SZQNF v Minister for Immigration & Anor

[2011] FMCA 965

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQNF v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 965

MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – Refugee claims of Afghan Hazara Shia - no error of law or procedural fairness shown – no refugee claim raised and not addressed – no denial of procedural fairness shown in references to UNHCR guidelines - application dismissed.

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

Applicants M1015/203 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1309
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs  (2005) 225 CLR 88
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298, 133 FCR 541
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Muin v Refugee Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs; ex parte “A” (2001) 185 ALR 489
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57
Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZQEK v Minister for Immigration & Citizenship [2011] FMCA 628
SZQHC v Minister for Immigration & Citizenship [2011] FMCA 851
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: SZQNF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: GRAHAM MCDONALD, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1716 of 2011

Judgment of: Smith FM

Hearing date: 25 November 2011

Delivered at: Sydney

Delivered on: 9 December 2011

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Koutzoumis Lawyers

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the costs of the first respondent in the amount of $6240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1716 of 2011

SZQNF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

GRAHAM MCDONALD, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia without travel documents on a boat which was taken to Christmas Island in March 2010.  At an arrival interview, he said he was a national of Afghanistan, of Hazara ethnicity and Shia Muslim religion, who had previously lived in Australia on a temporary protection visa and had accepted voluntary repatriation in 2003. Upon return to Afghanistan, he stayed in Kabul for some days, before rejoining his family in Pakistan.  He conducted a carpet business from there until 2009, involving occasional travel to Afghanistan. 

   
   

   He claimed that he feared persecution from the Taliban in both Pakistan and Afghanistan.

2. On 7 May 2010 he requested an assessment by the Department of Immigration of his refugee status (“RSA”) under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was made on 22 June 2010, and the applicant then applied for ‘independent merits review’ (“IMR”) under those procedures. 

3. Mr McDonald conducted a review, in which he interviewed the applicant on 11 February 2011.  After further correspondence with the applicant, on 6 July 2011 he recommended that the applicant should not be recognised as a person to whom Australia has protection obligations.  His report was notified to the applicant by letter dated

   
   

   18 July 2011.  Throughout the administrative proceedings, the applicant was assisted Melbourne migration agents and solicitors, Vrachnas Lawyers. 

4. His application to the Court was filed in Sydney on 8 August 2011, and he was represented before me by counsel. He has been held in immigration detention on Christmas Island, in the Darwin Detention Centre, the Curtin detention centre in Western Australia, and in Tasmania.  He seeks relief by way of a declaration that Mr McDonald’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. 

5. The Minister concedes that Mr McDonald’s report attracts judicial review, and that the present application is within the Court’s jurisdiction under s.476 of the Migration Act based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 at [51] in relation to IMR decisions concerning ‘offshore entry persons’. No issue as to the time limit under s.477(2) of the Migration Act arises.

6. Under the judicial review jurisdiction upheld in Plaintiff M61 it is the function of the Court to consider whether Mr McDonald’s report reveals any error of law, including denial of procedural fairness in its reasoning or in the procedures followed before its making. The substantive relief sought in the present application can only be contemplated if I am satisfied that Mr McDonald made such an error.  It is not the function of the Court to engage in a merits review of Mr McDonald’s findings on the risks the applicant would face if he returned to Afghanistan, nor to form its own opinions on whether he should be permitted to reside in Australia. 

7. When examining Mr McDonald’s reasons for legal error, I consider that the Minister’s instructions as to the content of an IMR report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal under the Migration Act (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12] to [13]). These principles involve the obligation not to read Mr Hardy’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).

The applicant’s refugee claims and the IMR report

1. The applicant’s claimed history was explained in his declaration accompanying his RSA application and in interviews on his arrival and during the RSA and IMR proceedings.  In short, the applicant had been born and raised in Kabul, although his family were Shia Hazaras originating from the district of Behsood.  His family departed for Pakistan in 1999, and the applicant’s father then conducted his carpet selling business from Karachi in Pakistan.  The applicant left his wife and children in Karachi, when he sought asylum in Australia between 1999 and 2003, and they remain there. 

2. The applicant claimed that he stayed briefly with his sister in Kabul in 2003, but returned to Karachi after he had an argument with a cousin who wanted him to support the Harakat group, an Hazara political group.  He ‘took over’ the family carpet business in Karachi when his father died in 2005.  At that time he also started a carpet factory in Behsood which was managed by a brother, but this was destroyed “approximately 12 months later” when “the Taliban captured Behsood”.  In the ensuing years, the applicant travelled to Afghanistan from Pakistan about twice a year to purchase stock.  He was “often stopped by the Taliban”, and on one occasion was “beaten up”. 

   
   

   He said that the Taliban were harassing all Hazaras Shia in Pakistan, and in Afghanistan it “continues, together with the Pashtuns to harass and beat-up all Hazaras Shias at every opportunity they have”. 

   
   

   He said that he feared that “I will be killed by the Taliban in Afghanistan and or Pakistan”, and that he would be harmed by “the Taliban because I am Hazara and Shia or [by] the people from the Harakat group because I don’t want to join them”.

