SZQKB v Minister for Immigration - [2011] FMCA 1000

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1000

MIGRATION – Review of decision of Independent Merits Reviewer – persecution –independent country information – where reviewer relied on independent country information to contradict applicant’s submission – where the integrity of the applicant’s evidence questioned – where independent country information not put to applicant – whether information should have been put to applicant – whether Reviewer considered reasonably foreseeable future – whether Reviewer failed to consider applicant’s particular claims – where applicant’s fear primarily of physical persecution – where Tribunal considered independent country information that covered persecution generally – whether Tribunal required to consider non-physical persecution – where Reviewer suggested that applicant take alternate route to that usually taken to travel between towns – where no claim that usual route taken for lifestyle reasons – whether recommendation required modification of lifestyle in order to avoid persecution – return of failed asylum seekers from Western Countries – where no evidence before Reviewer that returnees were targeted on ground of failed asylum seeker to Western countries – whether Reviewer found returnees only victims of generalised violence – whether Reviewer made finding that was illogical or irrational – whether failure to consider evidence that is not credible, relevant and significant constitutes jurisdictional error – procedural fairness.

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
Migration Act 1958 (Cth), s.476

M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 SZQEM v Minister for Immigration & Anor [2011] FMCA 662 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZGHS & Ors v Minister for Immigration [2007] FCA 1572 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 279 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration v Rajalingham [1999] FCA 719 S395/2002 v Minister for Immigration and Anor (2003) 216 CLR 473 Minister for Immigration v SZMDS (2010) 240 CLR 611 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration vVOAO and VOAP [2005] FCAFC 50 SZBEL v Minister for Immigration [2006] 228 CLR 152
Applicant:	SZQKB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1383 of 2011

Judgment of:

Raphael FM

Hearing date:

2 December 2011

Date of Last Submission:

2 December 2011

Delivered at:

Sydney

Delivered on:

14 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr P Reynolds

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION

The Court declares that, the 29 May 2011 recommendation of the second respondent that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees was not made in accordance with the law.
ORDER

The First Respondent shall pay the Applicant’s costs assessed in the sum of $6,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1383 of 2011

SZQKB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant was an undocumented boat arrival at Christmas Island some time prior to 5 May 2010. He claims to be a citizen of Afghanistan and Hazara of Shia Muslim religion. On 25 July 2010 he made a request for a refugee status assessment. An assessment was made by an officer of the Department who, on 20 August 2010, provided a Refugee Status Assessment Record in which the officer determined that the applicant did not meet the definition of a refugee set out in Article 1A of the 1951 Convention Relating to the Status of Refugees[1] and its 1967 Protocol[2] and was not someone to whom Australia owed protection obligations. On 3 September 2010 the applicant, through his advisors, made a request for an independent merits review of the assessor’s decision. The advisors provided information to the Reviewer on several occasions. On 11 March 2011 an email was sent to the advisors on behalf of the Reviewer providing details of additional material which may be relevant to Afghan claimants.[3] The Reviewer interviewed the applicant in the presence of his advisors and on 29 May 2011 affirmed the decision of the assessor and recommended to the Minister that the claimant not be recognised as a person to whom Australia had protection obligations under the Convention or Protocol. In M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 the High Court of Australia held that decisions of an Independent Merits Reviewer were decisions that were capable of being the subject of judicial review under the Migration Act 1958 (Cth)[4] in respect of which this court has jurisdiction pursuant to s.476 of that Act.
[1] “Convention”
[2] “Protocol”
[3] [CB 139]
[4] “Act”.
The applicant’s claims to be a person to whom Australia owed protection obligations were articulated in several documents. In the notes of his initial interview upon arrival in response to the question “Why did you leave your country of nationality” he stated:
“A:It was Taliban, they were taking people by force to the frontline fighting. I refused to go. I went and hid myself and went to Pakistan. The Taliban would not let us practice our religion. Also the Kuchi is Taliban Pashtun. They were coming on our land and grazing their herds on our lands. The Taliban came to my house and I hid. They never caught me. This was twelve years ago.” [5]
In response to the question “Do you have any reason for wishing to return to your country of nationality?” he stated:
“A:There is no safety. Taliban and government are the same. One hand they fight, the other hand out guns.”
Further questioning on this point continued as follows:
Q:What would happen if you had to return to Afghanistan.
A:I have a risk I won’t be alive, I will be killed.
[5] [CB 11]
Q:     Who would kill you.
A:    Taliban, if they see they target and kill.
Q:     Why would the Taliban kill you.
A:    Because I am a Shia. Also because I am a Hazara.
Q:     Any other reason you can’t return to Afghanistan?
A:    I have no other reason than I would be killed.”[6]
[6] [CB 19]
In a statutory declaration provided by his advisors on 25 July 2010 under the heading “Why I left my country” the applicant said:
“I left in 1998 in fear of persecution from the Taliban. The Taliban had just come to power. Talibs visited me in my village and told me to go and fight for them on the front line. I refused saying that if I go and fight my family would die of starvation. I fear that if I remained in Afghanistan I would be killed by them so I fled to Pakistan with my family.”
He also said that he deserted his land and had heard that other people were farming on it. He didn’t believe he could reclaim the land.

