SZQNO v Minister for Immigration
[2011] FMCA 944
•30 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 944 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer denied the applicant procedural fairness by not notifying him of information she relied on in reaching her conclusions. |
| Migration Act 1958, ss.5, 36, 46A,195A, 424A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 VAF v Minister of Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Kioa v West (1985) 159 CLR 550 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 |
| Applicant: | SZQNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1797 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 November 2011 |
| Date of Last Submission: | 23 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.F. Gormly |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1797 of 2011
| SZQNO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 14 or 15 May 2010. On 23 October 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). At the time of the hearing of this application the applicant was in immigration detention and, it may be assumed, had been in such detention since he arrived at Christmas Island. On 14 December 2010 an officer in the department administered by the first respondent Minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 29 July 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
The evidence satisfies me that the applicant had no visa when he entered Australia. Because of this, and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49].
In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 3-9 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 31 May 2010:
a)he left Afghanistan because of threats he received from the Taliban and the police whilst working at his business in the basement of a hotel in Kabul;
b)he received two letters in 2008 from the Taliban leader, Mullah Omar, stating that the billiards which he permitted to be played in the hotel were gambling and that he should stop them or risk the hotel being bombed. Although the letters instructed him to speak to the Taliban, he did not;
c)he continued his business without the billiards but suspected that he was watched by strangers;
d)he received another letter in 2009 accusing him of serving alcohol and allowing people to conduct sexual affairs in the hotel. The letter also stated that someone would be sent to bring him to the Taliban. He was fearful because the Taliban had his details but as he held a three year contract to run the business, he had continued to do so but very carefully;
e)an officer from a nearby police station had asked to bring a woman to a hotel room and he had refused. The police officer had returned with other officers to harass the applicant and his guests. He reported the police officer to the Home Ministry but had been disbelieved and detained for four hours; and
f)the police officer had continued to come to his hotel. He slapped him and threatened to gaol him, torture him or kill him. He became fearful and thus stopped his business and fled to Australia. If he returned to Afghanistan the Taliban or the police officer, who still lived and worked in Kabul, would kill him.
RSA application
In a statement dated 23 October 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)the second letter he received from the Taliban had accused him of allowing young Muslims to use the hotel for alcohol, dancing and sex;
b)he had refused the local police commander a free room for sex. The commander returned later that night with four armed police and destroyed the hotel; and
c)he reported the police to the Ministry but was accused of lying, slapped and detained for three hours. When he was released the police commander had told him that he was no longer safe in Afghanistan and that he was going to kill him. The police commander had continued to visit the hotel and to threaten him.
Proceedings before the Reviewer
In submissions to the Reviewer dated 5 April 2011, the applicant’s migration agents submitted that Hazaras have a well-founded fear of persecution in Afghanistan based on their ethnicity; on an imputed political opinion as supporters of the government, NGOs and the international community; and as members of the social group of failed asylum seekers or returnees from Western countries. The applicant’s migration agent also submitted that it would not be reasonable for the applicant to relocate to Kabul.
The applicant was interviewed by the Reviewer on 7 May 2011 at which point he made the following additional claims:
a)his father told him that his family had been forced to leave their home town in Wardak in Afghanistan, and move to Iran in 1985 because Hazaras had been targeted during the civil war;
b)he spent the first sixteen years of his life living as an illegal resident in Iran, facing persecution, getting robbed and being harassed. When the Taliban was overthrown and the war was over, his family moved back to their home in Afghanistan but they were treated with suspicion. They stayed there for six months but were fearful and moved to Kabul;
c)in 2004 he opened a bank account in Kabul with money that he had saved in Iran. He had had to pay three bribes to withdraw his money and eventually close the account. Hazaras were forced to pay bribes in order to run their businesses;
d)in 2007 he entered into a three year lease to use a building as a hotel and had developed a website for the hotel. He experienced multiple problems with the municipal government, the local council and the security forces because they had asked him for monetary bribes. He had also experienced jealousy from non-Hazaras because of the success of his business;
e)after he had installed snooker tables in 2008, he received a letter from the Taliban saying that snooker was against Islamic law and that it had to cease or the hotel would be bombed. He then sold the tables. In 2009 he received another letter from the Taliban accusing him of renting rooms for alcohol and sex, saying that this was against Islamic law and instructing him to stop or they would kill him;
f)he had not served alcohol in his hotel because it was against his religion and he had never permitted prostitutes in his hotel. However, sometimes foreigners had taken alcohol to their rooms and the cleaners had sometimes found empty bottles. Local people or spies had given the wrong information to the Taliban because they had not wanted him, a Hazara, to be successful;
g)the commander of his local police station and another officer who had a family connection with the Minister of the Interior had regularly dined at his hotel and never paid. The police commander had also brought alcohol to the hotel and drank it with his friends;
h)after he refused the police officer a room to occupy with a prostitute he had been afraid and worried that the police would make a false claim against him and gaol him or that they would kill him because he had offended their dignity. The owner of the building had agreed to release him from the lease and he left for Australia after about two or three months;
i)the two police officers had threatened his family by arranging for the local police to question them on three occasions. They stopped visiting his family when they confirmed that he had left the country. He could not move to a different part of Kabul because the police commander was very powerful and given his close relationship with the Ministry of the Interior he would know where the applicant was;
j)the Taliban would find him anywhere in Afghanistan and would kill him. Once the Taliban had issued a warning it was like a ruling that needed to be implemented; and
k)the events he described had occurred because he was a Hazara Shia and the government could not protect him because it was weak and could not protect itself.