3. The applicant’s agents made two written submissions.  The first was dated 13 May 2010 and was made in support of the RSA application. 
   It challenged the opinions given in a DFAT report dated 21 February 2010, relating to the situation of the Hazara minority in Afghanistan.  It directed attention to other sources of general information, including a decision of the Refugee Review Tribunal.  It concluded:

   Conclusion: We submit that the DFAT report of 21 February 2010 does not support a conclusion that Hazaras are no longer at risk of persecution in Afghanistan. While there is no argument that each claim must be considered on its merits, the more recently available information along with information that otherwise contradicts some of the DFAT conclusions supports conclusions that: (i) there is increasing instability and violence in Afghanistan particularly in southern and central regions where Hazaras are concentrated; (ii) the increased violence is a consequence of NATO attempts to counter the resurgent Taliban; (iii) the Taliban has a strong presence in virtually all of the areas where Hazaras are concentrated; (iv) the Taliban has a recent history of violent oppression over Hazaras (conceded in the DFAT report); and (v) there are increased risks for Hazaras involved in property disputes with people who have occupied their land.

   In all of the circumstances, we submit that Hazara applicants are at risk of persecution on turn to Afghanistan. We further submit that relocation is neither reasonable nor practicable because, apart from logistical issues related to traveling on dangerous roads, there is no real opportunity for the claimants to earn a living in areas of relocation.

4. However, the RSA assessor relied on the assessments of country information found in the DFAT report, which suggested that “Hazaras are not being persecuted on any consistent basis”.  The assessor thought that the applicant had encountered banditry and extortion while travelling within Afghanistan, but that this was “of all people utilising the roads and not particular ethnicities” and was not for a Convention reason.  The assessor thought that the applicant could “return to Kabul and have a secure life there”.

5. The agents’ second written submission was made on 30 September 2010, after the RSA assessment. It did not address the applicant’s personal history or situation, but addressed the applicant’s ‘generic claim’ that he was at risk in Afghanistan by reason of his race, religion, and imputed political opinion as a Hazara Shia.  It submitted that the RSA assessor had “underestimated the power which the Taliban currently wield throughout Afghanistan and the risk of harm with this represents for people of Hazara ethnicity such as (the applicant)”.  It extracted passages from recent background reports which related to this topic.

6. Mr McDonald’s report was made on 6 July 2011.  It summarised the evidence presented by the applicant and his agents.  Under the heading ‘country information’ he said that he “has had regard to the country information mentioned in the report of the RSA office and that summarised earlier in these reasons from the submissions made on behalf of (the applicant)”.  He sketched the background situation of the Hazaras in Afghanistan, referred to the DFAT report of 21 February 2010, and discussed the submissions of the applicant’s agents which challenged its opinions. This discussion commenced with two paragraphs which now provide the focus of the second ground of review argued before me:

   38.The DFAT report of 21 February 2001 cited in the submissions, refers to and endorses the UNHCR 2009 Eligibility Guidelines for Afghan refugees, which did not find that Hazaras are the target subject of a campaign by insurgents. The UNHCR report, UNHCR Guideline for Assessing the International Protection needs of Asylum Seekers from Afghanistan, 17 December 2010, while acknowledging that discrimination against Hazaras exists states that:

   “The mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the grounds of ethnicity alone”

   The guidelines stress that risk on the grounds of ethnicity, religion or imputed political opinion will depend on the individual circumstances of the individual. The report acknowledges that the situation in Afghanistan is fluid and the situation outlined in the report may not remain into the future.

   39.This latter point is relied on in the first submission which, citing criticisms of the DFAT report in the RRT decision, referred to earlier claims that more recent country information does not support the conclusion reached in the DFAT report. An analysis by the RRT of information contained in the DFAT article, when considering the circumstances pertaining in a particular case, do not constitute evidence on which reviewers can rely. Further the examples cited in the submission do not consistently support a finding that Hazaras are the subject of uniform targeted persecutory action. For example the reference to information in the Afghan Independent Human Rights Commission report refers to violence to Hazaras in particular areas outside Hazarajat and it does not support a conclusion that there is a uniform nationwide targeting of Hazaras by insurgents as the result of them being Hazaras (or Shi’a Muslims). The quote also refers to an increase in risk for humanitarian organisations - this does not extrapolate to include Hazaras.

7. After discussing other points raised in the agents’ submissions, Mr McDonald concluded:

   44.The reviewer is satisfied for the reasons expressed that the reports quoted in the submissions do not lead to the conclusion that the submissions put. The reviewer is satisfied that there is no credible evidence that Hazaras are subject to insurgent persecution (as distinct from societal discrimination not amounting to persecution) of the type required in order to support a finding which would attract the Convention definition of ‘refugee’.

8. Mr McDonald then examined the applicant’s own situation.  He noted that the agents’ submissions had “provided very little specificity in respect of (the applicant’s) circumstances”, and said that “It is the individual circumstances which are decisive and which now must be considered. The general country information is relevant in as far as it may inform an individual’s circumstances”. 