He feared returning to his home town because it was not safe. In response to the question “What I fear might happen if I go back to my country” he said:
“I fear I will be killed. I fear that I will have difficultly freely practising my religion in Afhganistan because Shia Muslims are harassed and mistreated by the Taliban and others. I fear I will have difficulty working because I cannot travel freely around Kabul or any other place.” [7]
In a submission attached to the request for review the applicant’s advisors stated on his behalf:
“The applicant stated that he left his country in 1998 in fear of persecution from the Taliban. The Taliban visited the applicant’s home village and started recruiting men to fight for them on the front line. The applicant refused to join the Taliban and feared if he remained in Afghanistan he will be killed by the Taliban so he left to Pakistan with his family … The applicant states that he cannot go back in Afghanistan as he is an Hazara and Shia Muslim. The Hazara people have been persecuted for hundreds of years. The applicant deserted his father’s land in Khodeti in Afghanistan and now other people are farming on it. The applicant believes he will not be able to reclaim his land … The applicant states that his town in Afghanistan is surrounded by Pashtun and Taliban and many Hazara people have been killed travelling to other neighbouring areas. Also the applicant believes he cannot go back to Kabul as he has never lived there and does not have any land or close family for support. Also the applicant states that he fears that if he goes back to Afghanistan the Taliban will think he became a Christian because he travelled to Australia and will hang him.
[7] [CB 54-55]
In the interview with the Reviewer the applicant repeated his claims.

It was noted by the Reviewer that:
“[39] … In response to a question the claimant stated that there was not anything else at the time which led him to flee Afghanistan, just the Taliban.
[40]The reviewer noted that this took place some 13 years ago when the Taliban was in power in Afghanistan and occupied and controlled Jaghori district and were actively forcibly recruiting in Jaghori district. This was no longer the situation. Jaghori was no longer controlled by the Taliban but buy Hazara parties which constituted the Hezb-e Wahdat. The claimant was asked what he thought would be his problem should he return now, when the Taliban was not controlling or recruiting in Jaghori. The claimant stated that it would be very difficult and dangerous for him to return to Anghori which (he said) is surrounding by the Taliban. The reviewer observed that although from Anghori towards Muqur district was Pashtun, in the other direction it was secure through Hazara areas to the district centre at Sang-e Mashe. The claimant acknowledges that Jaghori is under Hazara control but said that they would not guarantee safety between Pashtun areas.
[41]The claimant stated that the other problem is he returns to Jaghori is that, after he left, a Hazara neighbour had taken his land.”
In his findings and reasons the Reviewer summarised the applicant’s claims:
“[61]The claimant himself has claimed:
· Fear of persecution at the hands of the Taliban on account of ethnicity and religion
· Fear of persecution by the Taliban because, as he had travelled to Australia, they will think he has become a Christian.
[62] The claimant in his entry interview referred also to past intrusion in his area by Kuchi nomads prior to 1998 but did not subsequently refer to this as part of his prospective fears. However the issue of Kuchis was raised in the most recent (post-interview) submission in relation to Kabul.”
The Reviewer dealt with the applicant’s claims under a series of headings. The first was “Hazara Ethnicity and Shia Religion”.

