SZQKC v Minister for Immigration - [2011] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKC v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 848

MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegations that the Reviewer failed to put the applicant on notice of matters material to her recommendation – ignored material relevant to the making of her recommendation, failed to consider all of the applicant’s claims – misunderstood the correct test – failed to take a relevant consideration into account and made a finding for which there was no evidence.

Migration Act 1958, ss.5, 36, 46A, 91R, 195A

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133
Kioa v West (1985) 159 CLR 550
Abebe v Commonwealth (1999) 197 CLR 510
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88
Smith v New South Wales Bar Association (1992) 176 CLR 256
Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Siaw v Minister for Immigration & Immigration & Multicultural Affairs [2001] FCA 953
SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652
SZQGI v Minister for Immigration & Citizenship [2011] FMCA 715
SZQER v Minister for Immigration & Citizenship [2011] FMCA 738
SZQGU v Minister for Immigration & Citizenship [2011] FMCA 718
SZQGV v Minister for Immigration & Citizenship [2011] FMCA 743
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant:

SZQKC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

KERRY-ANNE HARTMAN, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1395 of 2011

Judgment of:

Cameron FM

Hearing date:

24 October 2011

Date of Last Submission:

24 October 2011

Delivered at:

Sydney

Delivered on:

4 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr P. Bodisco

Counsel for the First Respondent:

Mr D. Godwin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1395 of 2011

SZQKC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY-ANNE HARTMAN, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Afghanistan who arrived by boat at Christmas Island on 11 January 2010. On 13 March 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). He is currently in immigration detention and, it may be assumed, has been so since he landed at Christmas Island. On 3 May 2010 an officer in the department administered by the first respondent Minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 11 May 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. Notwithstanding what appears in his amended application, at the hearing it was made clear that he seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from acting on it.

He also seeks a writ of mandamus but it can be said at this point that such relief is not available in proceedings such as these: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 151 [99].
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.

Background facts

The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3-11 of those reasons. Relevant factual allegations are summarised below.

Entry interview

The applicant made the following claims at his entry interview on 5 February 2010:
a)he was born in a village in Malistan in Ghazni province, Afghanistan, but lived in Pakistan from 2004 to 2009;
b)he operated a hire car service in Afghanistan using his own vehicle;
c)one day he was taking passengers to Ghazni, accompanied by his brother, when he was stopped by the Taliban. Some of the passengers might have been government workers. They were detained for two nights but then escaped, although his brother was killed during the incident; and
d)he did not want to return to Afghanistan because he was a Hazara Shia.

RSA application

The applicant expanded on his claims in a written statement submitted in support of his application for an RSA. He claimed as follows:
a)the incident with the Taliban occurred in 2004. In addition to his brother, he was carrying three passengers at the time, one of whom could have been a member of the government. They were detained because the Taliban wanted to investigate this person;
b)during his detention the Taliban beat him and burned him with boiling water. They spoke in Pashtu so he could not understand them but he knew that they wanted to kill him because he was a Shia and a Hazara;
c)they managed to escape on the third night. The Taliban started shooting at them about 20 or 25 minutes later (presumably after discovering that they had escaped), killing his brother and one of the passengers. The Taliban assumed that the applicant had also been killed as he dropped to the ground when the Taliban started shooting;
d)after his escape, he took his family to his father-in-law’s house and then went to Pakistan. The following night, the Taliban burnt down his house as a lesson to others; and
e)his son went missing in December 2008 while they were living in Pakistan. He believed that his son had been taken by the Taliban.

Proceedings before the first independent merits reviewer

The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. There was a previous recommendation made on 15 September 2010.
In his interview before the first independent merits reviewer on 9 August 2010, the applicant also claimed as follows:
a)one of his passengers was carrying a government card at the time of the incident in 2004;
b)his house was burnt down as an example to others to show what would happen to those who helped the government;
c)the Taliban had registered his name on a “list” as his wife had received phone calls in Pakistan from people trying to find out where they lived; and
d)the Taliban want to harm him for helping the government.

