SZQHH v Minister for Immigration & Anor - [2011] FMCA 740

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 740

MIGRATION – Review of Independent Merits Reviewer decision in respect of an offshore entry person – applicant claiming ethnic and religious persecution in Afghanistan – applicant’s fear found to be not well-founded – whether the review was procedurally unfair considered – Reviewer failing to disclose certain country information – reasons for decision following a template in part – whether an apprehension of bias considered.

Migration Act 1958 (Cth), ss.36, 46A, 91R, 195A, 477

Alami v Minister for Immigration & Anor [2011] FMCA 623
Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88
Australian Crime Commission & Anor v NTD8 (2009) 177 FCR 263
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Chu v Minister for Immigration (1997) 78 FCR 314
Darabi v Minister for Immigration & Anor [2011] FMCA 371
Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518
Kioa v West (1985) 159 CLR 550
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 122
MZYLF v Minister for Immigration & Anor [2011] FMCA 621
NADH of 2001 v Minister for Immigration [2004] FCAFC 328; 214 ALR 264
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
S1527 of 2003 v Minister for Immigration [2005] FMCA 1846
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZQEK v Minister for Immigration & Anor [2011] FMCA 628
SZQEL v Minister for Immigration & Anor (No.2) [2011] FMCA 582
WAFK v Minister for Immigration (2003) 133 FCR 209
Wu Shan Liang v Minister for Immigration [1994] FCA 926

Applicant:

SZQHH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1120 of 2011

Judgment of:

Driver FM

Hearing date:

26 September 2011

Delivered at:

Sydney

Delivered on:

30 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Solicitors for the Applicant:

Koutzoumis Lawyers

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court declares that the review undertaken by the second respondent was procedurally unfair in that he:
(a)failed to disclose adverse material to the applicant in the form of a 2007 Christian Science Monitor article which he subsequently relied upon to find that the class of applicants to which the applicant belongs do not face a well-founded fear of persecution in Afghanistan by reason of their ethnicity and religion; and
(b)dealt with that claim in his reasons in the same terms as in numerous earlier decision by the same Reviewer, giving rise to an apprehension of bias.
The first respondent is restrained from relying upon the report and recommendation of the second respondent in considering whether to permit the applicant to apply for a protection visa.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1120 of 2011

SZQHH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of an Independent Merits Reviewer (“the Reviewer”) made on 28 March 2011 and notified to the applicant by letter dated 5 April 2011. The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Refugees Convention and the 1967 Protocol relating thereto. The Reviewer found that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
The application was filed on 2 June 2011 and it is common ground that the applicant requires an extension of time (having regard to the limitation period in s.477(1) of the Migration Act) in the exercise of the Court’s discretion in s.477(2). Having regard to the short delay of only a few weeks by the applicant in filing his application to the Court, the applicant’s explanation given by his solicitor in an affidavit made on
23 September 2011 and the serious issues raised in the judicial review application, I had no difficulty in finding at the trial of this matter on
26 September 2011 that the discretion to grant an extension of time should be exercised in the applicant’s favour. I ordered that the time for the filing of the application be extended up to and including 2 June 2011.
The following statement of background facts is derived from the applicant’s submissions filed on 12 September 2011 and the record of the Refugee Status Assessment (“RSA”) decision made on 8 June 2010.
The applicant states that he was born in 1974 in Sabschoob, Jaghuri, Ghazni Province, Afghanistan. He states his religion and ethnicity as Shia-Hazara.
He married his wife in 2003. She is residing in Hazara Town Quetta, Pakistan with the applicant’s two sons aged five and one. The applicant’s mother returned to Afghanistan from Pakistan in 2009 with the applicant and is currently residing with the applicant’s sister who is married and lives in Sabschoob, Jaghuri district. The applicant also has a 16 year old brother who had recently returned to Afghanistan from Pakistan but now resides in Pakistan. The applicant’s father is deceased having passed away 12 years ago of natural causes.
The applicant was born and raised in Sabschoob, Jaghouri.

He received three years of education from the mullah of the local mosque between 1981 and 1984. He was then employed as a shop assistant in his father’s clothing shop in Sang-e Masha from approximately 1986, when he was 12, until he departed Afghanistan in 2000. The applicant departed due to the Taliban’s persecution of Hazaras in his area.
The applicant travelled to Pakistan with his family, entering illegally after engaging the assistance of a smuggler. The applicant found employment as an apprentice mechanic between 2000 and 2004 after which he opened his own mechanical workshop. Prompted by violence by the Taliban and Baluchis targeting Hazaras, the applicant decided to return to Afghanistan in 2005.
He returned to Helmand province and set up his own mechanic business, however he again fled Afghanistan six months later after being targeted for mistreatment by both the Taliban and police in the area where he lived and worked. He again returned to Quetta, Pakistan, illegally.
In 2009 the situation for Hazaras worsened leading to the applicant once again leaving for Afghanistan. On this occasion he took his family with him and settled in Jaghuri. The applicant found it difficult to earn a livelihood due to insurgency activities and attacks by the Taliban and Pashtuns targeting Hazaras. He witnessed further atrocities by Pashtuns against Hazaras and found he could not do any work because the roads were not safe[1]. He again left Afghanistan travelling and entering Pakistan illegally with his family.
[1] court book “CB” 44-47.
The applicant once again commenced working as a mechanic, however adverse attention from the authorities who targeted him for bribes led to him fleeing Pakistan as he feared they may deport him to Afghanistan due to his unlawful immigration status in Pakistan.