At the interview with the Reviewer the applicant’s migration agent submitted that the applicant was a member of a group of people listed by the United Nations High Commissioner for Refugees Guidelines as having contravened Sharia law because of the perception held by the Taliban that he had served alcohol at his hotel and that there was no mechanism for him to change this perception. Further, he faced persecution in Kabul from the Taliban and the police because he is Shia and a Hazara.
The applicant provided some internet video clips to the Reviewer showing Taliban attacks in Kabul in 2010 and a translation of a warning letter purportedly from the Taliban. The applicant’s migration agents provided a second translation of the letter to the Reviewer on 18 July 2011 after the Reviewer had raised concerns about the first translation. In a further submission provided with the second translation of the letter, the applicant’s agents submitted that the applicant feared persecution from the Taliban on the basis of his religion and ethnicity as well as membership of a particular social group of “Shia Hazaras displaced from areas controlled by the Taliban (Wardak Province)”.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons.
Whilst accepting that the applicant had fled his home area twice and that Wardak was an insecure area and a Taliban stronghold that was dangerous for Shia Hazaras, the Reviewer found that the applicant had only lived in that province for six months of his life, in 2001, and that he had not indicated that he wanted to return to live there. The Reviewer found that the applicant did not have a connection to Wardak, other than a historical familial one that had been severed when his father sold the family home and land in 2001 and moved to Kabul. The Reviewer found that the applicant did not own any property, or have family, in Wardak, finding instead that he had been educated in Kabul, had worked extensively there and owned property in Kabul where his whole family resided. The Reviewer thus did not accept the applicant’s agent’s reasoning that the applicant’s fear of persecution revolved around the Wardak region, finding that the applicant had enunciated a fear of the Taliban in Kabul where he had resided since 2001. The Reviewer therefore found that there was no real chance of harm to the applicant in Wardak because she was not satisfied that the applicant intended to or would return to that area.
The Reviewer was not satisfied that there was a real chance of the Taliban seeking out the applicant specifically to harm him by way of execution then or in the reasonably foreseeable future for the Convention reasons of race, religion or membership of a particular social group of persons “perceived as contravening Sharia law”. In this regard:
a)the Reviewer accepted that the Taliban had a presence in Kabul, predominantly on the outskirts of the city, and that they undertook violent operations within the centre on occasion. However, she found that there was no evidence that Hazaras were singled out for such violence in Kabul. Moreover, she found that a report that one or two Hazaras had been killed did not lead to an automatic inference that they had been killed for a Convention reason or that Hazaras were generally persecuted. The Reviewer found that insecurity and a risk of harm in an insurgency situation did not establish or preclude refugee status, noting that non-Hazaras and non-Shias in Kabul were also victims of the insurgency and Taliban attacks on facilities;
b)the Reviewer accepted that snooker, serving alcohol and renting rooms for sex are against “Shia” (recte: Sharia) law and Taliban philosophy. However, she noted that the applicant had continued to run his hotel after complying with the Taliban’s instructions to cease his snooker business in 2008 and after he had received the second threat in 2009 about prostitution and alcohol. The Reviewer noted that the applicant had not complied with the letters’ requests that he attend personal meetings with the Taliban and that he had not been pursued to do so. The Reviewer found that this was not the “zero tolerance” or “swift and brutal” Taliban response posited by the applicant’s agent’s submissions. In addition, the Reviewer found that there was no evidence that the applicant had suffered punishment, societal discrimination or stigma as a result of having alcohol at his hotel and further that he was never charged or convicted of any offence related to serving or permitting alcohol on his hotel premises. The Reviewer found that this was consistent with country information that because of corrupt policing the serving of alcohol in Kabul hotels was accepted, despite being a transgression of Sharia law. She found that were the applicant to return to Kabul, there was no real chance that he would be harmed by the state or by anyone else as a result of having served alcohol in his hotel in the past; and
c)after noting certain inconsistencies between what the applicant said the threatening letters from the Taliban contained and the translated documents that he provided, and upon weighing the applicant’s oral and written evidence, the Reviewer found that the Taliban had not threatened him by letter in 2008 and 2009. She found that the inconsistencies and speculation about events undermined the applicant’s claims for protection on the bases of race and religion. The Reviewer found that the applicant had engaged in a misguided attempt to bolster his claims by inventing the Taliban letters. She also found that, on the applicant’s own evidence, the run-in with the police commander had been the catalyst for him closing the hotel and leaving Afghanistan.