Proceedings before the Reviewer

The applicant was interviewed by his migration agent on 26 January 2011. The applicant’s migration agent subsequently submitted a record of that interview to the Reviewer. In it, the applicant made the following additional claims:
a)he had an affair with a woman whilst living in Afghanistan. She was married to a member of the Gulbuddin party who, at the time of the affair, was out of the country;
b)he moved to Pakistan (in 2004) and later learned that she had become pregnant as a result of the affair. The locals questioned her about the pregnancy and she admitted that the applicant was the father. When her husband returned to the village, he killed his wife as well as the child and then moved to Ghazni where he started working with the Taliban;
c)he spoke to his wife on 20 December 2010. She told him that the woman’s husband, with the assistance of the Taliban, came to his brothers’ house in Malistan to look for him. They attacked his two brothers, killing one of them. They also killed one of his brothers-in-law. This occurred “25 days before”; and
d)he believed that these people were responsible for the kidnapping of his son in Pakistan.
The applicant was interviewed by the Reviewer on 18 March 2011 at which point he made the following additional claims:
a)he did not understand what the Taliban were saying because they spoke in Pashtu. However, he later said that the Taliban had accused him of being a traitor for assisting the government. They also told him that Hazaras were “infidels” who worked for the government and assisted foreigners;
b)he and the others were confined by the Taliban in a ruined house “like you see in the movies”. They were left unguarded and were tied up but one of the passengers was able to cut his ropes using some stones nearby. He untied the rest of them and they ran away;
c)the Taliban thought that they had killed him when he dropped to the ground, although they did not check his body;
d)nothing happened to him in Pakistan because he covered his eyes with glasses so as not to be recognised. He also went to work early and came home late; and
e)he had not previously mentioned the affair because it was a shameful thing to talk about. Also, in Muslim countries adultery leads to execution and he did not know the laws in Australia.