He also fled because it was still unsafe for Shia Hazaras in Pakistan.
The applicant paid a smuggler in Karachi US$6,000 to arrange a passport and flight tickets and departed Pakistan on approximately

10 January 2010, travelling to Malaysia via Dubai. He travelled on a Pakistani passport using a different identity. The applicant remained in Malaysia for 12 days, until approximately 26 January 2010. He paid another smuggler US$6,000 in Malaysia who arranged his travel to Indonesia by boat.
The applicant remained in a house for two nights before being taken to the airport and flown to Jakarta. He remained there for one night before being taken to a beach where he paid US$4000 to another smuggler before he boarded a boat which rendezvoused with a larger vessel bound for Australia. The vessel was intercepted by the Australian Navy and taken to Christmas Island, arriving on

11 February 2010. He is now in detention at Curtin Immigration Detention Centre.
The applicant was interviewed for the purpose of initial entry processing on 5 March 2010 and made refugee claims. He lodged a statement of claims and requested a Refugee Status Assessment (RSA) on 10 April 2010.
These claims concerned his fears of persecution from the Taliban, like atrocities the applicant had witnessed in travelling to and from his village in Jaghori district. These trips were required to purchase material for his clothing shop.
On 14 April 2010 the applicant was interviewed by an Australian Immigration Official (RSA Official) in relation to his claims.
On 8 June 2010 the RSA Official assessed the applicant as not meeting the definition of a refugee in Article 1A of the Refugees Convention[2].
[2] CB 65-75.
The RSA Official relied on a DFAT cable of 21 February 2010 CX240092 (the DFAT cable CB221)[3]. The RSA Official quoted unsourced UNAMA “reporting that Hazaras are not specifically targeted or discriminated against in the current environment”[4] (emphasis added).
[3] CB 73-74.
[4] CB 74.
The RSA Official did not list or refer to an article in the Christian Science Monitor dated 6 August 2007 “Afghanistan’s success story, the liberated Hazara minority”.
On 8 June 2010 the RSA Official considered the applicant had fabricated his claimed encounters with the Taliban and the police, and found on the basis of country information including the DFAT and UNAMA material that “the situation for Hazaras has changed significantly since the fall of the Taliban in terms of personal and community freedoms opportunities and human security” and that migration by Hazaras from Afghanistan is driven by economic opportunities[5].
[5] CB 74.
Following the date of the RSA decision, but apparently prior to its delivery, the applicant’s advisors sent the RSA Official a copy of a report of Professor Maley dated 20 May 2010: “On the Position of the Hazara Minority in Afghanistan”[6].
[6] CB 76-82.
On 29 July 2010 the applicant requested an Independent Merits Review (IMR) of the Refugee Status Assessment[7].
[7] CB 83-86.
On 9 February 2011 the applicant was interviewed at Curtin Immigration Detention Centre by the Reviewer.
On 28 March 2011 the Reviewer recommended that the applicant not be recognized as a person to whom Australia has protection obligations under the Refugees Convention[8].
[8] CB 139 – 218.
The Reviewer found at [58] that he did not accept that the Taliban specifically targets Hazaras or Shias and was not satisfied that Hazaras face a real chance of persecution by reason of their ethnicity or religion. Further, at [88] the Reviewer found the applicant’s individual circumstances would not expose him to persecution by the Taliban or anti Hazara or Muslim extremists or that he would suffer substantial discrimination amounting to persecution.
On 5 April 2011 the Reviewer notified the applicant of the decision by letter.