9. He accepted that the applicant “being in the minority on the basis of both ethnicity and religious affiliation in Afghanistan where that ethnicity and religion affiliation have historically given rise to persecution, may have a subjective fear of persecution”.  He then considered whether the applicant’s subjective fear was supported by “any objective basis”.

10. Based on a close examining the various accounts given by the applicant in relation to the incident with his cousin in Kabul in 2003, Mr McDonald did not accept that it included any threat.  He said that “consequently no serious harm can be said to have arisen on, or from, that occasion”.

11. Considering the applicant’s claims of harassment when travelling in Afghanistan in recent years, Mr McDonald found:

    66.For the reasons stated earlier I am unable to accept [the applicant’s] account of being captured, detained, robbed, beaten and shot at when he tried to escape. Since I do not accept his account it cannot be relied upon as providing objective evidence of him having a fear of persecution. The fact that he was stopped on six or seven occasions and verbally abused but not physically threatened leaves me satisfied that he did not incur serious (physical) harm which could be objectively construed as constituting persecution. Under the heading of Country information I have rejected his claims that he suffered persecution on the grounds claimed in the written submissions.

12. Mr McDonald then considered another claim which is now no longer relevant to the present proceedings, before recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

The applicant’s grounds of review

1. At the hearing before me, the applicant’s counsel relied only upon grounds 2 and 3 set out in a Further Amended Application which was filed at the hearing:

   Grounds of Application

   1.…

   2.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not address a claimed basis for the applicant’s fear of persecution, that is one who has his business in Behsood destroyed by either the Taliban or Kuchis because he was an Hazara.

   ·    The applicant made the claim that the Taliban destroyed his factory and stole his stock in his original Statement of Claims.

   ·    The applicant claimed in the IMR interview that the reason for the destruction was that the Taliban, Kuchis or Pashtuns had the same ideology in that they all wanted to make trouble for Hazaras.

   3.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information from which the reviewer drew conclusions adverse to the applicant’s claims.

   Particulars

   ·    The information was drawn from the following material:

   UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Afghanistan December 2010 (the 2010 Guidelines)

   UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Afghanistan July 2009 (the 2009 Guidelines)

   ·    The material was credible, relevant and significant to the applicant’s claims of his fear of persecution as an Hazara Shia in Afghanistan and was used decisively to refute those claims.

   ·    The reviewer did not put the substance of the information relied upon to the applicant either in the course of the review or at any other time prior to the recommendation.

   ·    Part 4.1 and Annexure D of the Independent Merits Review Guidelines (IMR Guidelines) are a source of the requirements of procedural fairness in relation to this ground of review.

   ·    The 2010 Guidelines came into existence after the Refugee Status Assessment (RSA) and after the last written submissions made by the applicant.

   ·    Circumstances of this case affecting the requirements of procedural fairness in this case include that:

   ·    The totality of the country information which the IMR consulted or to which the IMR had access was equivocal and represented differing views;

   ·    The 2010 Guidelines were expressed to supersede and replace earlier UNHCR Guidelines which had been relied on by the RSA and addressed in the applicant’s submissions;

   ·    The reviewer used the 2009 Guidelines in a way the applicant could not expect them to have been used because the reviewer was mistaken in his attribution of adverse information to the 2009 Guidelines.

Consideration of Ground 2

1. Counsel submitted that there was no express examination in Mr McDonald’s report of whether the applicant was at risk of Convention-related persecution arising from the applicant’s evidence concerning the destruction of the family’s Behsood factory around 2006. 

   
   

   He submitted that this amounted to a denial of procedural fairness resulting from a failure to address a separate integer or element in the refugee claims raised by the applicant or by the evidence before the decision-maker (citing  Plaintiff M61 [2010] HCA 41 at [42], Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802 at [42], and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63]).

2. In NABE (supra) at [63], the Full Court said:

   “It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same maybe true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.

3. However, their Honours also said at [62] that the Tribunal “is not required to consider criteria for an application never made” (citing Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [1], [28] and [31]). At [68] they said that a “judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.” 

4. Counsel for the applicant took me to the applicant’s evidence concerning the Behsood factory and its destruction, which he submitted raised a discrete refugee claim which was required to be addressed by Mr McDonald.

5. The relevant notes of the applicant’s arrival interview are:

   I lived for a while in Pakistan & settled there and I decided to start the carpet business. Then I saw the condition a bit improved, & went to my own village which is in [location] Behsood, & wanted to establish a few carpet factories (small ones). This was before the Kuchi attack when they came to the area. Business was good, profitable. When the Kuchi came people escaped the area and my business went broke.

6. In his RSA statutory declaration, he said:

   22.I resumed working with my father whom passed away in 2005 and because I was the oldest, my brothers decided that I should take over the business we had established. We were selling carpets which we were purchasing from Afghanistan.

   23.In 2005, I started a business in Behsood around 120 km West of Kabul, I had 12 looms and about 20 people working there, my brother [name] was managing this business whilst I was working in Pakistan.

   24.Approximately 12 months later, the Taliban captured Behsood, they destroyed my factory and stole all in it, and my brother succeeded to escape and returned to Pakistan via Kabul.