Reviewer’s findings and reasons

After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the relevant criterion for the grant of a protection visa set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer did not accept that the applicant’s ethnicity and religion by themselves meant that he faced a real chance of serious harm amounting to persecution by the Taliban. In reaching this conclusion the Reviewer placed significant weight on the following sources which were summarised in a 21 February 2010 Department of Foreign Affairs & Trade (“DFAT”) report:
a)advice from the United Nations High Commission for Refugees (“UNHCR”) in Afghanistan noting that Hazara migration patterns were “out of synch” with levels of threat and more in keeping with economic imperatives associated with labour migration. The UNHCR also noted that while the security situation in Afghanistan was fluid, Hazaras were not currently being persecuted on any consistent basis;
b)advice from the United Nations Assistance Mission in Afghanistan stating that it had not received any reports of Hazaras being specifically targeted or discriminated against;
c)latest reports from the US Department of State and Human Rights Watch, neither of which identified Hazaras as being subject to persecution whether by the government or by non-state actors; and
d)a December 2010 report from the UNHCR which did not identify Hazara Shias as being in need of international protection for reasons of their ethnicity and religion alone.
Given the information contained in the 21 February 2010 DFAT report, the Reviewer accepted that report’s advice to the effect that Hazaras did not live in fear of systemic persecution as they did under Taliban rule and were not being persecuted on any consistent basis.
The Reviewer found that the applicant’s story underwent significant changes and developments over the course of the review process, for instance:
a)he claimed in his entry interview and in his RSA statement that one or some of his passengers may have been working for the government. However, after his negative RSA assessment, the applicant developed his story about one of the passengers, claiming that he or she had been carrying a government ID card at the time of the incident. In the Reviewer’s opinion, the applicant would not have forgotten (as he had claimed) such a central part of his story; and
b)the applicant significantly developed his claims about the Taliban’s interest in him. In his RSA statement the applicant claimed that the Taliban wanted to kill him because he was a Hazara Shia. He claimed that after he escaped, the Taliban came to his village and burnt his house down as a lesson to others. He then said, before the first independent merits reviewer, that he had been placed on a “list” and that the Taliban wanted to kill him because they believed that he had helped the government. However, after his negative recommendation the applicant introduced an entirely new claim: he said that the Taliban were also interested in him because he had had an affair with the wife of a Taliban commander. The Reviewer noted in this connection that the applicant had had numerous opportunities to make this claim earlier. In her view, and given its significance, the applicant’s delay in making this claim indicated that it had been fabricated in order to strengthen the applicant’s chances of obtaining refugee status.
Given the significant developments in the applicant’s story over the course of his refugee status determination, the Reviewer formed the view that the applicant was prepared to provide whatever evidence he thought necessary in order to obtain a favourable outcome. Consequently, she found that he had not provided a truthful account of his experiences and activities in Afghanistan.
The Reviewer’s finding that the applicant was not a witness of truth was also based on the following:
a)he claimed that he could not understand the Taliban because they spoke in Pashtu yet provided detailed evidence about what they had allegedly said to him;
b)the ease with which he had escaped (i.e. when the Taliban assumed that he had been killed without checking his body) was not consistent with his claims concerning the Taliban’s ongoing interest in him (i.e. that they later came to his village and then to Pakistan to try to find him). The Reviewer found the story of the applicant’s escape implausible and formed the impression that he had been recalling something which he had seen in a movie rather than recounting something which he had experienced;
c)his claims about the Taliban’s presence and their activities in Malistan were not consistent with country information which indicated that the population of Malistan was 100% Hazara and remained out of reach of Taliban influence and control due to the military and political power of Hizbi Wahdat (Khalili) Nasr;
d)according to the applicant’s claims, the Taliban waited five years after his departure from Afghanistan before going to his village in December 2010 to look for him. The Reviewer did not consider this claim plausible;
e)the applicant claimed that the Taliban continued to look for him in Pakistan but were unable to find him because he wore glasses, went to work early and came home late. In the Reviewer’s opinion, this aspect of the applicant’s claim was also implausible;
f)in his RSA statement the applicant claimed that the incident with the Taliban occurred in 2004. However, he was unable say in subsequent interviews when this incident had allegedly occurred; and
g)when questioned by the Reviewer, his evidence about the alleged affair was vague and lacking in detail.
The Reviewer was not satisfied that, because he was a Hazara Shia, the applicant would face a real chance of serious harm amounting to persecution if he returned to his village in Malistan in Ghazni province. She found in this connection that:
a)Malistan was entirely populated by Hazaras;
b)Malistan remained out of reach of Taliban control due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction;
c)there were no reported clashes between the Taliban and the Hizb-I Wahdat Khalili/Nasr faction and no reports of Taliban attacks in Malistan;
d)Malistan was safe and relatively stable compared to Pashtun districts in Ghazni;
e)there was at least one secure route in and out of Malistan; and
f)the applicant would have access to traditional family and community structures in Malistan to support him.

Finally, the Reviewer did not accept that the applicant faced a real chance of persecution in Afghanistan as a failed asylum seeker as there was no credible evidence before her to support this assertion.

Proceedings in this Court

The grounds of the amended application were pleaded as follows:
1.That the IMR did deny the applicant procedural fairness.
2.That the IMR did ignore relevant material and/or failed to consider all substantial claims and information put forward by the applicant.
3.That the IMR, in finding that the claimant does not face a real chance of persecution if he returns to Ghazni province because he is Hazara Shia because “Jaghori remains out of reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/Nasr factions” the second respondent fundamentally misunderstood the correct test to be applied under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (“the Refugees Convention”) and the Migration Act 1958 (Cth) (“the Act”).
4.That the IMR, in finding that the claimant does not face a real chance of persecution if he returns to Ghazni province because he is Hazara Shia because “Jaghori remains out of reach of Taliban control due to the military and political power of Hezb-I Wahdat Khalili/Nasr factions” the second respondent failed to take a relevant consideration into account.
5.The second respondent’s recommendation was not made in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection in the Jaghori region.
6.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.