The present application

As already noted, these proceedings began with a judicial review application filed on 2 June 2011. The applicant now relies upon a further amended application filed on 26 September 2011. The grounds in that application are:
That the decision of the second respondent (the reviewer) was affected by legal error in that:
1. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information from which the reviewer drew conclusions adverse to the applicant’s claim, and/or was otherwise credible, relevant and significant.
Particulars
·   The information was drawn from the following material:
a. An article in The Christian Science Monitor, referred to at Independent Merits Review (IMR) recommendation at [55] and applied I [82];
b. Cited in the IMR as “…other material cited discussing the general post-2001 situation of Hazaras” at [55].
·   The material was used decisively in relation to the applicant’s claims relating to severe social discrimination of Hazara Shias amounting to persecution.
·   The reviewer did not put the substance of the information relied upon to the applicant either in the course of the review or at any other time prior to the recommendation.
·   The article from the from the Christian Science Monitor was not listed or referred to in the RSA, nor was it referred to in the applicant’s submissions.
·   Part 4.1 and Annexure D of the Independent Merits Review Guidelines (IMR Guidelines) are a source of the requirements of procedural fairness in relation to this ground of review.
·   It is a circumstance of this case affecting the requirements of procedural fairness in this case that
·the conclusions drawn by the RSA from similar information were different to those drawn by the IMR in relation to the existence of social discrimination against Hazaras. Unlike the RSA, the IMR accepted there was social discrimination but did not accept that it amount to persecution. As a result the relevance of the information to the RSA and the IMR was different;
·the information was used by the IMR to rebut the significance of other information in the US State Department Country Report of Human Rights Practices (Afghanistan) 2009 provided to the IMR by the applicant concerning social discrimination;
·the information in the US State Department Country Report of Human Rights Practices (Afghanistan) 2009 was not before the RSA;
·the RSA had misrepresented information from the United Nations Assistance Mission in Afghanistan concerning social discrimination against Hazaras;
·the IMR had determined its use of the information from the Christian Science Monitor prior to its consideration of the applicant’s submissions on social discrimination;
·the totality of country information concerning social discrimination of Hazara Shias which the IMR consulted and to which the IMR had access was equivocal and represented differing views.
FURTHER OR IN THE ALTERNATIVE
3. The second respondent (the reviewer) did not afford procedural fairness to the applicant for reasonable apprehension of bias.
Particulars
·   The reviewer used a repeated formula or template for his recommendation;
·   The formula or template was applied inflexibly by the reviewer in relation to his review of the applicant’s claims and the claims of several other IMR applicants;
·   The IMR reviewer had used the same formula or template as a precedent for recommendations in relation to other IMR applications prior to the applicant’s IMR’s advisor’s submissions.
The further amended application narrows the issues in dispute between the parties by deleting altogether a ground previously relied upon (that an alleged failure to give proper, genuine and realistic consideration to the applicant’s individual claims) and the deletion of two particulars in the remaining claims.

The evidence and submissions

I received as evidence the book of relevant documents filed on 4 July 2011. I also received the affidavit of Sue Archer made on 11 July 2011 to which is annexed a transcript of the hearing conducted by the Reviewer at the Curtin Detention Centre and the affidavit of Gary Koutzoumis made on 9 September 2011 to which is exhibited a bundle of other decisions made by the Reviewer.
The applicant contends that there were failures by the Reviewer to afford procedural fairness to the applicant in two respects. First, he contends that the Reviewer failed to put credible, relevant and significant country information to him during the course of the review. Secondly, the applicant contends that the application of a template to the preparation of the Reviewer’s reasons gives rise to a reasonable apprehension of bias[9].
[9] The applicant’s submissions refer to a “sausage machine approach”.
The Minister submits that there was no want of procedural fairness in this case because the issue to which the document referred (namely the proposition that the situation in Afghanistan had improved for Hazaras) was an issue which the applicant (and his adviser) were acutely aware of and of which he had a fair opportunity to comment and make submissions. The Minister concedes that the Reviewer did not provide the applicant with a copy of the Christian Science Monitor article which was relied upon by the Reviewer in his report and recommendation but the Minister submits that procedural fairness only requires that the substance or gist of the adverse information be put to the applicant for comment. The Minister contends that the substance of the impugned information in the Christian Science Monitor article was put to the applicant during the RSA and independent merit review processes.
To the extent that the applicant says that what was put to the applicant through the RSA process needed to be directly put once again during the IMR hearing itself, this, in the Minister’s submission, would be misconceived. It is well accepted that where there are multiple stages of a decision making process, that process should be considered in its entirety to determine what procedural fairness entails: Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 – 662; State of South Australia v O'Shea (1987) 163 CLR 378 at 31.[10] As the RSA and IMR processes are recommendations going to the decision making process of the Minister, and the applicant was put on notice of the country information at the RSA stage, the Reviewer was, in the Minister’s submission, not required to put adverse information to the applicant again: see also Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [103], [106]-[111][11].
[10] Cf. VEAL vMinister for Immigration (2005) 225 CLR 88at [8] "Because the parties identified the critical question in the way they did - what did common law principles of procedural fairness require in this case? - much of the argument was directed to examining how judicial statements of general principle should be applied to the way in which the Tribunal had conducted its review of the refusal to grant the appellant a protection visa. Before embarking upon an examination of the application of general principles it is as well to identify the premises from which the parties' arguments about the application of those principles proceeded. In particular, it is necessary to begin from an explicit recognition of the fact that the Tribunal was exercising powers and performing functions specified by the Act.” Here the Reviewer was not performing function under a procedural code in the Act.
[11] This submission was not be taken to amount to a concession that the applicant was not put on notice of the adverse information during the IMR process. It was simply to submit that it was sufficient that the RSA decision referred to the substance of the adverse information in order for procedural fairness to have been afforded.
Finally, to the extent that the applicant contends that the Reviewer was required to put to the applicant or his advisor the specific or actual content of the Christian Science Monitor article by giving a copy of it to him at the interview, this too is, in the Minister’s submission, misconceived. While the Reviewer did not provide the applicant a copy of the Christian Science Monitor article, procedural fairness only requires that the substance or “gist” of the adverse information be put to the applicant for comment: Plaintiff M61 v Commonwealth of Australia (2010) 272 ALR 14 at [91]; VEAL vMinister for Immigration (2005) 225 CLR 88 at [29], Minister for Immigration v Kumar (2009) 238 CLR 448 at [31]-[35]. The Minister submits that the information in the DFAT report was more comprehensive. To this end, the substance of the impugned information in the Christian Science Monitor article was, in the Minister’s submission, put to the applicant during the RSA and IMR processes. The substance of the impugned information was a reason given by the RSA for rejecting the applicant’s claims to be a refugee at the RSA level[12]. The substance of the information in the Christian Science Monitor was also said to be contained in the DFAT report which was given to the applicant’s advisor during the IMR process[13].
[12] see CB 73.8 – 74.5.
[13] see CB 203 at [56].