   25.Because my father passed away, I was the one whom now had to travel to Pakistan so as to purchase stock. I travelled around twice a year and each time through a smuggler.

   26.I would travel at times via “Spin Boldak” border near Kandahar or Tulkham border near Peshawar.

   27.I was often stopped by the Taliban on the way, I was beaten up, and they would take my truck and the carpets I may have bought, if I had no load, they’d beat me and take any money I had on me. These trips were not often successful and at times, returned to Pakistan with nothing at all.

7. According to Mr McDonald’s summary of the applicant’s interview with the RSA assessor on 11 May 2010:

   10.[The applicant] said that, after the incident described above, he returned to Pakistan where he established a carpet business. Again, thinking conditions in Afghanistan may have improved in approximately 2005, he returned to the village from where his parents hailed, [location], which is near Beshood in Wardak province. There he established small scale carpet weaving factories. [The applicant] said that the carpet business was profitable until the Kuchi came to the area and attacked his factories, after which his business in Afghanistan went broke. After the Kuchi attack he returned to the area but the vehicle in which he was travelling was stopped and he was taken off it. [The applicant] is reported as saying he did not know if those who were involved in taking this action were Taliban. [The applicant] said he was searched and 50,000 Afghan rupiah he had was taken. He was ‘slapped’ a few times and abused for being a Hazara Shi’a and accused of being a friend of America. He said that his captors advised him to become a Muslim like them. He feared he would be tortured.

8. At his interview with Mr McDonald, the applicant was asked about the small business started in Beshood:

   REVIEWER:           Am I right in thinking that at or just after your father died you established your own carpet making business in Behsood?

   CLAIMANT:Yes.

   REVIEWER:           So that you were then travelling between Karachi, Kabul and Beshood to get the carpets that were being made and taken them back to Karachi for sale?

   CLAIMANT:I was making it in Beshood and taking it to Karachi.

   REVIEWER:           And what happened to the factory that you were -

   CLAIMANT:There was a bunch in 2005 when Taliban came to Beshood, they set fire in lots of houses and my factory also was destroyed.

   REVIEWER:           And again, how does he know it was the Taliban? Was it the Kuchis?

   CLAIMANT:Taliban and Kuchis or Pashtuns, they have same ideology as Hazaras and they always want to create trouble for Hazaras, and I don’t know what their problems were.

   REVIEWER:           Well, did the Kabul Government do anything about the fact that these houses were burnt and your factory was destroyed?

   CLAIMANT:No, they didn’t, they couldn’t. They can’t help themselves, how can they help us?

   REVIEWER:           So you got back to Kabul and what happened after that?

   CLAIMANT:Then I went to Pakistan. I went to Pakistan because my family was not in Kabul and I was not feeling safe in Kabul. There was no security and some people said it’s not secure, it’s not right, and my family was in Pakistan, I went there.

   REVIEWER:           And did you still carry on with the carpet business?

   CLAIMANT:Yes.

   REVIEWER:           Did that require you to go back to Afghanistan to get more carpets?

   CLAIMANT:Yes I was travelling and buying the carpets because I didn’t have the equipment, and each time I was travelling I was not hoping to return because there were Pashtuns and Taliban and I am Hazara and I was very scared.

9. In my opinion, neither in these passages, nor elsewhere in his evidence, did the applicant clearly raise a claim that the events surrounding the destruction of the family’s factory in Behsood exposed him personally to a particular future risk of persecution for a Convention reason if he returned to Afghanistan in the future.  I do not understand his evidence to have been that he was, himself, present when the Kuchi incident happened, nor that the factory was specifically targeted by reason of an association with the applicant himself. 

10. At highest, and understood in the light of country information which was cited by the RSA assessor, the applicant’s account of the incident was presented as an illustration of past insecurity facing the population of Behsood district as a result of historical ethnic tensions between the Hazara population of the district of Behsood and other ethnic groups including the Kutchi and other groups.  In effect, it was presented as an element in the applicant’s past history which was relevant to his refugee claims only in so far as it gave support to the applicant’s ‘generic’ claim that he would be at risk everywhere in Afghanistan by reason of pervasive threats from the Taliban and other groups hostile to Hazara Shia Afghans.

11. The implications of the incident for the future were addressed, and put aside, by the RSA assessor by reference to country information concerning fighting between Hazara farmers and nomad Pashtun-Kuchi in 2006 in some locations in Afghanistan.  The assessor said:

    The claimant states that his carpet manufacturing business was destroyed during a period when the Kuchis captured Behsood. There is an ongoing dispute between the Hazaras and the Kuchis over pastoral rights, which flares up from time to time. However, the Afghani Government is actively managing the problem and there should not be a repetition of the capture of Behsood (4.19-22). If he is concerned about this, the claimant could decide to re-establish his carpet manufacturing business somewhere else. Regardless, loss of financial assets is not persecution.