Ground 1 – denial of procedural fairness

The allegation that the Reviewer denied the applicant procedural fairness was particularised by reference to a number of matters. Those were:
a.The IMR did place “significant weight on the advice from a range of organisations summarised in the DFAT Report of 21 February 2010” without providing the material to the applicant or giving him an opportunity to respond.
b.The IMR did reject evidence that the applicant was “currently receiving counselling and medication for his post traumatic stress disorder”, as a result of having been tortured by the Taliban, without placing the applicant on notice of her intention to do so or to give him an opportunity to respond or to lead further evidence on that issue.
c. That the IMR:
i.did reject the applicant’s explanation regarding his omission to disclose his affair with the wife of a Taliban commander because it was shameful for him to talk about it and that he was unaware adultery was not a criminal offence;
ii.held that the applicant’s omission to disclose his affair with the wife of a Taliban commander was such a significant claim that his delay in making it indicates that he has fabricated his claim to refugee status;
iii.form the impression from the claimant’s evidence “that he was recalling something he had seen in a movie rather than recounting something he had experienced”;
iv.make the finding that the claimant’s ease of escape after his kidnapping by the Taliban was “not consistent with his claims as to the Taliban’s ongoing interest in him”;
v.make the finding that it was implausible that he was on the Taliban list “and five years after he left Afghanistan they killed his brother because they could not find him”;
vi.make the finding that it was implausible that the Taliban continued after him in Pakistan and he was able to avoid being found “because he wore glasses” in order not to be recognised;
without placing the applicant on notice of her intention to do so or giving him an adequate opportunity to fully respond.
The applicant’s submissions identified the material referred to in particular (a) as the information which had been summarised in the DFAT report of February 2010. In this regard, the applicant referred to the following passage from the Reviewer’s reasons:
I have read and considered information and opinions from a wide range of sources. I have placed significant weight on the advice from a range of organisations as summarised in the DFAT report of 21 February 2010. The UNHCR in Afghanistan noted that that [sic] there was a well organised Hazara people smuggling operation in existence and that the migration patterns of the Hazaras were out of synch with levels of threat and more in keeping with economic imperatives associated with labour migration. … Given the information provided by the UNHCR, UNAMA [United Nations Assistance Mission in Afghanistan], US Embassy, Afghan Human Rights Organisations and Hazara advocates I accept the advice in the February 2010 DFAT report that while there are “strong perceptions of discrimination and a sense that development needs in the Hazarajat are being neglected the Hazara do not live in fear of “systematic persecution as they did under the Taliban and that currently Hazaras are not being persecuted on any consistent basis”.
The applicant submitted that those issues should have been disclosed to him with some specificity but were not.
The relevant passage from the DFAT report was set out in some detail in the RSA assessor’s reasons for decision. The issues to which that report refers were also addressed in paras.5.3-5.6 of the submission dated 25 May 2010 made to the first independent merits reviewer by the applicant’s advisers. The issue was picked up again by the first independent merits reviewer and discussed in paras.27, 42 and 43 of his reasons. The applicant’s advisers then sent to the
Reviewer written submissions dated 31 January 2011 in which they expressly referred to and relied on all oral and written evidence and submissions previously made by or on behalf of the applicant. In these later submissions of January 2011, the applicant’s advisers also supplied to the Reviewer a report by Professor William Maley of the Australian National University dated 5 December 2010 entitled “On the position of the Hazara minority in Afghanistan”. In para.9 of that paper Professor Maley addressed the matters raised by the DFAT cable dated