In relation to the second ground, the Minister contends the Court should not conclude that the use of a template or parts of the Reviewer’s decision gives rise to an apprehension of bias.

Consideration

The Refugee Status Assessor from the Minister’s Department, in his decision made on 8 June 2010[14] recognised the tragic history of the Hazara people in Afghanistan. In particular, the Assessor referred to the following background information:
Information before the department indicates, due to religious differences between Hazara (Shia) and Pashtuns (Sunni), Hazaras have experienced discrimination at the hands of the Pashtun-dominated government throughout the history of modern Afghanistan.
In particular, during the reign of Amir Abdul Rahman (1880-1901), who was Pashtun, Hazaras were the first ethnic group to revolt against his campaign of expansionism. This led to the massacre of more than half of the Hazara population in 1893 when autonomy was lost as a result of Pashtun tribes being sent to the central highlands to crush the revolt. Thousands of Hazara men were killed, their women and children taken as slaves, and their land occupied. Prior to this period Hazaras were the largest Afghan ethnic group, constituting nearly 67 of the total population of the state.
In the late 1990s, when Afghanistan was ruled by the Taliban, Hazaras were again massacred following the acquisition of territory by the Taliban. In August 1998, the Taliban massacred approximately 4,000 Hazara in Mazara-e-Sharif, and a month later a further 500 Hazara were massacred in Bamiyan.
Hezb-e Wahdat recaptured Bamian city in April 1999, leading to an assault on the city and recapture by the Taliban 3 weeks later, after which hundreds of civilians including women and children were taken to the mountains and killed. The Taliban also carried out a massacre of Hazara civilians in May 2000 near the Robatak pass on the border between Baghlan and Samangan provinces.
Also following the recapture of Yakaolang by the Taliban from Hezb-e Wahdat in January 8, 2001 the Taliban forces massacred over 300 unarmed men and a number of civilian women and children. 73 women, children and elderly men who had taken shelter in Fatimatozahra mosque in Kata Khana area of Yakaolang, thinking the Taliban would respect the sanctity of the mosque, were also killed when the Taliban fired rockets on the mosque.
[14] CB 70.
It is not surprising, given that history, that Hazara Shia applicants from Afghanistan claim a well-founded fear of persecution simply because of their ethnicity and religion. In my view, the 1893 massacre of Hazaras would qualify as genocide. More recent massacres, while smaller in scale, are also highly disturbing. It is important that decision makers dealing with generic claims of persecution by Afghan Hazaras should not take a glib or superficial approach to the determination of those claims.
In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 the High Court found that the decision to establish and implement the RSA and IMR procedures was a decision by the Minister to consider whether to exercise s.46A or s.195A of the Migration Act in respect of any offshore person who made a claim that Australia owed that person protection obligations[15]. As one of the powers being considered was that pursuant to s.46A to lift the bar to allow offshore entrants to make an application for a protection visas the exercise of the power would be pointless unless the RSA and IMR processes were according to the criteria and principles of the Migration Act, as construed and applied by the courts of Australia[16].
[15] at [66].
[16] at [88].
In M61 the High Court found the RSA assessment and subsequent IMR review were subject to procedural fairness as these processes extended the claimants’ period of detention. Hence the Court found the assessment and review must be procedurally fair and must address the relevant legal questions[17].
[17] at [77].