12. Counsel for the applicant took me to the four sources cited by the assessor in her footnote to this passage, highlighting particular paragraphs describing particular past incidents of ethnic violence in particular locations in a particular region of Afghanistan.  These referred to a “perennial conflict between the nomadic Kuchis and the more agriculturally oriented Hazaras over grazing rights in central Afghanistan”.  Counsel conceded that at no time had these passages been brought specifically to Mr McDonald’s attention, and that the applicant’s agents had at no time made any submission suggesting that these reports had any particular relevance to a consideration of the applicant’s refugee claims. 

13. Nor, it appears to me, was any submission made by the applicant’s agents to Mr McDonald which gave any special significance to the 2006 destruction of the applicant’s factory in Behsood, when assessing his future risks of persecution if he returned to live in Afghanistan, and in Kabul in particular.  No submission was made challenging the RSA assessor’s consideration of the incident.  Rather, the tenor of both the applicant’s evidence and his agents’ submissions, was that the applicant faced risks of persecution as a Hazara Shia from various hostile groups which were universal throughout Afghanistan.

14. As counsel for the Minister pointed out, it is impossible to find that Mr McDonald was not aware of, nor that he failed to give some consideration to, the applicant’s evidence concerning the Behsood factory.  All the evidence which I have extracted above, was narrated by Mr McDonald in his report and, in my opinion, must have been considered by him in the context of the refugee claims which were presented to him.

15. In my opinion, it was open to Mr McDonald to understand the applicant’s history concerning the destruction of the Behsood factory in 2006 as having relevance, at best, to the applicant’s general claim that Hazara Shias as an ethnic group are currently the subject of targeted violence from various groups because of their ethnicity and religion, to such a degree that their fears of persecution in all locations in Afghanistan are well founded.  It is clear that Mr McDonald did address that claim, and was not satisfied that a foundation for that claim was established.  

16. I am therefore not satisfied, on a fair reading of his report in the light of how the applicant’s refugee claims were presented to Mr McDonald, that he did not take into account the applicant’s evidence of this 2006 event, when making his assessment of the future.

17. In my opinion, the absence of any expressed discussion of the implications of the 2006 event for the future risks facing the applicant is explained by Mr McDonald’s findings which generally rejected the applicant’s ‘generic’ claim of non-geographically-confined risk of persecution merely as an Hazara Shia.  Mr McDonald’s assessment of these implications was “subsumed” in those findings (cf. WAEE v Minister for Immigration (2003) 75 ALD 630 at [47], Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91], and MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 at [110]).

18. I am therefore not satisfied that there was any separate integer of the applicant’s refugee claims which was clearly raised by the applicant’s reference to events concerning the Behsood factory, and which was not addressed by Mr McDonald.  Ground 2 should therefore be rejected.

Consideration of Ground 3

1. Although the written and oral submissions of counsel for the applicant in relation to this ground were unclear, I understood him to submit that two aspects of Mr McDonald’s reasoning in paragraphs 38 and 39 of his report evidenced breaches of procedural fairness.  I have extracted these paragraphs above.  They formed part of his reasons for rejecting the submissions of the applicant’s agents in support of the applicant’s ‘generic’ claim to have a well-founded fear of persecution throughout Afghanistan purely by reason of his identity as a Hazara Shia. 

   
   

   I understood counsel’s contentions to be:

   i)Mr McDonald’s first sentence in paragraph 38 misread the DFAT report of 21 February 2010, by attributing the opinion that the UNHCR ‘did not find that Hazaras are the target subject of a campaign by insurgents’ to the published UNHCR 2009 eligibility guidelines, when, in fact, it was a UNHCR presentation in December 2009 which contained that information.  Fairness required that Mr McDonald should not adopt such a reading without first inviting the applicant to comment upon it.

   ii)Mr McDonald’s references to the UNHCR 2010 guidelines in paragraph 38 evidenced his reliance on new information unknown to the applicant and his agents, without inviting the applicant to comment upon it in accordance with principles of procedural fairness.

2. I do not consider that either of these contentions has been shown to have substance, nor that they gain added strength by being considered together, as counsel submitted. 

3. I have recently examined the principles of procedural fairness to be found in High Court authorities concerning the use of background or country information in the assessment of refugee claims (see SZQHC v Minister for Immigration & Citizenship [2011] FMCA 851 at [29]-[39]). I do not consider that reference to the Minister’s IMR directions alters the obligations of procedural fairness which would otherwise be implied by common law, and this seems to be implicit in Plaintiff M61 (supra).  In the present case, I shall apply my previous discussion in SZQHC of Plaintiff M61, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 to the circumstances and arguments presented in the present matter.

4. In relation to the first contention of the applicant’s counsel, it is common ground that Mr McDonald’s reference in paragraph 38 to the ‘DFAT report of 21 February 2010’ was to the following paragraphs in that report:

   UNHCR

   3.UNHCR in Afghanistan has developed “eligibility guidelines” in July 2009 for Afghan asylum seekers which will be updated in 2010. The guidelines (see CISLIB#l7703) seek to provide an approach to the assessment of claims that recognises that despite the situation in Afghanistan, not all Afghans abroad were refugees or in need of international protection. Case-by-case analysis was needed. (Also at CISLIB#18280 is a presentation given by a UNHCR Senior Protection Officer to EU Missions in Kabul in December 2009. It is noteworthy that the presentation states belonging to a minority ethnicity was “not currently a major cause of flight”). UNHCR believes that countries should not give blanket consideration to claims of particular ethnic groups from Afghanistan. UNHCR has abandoned the practice of designating zones of generalised violence within Afghanistan where the conflict lent itself to refugee claims. Claims should be assessed individually on their merits.