21 February 2010 expressing the view that:
Much in Cable number CX240092 is naïve in the extreme, especially the view of an unidentified UNHCR informant that Hazaras ‘were experiencing a relative “golden age” in light of their tragic past’. That such a view could be expressed when Hazaras are vulnerable to mass decapitations reflects very poorly on the knowledge and judgment of the informer.
During the course of her interview with the applicant the Reviewer expressly raised the same DFAT report and its contents and invited the applicant’s comments.
If an applicant’s presentation at an independent merits review is such that he or she demonstrates an awareness and appreciation of a particular matter, perhaps because of the attention it was given before or by the RSA assessor, then the Reviewer has no obligation to raise it further. The procedural fairness required by the rules of natural justice involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 at 585 per Mason J. At 587 his Honour noted the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it, but also suggested that such a step might not be required if the issue and relevant information had already been addressed in the applicant’s application. Later, in Abebe v Commonwealth (1999) 197 CLR 510, it was held by Gummow and Hayne JJ, Gaudron and Kirby JJ agreeing, that the Refugee Review Tribunal (“RRT”) did not breach the rules of natural justice by not putting to Ms Abebe that her claims of detention and rape might not be accepted, given that the credibility of those claims had been expressly doubted by the primary decision-maker and had also been the subject of submissions by her advisers to the RRT itself.
The circumstances of this case make it clear that the information in question was known to the applicant and was addressed by him on more than one occasion prior to the Reviewer making her recommendation. Further, although he submitted at the hearing of this application that the documents referred to in the DFAT report should have been supplied to him, the Reviewer’s obligation did not go this far. A person whose interests are likely to be effected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of power proposes to take into account when deciding upon its exercise: Kioa’s case at 628 per Brennan J. In Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, the High Court considered how the procedural fairness obligation to draw an applicant’s attention to certain information should be discharged. In that case, where the manner in which the relevant information had been supplied to the RRT was not important, the RRT would have discharged its procedural fairness obligation to Applicant VEAL of 2002 by disclosing the substance of the information in question and asking him to respond to it. In this case, notwithstanding that she did, during the course of her interview with the applicant, put him on notice of the relevant information, the Reviewer had no obligation to do so because, in the circumstances, fairness did not require it. However, even if it had, that obligation would not have extended to requiring the Reviewer to provide the applicant with the documents the substance of which was quoted or referred to in the DFAT report.
Although particular (b) refers to the applicant “currently receiving counselling and medication for his post traumatic stress disorder” that is not what the applicant told the Reviewer and the Reviewer was not required to consider a submission which was not made to her. In this regard the applicant’s submissions following his interview with the Reviewer on 18 March 2011 recorded that the Reviewer had:
… emphasized that it was clear that the applicant’s traumatic experiences in Afghanistan and in Pakistan have affected him deeply. [The applicant] is currently receiving counselling and medication for his past trauma; a failure to recognise this and to force his return to Afghanistan would result in irreparable harm to him.
As to whether the Reviewer rejected the submission that the applicant had been deeply affected by traumatic experiences in Afghanistan and in Pakistan, it is to be observed that this issue was raised as a reason for the applicant to be permitted to remain in Australia on compassionate grounds. It was not raised as a reason why the applicant was entitled to protection, which was the matter into which the Reviewer was enquiring. Further, contrary to the applicant’s submissions at the hearing of this application, he did not suggest to the Reviewer that such trauma as he had undergone before coming to Australia explained how his account of events prior to coming to Australia developed and evolved during the assessment and review process. But, even if the applicant had made such a submission, the Reviewer was under no obligation, prior to making her recommendation, to advise the applicant what she thought of it.
In particular (c) the applicant identified a number of matters which he had raised in his claims. His complaint is that the Reviewer rejected the accuracy or truthfulness of these claims without giving him an opportunity to respond to any of the concerns which the Reviewer might have had in relation to them. He submitted that the Reviewer’s adverse credit findings in respect of those aspects of the applicant’s claims were inferences which had been drawn against him in circumstances where he had not been placed on notice or given an adequate opportunity to respond. He particularly submitted that before the Reviewer could make a finding that he had lied, she should have put him on notice of that potential finding. In this regard, he referred to Smith v New South Wales Bar Association (1992) 176 CLR 256.
Contrary to the applicant’s submissions, with one exception the matters in question had in fact been put to him during the course of his interview with the Reviewer. The Reviewer’s concerns with the applicant’s explanations regarding his omission to disclose his affair with the wife of a member of the Gulbuddin Party is recorded at pp.28 and 29 of the transcript. Her concern about the delay in making that claim was also put to the applicant and recorded at pp.28 and 29 of the transcript. The Reviewer’s finding that the applicant’s ease of escape after his kidnapping by the Taliban was “not consistent with his claims as to the Taliban’s ongoing interest in him” was raised by the Reviewer, as recorded at p.31 of the transcript, when she expressed concern about the ease with which he had been able to escape and later at p.32 of the transcript where the Reviewer expressed the view that the actions of the Taliban at the time of the applicant’s escape were completely inconsistent with his later claims that they had come to Pakistan to try to find him. The Reviewer’s concern that it was implausible that the applicant was on the Taliban list “and five years after he left Afghanistan they killed his brother because they could not find him” had also been raised by the Reviewer at the interview as recorded in the transcript at pp.27 and 29. Similarly, the Reviewer’s concern that it was implausible that the Taliban continued to look for the applicant in Pakistan and he was able to avoid being found “because he wore glasses” in order not to be recognised was raised by the Reviewer at the interview as recorded at p.29 of the transcript.
The only matter identified by the applicant in particular (c) which was not raised with him by the Reviewer was her impression “that he was recalling something he had seen in a movie rather than recounting something he had experienced”. However, this was a conclusion drawn by the Reviewer from the applicant’s evidence and, as such, was not something which had to be put to him.
The applicant relied on the following paragraph from the judgment of Brennan, Dawson, Gaudron and Toohey JJ in Smith v NSW Bar Association:
A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence”. (at 268) (reference omitted)
However, in this case, the only evidence of relevance to this issue was the applicant’s and it was only by an analysis of that evidence, tested against the documentary material to which the Reviewer referred, that the veracity of the applicant’s account could be determined.

