SZQIA v Minister for Immigration - [2011] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 904

MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – Refugee claims of Afghan Hazara Shia from Nawur district - no error of law or procedural fairness shown – findings open on the applicant’s own evidence – no errors in relation to alternative relocation findings – three months delay in seeking judicial review – extension of time not necessary in interests of justice – extension refused and application dismissed as incompetent.

Constitution, s.75(v)
Migration Act 1958 (Cth), ss.36(2), 46A, 476, 477(1), 477(2)

Alami v Minister for Immigration & Anor [2011] FMCA 623
Comcare v A’Hearn (1993) 45 FCR 441
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298, 133 FCR 541
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Muin v Refugee Tribunal (2002) 190 ALR 601
Plaintiff M13/2011 v Minister for Immigration & Citizenship (2011) 277 ALR 667
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470, [2000] HCA 67
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57
Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 85
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZNZU v Minister for Immigration [2010] FMCA 197
SZOGU v Minister for Immigration [2011] FMCA 718
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZQHC v Minister for Immigration & Citizenship [2011] FMCA 851
Tuitaalili v Minister for Immigration & Citizenship [2011] FCA 1224
Yu v Minister for Immigration & Anor [2009] FMCA 1161

Applicant:

SZQIA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1160 of 2011

Judgment of:

Smith FM

Hearing date:

31 October 2011

Delivered at:

Sydney

Delivered on:

30 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr A Crossland

Solicitors for the Applicant:

Rodney Lewis, Solicitor

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The applicant must pay the costs of the first respondent in the amount of $6240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1160 of 2011

SZQIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia without travel documents on a boat which was taken to Christmas Island in February 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 a village in the Nawur district of Ghazni province in early 2010, after encountering the Taliban in an incident on the road to Ghazni city.
On 31 March 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 18 May 2010, and the applicant then applied for ‘independent merits review’ (“IMR”) under those procedures.
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 31 December 2010, Mr Hardy 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.
His current application to the Court was filed in Sydney on 7 June 2011 by a Sydney solicitor, and he was represented before me by counsel. He has been held in immigration detention in the Scherger detention centre in North Queensland. He seeks relief by way of a declaration that Mr Hardy’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it.
The Minister concedes that Mr Hardy’s 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’.
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 exceeding three months. His application for an extension of time was opposed by the Minister.

I shall recount the evidence which was filed to explain the delay, and consider the appropriate exercise of my discretion below, after addressing the merits of the applicant’s grounds of review.
Under the judicial review jurisdiction upheld in Plaintiff M61 it is the function of the Court to consider whether Mr Hardy’s report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making. The substantive relief sought in the present application can only be contemplated if I am satisfied that Mr Hardy made such an error. It is not the function of the Court to engage in a merits review of Mr Hardy’s 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.
When examining Mr Hardy’s 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 Hardy’s 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 and the IMR report

The grounds of review argued by the applicant’s counsel addressed Mr Hardy’s reasoning only in relation to two of its elements. I shall explain the particularly relevant evidence when dealing with these grounds. It is sufficient to introduce this discussion by giving only a brief summary of the background to the matter and of Mr Hardy’s reasoning in his ‘findings and reasons’, with full extracts of those parts which are relevant to the grounds of review.
In the applicant’s interviews upon arrival at Christmas Island and during the RSA and IMR process, he said that his family lived in a village in the Nawur district of Ghazni province. They are ethnic Hazaras of Shia Muslim religion. His family have a farm on which they cultivate crops, grow fruit, and rear livestock, and they continue to live there and follow the same occupations. The applicant worked on the farm, and from the age of 20 and for several years before he left Afghanistan he drove a vehicle – at times referred to as a car or a truck – in which he transported produce and people from his own family’s farm and locality to market in Ghazni city and, less frequently, to Kabul. He claimed to have been at times, even frequently, stopped by the Taliban, but did not claim to have become a particular target of significant harassment, until an incident which he said happened in late 2009.
In the incident, he claimed that he had been identified by the Taliban as a person who had assisted a stranded police or security vehicle to take petrol from his own vehicle, shortly before an exchange of fire in which a number of security and Taliban combatants were killed.

