SZQSN v Minister for Immigration
[2012] FMCA 578
•6 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQSN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 578 |
| MIGRATION – Application to review decision of Independent Merits Reviewer – whether reviewer failed to afford the applicant procedural fairness or misunderstood his claims or whether no evidence to support a finding. |
| Migration Act 1958 (Cth), ss.36, 424A |
| ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 F. Hoffman-La Roche & Co. A.G. and Others v Secretary of State for Trade and Industry [1975] AC 295; [1974] 2 All ER 1128 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 |
| Applicant: | SZQSN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2269 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Knowles |
| Solicitors for the Applicant: | Baker & McKenzie |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2269 of 2011
| SZQSN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks declaratory relief in respect of a recommendation by the second respondent (the reviewer) dated 25 July 2011 that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant arrived at Christmas Island by boat on 2 July 2010. He participated in an entry interview with an officer of the Department of Immigration and Citizenship on 25 July 2010. He swore a statutory declaration on 12 November 2010 and participated in an interview with a Refugee Status Assessment (“RSA”) officer on 12 November 2010. The RSA officer concluded that the applicant did not meet the criteria for a refugee. He sought review by an independent merits reviewer. His adviser provided written submissions and further written submissions to the IMR. The applicant attended an interview with the reviewer on 9 May 2011. Transcripts of the entry interview, the interview with the RSA officer and the IMR hearing are in evidence before the court.
In his initial protection claims the applicant claimed to be an ethnic Hazara from Daikundi province in Afghanistan who had lived in a village close to areas where Pashtun and Kuchi people lived. He claimed that there was conflict between such groups and the Hazara people.
The applicant claimed that his father’s cousin had been a leader of local Hazara people who was killed in a rocket attack by a Kuchi group in about 2003, that his father then fled to the mountains but that he was shot and killed in around 2004.
The applicant also claimed that around this time “a man called Rabeani” (later referred to as Rabini), an Hazara man with connections to the Kuchi, had “claimed that [the applicant’s family] farm belonged to him”. The applicant claimed that Mr Rabini’s son still occupied “about half” of the applicant’s farm. He also claimed that the Kuchi and Pashtun people had links to the Taliban.
The applicant claimed that to escape harm he had fled to Iran in around 2005. In 2006 he travelled to the United Kingdom (UK) where he claimed asylum. He was unsuccessful and returned to Afghanistan in 2008, during which time he stayed in Daikundi for approximately 20 days. He claimed that during this period a car in which he was travelling from Daikundi to Ghazni with five or six other Hazaras was shot at and he fled again to Iran. He was deported from Iran as an illegal immigrant in 2010 and, after staying in Kabul for approximately 15 days, he left Afghanistan and travelled to Australia.
The applicant claimed to fear persecution by the Taliban, Pashtuns and Kuchis if he returned to Afghanistan.
At the interview with the IMR, the applicant gave further details of his claims for protection. In particular, he claimed for the first time that Mr Rabini was associated with the Hezb-e-Islam Gulbuddin political party (HIG) while he and his family were supporters of Harakat-e-Islami party (Harakat). The applicant’s adviser elaborated on this basis for the applicant’s claims and referred to independent information about the situation in Afghanistan in written submissions of 11 February 2011 and 18 May 2011.
IMR Decision
The IMR found that the applicant did not meet the criteria for a protection visa. The reviewer set out the claims for protection that had been presented at each stage of the process.
In her statement of reasons the reviewer outlined the evidence before her, including information from the UK Border Agency confirming that the applicant had claimed asylum there on 30 March 2006 and recorded that “his case was formally refused and all avenues for review exhausted on 14 March 2010”.
In her findings and reasons the reviewer described the developments in the applicant’s claims for protection at each stage of the protection process as follows:
· At Entry Interview he refers to a dispute between his family and the Kuchis as the basis for his claims.
· In his written statement he states that the Kuchi killed his father and his father’s cousin, [T]. He feared the Kuchi were after him. The family had a problem with a man called Rabini who was connected to the Kuchi and who took over the ownership of the family farm.
· At the RSA interview the RSA Officer recorded fear of harm from the Kuchi and Taliban because of the fighting that his father and cousin [T] undertook against the Kuchi. [The applicant] added he would be accused as a “Kaffir” and possible spy for the UK.