In circumstances where the applicant’s version of events changed over time, a rejection of the applicant’s explanation for those changes unexceptionally and almost inevitably led to the conclusion that he had not been truthful. This case can therefore be distinguished from Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303 where North and Lander JJ said at 308-309 [24], Katzmann J agreeing, that the RRT should not be encouraged to make findings that an applicant is a liar where it is sufficient for it to conclude that it is not satisfied that claims have been made out.
The credibility of the applicant’s version of events was, as he submitted, a matter of some importance in the review. However, as was said in a different yet similar context:
First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47]) (emphasis in original)
In this case, it is sufficiently clear that the credibility of the various aspects of the applicant’s evidence was put to him by the Reviewer such that he cannot complain that he was not put on notice that his own truthfulness was in issue. That having been done, it was to be expected that, if sufficiently unimpressed by the applicant’s evidence, the Reviewer might conclude that he had not been truthful and had fabricated his claims, as it was open to her to do in this case.

Ground 2 – failure to consider claims and information

The second ground of the amended application contained two allegations, the first being that the Reviewer ignored or failed to consider “relevant material” and “substantial information”, the second being that she failed to consider all of the applicant’s “substantial claims”. The allegations were particularised as follows:
a.The IMR failed to take into account evidence that the applicant was “currently receiving counselling and medication for his post traumatic stress disorder” and had been tortured by the Taliban as a possible explanation for inconsistencies in his account;
b.That the IMR did fail to take into account corroborative evidence from Migration Agent Libby Hogarth that he had a relationship with the wife of a commander of the Taliban.
It is therefore not apparent what claim was not considered.
In relation to the first particular, the applicant submitted that the Reviewer failed to take into account, as a possible explanation for inconsistencies in his account, evidence that he was receiving counselling and medication for his post-traumatic stress disorder and had been tortured by the Taliban. However, it should again be noted that the applicant made no claim to the Reviewer that he was suffering post-traumatic stress disorder. During the course of his interview with the Reviewer the applicant did say that the torture he had undergone, and the persecution, was “very traumatising” and he described the ordeal to which, he alleged, he had been subjected by the Taliban as part of the kidnapping in 2004. However, in these proceedings he did not point to any claim made by him to the Reviewer that the changes in his account arose out of the ordeal he had allegedly undergone. Indeed, as discussed earlier in these reasons, the only context in which the matter was mentioned was as a reason to permit him to stay in Australia on compassionate grounds. When the Reviewer put to the applicant that there had been a significant development of his claims from the time that he first arrived at Christmas Island until the interview on 18 March 2011, the closest the applicant got to suggesting that the development of his story arose out of previous trauma was the following:
In my first interview, the whole interview I was crying. And why was I crying? Because it’s not like I didn’t want to say about the specific story. It came to my mind but I just stopped myself, I’ll just cry in the interviews. The amount of troubles and the pains that I have been through, there are so many that you forget yourself to say okay which one should I say or want to say. (p.33, transcript)