He claimed that, as a consequence, the Taliban were searching for him at his home and elsewhere, and that he had been forced to sell his vehicle and to flee Afghanistan. His accounts of this incident varied in some details which, ultimately, caused Mr Hardy to find that the incident and its consequences did not occur. However, it is unnecessary for me to detail this evidence and Mr Hardy’s reasoning about it, since these adverse findings are not challenged in the proceedings before me.
The applicant’s agent made only one written submission, which was given to Mr Hardy at an interview he conducted at Christmas Island on 18 September 2010. At the end of the interview, the agent also made oral submissions addressing the applicant’s particular claims of being individually targeted by the Taliban. Her written submission appears to have supported a number of similar refugee claims by Afghan Hazara Shias. It presented submissions in relation to the issues identified at its commencement:
In terms of assessing the Applicant’s fear of persecution and the risk of future persecution if he is returned to Afghanistan it is submitted that the, following issues should be taken into consideration:
i)The Applicant fears persecution on account of his Hazara ethnicity and Shia religion.
ii)The Applicant claims that he cannot return to Afghanistan because of this persecution and risk of further persecution.
iii)The Applicant claims that authorities are not able to provide effective protection in general and specifically cannot provide effective protection to Shia Hazaras, like the Applicant who are at risk of being attacked and targeted by the Taliban and Pashtuns.
iv)Independent Country information/reports that support the Applicant’s claims.
It is submitted that there is independent country information that is consistent with what the applicant claims is the situation in his country of nationality, and that when taken into account supports the applicant’s claims that his fear of persecution if he is returned to Afghanistan is well founded.
It is not necessary to explain the general country information which was then cited by the applicant’s agent concerning the general situation of Hazara Afghans, nor the other information which had earlier been cited in the RSA assessment, nor the other information which was later cited by Mr Hardy in his report. Ultimately, Mr Hardy was not persuaded that “the Taliban now specifically targets (Shi’ite) Hazaras on a general and discriminate basis, irrespective of where they reside in Afghanistan.” He accepted and followed the then current UNHCR eligibility guidelines for Afghan asylum seekers, which recommended “that refugee claims by Hazaras from Afghanistan need to be considered on their own merits” and that a “case-by-case analysis is needed”. The adoption of this approach was not challenged in the proceedings before me.
At the commencement of Mr Hardy’s discussion of the applicant’s claims to have a well-founded fear of persecution by the Taliban based on his individual circumstances, Mr Hardy said:
[The applicant] does not claim he has faced serious harm simply for reasons of being a Shi’ite or a Hazara or purely for reasons of being a combination of both. He claims the danger for Hazaras in the Nawur district is growing, but he has also demonstrated in his evidence that his family continues to live and work there, is “relaxed”, living at home undisturbed by the Taliban, and carrying on the family business in his absence.
Mr Hardy noted that, apart from the recent incident, the applicant “claimed that he has occasionally been importuned and even roughly treated on certain occasions by Taliban who stopped him on the road and stole goods from his car or truck.” Mr Hardy expressed doubts about these claims, but characterised them as amounting to “only low-level harassment from Pashtun or Taliban in or on the way to/from Ghazni” (see Court Book p.151).
Mr Hardy then examined the applicant’s “story about the day of the skirmish and of what followed”. He explained difficulties about these claims, and concluded with the following adverse findings:
Whereas [the applicant’s] account of the petrol siphoning exercise is not in itself implausible, I do not accept that it led to any skirmish with the Taliban, or led to the Taliban searching for him. I do not accept that the Taliban have been visiting his family. I do not accept that he needed to sell his vehicle in Ghazni, or that he did. I give weight to his claim that the rest of the family is continuing to operate the family business in his absence.
The petrol siphoning episode, I believe, is one that [the applicant] has experienced or heard of perhaps at least once in the past, possibly in relation to officers who used their uniforms and authority to coerce a free tank-fill out of him or someone else, but I do not accept that it ever happened as described in his claims, in an episode that led to a clash with Taliban and then went on to see him marked as a Taliban target.
Since I do not accept that this episode occurred, I do not accept that [the applicant] has attracted profiling by the Taliban or any other party as a person who has “assisted the government”. If he has any imputed “political opinion” profile at all it arises merely from being a Shi’ite Hazara.
Mr Hardy then addressed the future situation of the applicant if he returned to his home and, implicitly, resumed his previous occupation. The applicant now challenges this reasoning upon several alternative grounds of judicial review which I shall examine below. Mr Hardy said:
My recommendation in this matter must be based on what I consider, on the evidence, to be [the applicant’s] prospects in the reasonably foreseeable future. It is appropriate to take the view that the reasonably foreseeable future, considered in light of a country experiencing ongoing armed conflict, should be considered to be several years. [The applicant’s] own evidence generally indicates that up to the present he and his family have not been facing Convention-related persecution from the Taliban or any other party, state or non-state, in his home district around Nawur, for reasons of being Hazaras or Shi’ites or a combination of both. His evidence about his routine travel to and commerce in Ghazni and Kabul, and his description of the kinds of disruptions he says he has faced along the way also does not support his more broad claim about facing persecution from the Taliban or anyone else (my having dismissed as untrue the description of the episode following the police encounter and also the claims about the car registration papers). Evidence of a bigger picture, provided by his adviser, cites the recent Rutting and Maley reports in respect of Hazaras such as those trying to access the arguably blockaded Jaghori.
Overall, I do not perceive that [the applicant] faces a real chance of Convention-related persecution in Nawur in the reasonably foreseeable future. The regularity of his past and recent internal travel, undeterred by the circumstances he claims to have affected him, and his claim about his family continuing to operate the business in his absence, leads me to the view that he can continue to access Nawur district least via Kabul in the reasonably foreseeable future.
[The applicant’s] view is that this perception is wrong, but in any event he has given evidence of regular travel to, and ongoing commerce and short-term accommodation in Kabul. Whereas I do not accept that he found an agent to falsify a new set of car registration papers in the circumstances claimed, I do accept that [the applicant] was calling broadly, at that point of his evidence, on his memory of networking in Kabul.
(emphasis in original)
Mr Hardy then said that he had also “considered whether (the applicant) can relocate to another part of Afghanistan”. He noted that “there is a sizeable population of Hazaras in Kabul but many are evidently displaced form other areas”. He concluded:
If [the applicant] were to take up residence in Kabul, his evidence about his own ability to do business there leads me to the view he has viable contacts in that city and to the view that relocation to Kabul would be a viable option for him were he to choose not to return to Nawur, where, in any event, I am satisfied he would be able to return without facing a real chance of Convention-related in the reasonably foreseeable future.
Mr Hardy found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and Protocol.