Ground 1 – denial of procedural fairness on account of failing to put material to the applicant

The Minister submits that this ground has no merit because the substance of the impugned information was well understood by the applicant and indeed well ventilated throughout both the RSA and IMR processes.
In making his recommendation the Reviewer relied on information drawn from the an article in the Christian Science Monitor of 2007 referred to and applied in the IMR recommendation at [55] and applied at [82]:
Nor was there evidence before the Reviewer to support the assertion that the “social discrimination” referred to in the US State Department Report is so severe as to amount to persecution; indeed, other material cited discussing the general post-2001 situation of Hazaras indicates a significant lessening of such discrimination (see for example The Christian Science Monitor, “Afghanistan’s success story: the liberated Hazara minority”, 6 August 2007, at The Reviewer therefore does not accept that Hazaras [face] a real chance of general social discrimination amounting to persecution.
The general proposition that no one is safe in Afghanistan given the fighting and bloodshed there does not support a claim for refugee status under the Convention because it does not point to any discrimination. Also, the Reviewer notes that the claimant left Afghanistan some years ago on at least 3 occasions from 2000-2009 and a claimed lack of familial support, employment difficulties or opportunities in his country or area of origin does not lead to a finding that he would be persecuted let alone for a Convention reason. I accept that he would possibly be returning to Jaghouri where he indicated his sister and family live and where he has land and a house and where he lived before leaving there in 2009 for Pakistan and later in early 2010 for Australia. I find that any difficulties he might suffer or encounter for lack of employment, or opportunity and the like is not persecution or that if he were refused employment or housing in Afghanistan it would be perhaps for lack of services and the like and not for a Convention reason.
Information from the Christian Science Monitor article was used by the Reviewer to show a significant lessening of claimed “social discrimination”. Because of this information the reviewer did “not accept that Hazaras face a real chance of general social discrimination amounting to persecution”[18].
[18] CB 203, [55].
At CB 213 [82] the Reviewer also made a finding that any future difficulties in employment or housing the applicant might suffer would not be persecution and that any refusal of employment would not be for a Convention reason.
The Reviewer used the information in the Christian Science Monitor article and the “other material” to traverse other information in the US State Department Country Report of Human Rights Practices (Afghanistan) 2009 concerning social discrimination which the applicant’s advisor had provided to the Reviewer.[19] The information in the US State Department Country Report of Human Rights Practices (Afghanistan) 2009 was not before the RSA.
[19] CB 108: Applicant’s IMR Submissions.
It would appear from the use of a precedent that the Reviewer had determined upon his use of the information from the Christian Science Monitor and “the other material cited discussing the general post 2001 situation for Hazaras” prior to his consideration of the applicant’s submissions on social discrimination.
The requirement of procedural fairness was enlivened also by the fact that the totality of country information considered by the Reviewer, including that provided by the applicant, was equivocal and expressed different views.
Undoubtedly, the general rule is that procedural fairness requires that the repository of power must give a person whose interests are likely to be affected an opportunity to deal with matters adverse to his or her interests: Kioa v West (1985) 159 CLR 550 at 628 per Brennan J.
However, given the applicant’s complaint and given due regard for the Minister’s submissions, it is trite but necessary to state that the “usual rules of procedural fairness…. require a common sense approach in asking the question of whether or not a person was given a reasonable opportunity to be heard and put their case.”[20] In other words, the answer as to whether procedural fairness has been afforded depends on “the particular circumstances of this case.”[21]
[20] MZYLF v Minister for Immigration & Anor [2011] FMCA 621 at [49].
[21] Kioa v West (1985) 159 CLR 550 at 610 – 626. In present context, see Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [111].
In the present case, the Minister submits that procedural fairness in relation to the impugned information in the Christian Science Monitor report was afforded because the applicant, through his advisor, was acutely aware that the proposition that the situation in Afghanistan had improved for Hazaras was an issue in the IMR process, and therefore an issue that might be held against him in his claims to be a refugee.
This is said to be reinforced by the applicant’s advisor’s written submission under email dated 18 June 2010[22] which directly addressed the situation for the Hazara in Afghanistan, and relying on an attached report from Professor Maley[23]. The applicant’s advisor stated:
We note that at the Refugee Status Assessment Interviews, adverse information was put to our clients which, in essence, asserted there had been a significant improvement in the conditions for Hazaras in Afghanistan. (emphasis added)
[22] CB 76.
[23] CB 78 – 82.
In my view, notwithstanding the applicant’s general awareness of that issue, the Reviewer fell into error because he did not put the nature and content of the adverse information in the Christian Science Monitor article to the applicant in the interview. Nor did the Reviewer otherwise provide the information or the substance of it to the applicant. The article was not used or referred to in the applicant’s advisor’s IMR submissions of 7 February 2011[24].
[24] CB 93 -134.