   4.UNHCR said there was no evidence of a campaign by the insurgency to target Hazaras. There were anomalous cases, such as in Ghazni (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues: see para 8) but in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control. The Hazaras were experiencing a relative “golden age” in light of their tragic past.

5. The basic flaw in the first contention is that there was nothing inaccurate or surprising in the gist of the information which Mr McDonald drew from this part of the DFAT report in his first sentence of paragraph 38.  This was that DFAT endorsed the UNHCR 2009 guidelines, and that the UNHCR 2009 guidelines “did not find that Hazaras are the target subject of a campaign by insurgents”.  Both of these opinions were, in my opinion, open on a fair reading of the DFAT report and of the sources it cited, and there was no use by Mr McDonald of significant information drawn from the DFAT report or the sources it cited of an unexpected or surprising manner.  Manifestly, the applicant’s agents were well aware of the contents of the DFAT report, and, presumably, of the contents of the sources cited in it.

6. Mr McDonald’s words: “which did not find that Hazaras are the target subject of a campaign by insurgents” appear not to be a direct quotation from either the DFAT report, the 2009 UNHCR guidelines, or the UNHCR ‘presentation’ cited by the DFAT report.  It is also unclear to me whether this opinion as to the effect of the 2009 UNHCR guidelines is: (i) Mr McDonald’s own reading of the 2009 UNHCR guidelines endorsed by the DFAT report, or (ii) something said by a UNHCR official at the ‘presentation’ cited by DFAT as to the effect of the UNHCR guidelines, or (iii) something new said by the UNHCR official at that presentation.  All of these interpretations of this sentence appear to me to be possible, and I am not satisfied that any of them would reveal any significant misreading of evidence, error of law, or denial of procedural fairness.

7. In the course of his submissions, counsel for the applicant took me to a concluding statement in the 2009 UNHCR guidelines at page 20, in the section under the heading ‘minority ethnic groups’.  It states:

   Severe discrimination against ethnic minorities in some areas is also reported, most commonly in the form of denial of access to education and other services and political representation. As such, members of ethnic groups may be at risk of persecution on the ground of their ethnicity/race, in areas where they constitute a minority. (73)

8. This statement appears in a paragraph which is not confined to any particular ethnic group in Afghanistan, although the preceding paragraph discussed references to possible discrimination and threats to Hazaras.  Footnote 73 to the statement is:

   73.UNHCR Handbook, above footnote 25, paras. 68-70. See also RRT Case No. 071852303 [2008] RRTA 17, 25 January 2008 (Refugee Review Tribunal of Australia), available at where the Tribunal held that the applicant, a Hazara, would at risk of persecution upon return to Afghanistan on the basis, inter alia, of his ethnicity. The Tribunal further held that Hazaras were, generally, at risk particularly in areas where the population was dominantly Pashtun. See also RRT Case No. 071246761 [2007] RRTA 147, 9 July 2007 (Refugee Review Tribunal of Australia), available at and RRT Case No. 060627969 [2006] RRTA 183, 30 October 2006 (Refugee Review Tribunal of Australia), available at regarding the absence of effective protection for Hazaras in Afghanistan.

1. Counsel for the applicant noted that the cited RRT decision was the same decision which was strongly relied upon by the applicant’s agents in both of their written submissions, and which was considered by Mr McDonald in paragraph 39 of his report.  As I understood him, counsel submitted that the footnote citation of the RRT decision by the UNHCR showed that, in fact, the 2009 UNHCR guidelines positively supported the opinion that ‘Hazaras are the target subject of a campaign by insurgents’.  He submitted that it was not therefore possible for anyone to conclude that the UNHCR guidelines did not contain that opinion.

2. However, the statement to which the footnote attached shows that the UNHCR 2009 report accepted the RRT decision as evidence for no more than that Hazaras may be at risk of persecution “in areas where they constitute a minority”.  Neither this sentence, nor anything else in the 2009 UNHCR guidelines to which I was taken, is inconsistent with a general opinion that these guidelines “do not find that Hazaras are the target subject of a campaign by insurgents”.  Elsewhere in the 2009 guidelines, the UNHCR recommended that “applications by Afghan asylum-seekers should be determined on an individual basis”, and did not include Hazara Shias in the specific groups for whom it recommended “favourable consideration” (see p.11).

3. I am not satisfied that counsel for the applicant was able to establish anything erroneous, surprising or unexpected in the statement made by Mr McDonald in paragraph 38, as to the effect of the 2009 UNHCR guidelines endorsed by the DFAT report.  It is not submitted otherwise that this was not a document, the contents and effect of which would not have been known to the applicant’s agents.  The foundations for the first argument of counsel for the applicant have not, therefore, been established to my satisfaction. 