He found that the applicant did not face persecution simply as a Hazara and as a Shia on the basis of the proposition that Hazaras and Shias are not generally persecuted in Afghanistan.
The Reviewer then went on to consider a claim by the applicant that he was “Prima Facie a Refugee.” The Reviewer indicated that this would appear to be a reference to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1992.[8] However, the Reviewer, relying upon the December 2010 UNHCR Eligibility Guidelines for Afghanistan concluded that this was not a case where recourse could be had to a group determination and, after noting that he was bound by the Act and in particular by s.91R requiring a Convention reason to be the essential and significant reason or reasons for persecution, turned to the specific circumstances and claims relied upon by the applicant. He dealt first with Jaghori and made reference to the independent country information indicating that the Taliban was not strong within the Jaghori district stating:
[8] [CB 44]
“[83]While the Taliban may have the capacity to strike at specific targets with a significant profile in local areas not distant from district borders (perhaps including Anghori), the reviewer is satisfied that the claimant has no such individual profile. Nor (as discussed with the claimant at interview) does the reviewer accept that the Anghori area is surrounded by Pashtuns (although they are likely present in nearby border areas).” [emphasis in original]
The Reviewer then turned to the question of access into and out of Jaghori to the provincial capital of Ghazni. The Reviewer made reference to three routes that were available: one of which was secure, another insecure and a third very insecure. The Reviewer then stated:
“[85]The reviewer is satisfied that notwithstanding the dangers of the Qarabagh route, there is a relatively safe route regularly used from Jaghori through Nawur and Jaghatu (both Hazara districts) to Ghazni city. Claimants can be expected to take a reasonable steps and sacrifice some convenience in order to avoid feared harm.”
The Reviewer also opined that he could not be satisfied that all interdiction of roads by the Taliban necessarily amounted to persecution for a Convention reason. He stated:
“[86]…It does not therefore necessarily follow that the Taliban are essentially motivated by the ethnicity of the travellers, rather than their desire to disrupt communications, extend their areas of control and put pressure on areas they do not control. As already noted, the DFAT report of February 2010 quotes local UNHCR officials as stating that “in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control.
[87]The reviewer is not satisfied that there is a real chance that in the particular circumstances the claimant would be targeted should he return to his home village or local area in the Hazara-controlled Jaghori district.”
Under the heading “Return to Afghanistan from a Western Country” the Reviewer discussed independent country information obtained from DFAT which documented instances of the death of returnees. He noted that[9]:
“…none of the specific instances of which the Reviewer is aware indicate that they were targeted on the basis of an adverse view because they had been overseas or in Australia.” [emphasis in original]
And continued:
“…In other instances where the detailed circumstances are not provided, it is likely that they were victims of the general insurgent violence in Afghanistan.”
[9] [89] [CB 202]
Under the heading “Kuchis” the Reviewer stated:
“[94]Although the claimant at his first interview referred to difficulties with Kuchis in his area prior to 1998, he did not claim that that he has a well-founded fear of harm for this reason in the future. Nor do the same circumstances appear likely to arise as the claimant says he has no land now to be trespassed upon.
[95] In the most recent submission, the adviser has on behalf of the claimant in the context of relocation to Kabul referred to Kuchi-Hazara clashes in Behsud in Nangarhar province and in Bamyam province, as well as clashes in Kabul in August 2010. No information or claims were provided in relation to any such Kuchi activity or incidents in Ghazni province, and the reviewer is aware of no reports in recent years of any incidents with Kuchi in Jaghori district.
[96]The reviewer is satisfied that the claimant does not have a well-founded fear of persecution by Kuchi nomads should he return to his home district in Jaghori.”
He then went on to consider the situation in Kabul before noting:
“[101]In any event, as the reviewer is not satisfied that the claimant faces a real chance of persecution for a Convention reason, the question of the reasonableness of relocation to Kabul does not arise.”
On 30 June 2011 the applicant filed an application for review of the Reviewer’s decision in this court. The matter proceeded on the basis of an Amended Application filed on 7 September 2011. In that Amended Application there were nine grounds. I shall set them out and deal with each in turn:
Ground 1
“1. The Reviewer failed to make the recommendation in accordance with the law by failing to consider the applicant’s claims cumulatively.
Particulars
a.The applicant claimed that he feared persecution on the basis of, inter alia:
i.his claim that persons of Hazara ethnicity and Shia religion faced a well founded fear of persecution from the Taliban, the Pashtuns and the Kuchis in the reasonably foreseeable future in Afghanistan and, in particular, in the applicant’s home region (being Jaghori district of Ghazni province);
ii.his claim that the Taliban had attempted to conscript him, but he had managed to escape from them;
iii.his claim that he would be harmed for reason of returning from the West being considered to have become a Christian.
b.The Review was obliged but failed to consider these claims cumulatively”
At hearing the applicant’s counsel indicated that this ground would be dealt with in the context of Grounds 4 and 5.
Ground 2
2.The Reviewer failed to put before the applicant material (or substance thereof) that the Reviewer knew of and considered may bear upon whether to accept the applicant’s claims.
Particulars
a.The applicant had claimed a fear of persecution by the “Kuchi people”;
ai.the applicant had claimed that the opinion of Professor Saikal expressed in his articles referred to by the Reviewer should not be given weight;
b.In rejecting the applicant’s claims in this regard the Reviewer relied upon the following articles/report:
i.“Afghanistan: Kabul Nomads search for Stability”, EurasiaNet, 23 November 2010.
ii.A TOLOnews on-line report of 14 August 2010; and
iii.The Afghanistan NGO Safety Office (ANSO), ANSO Report, issues 55 & 56, 1-15 August 2010 and 16-30 August 2010;
c.The Reviewer failed to put the above mentioned articles/report (or substance thereof) before the applicant and/or failed to put to the applicant that the said articles/reports (or substance thereof) would be relied on in respect of the Reviewer’s findings that:
i.the applicant’s evidence and claims insofar as they related to him holding a well-founded fear of persecution by Kuchi nomads was to be rejected;
ii.the evidence from various Hazara websites were ‘colourful reporting’ that should be given less weight than other evidence; and
iii.the ‘expert testimony’ of Professor Saikal was not to be rejected;
d.The Reviewer otherwise failed to put before the applicant material (or substance thereof) that the Reviewer knew of and considered may bear upon whether to accept the applicant’s claims, or otherwise failed to put to the applicant matters that were credible, significant and relevant to the Recommendation.
The essence of the applicant’s complaint is that when the Reviewer came to consider his claim on the basis of his ethnicity and religion his consideration was affected by views that he had come to on the quality of some of the country information provided by the applicant in relation to the situation in Kabul. The Reviewer relied upon the reports referred to in the particulars of the claim which the respondent accepts were not put to the applicant. The applicant says, using those reports against him in relation to the situation in Kabul, infected the Reviewer’s view about the integrity of Professor Saikal’s opinions. The information, having been used in this way, should have been put to the applicant and he should have been provided with an opportunity to address the issue that arose from it. The respondent argues that the Reviewer did not rely on this material to make the finding that the applicant did not have a real chance of persecution in his home area of Jaghori and the failure to put the substance of the Kuchi material to the applicant was not a denial of procedural fairness in circumstances where the core finding of the Reviewer was that the applicant could return to Jaghori. The respondent argues that the reasoning about Kabul could be separated because it was not part of the Reviewer’s finding about whether the applicant had a well-founded fear thus paragraph [74] of the Reviewer’s report was not infected by the unfairness of using the adverse information in respect of the general claims. In her helpful written submissions Ms Clegg, who appears for the Minister, also argues that much of the information referred to in [99],[10] from the reports that were not provided to the applicant, was information that was known to the applicant and had been referred to by his advisors. However, I don’t think that is really the point and I also think it is very hard to separate the two paragraphs. Paragraph [74][11] of the reasons read, in their entirety:
“[74]The post-interview submission of April 2011 by the claimant’s agent appears to impugn the opinions of Professor Saikal on the basis of his ethnicity, religion and imputed political opinion. This reviewer hesitates to reject expert testimony on the basis of ethnicity or religion when no specific bias or inaccuracy has been asserted or demonstrated (while noting that some of the more colourful reporting comes from various Hazara websites, as amply demonstrated in relation to the report discussed below under ‘Kuchis’, that the police/army have massacred Hazaras in Kabul). As for imputed political opinion, the reviewer notes that the overall tenor of Professor Saikal’s article is very far from uncritical of the Karzai Government, and nor does it suggest in any way that Afghanistan is safe. One might as well dismiss Professor Maley as an “independent observer” on the basis of his Vice-Presidency of refugee advocacy and services umbrella organisation, the Refugee Council of Australia (RCOA).” [emphasis added]
[10] [CB 203]
[11] [CB 200]

