SZQKE v Minister for Immigration
[2020] FCCA 278
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQKE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 278 |
| Catchwords: MIGRATION – Independent Treaties Obligations Assessment – procedural fairness – duty to put applicant on notice of information and the sources of information. |
| Cases cited: Minister for Immigration v SZQRB [2013] FCAFC 33 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 152 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZQKE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2027 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 12 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitor for the Respondents: | Ms L Buchanan of the Australian Government Solicitor’s office |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2027 of 2015
| SZQKE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks judicial review of an International Treaties Obligations Assessment (“ITOA”) made by an officer (“Assessor”) of what is now the Department of Home Affairs (“Department”) on 9 July 2015. The Assessor found that the applicant was not a person to whom Australia had non-refoulement obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“CAT Convention”), or the International Covenant on Civil and Political Rights 1966 and its Second Optional Protocol, aiming at the abolition of the death penalty 1989 (“ICCPR Covenant”).
BACKGROUND
The applicant is a citizen of Afghanistan who arrived at Christmas Island as an irregular maritime arrival on 11 January 2010. His subsequent migration history is extensive but can be relevantly summarised as follows:
Date
Event
05.02.10
Applicant attends an entry interview.
13.03.10
Applicant lodges an application for a Refugee Status Assessment (“RSA”) alleging that he is a refugee under the Refugees Convention.
30.03.10
RSA outcome – applicant is assessed as not meeting the definition of a refugee under the Refugees Convention.
14.09.10
Review of RSA finalised by Independent Merits Review (“IMR”). IMR recommends that the applicant not be recognised as a refugee.
29.04.11
Second IMR decision recommending that the applicant not be recognised as a refugee.
25.11.11
Applicant’s judicial review application to this Court in respect of the second IMR decision is dismissed.
14.12.11
Applicant lodges an appeal to the Full Federal Court.
29.03.12
Post Review Protection Check (“PRPC”) commenced.
18.05.12
Appeal to the Full Federal Court dismissed.
28.05.12
PRPC outcome – applicant does not meet the Minister’s guidelines on Consideration of Post-Review Protection Claims.
06.07.12
First request for Ministerial intervention not referred.
14.03.13
Second request for Ministerial intervention not referred.
31.01.14
Applicant’s personal details disclosed on Department’s website.
13.11.14
Applicant granted a bridging visa and released from detention.
25.11.14
An ITOA is commenced in respect of the applicant.
09.07.15
ITOA process completed with a finding that the applicant is not a person to whom Australia has non-refoulement obligations.
21.07.15
Current judicial review proceeding commenced.
Protection claims
The Assessor summarised the evidence and submissions given by the applicant at various stages prior to the ITOA. He found that the applicant was claiming to fear returning to Afghanistan for the following reasons:
·The claimant is at risk of being seriously harm[ed] from the Taliban and conservative Moslem elements because he worked as a tailor making clothes for women, including western style wedding dresses and nightwear.
·The claimant is at risk of being seriously harmed or killed because he ran a business organising parties for men where alcohol was served and women danced for entertainment. Some of these women provided prostitution services. As a result, an influential Shia cleric from Bamiyan [the applicant’s home province] has issued a Fatwa against the claimant sentencing the claimant to death. This Fatwa is enforceable throughout Afghanistan.
·The claimant has been threatened by Tajiks in his home area because his father assisted other Hazaras in his home area to resist and fight against Tajiks during the Taliban rule of Afghanistan.
·The claimant is at risk of serious harm or being killed throughout Afghanistan due to being a Shia and a Hazara. He is also at risk of suffering serious discrimination from other ethnic groups for these reasons if he were to live outside Hazara populated areas. Being an [sic] Hazara Shia imputes him with a political opinion in support of the Afghan government and coalition forces.
·The claimant risks persecution for his membership of particular social groups as someone perceived to be a sympathiser or supporter of NGOs in Afghanistan as well as for being a failed asylum seeker returning from a Western country. He will be regarded as an infidel and a traitor to the Moslem faith. This risk has been exacerbated due to the claimant’s details being made publically accessible as a result of the website disclosure by the department.