The information was “credible, relevant and significant to the decision to be made”: per Brennan J in Kioa v West (1985) 159 CLR at 628-629 applied by the High Court in Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 at 95, [15].
Procedural fairness required at least that the substance of the information to be put to the applicant: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 at [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 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.
In SZBEL v Minister for Immigration (2006) 231 ALR 592 at [32] the High Court approved what the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 “rightly said”:
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. (emphasis added by the Court).
As Gaudron J found in Re Minister for Immigration; Ex Parte Miah (2001) 206 CLR 57 at 86, [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 that case that is put against him or her.
I accept the applicant’s submission that the requirement of procedural fairness that the reviewer put the substance of the 2007 Christian Science Monitor article and the “other material cited discussing the general post 2001 situation for Hazaras” to the applicant was not abrogated by the use of similar information in a February 2010 DFAT cable in the original RSA.[25]
[25] This issue in relation to the same Christian Science Monitor article was considered by Smith FM in SZQEK v Minister for Immigration & Anor [2011] FMCA 628. He did not definitely conclude the matter but said he was unpersuaded that the information in the article was not sufficiently raised in the RSA in that case through the same February 2010 DFAT cable: at [53]-[54]. In SZQEK the RSA had more fully quoted the DFAT cable including that “the reporting cable of 21/2/2010 advises that while unofficial discrimination of Hazaras still persists…” at Schedule 1.
This is partly because the relevance of the information to the RSA and the Reviewer was different. The conclusions about discrimination against Hazaras drawn by the RSA were not the same as those drawn by the Reviewer. Unlike the RSA[26], the Reviewer did not reject that there was social discrimination but did not accept that it amounted to persecution.[27]
[26] CB 74.
[27] CB 203, [55].
In relation to the Reviewer’s reliance on “other material cited discussing the general post 2001 situation for Hazaras” [28], in so far as this material included the February 2010 DFAT cable[29], the applicant contends that the RSA misrepresented information in that cable from the United Nations Assistance Mission in Afghanistan (UNAMA) concerning social discrimination against Hazaras. The RSA said that UNAMA had reported that “Hazaras are not specifically targeted or discriminated against in the current environment”. [30] In fact the DFAT cable said “UNAMA had not received reports of Hazaras specifically being targeted or discriminated against in the current environment.”[31]
[28] CB 203, [55].
[29] CB 222.
[30] CB 74.3.
[31] CB 222.
The applicant claimed to the Reviewer in relation to the use of information in the February DFAT cable that the ability of embassies and other organisational informants such as UNHCR to conduct field research of their own was extremely limited.[32]
[32] CB 103. Applicant’s submissions quoting a report by Professor Maley dated 20 May 2010.
The applicant’s advisors twice complained to the Reviewer that they did not have access to the DFAT cable except as it was quoted in the RSA decision.[33]
[33] TR 25.8 and TR 26.2.
The Reviewer did not alert the applicant’s advisor to the alleged misinformation in the RSA prior to the Reviewer’s recommendation. It is not necessary for me to decide whether the RSA misrepresented the information in the article.
The Christian Science Monitor article is controversial in its content and I understand that many reviewers no longer refer to it. The article is reproduced in the court book at page 219. It is short and general in its content. It relies upon generally available information about the situation in Afghanistan and comments by two particular individuals whose authority to comment is unstated. One individual comments that “there has never been a better time” for his people and that the American presence in Iraq has “ended” one of the more brutal chapters in Afghanistan’s history of ethnic strife. Particularly controversial is the representation that the period since 2001 in Afghanistan was the start of a “golden period” for Hazaras according to a named human rights activist in Bamyan. The article puts the view that:
After centuries of discrimination, abuse and even ethnic cleansing, the country’s third largest ethnic group has at last managed to find peace and even prosperity in the new Afghanistan.
Given the generality of the material in the article, the controversial assessment of the situation in Afghanistan in it and its reliance upon two spokespersons whose authority to comment, and those motivation in commenting, were unstated, significant reliance on the article by decision makers should be treated with circumspection. Where the article is to be relied upon, the general thrust of it needs to be disclosed to claimants. In particular, the force and colour of the article, which puts the view that the past has been erased since 2001 and a new golden age for Hazara Shias in Afghanistan has dawned (with the implication that the change has been fundamental and irreversible) needs to be put to claimants for comment. That was not done in this case. Although the applicant was on notice that the proposition that the situation for Hazara Shias in Afghanistan had improved since 2001 was in issue, the particular assertions, namely that a new “golden age” for Hazaras had dawned and that the change had been dramatic, fundamental and irreversible was not put. Neither was the applicant put on notice that an issue for the Reviewer was not simply whether there was continuing social discrimination against Hazaras in Afghanistan but also whether such discrimination as remained amounted to persecution for the purposes of the Refugees Convention and Protocol.
I find that the first ground of review has been established.