The point raised is not without difficulty. There are those who might say that the remark about colourful reporting was just a throwaway line that had no bearing upon the substantive decision. They would say that there is abundant independent evidence that Hazara Shia’s are not generally persecuted in Afghanistan and that the Reviewer relies heavily on this in a section which covered paragraphs 64 to 75 of his decision record. This may well be the case but the court has to look at the record as it stands and the record indicates that the Reviewer expressed doubts about some of the evidence put forward by the applicant concerning the situation for Hazara Shias generally because, after an analysis of conflicting evidence concerning alleged Kuchi persecution, he expressed a view that the information from Hazara websites relied on by the applicant was “colourful”. In doing so he relied on the specific information referred to in ground 2(b).

In SZQEM v Minister for Immigration & Anor [2011] FMCA 662 Cameron FM said:
“[30]In a passage which was quoted with approval by the High Court in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at 162 [32] it was said in Alphaone that
oIt is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material … (at 590-591)
In Minister for Immigration & Citizenship v SZGUR it was also said:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. (at 599 [9] per French CJ and Kiefel JJ, Heydon and Crennan JJ agreeing)”
In SZQEM supra Cameron FM, faced with a similar argument said at [31]:
“The Reviewer relied on the circumstances of western force deployment when assessing the weight to be given to the views of Professor Maley and Mr Ruttig concerning the position of Hazaras in the reasonably foreseeable future. In doing so he reached his decision on that question by reference to an issue which had not been raised in that context by the applicant in his claims or by the Reviewer in his conduct of the review. In such circumstances, and for more than one reason, the conclusion which the Reviewer reached on the position of Hazaras in the reasonably foreseeable future was not one obviously open on the known material. When the Reviewer decided that the deployment of western forces in the reasonably foreseeable future would determine the weight to be given to the forecasts and contentions of Professor Maley and Mr Ruttig, and thus would determine whether the applicant’s claim to fear persecution from the Taliban in the reasonably foreseeable future by reason of those matters was objectively well-founded, it became an issue which had to be identified to the applicant and which he had to be given an opportunity to address.”
I am similarly of the view that the information which led the Reviewer to come to his conclusion about the Hazara information should have been put to the applicant for comment even though the matters all arose out of a post-hearing submission. It would not have been difficult to provide the advisors with a natural justice letter. By failing to do so the Reviewer fell into jurisdictional error.
Ground 3
3.The Reviewer failed to make the recommendation in accordance with the law by misconstruing and misapplying the applicable law, or otherwise failing to ask himself the correct question.
Particulars
The Reviewer was obliged to ask himself whether the applicant faced a well founded fear of persecution now or in the reasonably foreseeable future. The Reviewer, however, only dealt with the applicant’s immediate situation upon his return to Afghanistan rather than go on to consider the applicant’s situation in the reasonably foreseeable future.
At [10][12] of the Statement of Reasons the Reviewer sets out what is accepted as the basis of the assessment of whether a person is one to whom Australia owes protection obligations:
“[10]Whether the claimant is a person to whom Australia has protection obligations as required by s.36(2) is to be assessed upon the facts as found when the assessment is made and requires a consideration of the circumstances in the reasonably foreseeable future”
[12] [CB 191]
The requirement to consider the circumstances in the reasonably foreseeable future was one identified by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 to 575; SZGHS & Ors v Minister for Immigration [2007] FCA 1572[13]; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; see also Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 279; and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-389 per Mason CJ, at 398 per Dawson J and at 407 per Toohey J. Noting the test to apply is not the same as applying it. Whilst not every Reviewer turns his mind quite so lengthily to what might occur in the reasonably foreseeable future as the Reviewer did in SZQEM supra, it is unusual not to find that form of words in the operative part of the decision.