The Reviewer rejected the applicant’s evidence that only Hazara businessmen were made to pay bribes in Kabul, finding that country information, including that provided by the applicant’s agents, pointed to widespread corruption in Kabul which was not limited by race or religion.
The Reviewer found that the applicant’s race and religion were not the essential and significant reason for the police harassment. In this regard:
a)whilst accepting that the applicant’s ethnicity may have fuelled the police officers’ discontent with him, the Reviewer found that the main reason that the police officers became angry with the applicant was because he refused them a room for sexual activity and that they saw him as a successful young man acting above his station. Further, whilst accepting that the applicant had been socially discriminated against, the Reviewer did not accept that he had suffered serious harm amounting to persecution for a Convention reason at the hands of the police commander or his colleagues; and
b)the Reviewer unreservedly accepted authoritative sources about the high level of corruption, mutiny, poor training and leadership, understaffing and under-resourcing of the Kabul police force but found that the corruption of the police force did not indicate that they were cohesive enough, focussed enough and organised enough to know each other’s enemies and to be prepared to target them. The Reviewer found that it did not follow that all the police in Kabul would target the applicant on behalf of two other police officers or that the two police officers would still be interested in the applicant who had been out of the hotel business for more than a year and could no longer provide them with ongoing favours. The Reviewer found that retaliation from the police that the applicant feared was not inevitable as he claimed although, should he cross paths with them, he might be harassed because of the remembered non-Convention business dispute.
The Reviewer rejected a generic submission by the applicant’s migration agents dated 5 April 2011 covering all situations regarding Hazaras in Afghanistan. She noted that the applicant had been provided with ample opportunity to elaborate on those claims but had not done so and that the second submission from the applicant’s migration agents dated 18 July 2011 had also not included those claims. Consequently, the Reviewer found that there had been insufficient detail or evidence provided in relation to those claims to satisfy her that the applicant faced a real chance of persecution on those bases.
In relation to the submission that the applicant would be at risk because of his actual or imputed political opinion as an actual or perceived sympathiser or supporter of the government, coalition forces, foreign workers and NGOs in Afghanistan, the Reviewer noted that the applicant had given evidence that he had actively advertised, and permitted, foreigners to stay in his hotel but had not claimed that this was the reason that the Taliban or the police had targeted him. The Reviewer did not accept that this gave rise to a well founded fear of being persecuted.
Although a generic claim to fear risk because of his membership of a social group of failed asylum seekers returning from a western country was made in the applicant’s agents’ written submissions of 5 April 2011, the Reviewer found that the applicant had not “himself” made such a claim. Nonetheless, the Reviewer referred to a September 2010 Department of Foreign Affairs and Trade (“DFAT”) advice to the effect that Hazaras were not targeted because they had sought asylum from the west. She also referred to a February 2011 report from the Dutch News, to the DFAT advice of September 2010, to earlier DFAT advice of February 2009 and to a 2009 report from The Age confirming that some failed Afghan asylum seekers had been targeted by the Taliban and other non-state actors but that the attacks appeared to have generally taken place for reasons other than solely being failed asylum seekers. The Reviewer was not satisfied that the applicant would be of interest to the Taliban or the police because of his return from the west as a failed asylum seeker. Overall the Reviewer did not accept that this matter gave rise to a well-founded fear of being persecuted.
Given her findings, the Reviewer was not satisfied that if the applicant returned to Kabul he would face any Convention-related harm from which he would require state protection. The Reviewer found that were the applicant to return to Kabul he would be able to re-establish a livelihood given that he had family, contacts, a home, that he was familiar with Kabul and that given his recent experiences he was even more familiar with the intricacies of running a business there. The Reviewer found that the applicant was in a situation different to that of the vast majority of Hazaras living in Kabul and that he would not suffer the poverty and unemployment so characteristic of uneducated Hazara returnees.