4. I also have doubt whether, if Mr McDonald did make a mistake of attribution when reading the DFAT report or the UNHCR sources cited in it, this could establish a denial of procedural fairness. 

   
   

   In circumstances where the applicant and his agents were clearly on notice that the contents of these documents would be considered in the course of the IMR review, I am inclined to conclude that, at best, counsel’s arguments could establish no more than mistake of fact in relation to known evidence. The agents certainly had the fullest opportunities to make submissions on how Mr McDonald should read and understand the effect of these documents, and they availed themselves of this opportunity. 

5. For all the above reasons, I do not consider that any denial of procedural fairness is evidenced by Mr McDonald’s reference to the DFAT report and its citations.

6. Turning to the second contention of counsel for the applicant in support of Ground 3, concerning Mr McDonald’s reliance on the replacement 2010 UNHCR guidelines, counsel for the applicant submitted that they contained significant new adverse information.  He submitted that I could infer that no invitation was made by Mr McDonald for comments on the new guidelines, and this appears to be common ground. 

   
   

   He submitted that I could then assume that a denial of procedural fairness occurred, without any evidence from the applicant or his agents that they were not aware of this important document and that they were denied an opportunity to make submissions on its relevant contents. 

7. However, I am not prepared to assume that the applicant and his agent were unaware of the guidelines, nor that any relevant injustice occurred by reason of the absence of an invitation to make submissions on their contents.  Nor am I satisfied that the 2010 guidelines did contain significant and novel information potentially adverse to the applicant’s claims.

8. I accept that there is authority that, where adverse information bearing on an applicant’s claims was before a decision-maker, it is open to a court on judicial review to find a denial of procedural fairness merely from the nature and contents of the adverse information and the absence of an invitation to comment, even if no evidence is presented from the applicant and his representative showing that they suffered a ‘practical injustice’ resulting from being denied an opportunity to respond to such an invitation (see Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298, 133 FCR 541 at [91]-[97] , and WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [56-58]). In such cases the information usually shows on its face that the applicant was probably unaware of significantly adverse information, and the information itself allows an inference that it carried such a significant prejudicial potential that fairness required an invitation to comment. Moreover, as Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 explains, in some cases the prejudicial potential is so clear to the court on judicial review from the nature of the information, that fairness required an invitation even if the decision-maker decided not to rely upon the information.

9. These situations do not necessarily arise in relation to all pieces of general background country information by reference to which refugee claims might be assessed.  Where a ‘new’ source or commentary on country information only appears to add to a general body of information which is known to an applicant and his advisors, and where the new source appears to be generally available to refugee claimants and their advisors, there is no obvious inference that they have suffered a practical injustice if the decision-maker adds the new source to his general background knowledge without inviting further submissions.  Where the court is not satisfied from the nature and contents of the new document or information that it was unknown by the applicant and his migration agents, or that it could carry any significant adverse potential, or that material injustice might have resulted from the absence of an invitation to comment upon it, then an applicant may need to present evidence from himself and his professional advisors, deposing to their ignorance of the previously uncited information and how they would have attempted to rebut any potentially adverse effects contained in it. 

10. As counsel for the Minister submitted, there are authorities where the absence of such evidence has resulted in the court not being satisfied as to a breach of procedural fairness arising from reliance on undisclosed country information (citing Re Minister for Immigration & Multicultural Affairs; ex parte “A” (2001) 185 ALR 489 at [54], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [37], VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 at [16], and Applicants M1015/203 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1309 at [60].

11. In Applicants M1015, Weinberg J reviewed previous authorities, and concluded:

    52For present purposes, I propose to proceed upon the basis that both Dagli and NARV correctly state the relevant principles governing this branch of the law. In my opinion, there is no obligation, as such, on an applicant who complains of procedural unfairness to positively establish that, absent the unfair process, he or she would have taken a different course, and that the process has resulted in practical injustice. I accept that there are differing views on this issue, and that the opposing position is said to be supported by Ex parte Lam, and possibly also by Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437. However, I agree with Mr John Basten QC that this argument is "based on a misapprehension as to the scope of the principle enunciated in these two cases". See generally J Basten QC, ‘Constitutional elements of judicial review’ (2004) 15 PLR 187 at 195-8. Where an applicant does not give evidence of what he or she would done had they been told that the Tribunal intended to rely upon particular information adverse to their case, there is no general or inflexible rule that procedural unfairness cannot be demonstrated.

    53That is not to say that evidence of this type is irrelevant, or even that the absence of such evidence may not be decisive in some cases. It is simply to say that there is no prerequisite that such evidence be given in all cases in which procedural fairness is alleged.

    54Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.

12. Turning to consider Mr McDonald’s references to the 17 December 2010 UNHCR guidelines, I have in one case involving a Hazara Shia Afghan refugee claimant been prepared to assume that the claimant and his agents were unaware of this publication, and might have been surprised by the fact that an IMR intended to give significant weight to the guidelines’ perceived lack of support for a ‘generic’ refugee claim in view of the recency of the publication.  I found these circumstances sufficient to establish denial of procedural fairness (see SZQEK v Minister for Immigration & Citizenship [2011] FMCA 628). However, the IMR decision in that case was made on 29 March 2011, which was not long after the new guidelines were published.