ITOA findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Assessor found that he was not satisfied that the applicant was a person to whom Australia had non-refoulement obligations under the Refugees Convention, the CAT Convention or the ICCPR Covenant. The Assessor based his decision on the following findings and reasons:
a)during the course of his second IMR proceedings, the applicant indicated that he did not have any problems in Afghanistan as a result of his work as a tailor. In light of this, and given that the applicant did not provide any contrary information to the Assessor, the Assessor did not accept that the applicant had had any problems in Afghanistan arising from his work as a tailor making clothes for women;
b)the Assessor considered the credibility findings made by the second IMR reviewer in relation to the applicant’s claims that he had had a party business in Afghanistan, that he had been stopped by the Taliban and had escaped, that a Fatwa had been issued against him, that his house and shop had been burnt down, and that he had been threatened by Tajiks in his home area. The Assessor noted that the applicant had not provided any new evidence or arguments to refute the findings of the second IMR reviewer on these points. Based on the evidence before him, the Assessor concurred with the reasoning and findings of the second IMR reviewer and found that the applicant had fabricated these claims in their entirety;
c)although the applicant had previously submitted that he was a member of the particular social group “perceived sympathiser or supporter of NGOs in Afghanistan”, no argument or evidence had been provided as to why such a particular social group existed or why the applicant would be perceived as being a member. As such, the Assessor found that the applicant had no subjective fear that he would face persecution for this reason if he returned to Afghanistan; and
d)the Assessor was satisfied, having considered the country information before him, that the applicant would not suffer serious harm in Afghanistan on the basis of his Shia religion, Hazara ethnicity, or imputed political opinion as a supporter of the government. The Assessor’s findings included consideration of whether the applicant might face harm while travelling on roads in and out of Bamiyan and Kabul, a risk that the Assessor concluded was remote. The Assessor also considered the applicant’s status as a failed asylum seeker and the fact that his name had been included in the Department’s 2014 website disclosure of a number of claimants’ biographical details but found that there was no information to suggest that these matters would cause the applicant any particular problems.
The particular passages in the Assessor’s reasons which the applicant alleged manifested a failure to accord him procedural fairness were the following:
I have considered a number of reports of Hazaras being killed in Afghanistan in recent years by the Taliban. For example in August 2012 there were reports of eleven Hazaras being killed in two incidents a week apart in Jalrez district of Maidan Wardak province and of five Hazaras being taken off a bus and shot in Andar district of Ghazni province in October 2012. It has also been reported that the roads to Bamiyan through Maidan Wardak and Parwan have become more dangerous with a 'tens' of Hazaras being killed in Ghorband district in Parwan as well as in Jalrez. [80]
Regarding the reports of the killings in Jalrez, The Kabul Press reported on the first killings that the district administrator had claimed the five men had worked at a foreign forces base, although the dead men's families denied this. [81] No information about the backgrounds of the victims of the second reported incident in Jalrez in August 2012 or the reasons for the killings could be located. An investigation on the killings in Andar found that contrary to the first reports that all five were Hazaras, the deceased were three Hazaras and two Tajiks and that they had been employed building a new police station in Waghaz district. [82]
This is consistent with other reports of attacks on Hazaras in the past. For example, in the case of the nine or eleven (depending on the source) Hazaras killed in Uruzgan province in June 2010, while an initial report on the killings initially stated the men were killed because they were Hazara and Shi'as a Taliban spokesman later stated they were killed after meeting with foreign forces in Tarin Kowt to discuss setting up a local militia against the express instructions of the Taliban not to do so. [83]