The applicant’s grounds of review

At the hearing before me, the applicant’s counsel relied upon grounds set out in a Further Amended Application which was filed at the hearing. He abandoned many previously foreshadowed grounds, leaving the following:
Grounds of Review
1.The Independent Protection Assessment Reviewer (IPAR), in reaching his recommendation dated 31 December 2010, did not observe procedural fairness requirements in that he did not give the applicant an opportunity to consider or comment on adverse information that was relevant and significant to the recommendation made.
2.In particular, the IPAR, in reaching his recommendation dated 31 December 2010, did not put to the current Applicant any of the following documents or their contents, nor the substance of those contents, each of which he relied on in making his recommendation:
a.Unidentified DFAT report dated 28 September 2010
…
4. There was no evidence for the IPAR’s finding that the Applicant had experienced “regularity of his … recent internal travel, undeterred by the circumstances he claims to have affected him.” (p. 153)
5.It was not put to the Applicant for consideration and comment that he had experienced “regularity of his … recent internal travel, undeterred by the circumstances he claims to have affected him.” (p. 153)
6.It was not put to the Applicant that because his family continues to operate a business in his absence, the Applicant can continue to access Nawur district at least via Kabul in the reasonably foreseeable future (p. 153)
7.The IPAR did not afford the Applicant procedural fairness because he did not put to the Applicant:
a.that the Applicant could reasonably relocate from his home to Kabul;
b.that the Applicant has viable contacts in Kabul that would enable him to reasonably locate there.
In essence, these grounds can be grouped into two sets of challenges to Mr Hardy’s reasoning. The first set, comprising grounds 1, 2, 4, 5 and 6, make complaints concerning Mr Hardy’s conclusions that the applicant did not face a real chance of Convention-related persecution in his home district, and that the applicant “can continue to access Nawur district at least via Kabul in the reasonably foreseeable future”.

The second set of grounds, comprising grounds 7(a) and (b) challenges Mr Hardy’s finding that the applicant could relocate to Kabul. The submissions of both counsel on that issue also addressed a contention by the Minister that Mr Hardy’s finding on relocation rendered immaterial any error of law or procedural fairness affecting earlier parts of his reasoning.