· His agent’s first submission contains generic claims about race, religion, imputed political opinion (opposition to Pashtun militancy) and severe discrimination.
· To me, he claimed harm from the Kuchis, the HIG and Rabini supporters as well as the claim he would be accused of being a Christian, he would be accused of being a spy for foreign troops.
· His agent’s second submission claims race and religion, imputed political opinion (Harakat sympathies) and added membership of a particular social group – young people, returnees, ‘Westernised’ Afghans, and returnees from Pakistan – to the race and religion reasons for his fear of persecution.
The reviewer had regard to the fact that through the process the applicant had presented an “increasing number of different claims about his feared persecution by various groups in Afghanistan” and found that “the manner and timing of the emergence of [such] claims indicate[d] a deliberate exaggeration of his circumstances”. The reviewer accepted that “the early part of the protection process [could] be difficult and confusing for claimants and that omissions and misunderstandings [could] arise”, but was of the view that the claims about the HIG, if true, would have been of sufficient significance to warrant being raised earlier than in the IMR interview.
The reviewer also found that “some of [the applicant’s] timeframes [were] unreliable, especially his description of the death of his father and his father’s cousin”. In that respect, the reviewer stated:
I do not accept [the applicant’s] claim that his father and his father’s cousin were killed in 2003/2004 I find they were killed in the late 1990s. In his own agent submission, [the applicant’s] illiteracy resulted in a ‘tentative view’ of the dates of their deaths in 2003/2004. The RSA Officer found they were more likely to have occurred prior to the overthrow of the Taliban in 2002. [The applicant’s] agent submits that insecurity and sectarian conflicts in the Hazarajat (including Daikundi) continued following the establishment of the Karzai government. I accept the agent’s point, which I find supported by authoritative sources. UNAMA, US Department of State and ANSO point to Daikundi being stable since the overthrow of the Taliban in 2001, with continuing infrequent conflict between Anti-Government Elements/Armed Opposition Groups and locals. I find that, from [the applicant’s] oral information provided at interview, he described “war” – frequent, rather ferocious fighting, using kalashnikovs – between his father/cousin, and both the Kuchis and the alleged Rabini/Gulbuddin supporters. He said his father and his father’s cousin belonged to Haraket prior to the Karzai government. I find that the fighting between his father/cousin and the Kuchis and Gulbuddin supporters, referred to by [the applicant], took place prior to 2001.
In assessing the applicant’s credibility, the reviewer also had regard to the fact that the applicant’s insistence that Mohsini was the current leader of the Harakat was contrary to country information (including that referred to in his agent’s submission) as to the identity of the current leader. The reviewer found that the applicant’s claim in his entry interview that the government took Hazara guns and gave them to the Kuchis was “inconsistent with the timeframe in which his Hazara father and cousin were supporting the government, via Harakat membership and military action”.
In addition, the reviewer had regard to conflicting descriptions provided by the applicant about the identity of Mr Rabini, who had been referred to variously as being associated with the Kuchi, an Hazara, a Gulbuddin local commander and a person who had confiscated the applicant’s family’s land. The reviewer discussed such claims elsewhere in her findings and reasons and found that the applicant had “used his knowledge of the fighting from the Taliban era to exaggerate his claims about Rabini”. The reviewer found that, “at most, a local Hazara man called Rabini [wa]s a person with whom [the applicant] ha[d] a dispute about ownership of his father’s land”.
The reviewer also found implausible the applicant’s evidence that he had “stayed with friends in Daikundi when he returned [to Afghanistan] from the UK in 2008, given his entire family was still living in the province, and had done so for the three years he had been away”.
Further, the reviewer found that the applicant’s interchangeable use of the terms “Kuchis”, “Pashtuns” and “Gulbuddin” was to “strengthen and exaggerate his claimed fears” rather than an indication of the close ties between these groups in his local area as his agent had submitted.