In this case that form of words does not appear. The respondent is forced to try and persuade the court that an inference can be drawn that the Reviewer looked to the future from other phrases within the statement of reasons. At [62][14] under the heading “Claims” the Reviewer notes:
“The claimant in his entry interview referred also to past intrusion in his area by Kuchi Nomads prior to 1998 but did not subsequently refer to this as part of his prospective fears.”
At [94][15] the Reviewer notes:
“Although the claimant at his first interview referred to difficulties with the Kuchis in his area prior to 1998 he did not claim that he has a well founded fear of harm for this reason in the future. Nor do the same circumstances appear likely to arise as the claimant says he has no land now to be trespassed upon.”
[13] “SZQGS”
[14] [CB 197]
[15] [CB 203]
These two extracts do seem to indicate that the Reviewer was having regard to the future but against them the applicants put the following. At [71][16] the Reviewer says:
[16] [CB 199]
“The Reviewer is not satisfied that the material consulted provides independent corroboration of the claims that the Taliban (or Pashtuns generally) now specifically target Hazara Shias on a systematic and discriminatory basis.” [Emphasis added.]
At [72][17] he says:
“The following is also relevant to any consideration of the present general situation of Hazaras in Afghanistan.”
And at [75][18] the Reviewer’s conclusive finding is:
“The Reviewer finds that the claimant has not faced persecution simply as an Hazara and Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.”
The applicant argues that in the section headed “The claimant in Jaghori” all of the evidence discussed relates to the present and the Reviewer concludes at [87][19]:
“The Reviewer is not satisfied that there is a real chance that in the particular circumstances the claimant would be targeted should he return to his home village or local area in the Hazara controlled Jaghori district.”
[17] [CB 199]
[18] [CB 200]
[19] [CB 202]
In SZGHS Allsop J stated at [2] and [3]:
“[2] The appeal is a difficult one. I differ from the Federal Magistrate not without hesitation. My disagreement with her Honour’s reasons rests not on the statement, or perceived error in expression, of principle, but rather in my assessment of what the reasons of the Tribunal reveal in the context of the facts and the material put before it. In my view, the reasons of the Tribunal demonstrate a failure to assess the first appellant’s claims to have a well-founded fear of persecution by reference to his claims, to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future.
[3] The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).”
The ratio of his Honour’s decision can be found at [28] where, after having examined some of the findings of the Tribunal and criticising it for drawing conclusions based on probabilities rather than an examination of the matter in the manner described in Minister for Immigration v Rajalingham [1999] FCA 719, he opined:
“[28] Critically, however, looking at all of the reasons of the Tribunal, there was a failure to address the reasonably foreseeable future in the context of the claims made. The dealing with the three incidents was based on immediate facts – no elections looming and the character of the present government. This reflected a focus on immediacy which was no real assessment of whether in the future, with elections looming, with the first appellant campaigning for the FLP, he would not face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him. The Tribunal’s paragraph dealing with the three incidents was not just a body of introductory remarks; they were the encapsulated rejection of one body of the appellants’ claims. The Tribunal failed, it seems to me, to deal with the fears of the first appellant based on the beating in April/May 1999 by reference to the reasonably foreseeable future and on the assumption that the first appellant will continue to support the FLP.”
It seems to me that in the instant case the Reviewer proceeded upon the basis that as the applicant made no specific claims about what might occur in the reasonably foreseeable future (in contrast to the way the matter was dealt with on the applicant’s behalf in SZQEM) there was no need for him to make reference to it. He may well have thought that the circumstances for this particular applicant were safe and would remain safe. But he does not say so in terms and there exists a doubt as to whether the fact that they would remain so was considered. The reference to the applicant’s claims about the Kuchis being a claim for the future does not mean that it was considered as such. The Reviewer dismissed the claim about the Kuchis because it referred to the situation in Kabul, to which the Reviewer did not require the applicant to go. Again the matter is not free from controversy but, to my mind, the better finding to make is that the Tribunal did not consider the reasonably foreseeable future and thus fell into jurisdictional error by not considering the applicant’s case according to law.
The fourth ground raised by the applicant is:
“Ground 4
The Reviewer failed to make the recommendation in accordance with the law by failing to make findings as to, and address, the applicant’s claims (as expressly put by the applicant or squarely raised by the material before the Reviewer.
Particulars
The Reviewer failed to make any findings at all as to the applicant’s claims concerning the Taliban’s attempt to conscript him, his subsequent escape from them and the significance of this as to whether he faced a well founded fear of persecution in the reasonably foreseeable future upon his return. Instead the Reviewer only dealt with the more general claim that the applicant held a well founded fear of persecution as a Hazara Shia in Jaghori.”
The Reviewer questioned the applicant about the incident which he noted had taken place some thirteen years prior. At [T16] the following exchange takes place:
“JB:Okay. So ah, they were recruiting generally rather looking for particular people. They were going to each house wanting someone to go with them?
INT:I’m not sure but they specifically came to me and no one told me that’s what they are doing.