More recently, an analysis of recent claims of killings and/or abductions of Hazaras in various parts of Afghanistan done by the Afghanistan Analysts Network (AAN) also showed in most cases the reasons people were killed or kidnapped were for reasons other than simply being Hazara or Shias (such as associations with government or foreign forces), that the reports had been exaggerated or misrepresented or in some cases that the persons affected were actually not Hazaras. [84]
This is not to say that Hazaras face no risk of harm on account of their religion or race while travelling through insurgent or insecure areas. I note that the killings of a Hazara wedding party of 16 while travelling through Ghor province from Kabul to Mazar-e-Sharif in July 2014 appears to be because of their race/religion. [85] I note however that the commander responsible was reportedly captured by Afghan security forces in October 2014 and was described by Tolo Press as ‘notorious’. [86] I also accept that the 30 people who were kidnapped in February 2015 in Zabul province by reportedly foreign fighters from Uzbekistan, [87] may have been taken on account of being Shias although the AAN report indicated there was no evidence that race or religion was the reason for the kidnapping. [88] On this point however I also note that the majority of those kidnapped were subsequently released after negotiations for the release of prisoners held by the Afghan government. [89]
…
The October 2014 UK Home Office Country of Origin Report on Afghanistan talked of the economic challenges facing some returnees, as well as issues for returnees who [h]ad left Afghanistan at a very young age or had been born-outside of Afghanistan. It makes no mention of adult returnees who departed Afghanistan as adults facing harm because they are imputed with certain religious or political opinions due to their residence abroad. [97]
The footnotes to those passages in the Assessor’s reasons read:
80 CX298002, “Taliban attack kills five Afghan civilians”, Press TV, 27 October 2012; CX300421, “Road dangers and the rising threat of renewed ethnic violence”, EurasiaNet, 6 November 2012; CX275944, “Kabul-Bamyan highway insecurity impedes Eid travel, residents say”, Pajhwok Afghan News -Afghanistan, 7 November 2011
81CX305045, “The Taliban terrorists killed five Hazaras in Maidan Province", Kabul Press, 27 July 2012
82CX299253, “The Nightmare Scenarios”, International Herald Tribune, 1 November 2012
83CX245508, “Police find 11 beheaded bodies in Afghan south”, Reuters, 25 June 2010; CX245566, “Taliban Kill 9 Members of Minority in Ambush”, New York Times, 25 June, 2010
84CXBD6A0DE5323: “Hazaras in the Crosshairs? A scrutiny of recent incidents”, Afghanistan Analysts Network, 24 April 2015
85CX1B9ECAB8314: “Families of Taliban's Victims in Ghor Search for Answers”, Tolo News, 27 July 2014
86CX1B9ECAB8310: “Taliban leader held in murder of German tourist, 14 civilians in Ghor”, Khaama Press, 22 October 2014
87CXBD6A0DE6745: “19 kidnapped passengers freed", Pajhwok Afghan News -Afghanistan, 11 May 2015
88CXBD6A0DE5323: “Hazaras in the Crosshairs? A scrutiny of recent incidents”, Afghanistan Analysts Network, 24 April 2015
89CXBD6A0DE6745: “19 kidnapped passengers freed”, Pajhwok Afghan News -Afghanistan, 11 May 2015
…
97“Country of origin information report Afghanistan”, UK Home Office, 21 October 2014, OGC0D145410
PROCEEDINGS IN THIS COURT
The applicant pleaded the following ground in his amended application:
The ITOA assessor fell into jurisdictional error in failing to put country information to the applicant for comment and denied the applicant procedural fairness in accordance with the Full Federal Court judgment in Minister for Immigration v SZQRB [2013] FCAFC 33.
Particulars
a.The applicant was interviewed on 15 June 2015 and a transcript of the interview has been filed;
b.In the findings section of the ITOA assessment the assessor relied on country information that was not put to the applicant for comment at the interview. The assessor considered;
i.A number of reports of Hazaras being killed in Afghanistan in recent years by the Taliban at footnotes 80-89;
ii. [Not pressed]
iii.Economic challenges facing returnees at footnote 97.
It is important to note that the applicant alleged that the Assessor erred because he did not:
a)“put country information to him for comment”; and
b)“denied the applicant procedural fairness in accordance with the Full Federal Court judgment in Minister for Immigration v SZQRB [2013] FCAFC 33”.
Those contentions appear to be separate allegations although they were pleaded in the same sentence rather than in separate paragraphs.
Without identifying which allegation was being particularised, the particulars stated that the Assessor had:
a)referred to “country information that was not put to the applicant for comment” without further specifying what that information was; and
b)referred to the fact that the Assessor had considered the documents cited in his footnotes 80 to 89 and 97.