Having found that the applicant was not a credible witness, for reasons elaborated on in her findings and reasons the reviewer did not accept the applicant’s claim that his father’s cousin and father were killed in 2003 and 2004 respectively. The IMR found that they were killed in late 1990s. Nor did the reviewer accept that the applicant’s father’s conflict with Mr Rabini was based on their respective memberships of the Harakat and HIG parties, finding that the Hazara Rabini and the applicant’s families had a dispute about land in a particular place. The reviewer did not accept the submission about the interchangeable use of the terms Kuchis, Pashtuns and Gulbuddin and found that the late inclusion of the applicant’s imputed Harakat sympathies claim was a deliberate attempt to enhance his claim for protection.
In addressing the applicant’s fear of persecution, the reviewer accepted that the applicant left Afghanistan some time in the early to mid 2000s with his brother and went to Iran where he worked for at least one year. The IMR stated:
Verification from the UK demonstrates he travelled to and stayed in the UK in 2005, applied for protection in 2006 and voluntarily returned to Afghanistan in September 2008.
The reviewer accepted that documentation verified that the applicant was deported from Iran in late 2010 and that the applicant remained only briefly in Afghanistan in 2008 when he returned from the UK (for 20 days) and from Iran in 2010 (for 15 days). However the reviewer found that “his voluntary return to Afghanistan in 2008 indicate[d] that he did not hold a subjective fear of returning to his home country at that time”.
The reviewer accepted that “if [the applicant] attempted to enter his home district in Daikundi he would be recognised by the locals there as his father’s son, that is, a person whose father defended Hazaras against the HIG, the Kuchi and the Taliban, prior to 2001, and whose land ha[d] been confiscated by another local Hazara family”. However the reviewer was not satisfied that the applicant risked harm for a Convention reason from any of the HIG, the Kuchi, Rabini supporters (whom the applicant claimed were backed by the Taliban) or the Taliban now or in the foreseeable feature.
The reviewer then considered the applicant’s claimed fear of the HIG or HIG supporters for reasons of race, religion, membership of a particular social group or imputed political opinion. The reviewer accepted the history of the civil war in Afghanistan in the 1990s, that there was animosity between HIG and the Harakat and links between the Taliban and the HIG in Afghanistan at present, and that both the HIG and the Taliban (although separate entities) had held “the same anti-Shia, anti-Hazara philosophies and had directly acted on them with respect to violently attacking Hazaras because of their race and religion” in the past. However, as set out above at [14], having regard to the applicant’s evidence and independent country information, the reviewer did not accept the applicant’s claim that his father and father’s cousin were killed in 2003 or 2004, but found that the fighting in which they were killed took place before the overthrow of the Taliban in 2001.
The reviewer considered the agent’s submission that “the Taliban, as the largest Pashtun group ideologically opposed to the Afghan government, on occasion combine[d] with other insurgent groups including the HIG, to fight the US and its supporters”. It accepted that this claim was supported by country information. However the reviewer had regard to the fact that the applicant did not himself fight the HIG and “that he did not claim to have been identified by the HIG during his brief visit to Daikundi in 2008”. While the applicant claimed to fear that “his risk profile [was] exacerbated by his family’s membership in the Harakat and its long history of conflict with the HIG”, the reviewer had regard to the fact that country information about Anti-Government Elements in the part of Daikundi from which the applicant came did not refer to the HIG. The IMR found “the presence of the HIG in Daikundi, particularly in the “low security” districts” from which the applicant came, was “so small as to be negligible”. Hence the reviewer found that there was “not a real chance of [the applicant] coming to serious harm for a Convention reason, or at all, from the HIG if he were to return to [his home] district in Daikundi province now or in the foreseeable future”.
In relation to the applicant’s claimed fear of the Kuchi (whom he claimed were backed by the Taliban) the reviewer accepted that the applicant’s father and the cousin were killed in the 1990s, but found it “more likely that they were killed by the HIG than the Kuchis”, having regard to the applicant’s description of the killings and his claim that “they were targets because they were both vital and obvious militia of the Harakat party who [had] fought the HIG at [that] time”.