Mr Hardy’s adverse finding in relation to access to Nawur

In effect, the grounds which complain about this finding attack Mr Hardy’s reasoning in his paragraph:
Overall, I do not perceive that [the applicant] faces a real chance of Convention-related persecution in Nawur in the reasonably foreseeable future. The regularity of his past and recent internal travel, undeterred by the circumstances he claims to have affected him, and his claim about his family continuing to operate the business in his absence, leads me to the view that he can continue to access Nawur district at least via Kabul in the reasonably foreseeable future.
(emphasis in original)
I have above extracted this paragraph in its context. The applicant contends, in effect, that:
i)The adverse findings made in the paragraph relied significantly on a piece of country information which was not put to the applicant and his agent; and
ii)It was not open, as a matter of law, for Mr Hardy to make the findings; and
iii)The possibility of the making of the findings should have been put to the applicant and his agent.
The country information which is the subject of the natural justice complaint, was contained in a response from the DFAT embassy in Kabul dated 28 September 2010 to requests for information from an agency referred to as “CRS”, including as to “the security situation on key Hazara travel routes, including to and from Jaghori, access to Ghazni City and Kabul, and the availability of alternate travel routes”. The pertinent response in the DFAT cable was:
R.1-R.7. Security has deteriorated in some Hazara areas in central Afghanistan over the past several years. In Ghazni, insurgents control most Pashtun districts. Travel is dangerous for all ethnic groups and Pashtuns and Hazaras are both limited in their ability to move through districts dominated by the other. Movement between Kabul and Ghazni has become increasingly challenging, and alternative travel routes, including through Bamiyan, involve several days of travelling. Access to Jaghori has also become more difficult. There are three routes connecting Jaghori to Ghazni city. The most frequently used road passes through Nawur district, and is considered secure. Another route through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. The third route through Qarabagh district is very insecure. There are secure (although rough) routes from Bamiyan to Jaghori, and Behsoud to Nawur.
As counsel for the applicant conceded, there is no express nor implicit reference to this information in the critically adverse findings and conclusions of Mr Hardy which are challenged by the applicant. However, his counsel submitted that I should infer that this information influenced the findings, since the DFAT cable had been referred to by Mr Hardy in the course of his eleven page discussion of ‘Independent Evidence/Country Information’. This contained the following three paragraphs:
According to a recent 28 September 2010 DFAT report, travel in Jaghori is dangerous for all ethnic groups and Pashtuns and Hazaras are both limited in their ability to move through districts dominated by the other. Access to Jaghori has also become more difficult. There are three routes connecting Jaghori to Ghazni city. The most frequently used road passes through Nawur district, and is reportedly considered secure (information [the applicant] conveyed in some earlier parts of his own evidence). Another route through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. The third route through Qarabagh district is very insecure. The September 2010 DFAT report states that there are secure (although rough) routes from Bamiyan to Jaghori, and Behsoud to Nawur. This report supports [the applicant’s] own claims about there being a secure road to Ghazni via Nawur city.
[The applicant’s] village, I note, is in Nawur district and not Jaghori, and probably can only be reached from Ghazni city by what even he has described as the relatively more secure road from Nawur. Afghanistan province maps indicate that Nawur district edges quite close to Ghazni city. When [the applicant] is talking about the road between Nawur and Ghazni that takes three hours to traverse, he cannot be talking about a road between Ghazni and Nawur via Jaghori, as that city, south or southwest of Nawur, is more distant, is accessible through the reportedly high-risk area of Qarabagh, and would indeed add very many hours of additional traveling time to journey to or from Ghazni, making it impossible to get there in the approximately three hours he claimed it would normally take ( .aims.org.af/maps/district/ghazni/nawur.pdf,
The September 2010 DFAT Country Information Report repeats earlier observations from the same source about Nawur being “relatively stable”. This report is consistent with [the applicant’s] own evidence to me in which he described safe and productive conditions under which his family has generally been living.
The applicant’s evidence to Mr Hardy concerning his family’s occupation and his travel on the road from Nawur to Ghazni City and Kabul, was summarised by him in his report. I was taken to a transcript, but neither counsel pointed to any deficiency in Mr Hardy’s summary, and it appears to me to show an accurate appreciation of the applicant’s evidence:
[The applicant] told me his family’s business was in farming. He said he worked on the farm when there were no delivery jobs. He said the family sells its produce (apples, etc.) daily in Ghazni which is two and a half hours away by car. He said he used to do the same thing. He said the Taliban sometimes came to check what he was selling and took a percentage, which was sometimes half or more than the total daily stock. He said the Taliban do not extract percentages from Pashtun traders because all Pashtun, who he described as living in the land surrounding his local district, are Taliban. I put to [the applicant] that not all Pashtun are Taliban or, for one, it would be hard for his district not to have been taken over. He said all Hazaras are suffering.