SUBMISSIONS
The applicant’s written submissions argued:
8.Footnotes 80-89 refer to country information, which the reviewer used at pages CB 431-432 in the process of reasoning to find that Hazaras (the ethnicity of the applicant) are not being targeted for reasons of their ethnicity or imputed political opinion or religious beliefs despite initial reports that they were. The sources of the information are principally from news sources. Although it appears that the substance of the information was discussed in a general sense with the applicant during the course of the interview with the applicant on 15 June 2015 … the applicant was not informed of the sources, other than being told that one of the sources was the ‘Afghan Analysis Network’, for “Afghanistan Analysts Network”. The other sources include “Tolo News”, “Khaama Press” and “Pajhwok Afghan News”, and these were not identified by the reviewer and disclosed to the applicant as the sources for country information, which was then relied upon by the reviewer in his process of reasoning. As a result of the non-disclosure the applicant was not afforded an opportunity to address the reliability or credibility of the sources. …
9.The applicant has been denied procedural fairness because he has not been given an opportunity to address and make meaningful submissions as to the credibility or reliability of the undisclosed information and its sources in the way identified by Flick J in SZQHH. At page 11 of the transcript it can be seen that the interviewer and applicant discuss a BBC report from ‘one and a half to two months ago’. It can be reasonably inferred from the discussion that the report and its information is considered to be credible and reliable by both parties. However the credibility of the other sources, which are mentioned above (Tolo News, Khaama Press, Pajhwok Afghan NEWS) is neither disclosed nor discussed. This is a denial of procedural fairness as it is the information found in these unquestioned media sources that form the majority of information relied upon by the ITOA reviewer in his decision.
10.Footnote 97 refers to a United Kingdom Home Office report, dated 21 October 2014 (“Country of origin information report Afghanistan” - OGC0D 145410). The ITOA reviewer did not put either the contents of the report of [sic] the substance of the report to the applicant during the course of the interview that it conducted with the applicant on 15 June 2015 … . The ITOA reviewer referred to the report in its decision stating that the report “talked of the economic challenges facing some returnees, as well as issues for returnees who had left Afghanistan at a very young age or has [sic] been born outside Afghanistan”. The reviewer stated that the report made no mention of adult returnees who departed Afghanistan as adults facing harm because they are imputed with certain religious or political opinion due to their residence abroad” (CB 434).
11.The reviewer used this report as part of his process of reasoning to find, adverse to the applicant's interests, that while there may be economic challenges facing some returnees (but not those who departed Afghanistan as adults), there were no challenges based on religious or political opinion. The report was used to refute the applicant's claim that as a person who had lived abroad and had sought asylum abroad he would face risk of harm if he returned to Afghanistan (CB 434).
The Court directed the parties to complete a Scott Schedule-like document. Its relevant content is set out below in the discussion of the applicant’s allegations.
CONSIDERATION
At the outset, I record that I infer that the ITOA process under review evidences the Minister having decided to consider the exercise of some power under the Act that might have affected the applicant’s interests. Presuming that to be so, the Assessor was required to accord the applicant procedural fairness: Minister for Immigration & Border Protection v SZSSJ (2016) 259 CLR 180 at 200 [54], 205-206 [74]–[79]. The High Court explained the presently relevant elements of that duty in the following terms:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry. (at 207 [83]) (reference omitted)
The applicant alleged that information cited in the Assessor’s reasons concerning issues of religion, ethnicity and perceived links to the Afghan government or its allies was information that the Assessor might take into account as a reason for coming to a conclusion adverse to him and ought to have been put to him but was not. He also alleged that the sources of the information in question should have been put to him so he could better formulate any comments on or responses to it. The applicant relied in that regard on a passage from the reasons of Flick J in Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223, namely:
Reservation is nevertheless expressed with any unqualified proposition that no denial of procedural fairness arises where the substance or gist of information has been disclosed — albeit in another document to which a claimant may have had access.
Even in circumstances where the substance or gist of information has been previously disclosed, a denial of procedural fairness may potentially arise where a claimant has been denied an opportunity to make submissions regarding a particular document which may contain no further or different information than that contained in other documents to which access has been granted. The requirements of procedural fairness may not be satisfied merely because an opportunity has been extended to make submissions in respect to the very same information which may be gleaned from a number of different sources. Common information may be found in a number of different sources. But the reliability, for example, of each of those different sources may be open to question. A breach of the requirements of procedural fairness may arise where a claimant is denied an opportunity to make submissions regarding information contained within (for example) a more reliable source even though the very same information has been disclosed elsewhere in a less credible source.