The reviewer also had regard to the fact that the applicant had not been on his family land since his father’s death, that the basis for the conflict between his father and the Kuchi was access to grazing land and that the applicant himself had not come into direct conflict with the Kuchis for over 15 years and did not claim to have been identified by them during his brief visit to Daikundi in 2008. In addition she had regard to the fact that another Hazara family was on the land and that the applicant had made no attempt to reclaim the land and had told the reviewer that he had no intention of doing so. The reviewer found that notwithstanding that the Kuchis had a presence in Daikundi province, they “would have no interest in targeting [the applicant] because he no longer has a stake in any property they desire and there is no reason that they would perceive him as having an interest in reclaiming it”.
In considering the applicant’s claimed fear of Rabini supporters, the reviewer had regard to the fact that he had provided conflicting descriptions of Mr Rabini including a late claim that he was a Gulbuddin commander. The IMR found it “speculative to assume that Rabini could be an Hazara traitor and a member of Gulbuddin, especially a Gulbuddin commander”, in the absence of any information identifying such a person. The reviewer had regard to research provided by the applicant’s agent identifying that a nominal government of a Mr “Rabbani” existed during the 1992 to 1996 Afghan civil war. This research indicated that that government was anti-Taliban, anti-HIG and supported by the Harakat, and that the fighting between “the factions was so violent that over 2,000 people, many in Hazara areas, were killed in Kabul in August 1992” by the HIG. The reviewer found that the “information about the alliance between Rabbani and Harakat during the Afghan civil war support[ed her] findings about the timing of [the applicant’s father’s] and cousin’s participation in offensives against the HIG prior to 2001”.
The reviewer concluded that the applicant had “used his knowledge of the fighting from the Taliban era, of the government of Rabbani, to exaggerate his claims about an Hazara man called Rabini who [laid] claim to his family property”. The IMR found that, at most, “a local Hazara man called Rabini [was] a person with whom [the applicant] ha[d] a dispute about ownership of his father’s land” and that Rabini’s family now laid claim to the land and resided there.
While the reviewer accepted that there was ongoing conflict between these Hazara families about ownership of the land, she did not accept that the applicant was “at risk of serious harm from the Rabini family because he [had told her that] he [wa]s not interested in the land anymore, he did not seek to reclaim it when he returned to Afghanistan in 2008 and 2010 and would not seek to reclaim it if he returned to Afghanistan”, notwithstanding the reviewer stating that she had pointed out that there were now government processes to assist people to reclaim their land. The reviewer found that “the Rabini family would not perceive [the applicant] as someone who would reclaim the land if he returned to Daikundi”.
Further, the reviewer found that even if she were to accept that Rabini or his family may have an interest in the applicant, she did not consider that it would be for any Convention reason, finding that it was a land dispute, not a party dispute, and “that Rabini was not a traitorous Hazara member of Gulbuddin”, but rather “a local man who [had] confiscated [the applicant’s] family property after his father was killed in the late 1990s”. The reviewer found that the conflict between the families was not ethnically, racially or politically based.
The reviewer also considered, but rejected, the applicant’s claims to be “at risk of serious harm from the Taliban anywhere in Afghanistan because of his troubles with the HIG and Kuchi”. She found, based on country information, that the Taliban did not have a presence in the applicant’s home area in Daikundi province, so that he “would not be at risk in this district”. While the reviewer accepted that there were links between the HIG and Taliban and that sometimes the Taliban assisted the Kuchi with weapons in relation to their access to grazing land, she did “not accept that the Taliban would target [the applicant] for these groups in Afghanistan”, having regard to the fact that it was not the applicant himself but rather his father who fought the HIG in Daikundi over 15 years earlier. The reviewer found it “highly unlikely that [the applicant] would be recognised by the Taliban outside of Daikundi as the son of one of these long-ago fighters”. As to the claimed Kuchi link, the reviewer had regard to her findings that “the current Kuchi in Daikundi would not target [the applicant] because he [held] no land there”, that he “would not be perceived as someone who would reclaim any land” and to the absence of information suggesting that the Taliban pursued people on behalf of the Kuchis.
Finally, the reviewer considered what she described as “Enroute fears and other claims”. While accepting that the applicant “may well have been a victim of random violence” on the road from Daikundi to Ghazni in 2008, the reviewer rejected the “submission that generalised violence [wa]s a manifestation of discriminatory persecution of Shia Hazaras” and did not accept that the applicant held “a profile of interest to insurgents such as the Taliban”.