Proceedings in this Court
The amended application was pleaded as follows:
1.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 which was credible, relevant and significant and from which the reviewer drew conclusions adverse to the applicant’s claims.
Applicant’s submissions
The applicant submitted that the information which had not been disclosed to him by the Reviewer was contained in para.101 of the Reviewer’s reasons for her recommendation, specifically, the information contained in the following passage:
Other reports, although confirming that some failed Afghan asylum seekers have been attacked by the Taliban and other non-state actors in Afghanistan, posit that the reported attacks appear to have generally taken place for reasons other than solely being a failed asylum seeker (Dutch News, February 2011, DFAT September 2010 and February 2009, The Age 2009).
The applicant submitted that although the DFAT cable of September 2010 had been referred to in the decision of the assessor, the other DFAT cable and the news reports had not been.
The applicant conceded that although his claim to fear persecution as a failed asylum seeker was not one which he had made to the assessor, or earlier, the assessor nevertheless raised the issue himself in his reasons. The relevant portions of the assessor’s reasons were:
Conditions facing Hazaras returnees vary according to circumstances. Returning to their areas of origin is more difficult if they have been out of Afghanistan for years and have no networks there. But interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west. (CB 86)
DFAT have also reported: … Conditions facing Hazaras returnees vary according to circumstance. Returning to their areas of origin is more difficult if they have been out of Afghanistan for years and have no networks there. But interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west. (CB 88)
The applicant referred to his agents’ subsequent written submissions to the Reviewer dated 5 April 2011 where at pp.17-21 it was argued that “Hazara failed asylum seekers and/or returnees from Australia to Afghanistan have been persecuted by non-state actors for these reasons.” That submission refers, without particulars, to “direct accounts of persecution” of Hazaras returning to Afghanistan, although reference was also made to nine failed asylum seekers repatriated by Australia to Afghanistan having been killed and others arrested and to an Amnesty International paper which stated that:
Failed asylum seekers are in danger upon return. Most will be killed upon return … (emphasis supplied in the submission).
The applicant argued that the country information supplied by his agents provided evidence of attacks having been made on returned asylum seekers. He submitted that as such actions had not been considered by the assessor they therefore presented, on the review, a new issue.
The applicant submitted in this connection that the Reviewer conceded that there had been some attacks on returnees but went on to say that those attacks were not sorely because the victims were returnees. The applicant submitted that the new information relied upon by the Reviewer to make the latter statement was found in the Dutch News of February 2011, the DFAT report of February 2009 and The Age report of 2009 referred to in para.101 of the Reviewer’s reasons. The applicant took the Court to copies of these reports. A reading of them reveals that they refer to returnees being killed for a variety of reasons, a request for asylum in Australia only being relevant to one of the cases cited, and thus provide factual support for the Reviewer’s statement that they “posit that the reported attacks appear to have generally taken place for reasons other than solely being a failed asylum seeker”.
The applicant submitted that the unfairness arose because the information in question was new, adverse and, to the extent that it was not adverse but was equivocal or supportive of his claims, was used in a way which he could not have expected and he had not been given an opportunity to comment on it.
The applicant submitted that the information in question was relevant because it dealt with the fate of asylum seekers and bore on his claim that such persons were victims of attacks. He said it was significant because the Reviewer had used it to rebut his claims. In this sense it was said to be analogous to the “information” referred to in s.424A of the Act and VAF v Minister of Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24(ii)] in that it was “knowledge of relevant facts or circumstances communicated to or received by” the Reviewer.
The applicant submitted that if the Reviewer had given him the information in the sources she cited he could have provided further information, although it was not necessary for him to adduce evidence of this in order to make out his claim based on a want of procedural fairness.
Consideration
Although the applicant’s case turned on one sentence in para.101 concerning the reports identified there by the Reviewer, it is useful to quote the paragraph in its entirety:
In relation to the agent’s submissions that [the applicant] would be at risk because of his “membership of the social group – failed asylum seekers returning from a western country”, [the applicant] himself did not claim to fear being at risk for these reasons. The DFAT September 2010 advice states that “interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west.” Other reports, although confirming that some failed Afghan asylum seekers have been attacked by the Taliban and other non-state actors in Afghanistan, posit that the reported attacks appear to have generally taken place for reasons other than solely being a failed asylum seeker (Dutch News, February 2011, DFAT September 2010 and February 2009, The Age 2009). I am not satisfied that [the applicant] would be of interest to the Taliban or the policemen because of his return from the West as a failed asylum seeker. Overall I do not accept that this matter gives rise to a well-founded fear of being persecuted.