[The applicant] told me that now he is in Australia his father is relaxed. I asked him what made his father “unrelaxed” and he said the Taliban were searching for him but would not harm his father as he was too old. He said the Taliban first looked for him at his father’s house two months before the IMR interview but did not find him. This means they first came looking for him after he left Afghanistan, and not before as suggested in other claims. He then said this was the first time the Taliban came inside his house. He said they used to come weekly before that and now visited every second day. He said they usually find just his mother in the house, and his wife. He said it was easy for the Taliban to locate his family.
[The applicant] described road links to Kabul. He described the Nawur road to Ghazni city and how that then links to a road to Kabul. He said he used to take fruit to Kabul every two weeks. He later confirmed this as a fortnightly routine that he last performed about six months before arriving on Christmas Island. I asked him what routines he used to have to go through when travelling on the road and he said he needed spare tyres, fuel and spare parts. I asked him if he carried papers and he said he did not because if the Taliban stopped him and found them they would tear them up and throw them away. He said the Taliban stopped him on every second trip to Kabul. He said that in 2009 the Taliban had found his car registration document in which his name appeared in Pashtun and “English” (i.e., Latin script) and tore it up. I asked him who issued documents in English in Afghanistan and he said his name appeared in Latin script in his driver’s licence too.
…
During the interview, I asked [the applicant] a number of questions about his family’s circumstances in Nawur. He said and elsewhere indicated that their life is normal and that they are carrying on the family business growing and delivering to markets, in his absence, the fruit of their farming.
I have noted above that Mr Hardy had doubts as to the applicant’s claims in relation to Taliban checkpoints and harassment, and characterised his claims as showing “only low-level harassment from Pashtun or Taliban in or on the way to/from Ghazni” (see Court Book p.151). He rejected entirely, the applicant’s evidence claiming a more serious encounter with the Taliban in late 2009.
In my opinion, on a fair reading of the transcript, the applicant gave very clear evidence that his family’s produce was taken daily to Ghazni City on a trip which was “two and a half hour by car”, that he used to perform this daily trip himself, and that after his departure it was still being performed by “the other people we hire in Afghanistan they are taking our fruit to the market”. He also gave clear evidence that he had also taken fruit “to Ghazni then Kabul … every fortnight…”, with his last trip being “six months before Christmas Island”.
In my opinion, no substance was shown for the submission that it was not open to Mr Hardy to find that the applicant had “regularly” travelled ‘internally’ in Afghanistan on the usual route from his village to Ghazni City, that this travel was “undeterred by the circumstances he claims to have affected him” and that, since his departure, his family had continued “to operate the business in his absence”. Read fairly, these findings are not flawed by illogicality or unreasonableness, as was submitted by counsel for the applicant based upon a, with respect, absurd interpretation of Mr Hardy’s reference to “recent travel”.
I also consider that it was clearly open to Mr Hardy to conclude that these findings and the findings made in the preceding paragraph, based upon such of the applicant’s evidence as Mr Hardy accepted, supported the conclusions reached by Mr Hardy that the applicant did not face “a real chance of Convention-related persecution in Nawur in the reasonably foreseeable future”, and that “he can continue to access Nawur district at least via Kabul in the reasonably foreseeable future”.
In my opinion, the possibility that Mr Hardy might make these adverse findings based on an assessment of the applicant’s own evidence given at interview was obvious. I do not accept that his findings addressed any new or surprising issue, so as to give rise to any obligation of procedural fairness to give specific warnings of the type considered in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. The transcript clearly shows that the applicant’s agent was aware, by the end of the interview, that Mr Hardy might disbelieve the foundations of the applicant’s claim for refugee status based on individual targeting by the Taliban arising from the ‘petrol incident’. This must also have been apparent to the applicant. It must also have been obvious that, if his account of the significant incident were disbelieved, Mr Hardy might be left only with a picture of his life in Afghanistan which did not show any history of Convention-related serious harm.
Moreover, the possibility of a consequential adverse finding was put to the applicant at the interview:
Mr HardyIt sounds to me, if this episode didn’t happen, if this hadn’t happened to you, this ambush involving the police, you would just keep living your life going to market, coming home, being delayed, some heavy talk and harassment from the Taliban, basically continuing to fit in with your family whose there working and marketing even now?
[The applicant] Yah I was there but I was suffering every time I feel danger. My life as well.
I am therefore unable to find any substance in either the ground which alleges that the adverse findings and conclusions in the challenged paragraph were not open on the applicant’s evidence, nor by the grounds which alleges that the applicant was unfairly not given notice that his evidence might be assessed in that manner.