But in any event, the applicant’s submission that the claimed trauma should have been taken into account to address the doubt expressed by the Reviewer arising out of the changes over time in his account of events in Afghanistan proceeds on a false premise. The alleged trauma would only be appropriately taken into account if the Reviewer accepted that it had happened but, as she rejected the entirety of the applicant’s account in relation his alleged abduction by the Taliban, there was no factual basis for her to do so. In this connection, the Reviewer did not conclude the applicant to be untruthful simply by reference to his allegations concerning the alleged kidnapping thus avoiding the circularity of disbelieving the trauma because the kidnap was disbelieved because the applicant’s story evolved in an unconvincing way because of the trauma. The summary of findings set out above at [15]-[17] makes it clear that, in essence, she rejected each of his substantive claims to have been targeted by the Taliban and said:
Taking into account all of the above evidence I did not find the claimant to be a truthful or credible witness.
Reviewing the entirety of the applicant’s claims to fear the Taliban by reason of the events particularised, the possibility that the elaborations of the applicant’s claims might have been explained by the trauma he alleged had occurred was subsumed in a finding of greater generality, i.e. the finding concerning the applicant’s truthfulness and credibility, such that the Reviewer should not be taken to have overlooked the possibility that there was some innocent explanation for the variations in the applicant’s accounts of events: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47].
In relation to the second particular, the applicant submitted that the Reviewer had not properly considered the evidence that he had told his migration agent about his affair with the wife of the Taliban commander.
The first mention of the affair was made in written submissions dated 17 October 2010 when the applicant’s migration agent advised that the applicant had “recently admitted” that he had had an affair with the wife of a Taliban commander. That submission was made approximately five months before the interview with the Reviewer but one month after the first review recommendation, two months after his interview with the first independent merits reviewer, three months after his application for independent merits review and seven months after his application for refugee status assessment. It was hardly surprising that the Reviewer failed to consider that the applicant’s disclosure of the affair to his migration agent and its timing were corroborative of the allegation that the affair had occurred given that she concluded that it was the timing of its disclosure which suggested to her that it was a recent invention.
The applicant also submitted that:
These issues were not put to the applicant, including the significant impact of these incidents on the mental state of the applicant. Indeed, the findings of the reviewer substantially ignores particular aspects of the claim – including a possible motivation for why these issues had not been raised and the necessary nexus between these events and the applicant’s mental state.
What the first sentence of that submission means, in circumstances where the issues raised by the applicant in this part of the amended application concern matters he raised with the Reviewer, is elusive. The Reviewer had no duty to put to the applicant information which he himself had proffered. He can hardly be said to have been unaware of it. As to the second sentence of the submission, this had been addressed by the discussion above at [40].

Ground 3 – correct test misunderstood

The third ground of the amended application was particularised as follows:
The second respondent found the applicant did not have a well founded fear of persecution, because of the military and political power of a non-state actor, the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
It should be noted that the district from which the applicant came was Malistan not Jaghori and the applicant’s written submissions reflected this.
The submission on behalf of the applicant was that by basing her decision on whether the applicant could avail himself of the protection of non-state actors, the Reviewer asked herself the wrong question in relation to whether the applicant’s fear of persecution was well-founded. However, contrary to that submission, the identity of the group whose activities are such that an applicant does not have a well-founded fear of persecution for a Convention reason is not relevant. The question is whether, in all the circumstances, the applicant has such a fear: Siaw v Minister for Immigration & Immigration & Multicultural Affairs [2001] FCA 953 at [7]; SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652 at [25]-[32]; SZQGI v Minister for Immigration & Citizenship [2011] FMCA 715 at [26]-[29]; SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 at [23]-[29]; SZQGU v Minister for Immigration & Citizenship [2011] FMCA 718 at [15]-[24]; SZQGV v Minister for Immigration & Citizenship [2011] FMCA 743 at [19]-[26].
The relevant finding by the Reviewer was that Malistan remained out of the reach of Taliban control due to the military and political power of the Hizb-I Wahdat Khalili/Nasr faction and that the Taliban had not taken any steps to challenge groups in control of Malistan. The Reviewer did not conclude that the applicant could seek the protection of the Hizb-I Wahdat Khalili/Nasr faction or other groups in control of Malistan, finding instead that their operation was such that she was not satisfied that the applicant faced a real chance of serious harm amounting to persecution by reason of his ethnicity and religion were he to return to his home village. In doing so the Reviewer did not ask the question which the applicant alleges she asked but, instead, asked the correct question, namely, whether the applicant had a well-founded fear of persecution in his home area. Consequently, the third ground of the amended application discloses no error on the Reviewer’s part.

