am not persuaded that he drew a novel or potentially surprising conclusion from this report in particular.  Nor am I satisfied that it provided any information which was, or could have been, decisive of the refugee claims made by this applicant. 

10. For all the above reasons, I am therefore satisfied that a failure of procedural fairness occurred only in relation to particular (f) of Ground 1.  

Ground 2 

1. This ground contends that there was a failure by Mr Karas to ‘give proper, genuine and realistic consideration’ to the applicant’s individual circumstances, before reporting adversely on his refugee claims. 

2. The pleading essentially reproduces the terms and particulars of a ground I addressed, and rejected in Alami (supra) at [27]‑[47]. In my opinion, it has no substance in the present case for the same reasons as I gave in that case. Clearly, in my opinion, on a fair reading of his report, Mr Karas identified and sufficiently addressed all the elements in the applicant’s refugee claims, including his ‘generic’ claim of well‑founded fears based only on his ethnic and religious attributes, and also his ‘individual’ claims based on his recounted history of encounters with the Taliban.

3. In effect, counsel’s oral submissions invited me to conclude that, although Mr Karas did appear to address the applicant’s claims, he had not in reality engaged in the thought processes he described.  However, such a serious allegation needs clear proof, and the present evidence gives it no substance at all. 

4. Underlying the applicant’s counsel’s submissions in this case, as with similar submissions of other counsel in other Hazara Afghan and Tamil Sri Lankan cases recently argued before me, is that IMR reviewers have written reports which follow identical paths of reasoning and, in some cases, have ‘cut and pasted’ parts of their reports from earlier reports. 

5. However, I am not persuaded that the similarity of reasoning in these cases evidences any failure to give genuine thought to the claims made in a particular case.  Taking into account the ‘practical’ points noted by Gleeson CJ in Muin which I have cited above, it is inevitable and even desirable that IMR reports will show consistency of approach to country information on ‘generic’ claims (cf. Brennan J in Re Drake and Minister for Immigration & Ethnic Affairs (No 2)(1979) 2 ALD 634 at 639). It is understandable that the authors of IMR reports have at times resorted to cutting and pasting in relation to identical parts of their reasoning concerning such claims. This is something which probably can be detected also in my growing body of judgments on IMR reports, when dealing with counsel’s submissions which duplicate arguments made by counsel in other cases. It by no means indicates that I – nor the IMR reviewers whose reports I have examined – have not been conscious of the need to arrive at a judgment or report which genuinely addresses afresh the merits of the particular matter.

6. Also underlying the applicant’s counsel’s submissions in relation to this ground was an invitation for the Court itself to address the merits of the IMR assessments of the risk facing the applicant in Afghanistan, performing its own assessment of the general country information.  However, that assessment patently involves a conclusion of fact, in circumstances where it is almost inconceivable that the Court could be satisfied under the tests of jurisdictional unreasonableness established in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 cited in Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48 at [23]‑[36]. I am not at all persuaded that Mr Karas’ conclusions as to the future risks facing the applicant were not open to him in the present case on all the country information which was considered by him, as a matter of law.

Ground 3 

1. The short answer to the particulars of apprehended bias provided under this ground, is that the parts of the transcript to which I was taken (and which are quoted in the particulars) manifestly fail, in my opinion, to satisfy the tests explained by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28 at [27]‑[32].

2. Nor am I able to comprehend how the existence of the failure of procedural fairness which I have found under Ground 1(f) supports this ground.  To the contrary, there is, in my opinion, evidence that Mr Karas attempted to keep an open mind during his interview and subsequently, before he made his decision and wrote his report.  This is illustrated by his readiness to invite comment and retreat from an adverse impression suggested at the interview, after clarifying his citation from the Finnish Report during the interview (see above). 

Ground 4 

1. In effect, counsel for the applicant supported this ground with the submission that a finding of fact was made by Mr Karas in the first sentence of paragraph 84, which I have extracted above, which was not open on the evidence before him.  This was the finding that “it was his and his family’s decision to leave Afghanistan to seek protection in Australia”. 

2. It is not clear what significance this finding actually played in Mr Karas’ ultimate conclusions, nor as to the merits of his giving it any weight at all, but it is unnecessary to reflect further on these questions.  The short answer to the ground as pleaded is that there was, in my opinion, sufficient evidence in the applicant’s responses to questioning at his interview shown at transcript pages 21‑22, and 24‑25, to support the finding as a matter of law. 

3. In his responses at the interview, the applicant indicated, at least, that he had discussed his decision to seek refuge in Australia with his wife on the telephone from Pakistan, and had made arrangements for her to transmit to him the required funds to pay the people smuggler, before he travelled to Australia and made his refugee claim.  He also explained the current situation of his wife and family in a manner suggesting that their family arrangements had mutual support.  I am not persuaded that Mr Karas drew any inferences from this evidence which were not open to him as a matter of law. 

Ground 5 

1. Counsel for the applicant did not support the proposition that a perceived inadequacy in an IMR report would itself constitute error of law which would appropriately support the relief sought in the present case (and compare the High Court’s reasoning in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 as to the effect of a non‑compliance with s.430 of the Migration Act). However, she submitted, in effect, that Mr Karas’ reasons contained two findings which were unsupported by adequate reasons, and that I should therefore conclude that he had constructively failed to address the refugee claims which they purported to address. In particular, counsel identified the findings at paragraph 72 of Mr Karas’ report that the shooting incident at a Taliban road block “could be regarded as isolated unconnected incident”, and at paragraph 73 which suggested that “the claimant had embellished or fabricated parts of his story”. 

2. Doing the best I can to understand these submissions and how they might seek to expose material error of law, I am unable to find any substance in their foundations.  In my opinion, both of these findings were reasonably open to Mr Karas on the evidence before him. 

3. In my opinion, it is undoubted that the applicant added to his account of the shooting incident in the course of his evidence at interviews after arriving in Australia, in a way which could be characterised as containing ‘embellishment’, and which left open the rejection of the applicant’s claim that he had been recognised by the Taliban on that occasion.  Mr Karas drew the same conclusions from how the applicant gave his evidence about this incident, as had been drawn by the RSA assessor at Court Book pp.90‑91.  I consider that the finding made by Mr Karas in paragraph 72 was well open to him on the evidence, and was supported by sufficiently logical reasoning. 

4. Apart from providing support for Mr Karas’ finding at paragraph 72 as to the shooting incident, it is difficult to see how the adverse observation at the start of paragraph 73 played any material part in his reasoning.  I am not satisfied that any error of fact or expression shown in this paragraph establishes a material error of law. 

5. For all the above reasons, I am satisfied only that the applicant has established a case only for relief by way of a declaration which upholds Ground 1(f). 

6. This outcome, however, justifies a costs order in favour of the applicant in accordance with the scale amount.  

I certify that the preceding eighty‑four (84) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  30 November 2011