An administrative decision-maker who, for example, discloses information contained in a document of questionable reliability may not discharge an obligation to act in a procedurally fair manner if he relies upon — but does not disclose to a claimant — a separate document of unquestionable reliability and credibility containing the very same information. A claimant, in such circumstances, may be afforded an opportunity to make submissions in respect to the information that has been disclosed. A claimant may be prepared to make a submission that such information should be rejected, either because it is (for example) unsubstantiated or from a questionable source. But the denial of procedural fairness may arise — not because a claimant is denied an opportunity to make submissions in respect to the very same information — but because he has been denied an opportunity to make meaningful submissions (for example) as to the reliability or credibility of the undisclosed document. He may be prepared to summarily dismiss or even scoff at information set forth in a highly questionable source; but questions may arise if he is denied an opportunity to make submissions directed to both the information and the reliability of such information that may be contained in an undisclosed but more reliable document. (at 243-244 [69] – [71])
Contentions
Footnote 80
The passage supported by footnote 80 was:
I have considered a number of reports of Hazaras being killed in Afghanistan in recent years by the Taliban. For example in August 2012 there were reports of eleven Hazaras being killed in two incidents a week apart in Jalrez district of Maidan Wardak province and of five Hazaras being taken off a bus and shot in Andar district of Ghazni province in October 2012. It has also been reported that the roads to Bamiyan through Maidan Wardak and Parwan have become more dangerous with a [sic] ‘tens’ of Hazaras being killed in Ghorband district in Parwan as well as in Jalrez.
The parties submitted:
Applicant
Respondents
This was country information that was not put to the applicant. It is referred to at CB 431 as part of the consideration as to whether the applicant was at risk
The applicant has not identified anything in this material which was adverse to the applicant’s claims, nor how the decision maker used that material to reach an adverse conclusion.
I agree with the Minister that the information in question has not been shown, and does not appear, to have been adverse to the applicant’s interests. If anything, it is supportive of his claims to fear persecution because of his ethnicity.
Footnote 81
The passage supported by footnote 81 was:
Regarding the reports of the killings in Jalrez, The Kabul Press reported on the first killings that the district administrator had claimed the five men had worked at a foreign forces base, although the dead men's families denied this.
The parties submitted:
Applicant
Respondents
At CB 431 the Assessor considers information from this source to find that the Hazaras who were killed in Maidan province “had worked at a foreign forces base” (even though the dead men’s families denied this). The implication being that to be at risk Hazaras needed to be more than just Hazaras and needed to have a connection with foreign forces – this information is adverse to the applicant’s interests and ought to have been put to him but was not. …
The assessor put to the applicant for comment the substance of the information, that Hazaras were systematically being targeted due to being Hazara and Shi’s [sic], that they were harmed for reasons other than simply being Hazara or Shi’a (transcript p 10) and that country information indicated that people targeted on roads are those with connections to the government or security forces (transcript p 12). …
Pages 5-6 of the ITOA transcript record the applicant saying that he used to travel between his home in Bamiyan and Kabul five to eight times a month and that he had sometimes travelled through “Wardak” on these trips. I proceed on the basis that the reference to “Wardak” is a reference to “Maidan Wardak province”.
The passage to which the applicant refers in connection with footnote 81 identified the issue under consideration, which was whether Hazara ethnicity was sufficient on its own to attract a risk of harm that would engage Australia’s non-refoulement obligations under the treaties referred to earlier. The passage was only illustrative and explicative of the issue being considered and did not form part of the Assessor’s reasoning on that question.
The Assessor’s relevant reasoning is to be found in subsequent paragraphs, on pages 30 and 31 of the assessment and is prefaced with the following findings:
I accept that some roads in and out of Bamiyan can at times be dangerous, however country information indicates that locals with knowledge of the area, such as the claimant, are generally able to travel without serious incident. In its March 2014 report DFAT stated that the main targets on the roads were “those employed by or with direct links to the Afghan Government or international community - regardless of ethnicity”.