Ground 4 – failure to take a relevant consideration into account

The allegation that the Reviewer failed to take a relevant consideration into account was particularised as follows:
In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan, the second respondent failed to take into account the insufficient protection offered by the Afghan state.
Paragraph 52 of the applicant’s written submissions stated:
As discussed earlier in these submissions, the applicant raised the inadequacy of the protection offered by the Afghan state before the second respondent. The second respondent failed to make any finding in relation to the applicant’s evidence that the state of Afghanistan did not provide adequate protection against persecution in the Jaghori district of Afghanistan.
Again, it might be noted that the applicant’s home district was Malistan not Jaghori. In any event, the ability of the Afghan state to provide protection to the applicant was not a question which arose in the circumstances of this case because, as well as finding that the applicant’s claims to fear persecution by the Taliban because of circumstances peculiar to him was not made out, the Reviewer was not satisfied that the applicant faced a real chance of persecution in Malistan by reason that he was a Hazara Shia. In such circumstances, the Reviewer had no need to consider whether, in Malistan, the Afghan state could provide the applicant with protection from persecution.

In this regard, I repeat what I said in SZQGI at [30]:
The applicant particularised the second allegation of his amended application by saying that the Reviewer failed to take into account the insufficient protection offered by the Afghan state when finding that he did not have a well-founded fear of persecution because he could avail himself of the protection of the tribal and family networks controlling his village. However, if the Reviewer was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in his village, there was no need for her to take the next step of considering whether he needed state protection: Siaw v Minister for Immigration & Multicultural Affairs. The need for state protection only relevantly arises once it is determined that a well-founded fear of persecution for a Convention reason exists. Such a finding was not made in this case and thus the Reviewer was not required to consider the availability of state protection in the applicant’s home village.

Ground 5 – no evidence for finding

The allegation that there was no evidence to support the Reviewer’s finding that the applicant would be afforded adequate protection in the Jaghori [sic] region was particularised by reference to the particulars of the third ground of the amended application. The applicant submitted that the Reviewer had no evidence on which to base her conclusion that the applicant did not have a well-founded fear of persecution because of the military and political power of the Hizb-I Wahdat Khalili/Nasr faction. Contrary to the applicant’s allegation, sufficient evidence for the relevant finding made by the Reviewer was set out at para.23 of her reasons where she quoted from “Conflict analysis: Jaghori and Malistan districts, Ghazni province” produced by Cooperation for Peace and Unity on 12 April 2009, the relevant aspects of which were put to the applicant by the Reviewer at their interview as recorded at p.34 of the transcript.

Ground 6 – correct test misunderstood

This allegation that the Reviewer misunderstood the relevant test was particularised as follows:
In assessing the reasonableness of requiring the applicant to live in the Jaghori region of Afghanistan, the second respondent failed to consider:
a.whether the applicant’s freedom of movement would be significantly curtailed;
b.whether the internal safety of the applicant would be illusory or unpredictable;
c.the quality of protection offered by the Hizb-I Wahdat Khalili/Nasr faction; and
d.what conditions attached to any protection offered by the Hizb-I Wahdat Khalili/Nasr faction.
Again, reference is made to a region of Afghanistan irrelevant to the applicant’s claims.
This allegation appears to equate the possible return by the applicant to his home area with the concept of relocation discussed in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. However, the question was not whether it was reasonably practicable for the applicant to relocate within Afghanistan but whether he had a well-founded fear of persecution for a Convention reason in the Malistan district of the Ghazni province in Afghanistan, his home area. The particulars of this allegation are not addressed to whether the applicant’s claimed fears were well-founded but whether life in Malistan might be accompanied by certain limitations. As long as those limitations did not amount to serious harm as described in s.91R of the Act, and it was not suggested that any of them did, then the Reviewer did not err by not taking them specifically into account in deciding whether the applicant had a well-founded fear of persecution for a Convention reason in Malistan.

Conclusion

Error on the part of the Reviewer has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 4 November 2011