The reviewer also considered, but rejected, the agent’s submission that the applicant would be at risk because of his youth, because he was a returnee and because he was Westernised. The reviewer had regard to the fact that the applicant “himself did not claim to fear being at risk for these reasons” and to country information. The IMR was “not satisfied that [the applicant] would be of interest to insurgents including the Taliban because of his age, or because he ha[d] returned from the West”.
In relation to the situation in Kabul the IMR found:
[The applicant] told me he fears relocating to Kabul because he believes he would need to remain indoors to avoid contact with his enemies who will kill him. As discussed above I have found that [the applicant] is not at risk of serious harm from his ‘enemies’, the Kuchi, the HIG and the Taliban in his home area and the roads leading to it from Kabul, and the same reasoning holds for the capital city. Country information confirms the presence of the military wing of the HIG in the north eastern parts of Afghanistan and on the outskirts of Kabul. The non-military wing, the HIA is registered with the Afghani Ministry of Justice in Kabul. I find [the applicant] would not attract attention, or be harmed by the HIA, in Kabul. [The applicant] told me he would not approach the Harakat for protection in Kabul and I find this stated reluctance undermines his claim that he would be killed by the HIG there. In addition Kuchis are clearly not located everywhere in Afghanistan and I do not accept that Kuchi who graze their livestock in Daikundi would target [the applicant] in Kabul. I repeat, that there is no evidence that the Taliban target people on behalf of the HIG or the Kuchi and I fond that they would not do this in Kabul. There is no evidence that returnees or failed asylum seekers are targeted solely because of this status upon return to Kabul. I find that [the applicant] is not at risk of serious harm for a Convention reason from the HIG, Kuchi or Taliban if he were to return to Kabul now or in the foreseeable future.
In the absence of any explanation from the applicant or elaboration at the interview as to why he would be accused of being a Christian and a spy for foreign troops (in circumstances where his evidence was that he was a Shia Muslim), the IMR did not accept that he had a well-founded fear of being persecuted on these bases or as a “Kaffir” and a spy for the UK.
The reviewer also rejected the agent’s claim that the applicant feared persecution as a returnee from Pakistan in the absence of any evidence that the applicant had ever been to Pakistan. In relation to the agent’s claim that the applicant “would be discriminated against so severely by the Afghan government and Afghan society [that] he would not be able to support himself or his family”, the reviewer had regard to the applicant’s evidence that “finances and accommodation in Kabul, were not a problem for him”.
The reviewer indicated that, for completeness, she had had regard to the availability of state protection and for reasons which she gave, found that “state protection in Daikundi for [the applicant was] available and satisfactory”.
The reviewer found that based on evidence from the applicant and country information relocation to Kabul was an available option if the applicant chose not to return to Daikundi, albeit he did not have a well-founded fear for a Convention reason in relation to his home area.
The reviewer concluded that the applicant’s fears of harm from the Kuchis, the HIG, the Rabini family or the Taliban were “not well-founded with regard to his home area, on the roads to it or in Kabul, in that he faces no real chance of serious harm for any of the Convention reasons of race, religion, nationality, membership of a particular social group or political opinion”.
The reviewer concluded that the applicant did not meet the criterion for a protection visa in s.36(2) of the Migration Act 1958 (Cth) and recommended that he not be recognised as a person to whom Australia owed protection obligations.
The applicant sought review by application filed in this court on 31 August 2011. He relies on an amended application filed on 28 February 2012. There are three grounds in the amended application.
The Voluntary Return from the UK issue
The first ground in the amended application is that the reviewer failed to afford the applicant procedural fairness. There are two distinct aspects to this ground. The first, identified in the first particular, is as follows:
The IMR relied on information relating specifically to the Applicant obtained from United Kingdom authorities in finding that the Applicant had voluntarily returned to Afghanistan (CB 159 at [80] and 146 at [12]). The IMR further held that the Applicant’s voluntary return indicated that he did not hold a subjective fear of return at that time (CB 159 at [80]).
The IMR failed to afford the Applicant procedural fairness because it failed to:
(a) inform the Applicant of the information obtained from United Kingdom authorities (cf T19:19-T20:29);
(b) put to the Applicant that his decision to return voluntarily from the United Kingdom indicated that he did not have a subjective fear of return; and
(c) invite the Applicant to comment.