The footnotes to those sentences cite the “DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014”, DFAT, 26 March 2014, CIS2F827D91264.
Whether Hazara ethnicity was sufficient on its own to attract a risk of harm had been discussed by the applicant and the Assessor at the ITOA interview in the following exchanges:
ASSESSOR:… Now other authoritative country information including from the UNHCR, the European Asylum Support Office and the Australian Department of Foreign Affairs and Trade, to name some, do not seem to indicate that the Taliban or any other insurgency group are systematically targeting Hazaras throughout the country simply because they are Hazaras or Shias. In March of this year for example Hazara elders in Ghazni met with the Taliban representatives asking for Taliban protection in case there are any problems of Daesh. It was reported the Taliban agreed to offer this protection. In April this year, the Afghan Analysis Network did an analysis of the claims of Hazaras being targeted and killed or kidnapped on the roads in Afghanistan.
INTERPRETER: What agency?
ASSESSOR:Afghan Analysis Network. Ok. Now this analysis showed that in nearly all cases the reasons why the people were killed or kidnapped were for reasons other than simply because they were Hazaras or Shias. So they reported that a lot of these reports have been exaggerated or misinterpreted or in some cases the people affected were not even Hazaras. Ok, now while I accept that there are dangers on the roads, these dangers can affect anybody and the country information would not seem to indicate that Hazaras are being disproportionately targeted simply because they are Hazaras and Shias. So would you like to comment? (T10)
…
ASSESSOR: Now just traveling in and out of Bamyan, I just want to talk to you about that for a moment. OK, now I accept that the roads in some areas traveling in and out of Bamyan may at times be dangerous. Still, large numbers of people, including Hazaras, regularly travel on these roads. The country information would indicate that the Taliban target persons with connections to the government or the security forces and this may include Hazaras, but these are Hazaras who have got specific profiles. Certainly the issues of insecurity on the roads affect all travelers, [sic] but that's not simply affecting Hazaras. It could affect, you know, Pashtuns, Tajiks, Hazaras, Uzbeks, anybody traveling on those roads would be equally at risk. (T12)
I infer that the Assessor’s reference during the interview to “authoritative country information … from … the Australian Department of Foreign Affairs and Trade” was a reference to the report he cited in support of his reasoning concerning whether Hazara ethnicity was sufficient on its own to attract Australia’s non-refoulement obligations.
As the passage supported by footnote 81 served only to identify the issue relevantly under consideration, and was not relied on by the Assessor in reaching his conclusion on that issue, procedural fairness did not require it to be advised to the applicant.
The next issue raised in relation to footnote 81 concerned whether the Assessor should have advised the applicant of the Kabul Press document the footnote cited. In the Scott Schedule the parties said:
Applicant
Respondents
… The source ought also to have been put so that the applicant had an opportunity to comment on its reliability.
The applicant has not identified any reason why the identity of this particular source was relevant to the issues especially in circumstances where the assessor accorded the information no greater weight than other examples of similar information.
The applicant relied in that connection on Flick J’s reasons in SZQHH quoted earlier. However, his Honour was not saying there that procedural fairness required information sources to be identified simply because two or more sources or documents of differing reliability contained the same information. Some practical unfairness must be shown to have occurred, reflecting the principle expressed in SZSSJ:
… The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”. (at 206-207 [82]) (reference omitted)
Because the information in question, being the passage supported by the footnote, played no part in the Assessor’s reasoning, no practical unfairness was suffered by the applicant because its details were not supplied to him.
In those circumstances, no denial of procedural fairness occurred by reason that the source referred to in footnote 81 was not identified to the applicant.
Footnotes 82 to 89
The passages supported by footnotes 82 to 89 were set out earlier at [5] and need not be repeated here. The parties’ submissions in relation to those passages and their related footnotes were set out in the Scott Schedule as follows:
Applicant
Respondents
Footnote 82
At CB 431 the Assessor refers to an investigation on the killings in Andar which found that contrary to the first reports all five Hazaras who were dead were not all Hazaras – two were Tajiks and that they had been employed building a new police station in Waghaz district. This was information which was adverse to the applicant’s interests because it was contrary to claim that Hazaras were at risk. It should have been put to the applicant but was not.