JB:Was there any other particular reason at the time why you um, ah fled Afghanistan? Was there anything else that caused you to fear that you might be persecuted? To flee the Taliban
INT:No just the Taliban persecution.”
And continued at [T17]:
“JB:So what is the, what is it in particular that you fear might happen and why, if you now go back to Afghanistan in general or to Jaghori in particular?
INT:Um, I have two enemies to return back to my area. I have my land, my property has been taken from me and my other enemy is Taliban.
JB:When you abandoned your farm and you left in 1998 other Hazaras in the village took over your land?
INT:My neighbour took my, over my land.
JB:Yes okay. Well I’m not sure that ah, that land issue comes within the refugee definition that we are discussing. My feeling is that is probably something different but obviously the Taliban is an issue that has to be addressed in terms of the Refugees Convention.”
At the end of the interview, at [T23], the Reviewer stated:
“JB:Well thank you very much for your evidence it has been helpful and ah, and ah, I have no concerns about the truthfulness of anything you have said. I accept what you say about your experiences before you left Afghanistan in 1998.”
The respondent argues that these comments make it clear that the Reviewer considered some individual profile for the applicant and rejected it even though he accepted the truth of what occurred in 1998. I think that is the logical reading of the transcript and paragraph [83][20] of the statement of reasons taking into account all the submissions made by the applicant, which are heavily weighted to the generic. I do not believe that the Reviewer fell into jurisdictional error in the manner suggested by the applicant.
[20] [CB 201]
Ground 5 is:
“Ground 5
The Reviewer failed to make the recommendation in accordance with the law by misconstruing and misapplying the applicable law, or otherwise failing to ask himself the correct question.
Particulars
a.The Reviewer found that, on the basis of the information that it accepted, Hazara Shias in Afghanistan faced a degree of societal discrimination (Recommendation [69]). Further, the information which it accepted included statements to the effect that the discrimination faced by Hazaras and Shias in Afghanistan extended to extortion through illegal taxation, forced recruitment and forced labour, physical abuse and detention (US Department of State, 2010 Human Rights Report).
b.Discrimination is capable of amounting to persecution as defined by section 91R of the Migration Act 1958 (Cth) (particularly the type of discrimination referred to in the said US Department of State report, which the Reviewer accepted). The Reviewer, however, failed to ask himself whether the said discrimination which it accepted Hazara Shias faced amounted to persecution.”
The argument here put is that the Tribunal confined itself to physical persecution and did not give any or any adequate consideration to the other matters referred to in s.91R(2) of the Act which relevantly states:
“Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The applicant notes that in his statutory declaration found at [CB 55]:
“I fear I will have difficulty working because I cannot travel freely around Kabul or any other place.”
And in the US Department of State 2010 Human Rights Report on Afghanistan submitted by the applicant’s advisors there is found at pages 28 and 29 (pages 354 and 355 of Exhibit FV1) the following:
“Social discrimination against Shia Hazaras continued along class, race and religious lines. Ethnic Hazaras reported occasionally being asked to pay additional bribes at border crossings where Pashtuns were allowed to pass freely … The UNHCR reported that Hindus, Siks and Shia Muslims, particularly those from the Hazara Ethnic Group faced official obstacles and discrimination by the Sunni Muslim majority.
Discrimination against Hazaras and other Shias continued in certain areas in the form of extortion of money through illegal taxation, forced recruitment, forced labour, physical abuse and detention.”
The respondent argues that there was a degree of societal discrimination accepted by the Reviewer at [69][21]:
“[69]Although absence of evidence does not necessarily constitute evidence of absence, it is reasonable to draw an appropriate inference from the fact that authoritative independent country reports dealing with persecution in Afghanistan fail to specifically identify Hazaras and Shias in Afghanistan as groups generally subjected to persecution by reason of their ethnicity and religion, although they do note a degree of societal discrimination (UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010; Amnesty International Report 2010, The State of the World’s Human Rights; US Department of State, 2009 and 2010 Country reports on Human Rights Practices: Afghanistan, 11 March 2010 and 8 April 2011; and U.S. Department of State, International Religious Freedom Report 2010: Afghanistan, 17 November 2010).It is highly implausible that all three bodies, approaching their task no doubt from varying perspectives and utilising a range of sources, should all fail to note such persecution if it were as generally pervasive as claimed.”
The Reviewer also notes at [9][22] in his template section on relevant law that ss.91R to 91U qualify some aspects of Article 1 of the Convention for the purposes of the application of the Act and the Regulations to a particular person. In my view, where an applicant has made so little reference to matters other than physical persecution and where the Reviewer has had regard to a large body of independent country information that covers the field it would not be necessary for him to make specific reference to other matters unless he is dealing with a specific claim. The nearest the applicant gets to making a claim about inability to work relates to his problems in travelling around Jaghori. Those problems were examined in detail by the Reviewer, who came to the conclusion that the situation within Jaghori and the surrounding area was safe: see [81–87][23]. I do not believe that the Reviewer fell into jurisdictional error as pleaded by the applicant in this regard.
[21] [CB 199]
[22] [CB 190]
[23] [CB 201-202]