Ground 2 – apprehension of bias

The applicant alleges a reasonable apprehension of bias because of the Reviewer’s application of a template or “sausage machine” approach. The applicant put in evidence reports and recommendations by the same Reviewer in nine other cases decided between 11 January 2011 and 29 March 2011. All of the cases involved Afghan Hazaras making similar claims to those of the applicant.
The decision in the present case comprises 90 paragraphs. An analysis of the decision with other decisions by the same Reviewer in relation to Hazara Shia claimants (which were tendered in evidence) and which pre-dated the present decision shows that the first 32 paragraphs of the decision are common in whole or part (and substantially in whole) to the earlier decisions of the Reviewer. The only real difference is that the Reviewer identifies the particular claims made by the applicant and submissions made by his representative. There follows a discussion of circumstances in Gazni province in Afghanistan and [45] through to [51] of the decision are effectively identical to the earlier decisions.
Under the heading “Findings and Reasons”, [52] through to [59] are the same as in the earlier decisions. Those paragraphs deal with what might be described as the “generic claim” of the applicant that he should be recognised as a refugee because of his Hazara ethnicity and Shia religion. From [61] the Reviewer turned to the particular claims of the applicant. Those paragraphs follow a similar form to the earlier decisions and at [66] through to [77] reproduce substantially what the Reviewer had said in earlier decisions. Paragraphs [78] to [80] consider in more detail the particular claims of the applicant and [81] through to [86] reproduce very substantially the reasoning and reference material referred to by the Reviewer in the earlier decisions. Paragraph [87] refers to a particular claim by the applicant. The conclusions made by the Reviewer at [88] to [90] follow a template form but refer to the particular claims of the applicant.
Some standard paragraphs complained of consist of more than statements of law or summaries of the substance of country material allowed in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 122. The standard paragraphs also contain conclusions about the applicants’ claims, unlike those standard paragraphs in Wu Shan Liang v Minister for Immigration [1994] FCA 926 which “did not concern assessment of the circumstances of the individual applicants: per Wilcox J at [52].
For example the decision at [53]-[60] includes conclusions on generic claims as well conclusions on country information. These and other paragraphs have been taken from previous IMR recommendations and used again in another set of recommendations, including the recommendation pertaining to the applicant.