The assessor put to the applicant for comment that Hazaras were systematically being targeted due to being Hazara and Shi’s, that they were harmed for reasons other than simply being Hazara or Shi’a (transcript p 10) and that country information indicated that people targeted on roads are those with connections to the government or security forces (transcript p 12).
Footnote 83
At CB 431-432 the Assessor stated that these reports referred to in footnotes 80-82 were consistent with other country information that initial reports, which stated that people were being killed because they were Hazaras and Shi’as, was refuted by a Taliban spokesperson who said the Hazaras were killed after they had a meeting with foreign forces to discuss setting up a local militia against the instructions of the Taliban. This was country information that was adverse to the applicant’s interest and ought to have been put to the applicant but was not
The assessor put to the applicant for comment that Hazaras were systematically being targeted due to being Hazara and Shi’s, that they were harmed for reasons other than simply being Hazara or Shi’a (transcript p 10) and that country information indicated that people targeted on roads are those with connections to the government or security forces (transcript p 12).
Footnote 84
This country information was put in a general sense – CB 419
The applicant concedes the information was put to the applicant for comment and see transcript at 10
Footnote 85
Footnotes 85 and 86 are to be read together. The country information refers to Hazaras being killed at a wedding party while travelling through Ghor Province but again the Assessor says that while the motive appears to be race/religion, Tolo Press reported that the Commander responsible was reportedly captured by Afghan security forces and was described as “notorious”.
This information was adverse to the applicant’s interests because again it is used by the Assessor to demonstrate that just being a Hazara Shi’a is not enough to establish risk of harm or real chance of harm. It was not put to the applicant.
The source was also not put to the applicant as it should have been to enable the applicant to comment on its reliability
The applicant has not identified anything in this material which was adverse to the applicant’s claims, nor how the decision maker used that material to reach an adverse conclusion. The assessor refers to the article as an example of where Hazaras may have been killed due to their race/religion. In any event, the assessor put to the applicant that country information indicated that Hazara Shi’as were not being targeted for that reason.
The applicant has not identified any reason why the identity of this particular source was relevant to the issues especially in circumstances where the assessor accorded the information no greater weight than other examples of similar information.Footnote 86
The country information refers to Hazaras being killed at a wedding party while travelling through Ghor Province but again the Assessor says that while the motive appears to be race/religion, Tolo Press reported that the Commander responsible was reportedly captured by Afghan security forces and was described as “notorious”.
This information was adverse to the applicant’s interests because again it is used by the Assessor to demonstrate that just being a Hazara Shi’a is not enough to establish risk of serious harm. It was not put to the applicant.
The source was also not put to the applicant.
The applicant has not identified anything in this material which was adverse to the applicant’s claims, nor how the decision maker used that material to reach an adverse conclusion. The assessor refers to the article as an example of where Hazaras may have been killed due to their race/religion.
In any event, the assessor put to the applicant that country information indicated that Hazara Shi’as were not being targeted for that reason.
The applicant has not identified any reason why the identity of this particular source was relevant to the issues especially in circumstances where the assessor accorded the information no greater weight than other examples of similar information.
Footnote 87
Footnotes 87 and 88 are to read together. The Assessor referred to country information that 30 people were kidnapped in the Zabul province by foreign fighters from Uzbekistan. This information was put to the applicant in a general sense – see CB 419.
The applicant has not identified anything in this material which was adverse to the applicant’s claims, nor how the decision maker used that material to reach an adverse conclusion. The assessor refers to the article as an example of where Hazaras may have been killed due to their race/religion.
In any event, the applicant concedes that the assessor put to the applicant that country information indicated that Hazara Shi’as were not being targeted for that reason.
Footnote 88
The Assessor noted that they may have been taken because they were Hazaras but that the Afghanistan Analysts Network reported there was no indication that race or religion was the reason for the kidnapping. This information was put to the applicant in a general sense – see CB 419.
The applicant has not identified anything in this material which was adverse to the applicant’s claims, nor how the decision maker used that material to reach an adverse conclusion.
The applicant has not identified any reason why the identity of this particular source was relevant to the issues especially in circumstances where the assessor accorded the information no greater weight than other examples of similar information.