Ground 6 is:
“Ground 6
The Reviewer failed to make the recommendation in accordance with the law by misconstruing the applicable law.
Particulars
The Reviewer stated that claimants can be expected to take reasonable steps and sacrifice some convenience in order to avoid feared harm. This demonstrates a misconstruction of the applicable law.”
This claim, which prays in aid the decision of the High Court in S395/2002 v Minister for Immigration and Anor (2003) 216 CLR 473[24], arises out of the Reviewer’s decision at [84] and [85][25]. In my view the ratio of S395 is that an applicant should not be required to modify his lifestyle in order to be safe (or by modifying his lifestyle no longer have a well-founded fear of persecution). Taking a safer route from one town to another in circumstances where no claim is made that the more dangerous route would normally be taken for lifestyle reasons does not constitute modification of lifestyle. It constitutes a sensible suggestion. The lifestyle of the applicant is to drive his car from one town to another, that can still be done. This ground cannot succeed.
[24] “S395”
[25] [CB 201-202]
Ground 7 is:
“Ground 7
The Reviewer failed to make the recommendation in accordance with the law by making a finding in the absence of evidence, or making a finding that was otherwise illogical or irrational so as to amount to an error of law.
Particulars
a.The Reviewer at [89] of his recommendation found that in instances where returnees from Australia or other Western countries to Afghanistan were killed, and detailed circumstances of their deaths were known, it was likely that they were victims of the general insurgent violence in Afghanistan.
b.It was not open to the Tribunal to make this finding. In the absence of any evidence as to the reason for their deaths, there was no basis upon which the reviewer could find that it was likely that they were killed because they were victims of the general insurgent violence in Afghanistan and therefore discount the significance of their deaths in the assessment of the applicant’s claims.
The relevant paragraph in the findings and reasons is set out in full below:
“[89]The claim that returnees are suspect and targeted because they have returned from Australia or other Western countries to Afghanistan is unsupported by authoritative independent evidence. The Australian Embassy in Kabul has advised (DFAT, Afghanistan/Pakistan: The Hazara, AFG10736, 28 September, 2010), “interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west.” There are documented instances of the deaths of returnees but none of the specific instances of which the reviewer is aware indicate that they were targeted on the basis of an adverse view because they had been overseas or in Australia. In most particular instances, reports suggest that they were targeted in relation to the specific matters which led them to flee Afghanistan in the first place (for example, the Age, The asylum seeker we sent home to his death, 3 April 2009, at In other instances where the detailed circumstances are not provided, it is likely that they were victims of the general insurgent violence in Afghanistan. Nor do these reports suggest that people were harmed because they were believed to be Christians just because they had been in the West.” [emphasis in original]
The applicant argues that there was no evidence upon which the Reviewer was entitled to make this finding or, put another way, in the absence of such evidence the making of the finding was illogical and irrational: Minister for Immigration v SZMDS (2010) 240 CLR 611 at [121-131] per Crennan and Bell JJ; Gummow ACJ and Keifel J at