The applicant complains that the use of these standard paragraphs in the reasoning of the Reviewer indicates an inflexible or mechanical mind such that a fair minded person might reasonably apprehend a mindset on the part of the Reviewer that was not impartial.
There is no general prohibition on the use of a template or standard paragraphs in a reviewer’s decision. To use the words of Smith FM in S1527 of 2003 v Minister for Immigration [2005] FMCA 1846 at [17]:
That there was adoption of general findings on country information should not be surprising. The courts for many years have been aware that [decision makers] often adopt and apply a "boiler plate" analysis of the relevant law. This has not, of itself, provided ground for judicial review.
In the present case the Minister contends that it is clear that the Reviewer well understood the importance of assessing the applicant’s claims individually[34]. In the Minister’s submission, that did not prevent the Reviewer from assessing the more generic claims in a way that was the same or similar to other similar cases before him.
[34] see CB 205 at [59].
Paragraphs [53]-[59] contain the Reviewer's finding on a “generic” claim relating to the position of Hazaras in Afghanistan. These are identical to paragraphs in other reports, and much of the country information is identical across the reports. Further, there are statements of law which are identical across the reports. However, on the claims that are specific to the applicant, I accept that the Reviewer has turned his mind to the applicant’s individual circumstances[35].
[35] see CB 202 – 218: [60] – [66], [68], [78] – [80], [82], [83], [85], [87] – [89].
In Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey , McHugh and Gummow JJ the Court said:
If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity.
In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 where at 122 Wilcox J likewise observed:
...the use by decision-makers of reasons devised by others is a matter that should excite concern about the possibility that individual decisions were taken in accordance with an overriding rule or policy or at the direction or behest of others. But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use. It is necessary to consider the content of the adopted provisions. The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia. The full documentary material was before each delegate. He or she had to decide whether or not to accept it. It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment. [emphasis added]
Lek was cited by Beazley J in Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 by Beazley J:
I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process. It follows that the appellant was denied procedural fairness by the second decision-maker.
However, the significance of evidence of a decision maker turning his or her mind to the particular facts was emphasised in Chu v Minister for Immigration (1997) 78 FCR 314 at 338C–339C per Carr and Sundberg JJ where some identical language was used by the Reviewer of an earlier decision maker, but the language was adopted and facts altered so as to correct earlier facts. This indicated that the decision maker had turned his mind to the new factual substratum.[36]
[36] cf Australian Crime Commission & Anor v NTD8 (2009) 177 FCR 263 per Black CJ, Mansfield and Bennett JJ at [73].
French J came to a similar conclusion in WAFK v Minister for Immigration (2003) 133 FCR 209 at [38], [52], noting that “cut and pasting” of country information or even use of a common form text for credibility findings did not indicate that the applicant’s claims had not been considered.
More recently, similar complaints were made in the same (IMR) context in SZQEL v Minister for Immigration & Anor(No.2) [2011] FMCA 582 (29 July 2011) per Raphael FM at [20] – [24].[37]
[37] The Minister does not understand the meaning of the submission about SZQEL in the applicant’s written submissions at [42] in that the relevance of the timing of previous decisions by the same Reviewer is not understood.
Here, as in SZQEL, the same or similar reasoning was used by the Reviewer in relation to the “generic” claims of the applicant. In SZQEL Raphael FM said:
I believe that it would be open for a court to find in cases where a number of decisions are published around the same time and where the same independent country information is utilised to substantiate (or disprove) a claim that there was nothing impermissible in utilising the same phraseology in reaching those conclusions.
The Court in SZQEL dismissed a similar ground of review to this ground, although in that case the Court did not have evidence of similar decisions made some two and a half months earlier.
As in Wu Shan Liang, Chu, WAFK, Lek and SZQEL the applicant’s complaint, to the extent that it is based on the use of common language in the reasons concerning country information and in its statements concerning the applicable law, does not indicate that the reviewer has not considered the country information for himself or failed to consider the applicant’s individual circumstances. As Smith FM observed in Alami v Minister for Immigration & Anor [2011] FMCA 623 at [31], there is no serious doubt that the Reviewer’s “report might not genuinely record his own careful and thorough consideration of [the applicant’s] claims in the light of relevant country information, nor that it might not provide his own carefully considered reasons for the recommendation he made to the Minister and his Department.”
However, the complaint here extends to the detail of the reasoning process itself. It might be argued that a reviewer is entitled to apply a template decision to a template claim by an applicant. Hazara Shias commonly claim a well-founded fear of persecution as a class claim, namely that by reason simply of their ethnicity and religion, they should be recognised as refugees. This draws upon the history of the Hazara minority in Afghanistan and the continuing threat posed by the Taliban and the broader Pashtun population. Given the history of the Hazara minority, such a claim cannot and should not be lightly dismissed. While a template claim, it was part of this applicant’s claims and needed to be considered. It is a concern that the consideration given to that claim by the Reviewer was in identical terms to the consideration of the template claims by earlier Hazara applicants dealt with by the same Reviewer. This is particularly so in circumstances where the applicant’s advisor had made detailed submissions bearing on this aspect of the applicant’s claims.
Further, the elimination of the template claim that the applicant should be recognised as a refugee because of his ethnicity and religion may have infected the Reviewer’s consideration of the applicant’s particular circumstances. In concluding at [58] in identical terms to the previous decisions that the Reviewer did not accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large and that he was not satisfied that Hazaras face a real chance of harm amounting to persecution by non state actors (Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and religion, the Reviewer placed a heavy onus on the applicant to satisfy him that his particular circumstances gave rise to a well-founded fear of persecution (which in order to have a Convention nexus in his case must be linked to his ethnicity or religion) and which, in order to satisfy the requirements of s.91R of the Migration Act, must be systematic. Plainly, if a reviewer excludes the possibility of a well-founded fear of harm of the class of Hazara Shia applicants by reason of their ethnicity and religion, it is very difficult for an individual applicant to establish such a fear based upon systematic persecution.

It is difficult to argue why the Taliban and Pashtuns would target individuals systematically by references to their ethnicity or religion if they do not target the ethnic and religious class to whom an applicant belongs systematically. It may reasonably be argued, therefore, that the Reviewer’s approach to the determination of the generic claim pre-determined the outcome of the specific claims of the applicant.
The Reviewer’s approach to the generic claim was so apparently inflexible or mechanical that a fair-minded and informed person might reasonably apprehend that the Reviewer might not have brought an impartial mind to bear on the decision: NADH of 2001 v Minister for Immigration [2004] FCAFC 328; 214 ALR 264 at [14]. The apprehension itself is not of the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: NADH at [17].
The relevant predisposition which is apprehended as possible is the predisposition of the Reviewer towards a result, other than a result reached by an evaluation of the material before him in a fair way with a mind that was open to persuasion in favour of the person in question: NADH at [20].
I find that this ground of review has been established.
I will grant relief in the form of a declaration and an injunction.
I will hear the parties as to costs.

I certify that the preceding eight-seven (87) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 30 November 2011