Footnote 89
The Assessor referred to country information that stated that the majority of those Hazaras who has been kidnapped were subsequently released after negotiations for the release of prisoners held by the Afghan government. This was put to the applicant but the source was not and should have been to give the applicant an opportunity to comment on its reliability.
The applicant concedes that this information was put to the applicant for comment which the applicant did not dispute although he otherwise responded to the material and was given a further opportunity to provide post interview submissions (transcript p 11, p 15).
The reasons given in relation to footnote 81 and the related passage from the Assessor’s reasons apply equally to footnotes 82 to 89 and to the passages in the Assessor’s reasons that they support. For those reasons, no denial of procedural fairness attaches to the fact that the Assessor did not put to the applicant the details of the documents cited in footnotes 82 to 89 or so much of the information they contained as was referred to in the Scott Schedule.
Footnote 97
The passage supported by footnote 97 was:
The October 2014 UK Home Office Country of Origin Report on Afghanistan talked of the economic challenges facing some returnees, as well as issues for returnees who had left Afghanistan at a very young age or had been born outside of Afghanistan. It makes no mention of adult returnees who departed Afghanistan as adults facing harm because they are imputed with certain religious or political opinions due to their residence abroad.
The parties submitted:
Applicant
Respondents
The Assessor referred to this report at CB 434 stating that the report talked about some economic challenges facing some returnees, as well as issues for returnees who had left Afghanistan at a very young age or had been born outside of Afghanistan. The Assessor stated that the report made no mention of adult returnees who departed Afghanistan as adults facing harm. The Assessor concluded that since such a person was not mentioned in the report meant that there was no harm to such a person. This country information was not put to the applicant for comment.
The assessor put to the applicant for comment that there was no information to indicate the Afghan authorities would treat the applicant in an adverse way due to being a failed asylum seeker, nor in response to the applicant’s claims with respect to others (‘Mullahs and even the general population’) that the assessor had seen any information to support that claim either (transcript p 13). The report referred to reflects the substance of the information put to the applicant for comment, that even though people who left Afghanistan at a young age may face such harm, there was no information indicating the applicant would fact [sic] such harm.
The applicant’s argument does not take account of the fact that it was the applicant’s responsibility to place before the Assessor material and arguments that satisfied him that Australia’s non-refoulement obligations were engaged in this case. The relevant claim was uncontroversially summarised by the Assessor in his reasons, under the heading “Claims to be assessed”, as follows:
The claimant risks persecution for his membership of particular social groups as someone perceived to be a sympathiser or supporter of NGOs in Afghanistan as well as for being a failed asylum seeker returning from a Western country. He will be regarded as an infidel and a traitor to the Moslem faith. This risk has been exacerbated due to the claimant's details being made publica11y accessible as a result of the website disclosure by the department.
A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision that is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].
The fact that the October 2014 UK Home Office Country of Origin Report said nothing about persons such as the applicant being imputed with certain religious or political views because of earlier residence abroad is not adverse information that is credible, relevant and significant. It is an absence of information supportive of the applicant’s allegation. Further, procedural fairness did not require the Assessor to give the applicant notice of any conclusion he might draw from the absence from the UK Home Office report of evidence concerning persons such as him.
The Assessor’s comment to which the applicant objects was no more than an observation on the absence of evidence of a sort, which, if presented, would clearly have been relevant to the ITOA. In circumstances where an applicant has a practical obligation to satisfy the Assessor that his or her circumstances engage Australia’s non-refoulement obligations, so much is obvious and goes without saying and the fact that the Assessor did not say it does not amount to reviewable error. It was not the Assessor’s role to prompt or elicit from the applicant an elaboration of his claim which he chose not to make himself and no error is disclosed because he did not do so: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].
Finally, the Tribunal’s conclusion that:
Considering his skills, assets and community ties to Bamiyan. I also consider his ability to subsist would not be threatened on return (CB434)
was not arrived at because the Home Office report was silent on the circumstances as returnees such as the applicant but because such evidence as there was on the issue was not supportive of the applicant’s claim. That is the only reasonable inference to draw from the paragraph in which that sentence appears.
CONCLUSION
Jurisdictional error on the part of the Assessor has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 14 February 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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