Nor am I persuaded that any denial of procedural fairness arises by reason of Mr Hardy’s earlier reference to the DFAT September 2010 cable in the course of his account of background ‘independent evidence’.
I have in a judgment delivered at the same time as the present judgment, discussed the relevant High Court authorities concerning obligations of procedural fairness in relation to pieces of country information cited in refugee assessments (see SZQHC v Minister for Immigration & Citizenship [2011] FMCA 851). I shall not repeat that discussion here.
In short, the High Court authorities suggest that not every proposed citation of a ‘new’ piece of background information requires preceding notice to the applicant. In every case where an applicant claims not have been on notice of a ‘new’ piece of potentially relevant information which is not specifically about him nor his individual circumstances, it is necessary to analyse its contents and significance to the applicant’s refugee claims, in the light of the circumstances in which it might be addressed by the assessor and in which it, in fact, was addressed in the decision under review. A nuanced approach to assessing the importance and materiality of ‘new’ background information is needed when attempting to apply the Kioa test of ‘credible, relevant and significant’.
In the present case, Mr Hardy’s adverse findings and conclusions, that the applicant did not have a well founded fear of Convention-related serious harm if he returned to his home district and resumed his previous occupation, were, in their terms, entirely based upon the applicant’s personal circumstances as found from an assessment of his own evidence. They made no reference to any piece of general background information of any type. I have found above, that the applicant’s evidence was sufficient in law to support those conclusions.
Taking into account the nature of the findings and how they were expressed, and in the absence of any express indication of reliance on information from the DFAT cable in his ‘findings and reasons’, I am not persuaded that Mr Hardy gave any significant weight to the DFAT background advice about road conditions in Gazni province, when arriving at his adverse findings and conclusions. Nor am I persuaded that the information in the DFAT cable was intrinsically ‘decisive’ against a favourable assessment of the applicant’s refugee claims.
I accept that Mr Hardy’s references to the DFAT advice in his discussion of background general information show that he considered its contents. However, as he said in this discussion, he only cited the information to show that it “supports (the applicant’s) own claims about there being a secure road to Ghazni via Nawur city”, and that it was consistent with “(the applicant’s) own evidence to me in which he described safe and productive conditions under which his family has generally been living”. In the terms in which Mr Hardy cited this cable, it provided no more than background information consistent with the applicant’s own evidence, and did not itself perform any ‘decisive’ nor ‘significant’ role in his assessment of the applicant’s refugee status in relation to the risks faced by the applicant if he resumed his previous life in Afghanistan.
I do not consider that Mr Hardy took account of the DFAT information as information which itself “may bear [i.e. adversely] upon the claims the plaintiff made” (c.f. Plaintiff M61 at [91]). In my opinion, Mr Hardy’s report shows that, as was reasonable and understandable, he gave determinative weight to his findings based on the applicant’s own account of his past history alone (cf. Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑575).
I have considered the submissions of counsel for the applicant which criticised Mr Hardy’s statements that the applicant’s evidence showed a “secure road to Ghazni via Nawur city”, and “safe and productive conditions under which his family has generally been living”, when referring to the DFAT cable as background information. However, in my opinion these submissions did not show any material error of law. In particular, I am unpersuaded that Mr Hardy made findings at this point in his report, which were not based on probative evidence and logical grounds. As I have found above, I have concluded that similar findings expressed in Mr Hardy’s ‘findings and reasons’ were sufficiently supported by the applicant’s own evidence given at his interview. In my opinion, the presence of these statements by Mr Hardy when referring to the DFAT cable, confirms that he decided the risks faced by the applicant if he returned to his home locality purely upon an assessment of the applicant’s own evidence.
I am therefore unpersuaded that any information contained in the September 2010 DFAT cable had the characteristics of novelty and significance to Mr Hardy’s decision, which the judgments in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57 and Muin v Refugee Tribunal (2002) 190 ALR 601 suggest may give rise to obligations of procedural fairness.
I therefore do not need to conclude whether I would have found that a possibly material breach of procedural fairness occurred, notwithstanding the absence of any evidence from either the applicant or his agent as to whether the information in the DFAT cable was unknown or controversial, and how they would have wished to respond to it if it had been specifically brought to their attention. I am inclined to think that such evidence would have been necessary in the present case, since it is not self-evident that the DFAT cable contained significant information inconsistent with the applicant’s refugee claims (cf. Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298, 133 FCR 541 at [91] and [97]).
For all the above reasons, I do not consider that the applicant’s grounds 1, 2, 4, 5 and 6, are established. I am unpersuaded that the submissions of the applicant’s counsel have shown any error of law or procedural unfairness which materially flawed Mr Hardy’s report.