[37 - 42]. The respondent does not suggest that there is particular evidence which would have allowed the Reviewer to make a finding but points out that no finding has really been made. The words used are “it is likely that”. The Minister also argues firstly, that the remark constitutes an inference that the Reviewer was entitled to draw from the lack of reference in the reports to people being targeted just because of their return from Western countries so that the possibility that they were victims of general insurgent violence was quite reasonable. Secondly, the Minister says that the finding was not critical to the Reviewer’s ultimate finding that there was no credible evidence to satisfy him that the returnees were targeted for reason of their return from Western countries. That was the issue. The Reviewer found no evidence to support it. He was not prepared to make an inference that in undocumented cases of violence this was the reason. In my view this is a perfectly legitimate exercise of the Reviewer’s decision making responsibilities. I do not believe that he fell into jurisdictional error in the way suggested by the applicant.
Ground 8 is:
“Ground 8
The Reviewer failed to make the recommendation in accordance with the law by making a finding in the absence of evidence or otherwise failing to take into account a relevant consideration.
Particulars
a.The Reviewer at [95] of his recommendation concluded that no information or claims were provided in relation to any Kuchi activity or incidents in the Ghazni province, and it was aware of no reports in recent years of any incidents with the Kuchi in the Jaghori district. On this basis it was satisfied that the applicant did not have a well founded fear of persecution by Kuchi nomads should the applicant return to his home district in Jaghori.
b.The information before the Reviewer, including that accepted by him, however, stated that the confrontation between the Kuchi and Hazara communities was recurring, although temporarily resolved, and that clashes between the Hazara and Kuchi groups were a perennial problem in Central Afghanistan (including in Ghazni). The Reviewer failed to consider this information in respect of the finding referred to in sub-paragraph (a) or the finding referred to in sub-paragraph (a) was not open to it in view of this information.”
The relevant finding is at [95] [26]:
[26] [CB 203]
“[95]In the most recent submission, the adviser has on behalf of the claimant in the context of relocation to Kabul referred to Kuchi-Hazara clashes in Behsud in Nangarhar province and in Bamyan province, as well as clashes in Kabul in August 2010. No information or claims were provided in relation to any Kuchi activity or incidents in Ghazni province, and the reviewer is aware of no reports in recent years of any incidents with Kuchi in Jaghori district.”
The applicant points to the fact that although the Reviewer says he is not aware of reports in recent years of any incidents with Kuchi in the Jaghori district, evidence of such activity was before him in two documents. The first in the ASNO Report found at page 8 of the Exhibit to FV1 which is referred to by the Reviewer as one of the reports he took into account at [99][27]. The report itself says relevantly:
“Clashes between Hazara and Kuchi groups are a perennial problem in central Afghanistan (Wardak, Logar, Ghazni). Of importance, similar ethnically-tuned conflict lines may be exploited by political entities during the upcoming parliamentary elections; however, no information currently indicates that Hazara-Kuchi clashes should re-emerge in the near future in Kabul City.”
That reference is under the heading “Kabul”. There is a separate heading at page 23 of the Exhibit on Ghazni. That makes no reference to conflict between Hazaras and Kuchi groups nor does any reference to these conflicts appear in the second ANSO Report found at page 43 of the Exhibit. The second document in which it is said that there is reference to these clashes is the DFAT Report found at [CB 141] that is referred to in the natural justice letter found at [CB 139]. Paragraphs [4] and [8] of that report read:
“[4]UNHCR said there was no evidence of a campaign by the insurgency to target Hazaras. There were anomalous cases, such as in Ghazni (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues: see para 8) but in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control.
[8]The primary incidents of violence in Hazara communities over recent years had been with the Kuchis – a Pashtun nomadic minority – in Hazara-dominated areas, for example in Bamiyan and Wardak provinces in 2008. These sorts of clashes, however, generally related to disputes over land and access to natural resources.”
Assuming that the applicant cannot be accused of requiring the court to look at the statement of reasons with an eye attuned to the ascertainment of error, if one adopts the same detailed consideration of the documentation that the applicant has then one can say that the ANSO Reports do not provide a reason for the clashes referred to so that one could accept the reason given in the DFAT Report that they relate to disputes over land and access to natural resources. The Reviewer specifically excludes such clashes from his consideration of the applicant’s circumstances because the applicant admits that he has no land any more. His land was not taken by the Kuchis. It was taken by other Hazaras. The Reviewer also notes that the applicant provided no information or claims in relation to Kuchi activities in the Ghazni province. If the applicant was seriously intending to satisfy the Reviewer that he had a well-founded fear of persecution from the Kuchis should he return then he was obligated to bring some evidence to bear Abebe v Commonwealth (1999) 197 CLR 510.[28]
[27] [CB 203]
[28] “Abebe” at [187].
The applicant relies on what fell from the Full Bench, Wilcox, French and Finkelstein JJ in Minister for Immigration vVOAO and VOAP [2005] FCAFC 50[29] where the Refugee Review Tribunal noted certain country information and:
[29] “VOAO”
“Remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan”
Of this statement their Honours said at [10]:
“They say this statement, although accurate in relation to the 2001 edition of the Report was simply wrong, as applied to the 2002 edition. That edition, although generally reassuring about the treatment of Jews in Kyrghyzstan, contains the following statement:
‘In March 2002, members of the country’s Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loudspeaker at a mosque in central Bishkek. According to the Israeli Embassy in Almaty, the Government is investigating.’
“[11] It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement. Whether or not the reported event occurred, the cited passage was certainly a mention of an event that, if it happened, was supportive of the male respondent’s claimed fear of persecution on account of his Jewishness. Moreover, if it happened, it was indicative of an attitude that would support that claim.
[12] The passage set out in para 10 above did not appear in the 2001 edition of the Report. This may explain why the Tribunal member failed to have regard to it when preparing his reasons for decision. Whatever the reason for the omission, it was incorrect for the Tribunal to make the statement that it did.
[13] The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error. That means that Walters FM was correct in granting prerogative relief.”
There are a number of similarities between the circumstances in VOAO and the instant case. It would seem, firstly, that the general claim made by the applicant of persecutory anti-Semitism was not his main claim, as the applicant’s here in respect of the Kuchis was not. The country information relied upon to found the jurisdictional error could not be said to be much more specific than the country information contained in the ANSO Report and the DFAT document. The difference between the two cases is that, whilst I am prepared to accept that the Reviewer failed to take into account relevant information when he made the statement, the evidence that he should have considered went directly to his own ground of excluding this claim. That was the fact that the clashes arose over land or associated problems and the applicant had no land. The evidence which the Reviewer should have had regard to was not evidence that what was credible, relevant and significant to the applicant’s claim and in those circumstances no jurisdictional error could be found.
Ground 9 is:
“Ground 9
The Reviewer failed to make the recommendation in accordance with the law by failing to accord procedural fairness to the applicant.
a.The officer of the Minister’s department who assessed the applicant’s claims (“Officer”), accepted country information before him to the effect that, whilst there was no evidence of a campaign by the insurgency to target Hazaras, the situation in Ghazni was an exception (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues ) – CB 83.
b. The Reviewer departed from this finding and held that no information or claims were provided in relation to any Kuchi activity or incidents in Ghazni province and that it was not aware of any reports in recent years of any incident with the Kuchi in the Jaghori district (Recommendation, [95]) without:
i. informing the applicant that the Reviewer might depart from the Officer’s acceptance of the relevant country information; and
ii. informing the applicant that these were issues arising in his interview.”
The applicant’s argument in relation to this ground proceeds on the basis that it is of the type identified by the High Court in SZBEL v Minister for Immigration [2006] 228 CLR 152 at [35] and [43] where it was held that an applicant was entitled to assume, in the absence of any indications to the contrary, that the Tribunal did not dispute findings favourable to the applicant made by the delegate. Here, the assessor referring to the DFAT 4.14 document previously discussed said:
“Comments from these sources include:
“UNHCR said there was no evidence of a campaign by the insurgency to target Hazaras. There were anomalous cases, such as in Ghazni (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues) but in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control. The Hazaras were experiencing a relative “golden age” in light of their tragic past.”
“UNAMA had not received reporting of Hazaras specifically being targeted or discriminated against in the current environment. The primary incidents of violence in Hazara communities over recent years had been with the Kuchis – a Pashtun nomadic minority – in Hazara-dominated areas, for example in Bamiyan and Wardak provinces in 2008. These sorts of clashes, however, generally related to disputes over land and access to natural resources.”
It seems to me that this ground is merely another way of stating Ground 8. The court notes with some concern the increasing popularity of this form of pleading. To my mind, categorising the same factual situation with different forms of jurisdictional error indicates an uncertainty in those pleading as to what their case really is. It is symptomatic of the fear that one gathers exists amongst advocates in these complex cases of failing to cover every possibility. This in turn means a requirement for more time to be spent in court, more time to be spent on original judgments and more time to be spent at the inevitable appeals. To return to the claim itself, it is my view that if it cannot succeed under one of the earlier points it cannot succeed under this one. The factual situation is that the country information only pointed to clashes relating to land. That excluded the applicant.
I have found that the Reviewer did fall into jurisdictional error in the manner in which he reached his decision in this case, although not in all the circumstances pleaded by the applicant. It has not been suggested to me that there was any reason why I should exercise my discretion not to grant the declaratory relief sought and, so, I will make Order 1 sought by the applicant and I will order that the respondent pays the applicant’s costs assessed in the sum of $6,250.00.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 14 December 2011