That paragraph contains three distinct elements. The first element refers to the claim made by the applicant’s agents in their written submission of 5 April 2011 and to the DFAT advice which had been considered by the assessor and stated that “interlocutors do not believe Hazaras would be targeted because they had sought asylum in the west”. The second element is the sentence which is the focus of the present application and which cites the two DFAT reports and the articles from the Dutch News and The Age. That sentence supports the applicant’s assertion that failed Afghan asylum seekers had been attacked by the Taliban and other non-state actors but then goes on to qualify that information by reference to further material which indicated that the attacks had generally taken place “for reasons other than solely being a failed asylum seeker”. The third element of para.101 is the Reviewer’s conclusion.
To understand the significance of para.101 to the present proceedings, it must be read in context. The applicant’s generic claim to fear persecution in Afghanistan as a returned asylum seeker had already, in effect, been dismissed by the Reviewer in para.99 of her reasons where she said:
I note that the first submission by the agent, dated 5 April 2011, was generic and in attempting to cover all situations regarding Hazaras in Afghanistan, included claims that neither [the applicant] nor his agent provided me details as to his fears in this regard [sic]. [The applicant] was provided ample opportunity to elaborate on these other claims and has not done so. The second agent submission of 18 July 2011 did not include them. There is insufficient detail or evidence provided in relation to the claims to satisfy me that [the applicant] faces a real chance of persecution on those bases.
Having already stated in para.99 that she was not satisfied by the information contained in the written submission of 5 April 2011, and noting that the issues it contained were not pursued by the applicant at his interview with her or in subsequent written submissions, para.101 represents the Reviewer’s conscientious determination to nonetheless give thorough consideration to the presently relevant aspect of his claims. Although having stated that she was not satisfied that the applicant’s claim to fear persecution as a returned asylum seeker was made out, the Reviewer performed her own research. She had reference to the DFAT reports and the Dutch News and The Age reports and considered, in effect, whether they contained material which would alter the view expressed in para.99. They did not. Far from being information which formed the basis of the relevant aspect of the Reviewer’s conclusion, the information in question was simply referred to in the course of an exercise in thoroughness which provided nothing which caused the Reviewer to revise the conclusion which she had already expressed in para.99.
To the extent that the information in question was adverse to the applicant’s case before the Reviewer, procedural fairness would ordinarily require that it be put to him so he might address it even though the Reviewer did not take the information into account in reaching the relevant decision: Kioa v West (1985) 159 CLR 550 at 628-629 per Brennan J. However, before a finding of denial of procedural fairness will be made the Court must be satisfied that the Reviewer’s failure to advise the applicant of the information in question resulted in practical injustice of the sort discussed by Gleeson CJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13 [37]. I am not of the view that in this case it did. The Reviewer had implicitly expressed her view of the relevant claim in para.99 of her reasons and the information in question, which was used to test that conclusion, could not have altered her view because it did not serve to contradict or undermine it. If the Reviewer had expressed a view in para.99 of her reasons which was supportive of the applicant’s claim and the information in para.101 had been relied on to reach a different conclusion, then practical injustice would be inferred. However, that is not this case.
As to the submission that, to the extent that the information was equivocal or supportive of the applicant’s claim and had been relied on to reach an adverse conclusion which would not have been obviously open on the known material, again, the information was not used in that way as it was not relied upon to reach a relevant conclusion.
It simply failed to convince the Reviewer that her view of the claims made in the 5 April 2011 submission was mistaken. No challenge has been made to that latter conclusion.
The Minister referred to the fact that neither the applicant nor his agents had given evidence of what more they would have done if the information in question, or the Reviewer’s reasoning, had been disclosed to them. Referring to Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 and subsequent decisions referring to it, the Minister said that such a failure was a factor to be considered in determining whether the applicant had suffered practical injustice. He further submitted that, as the applicant knew from the assessor’s reasons that the question of his safety in Afghanistan as a returned asylum seeker was a potential issue, his adviser’s written submissions of 5 April 2011 should be considered to be the extent of the material he could advance in connection with this issue. It was submitted that, in such circumstances, the Court could infer that the applicant had suffered no practical injustice or denial of procedural fairness as alleged. In light of the conclusion above at [36] it is not necessary for me to consider this issue.
Conclusion
The applicant has failed to demonstrate that the Reviewer denied him procedural fairness and that her decision was erroneous as a result.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 30 November 2011
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