Mr Hardy’s alternative finding on relocation

My above conclusion means that it is unnecessary for me to examine whether Mr Hardy’s alternative finding was vitiated in the manner alleged in ground 7(a) or (b) in relation to his alternative finding on relocation, and, if it was not defective, whether that finding renders immaterial any defects in the preceding reasoning. However, my short opinions are that the applicant has not established the former, nor the Minister the latter.
In my opinion, the applicant was squarely on notice that Mr Hardy might examine the issue of his relocation to Kabul, by reason of a clear finding to the same effect in the RSA assessment (see Court Book p.93-4, and 96). I am unpersuaded, at least in the absence of any contrary evidence from the applicant’s agent, that the subsequent written submissions of the applicant’s agent made under the heading ‘relocation’ were not made as a response to the RSA finding, and in anticipation that it was an issue which might be addressed by Mr Hardy.
Moreover, it appears to me quite possible, if not probable, that issues of ‘relocation’ to Kabul in relation to Hazara Afghans from Gazni province were commonly understood by IAAAS advisors to be raised in cases such as the applicant’s. I would have needed evidence from the applicant’s agent to dispel this possibility before I would have been satisfied that Mr Hardy made findings which addressed a surprising issue and were not obviously open to him based upon well known background information.

In my opinion, the raising of the issue by the RSA assessment presented a situation which is the converse to that found in SZBEL, where a review body addressed an unexpected issue not raised by the initial decision. I am unpersuaded that the present applicant was denied a reasonable opportunity to present evidence and submissions to meet this issue.
I am also unpersuaded – once again, at least in the absence of contrary evidence - that anything in the Minister’s IMR guidelines might have misled the applicant or his agent in this respect. The fact that the applicant and his agent chose not to address the relocation issue in the course of the IMR interview, when given ample opportunities to make additional submissions, does not establish otherwise.
In relation to the Minister’s reliance on the relocation finding as justifying the denial of relief for any preceding error, I am unpersuaded that that this finding was “separate and distinct” from Mr Hardy’s preceding adverse findings in relation to the applicant’s claims (cf. Hayne J in Plaintiff M13/2011 v Minister for Immigration & Citizenship (2011) 277 ALR 667 at [28]). In particular, Mr Hardy’s unexplained reference to “his evidence about his own ability to do business (in Kabul)”, tends to suggest that the relocation finding might have been influenced by some of Mr Hardy’s previous findings about the applicant’s secure access between Kabul and the farming and business activities of the applicant’s family in Nawur district. I am not satisfied that any preceding error of law or procedural fairness (if I had found it) would have been immaterial to Mr Hardy’s ultimate conclusion, in terms of the authorities cited in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]-[59], [91].