13. In a later case before me, where the IMR decision was made on

    
    

    11 January 2011, there was evidence that an experienced IAAAS migration agent was, in fact, aware of the new guidelines within days of their publication, and had made submissions seeking to draw support from parts of them.  I was not prepared to infer, in the absence of evidence from the agents, that relevant unfairness occurred because the applicant was not invited to comment on the replacement passage in the guidelines concerning the situation of Hazaras as an ethnic minority (see SZQHC at [63]).

14. In the present case, the IMR report was made on 6 July 2011, more than six months after the UNHCR published its 2010 guidelines, and after the applicant and his agents had ample opportunities, including at an interview on 11 February 2011 and in email exchanges with the reviewer between April and June 2011 to make a supplementary written submission, up-dating the agents’ written submissions on the effect of relevant general country information.  The agents appear to have been representing a number of Hazara refugee claimants in RSA and IMR proceedings over this period. The replacement guidelines, like the previous 2009 guidelines, appear of such obvious relevance to Hazara Shia refugee claimants, that it is difficult to conclude that an experienced migration agent in the area would have remained unaware of their existence for six months after their publication, and would not have considered whether they significantly affected the relevance of the previous submissions made on behalf of their client and other refugee claimants making the same ‘generic’ refugee claim.   As I have noted above, their earlier submissions had shown an awareness of the earlier 2009 guidelines and how they were viewed by DFAT in its February 2010 report.

15. In circumstances where counsel for the Minister, in his written submissions, has taken the point that no evidence had been elicited to the contrary from the agents, and in the absence of any evidence from the applicant and his agents, I would not conclude that practical injustice may have resulted from the absence of an invitation to comment on the revised UNHCR guidelines in their application to Hazara Shia refugee claimants from Afghanistan.

16. Moreover, the absence of any such evidence, also leaves me not satisfied that the new guidelines did, in substance, alter the material effect of the 2009 guidelines, in so far as they had a bearing on an assessment of the refugee claims of the present applicant.  Merely on my own comparison of the passages to which I was taken by the applicant’s counsel in the respective reports under the headings “members of (minority) ethnic groups”, I was not so persuaded.

17. Rather, it appears to me that the general effect of the 2009 guidelines in relation to the position of Hazara Shias was the same as relevant passages in the 2010 guidelines, which had the effect found by Mr McDonald in paragraph 38 of his report.  That is, that the risks of Convention persecution facing Hazara Shia refugee claimants from Afghanistan needed to be assessed in their individual circumstances, and not upon the basis of a class or generic finding that all members of this ethnic group have a well-founded fear of persecution. 

18. There was, in my opinion, nothing novel nor substantially different from the approach of the 2009 guidelines which I have quoted at paragraph 48 above, in the recommendation in the 2010 Guidelines at p.32 which was quoted by Mr McDonald:

    UNHCR therefore considers that members of ethnic groups, including, but not limited to those affected by ethnic violence or land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case. However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone …

    If anything, the slightly more extensive discussion in the 2010 Guidelines and its additional citations might have been more, rather than less, favourable for an assessment of the applicant’s ‘generic’ and individual refugee claims.  There was, in my opinion, no obvious unfairness to the applicant by Mr McDonald referring to the revised guidelines without inviting further submissions.

19. I have above rejected the submission of counsel for the applicant that the 2009 guidelines’ reference in a footnote to a RRT decision carried a positive opinion to the effect that ‘Hazaras are the target subject of a campaign by insurgents’.  The equivalently placed passage from the revised 2010 guidelines continued to cite the RRT decision (see footnote 233), with, in my opinion, substantially the same degree of reliance on it. I am not persuaded by counsel’s submission that the 2010 Guidelines contained a significant adverse alteration to the UNHCR’s opinions bearing on Hazara Shias, in particular in relation to its citation of the RRT decision in both documents. 

20. I am also unpersuaded that Mr McDonald drew upon the 2010 guidelines for anything more than had already been submitted by the applicant’s agents in their first written submission, that “there is no argument that each claim must be considered on its merits”.  In his report, Mr McDonald acted upon the same conclusion from his own assessment of relevant background information, and I am unpersuaded that when he proceeded to examine the applicant’s individual claims and situation he relied decisively, or at all, upon any new adverse piece of information taken from the 2010 UNHCR guidelines which fairness required him to have invited comment upon.  Any objectively discoverable breach of procedural fairness in relation to anything in the 2010 guidelines would not, in my opinion, have been material to Mr McDonald’s decision.

21. For all the above reasons, I am not satisfied that the applicant has established ground 3 of his further amended application.

22. Since the applicant has not established any error of law or procedural fairness affecting this IMR report, I must dismiss the application.

23. It is accepted that a costs order should follow the event, and I consider that the prescribed scale should apply.

I certify that the preceding sixty‑nine (69) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 9 December 2011