The application for extension of time

The 35 day time limit provided under s.477(1) of the Migration Act for seeking judicial review of Mr Hardy’s report expired on 28 February 2011. The present application was not filed until 7 June 2011, and therefore requires an extension for a relatively substantial period exceeding three months. I have power to extend time only if I am satisfied that this “is necessary in the interests of the administration of justice”.
The only evidence presented to explain the applicant’s delay was provided in an affidavit from the Sydney solicitor who filed the application. He said:
3.The applicant has been kept in detention by the Minister since his arrival in Australia. He has poor English skills. I can only speak to him through an interpreter. I am acting for him pro bono.
4.At the Independent Merits Review hearing the applicant was represented by Playfair Visa & Migration Agents (Playfairs) appointed to him under the Immigration Agents Assistance and Advice Service (IAAAS) based in Sydney.
5.I am informed by Rebecca Wallace a migration agent employed by Playfairs and believe that the applicant’s appointed agents received notification of the negative recommendation on the applicant’s case Review by a letter forwarded by email dated 10 February 2011.
6.I am informed by Rebecca Wallace of Playfairs and believe that the applicant’s agent was at the Scherger Immigration Detention Centre at that time for the purpose of interviewing this applicant and other clients and departed the Centre to return to Sydney on 18 February.
7.I am informed by Rebecca Wallace of Playfairs and believe the agents were advised that they were not to discuss the outcome of the decision with the client until a formal “hand down” of the decision was undertaken by the officers of the Department of Immigration and Citizenship. Notification of the decision to the applicant in the form of a “hand down” was carried out by Department of Immigration officers on 14 February 2011.
8.I am informed by Rebecca Wallace of Playfairs and believe the appointed IAAAS migration agent met with the applicant soon after the hand down at Scherger Immigration Detention Centre to discuss the decision with him. During the meeting certain options were discussed including the possibility of judicial review. The appointed IAAAS agent informed the applicant Playfairs were not in a position to advise or assist him with a judicial review application and would, if he wished, assist him to locate someone who could do so.
9.I am informed by Rebecca Wallace of Playfairs and believe the representative of the IAAAS returned to Sydney and on 25 February I spoke to the agent about whether the case could be reviewed and legally assessed by me to decide whether an appeal lay to this Court.
10.The relevant documents were received by email by me on or about 26 February.
11.I then departed Sydney on a pre-arranged trip and did not return to my office until 9 March.
12.I reviewed the documents upon my return and then referred them to Anthony Crossland of counsel on the question of whether they merited appeal on the basis of a contravention of due process of the kind referred to in the High Court case of M61 & M69 v Commonwealth of Australia.
13.Pressure of work upon me and the need for research and further instructions has delayed the drafting of the application. Further necessary details and particulars for the assessment of the case have been delayed also by the absence of Ms Wallace from the office of Playfairs on overseas leave and difficulty of communication at places of offshore entry detention in the case of the agent Beatriz Ortiz since February 2011.
14.I have used my best endeavours to file this Application at the earliest possible time consistent with the caution I exercised in being satisfied that the Applicant had proper grounds for commencing these proceedings.
The solicitor’s oral evidence did not, in my opinion, clarify any good reason for his failure to file even a ‘holding’ application, after he had accepted instructions from the applicant’s former migration agent shortly before time expired, to “assist him with a judicial review application”. Having assumed this responsibility, the fact that the solicitor might have accepted instructions for admirable humanitarian motives, does not render the delay in filing an application necessarily excusable.
Nor does his client’s location in indeterminate immigration detention in a remote and inhospitable place. In my opinion, the unfortunate circumstances of the present applicant supports, rather than otherwise, a recognition and observance of the public interest in bringing expeditious finality to administrative decisions concerning his refugee claims, which is generally reflected in the short time limit found in s.477(1) and in other similar time limits on judicial review (cf. Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470, [2000] HCA 67 at [15]-[16]).
However, authorities in this area suggest that the failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the court or an exercise of a discretionary power to extend a time limit (see Comcare v A’Hearn (1993) 45 FCR 441 at 443). In his well known discussion of a power to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J observed at 352 that “it would be erroneous to treat the fault of the solicitors as if it were the direct default of the client”.
There is difficulty in the present case in assuming that the fault for the delay in commencing judicial review proceedings rests entirely on the solicitor, in the absence of any evidence from the applicant himself explaining difficulties in initiating judicial review or communicating with his solicitor and other helpers. I have in other cases taken into account difficulties of communication facing people in the applicant’s situation, even in the absence of evidence from an applicant (cf. Alami v Minister for Immigration [2011] FMCA 623 at [68]-[71], and SZOGU v Minister for Immigration [2011] FMCA 718 at [35]-[41]). However, the delay in the present case was longer than in those cases. Other applicants without legal representatives have been able promptly to file applications in the Sydney registry of this Court by facsimile from remote detention facilities.
Taking into account all the above matters, I am not completely satisfied that the applicant’s present delay has been satisfactorily explained, in the sense that an explanation has been given which itself renders an extension “necessary in the interests of the administration of justice”.
However, this does not necessarily mean that an extension of time should be refused, and I need to balance all other relevant considerations, including an assessment of the merits of the grounds of review.
When considering ‘the merits’ in the light of my above final conclusions on the substantive application, it is appropriate to step back, and make a notionally provisional assessment of the grounds which were relied upon. In this respect, Katzman J in Tuitaalili v Minister for Immigration & Citizenship [2011] FCA 1224 at [25], recently cited French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 85 at 98:
[t]he question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the discretion to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it.
The application before Katzman J was only six days late, and her Honour found sufficient reason to extend that time, by finding that the grounds were “not hopeless”.
In the present case, I would characterise all the applicant’s grounds as lacking substance and being weak. The strongest ground raised the natural justice contention in relation to the DFAT cable, but even that ground was not, in my opinion, strongly arguable. Moreover, there is no evidence from the applicant or his agent showing a potential importance to the applicant’s refugee claims from their not being informed of this piece of background information. It is impossible for me to identify a real prospect that, if the matter were remitted on this ground, a different outcome to the applicant’s refugee claims could result.
In my opinion, no point of general or particularly special importance arises in the present case, to point to an interest of justice from an extension of time to open up avenues of appeal (cf. Yu v Minister for Immigration & Anor [2009] FMCA 1161 [40] – [41]), assuming that this is a permissible consideration.
As well as the circumstances of the delay and the merits of the grounds, other, perhaps less significant, considerations have been pointed to in judgments of this court and superior courts (see, for example, Barnes FM in SZNZU v Minister for Immigration [2010] FMCA 197). I have taken all of those other considerations into account.
After considering all the applicant’s evidence and submissions, I have not been persuaded that it is necessary in the interests of the administration of justice to give the applicant the extension of time which he requires.
I shall therefore refuse the application for extension, and dismiss the principal application as incompetent.
It is accepted that a costs order should follow the event.

I certify that the preceding sixty‑six (66) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 30 November 2011