In her reasons for decision, the IMR stated that she had before her not only relevant material from the IPAO/Department file relating to the applicant but also:
Information from the UK Border Agency [which] confirms that [the applicant] claimed asylum there on 30 March 2006 and his case was formally refused and all avenues for review exhausted on 14 March 2010.
Relevantly the reviewer found that:
Verification from the UK demonstrates that he travelled to and stayed in the UK in 2005, applied for protection in 2006 and voluntarily returned to Afghanistan in September 2008… I find that his voluntary return to Afghanistan in 2008 indicates he did not hold a subjective fear of returning to his home country at that time. (CB 159 at [80])
Counsel for the applicant submitted that the obvious inference from this part of the reviewer’s findings was that she had before her information from UK authorities which was specific to the applicant and related to the circumstances of his repatriation to Afghanistan. This inference was said to be reinforced by the fact that the Department had sought the applicant’s permission to obtain information about him from other countries (which he granted on 12 November 2010); the RSA officer, during his interview with the applicant, made reference to information concerning the applicant’s immigration history received from UK authorities (transcript p.15, lines 38 – 50) and the IMR acknowledged that she had before her the Department’s file on the applicant (which, it was suggested, presumably included information obtained from third parties in respect of the applicant’s case). The evidence before the court does not include any documentary material from UK authorities.
At the IMR hearing the applicant’s return to Afghanistan from the UK was discussed as follows (at transcript p.19, lines 19 – 27):
Reviewer: Can I just ask, when you came back to Afghanistan from London, from England, he was helped come back, he came back voluntarily?
Claimant (interpreter): Yes.
Reviewer: The IOM, the International Organisation of Migration, actually helped him to set up when he came back to Afghanistan?
Claimant (interpreter): Yes.
Reviewer: So please explain that to me, what kind of help he got? What they did? Did they give him money?
Claimant (interpreter): IOM, in this place they call themselves IOM and I saw some of them on the other day --
Reviewer: Here?
Claimant (interpreter): --and when I left England they promised me that, when you arrive in Kabul we will take you to a place and we’ll help you with a lot of things and the people will come and meet you at the airport, but when I got to the airport there was nobody there at all.
The applicant then proceeded to discuss the lack of assistance provided by the IOM on his return to Afghanistan in 2008.
It was contended that “procedural fairness required the reviewer to put to [the applicant] the substance of matters that the reviewer knew of and considered may bear upon whether to accept the [applicant’s] claims” (Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41 at [91]). Counsel for the applicant submitted that this required the reviewer to disclose not only the information (that is, that the applicant returned to Afghanistan voluntarily) but also how that information may have a bearing on the decision, that is that the fact he returned voluntarily to Afghanistan tended to indicate that he did not have a subjective fear of persecution in Afghanistan.
In submissions it was acknowledged that the IMR put to the applicant that he returned voluntarily. However it was submitted that without being informed of the reason why that information was important, the applicant was not given a meaningful opportunity to comment on such adverse information. In other words, it was said that procedural fairness required the reviewer to advise the applicant of the issue to which information obtained from the UK authorities was relevant as the relevance of the information was not obvious from the information itself and the applicant could not be said to be on notice of the issue because it had not been raised by the RSA officer (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [32] – [43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
Support for the proposition that the IMR was required to disclose the relevance of the information from the UK authorities was said to be found in the Guidelines under which the IMR conducted the review which were said to constitute an attempt to describe the common law principles of procedural fairness (see Darabi v Minister for Immigration and Citizenship and Another (2011) 250 FLR 301; [2011] FMCA 371 at [69] per Nicholls FM). It was pointed out that Annexure D to the Guidelines provides that the IMR should “explain the bearing” that adverse information may have upon the claims being made. It was suggested that the approach of the IMR in this case would have been in breach of s.424A of the Migration Act if that section had applied to its review and that it would be surprising if the modified statutory obligations of procedural fairness that governed the operation of the Refugee Review Tribunal were wider than the common law obligations applicable in this case.
Finally, it was submitted that there could be no argument that there was no breach of procedural fairness because there was no evidence of what steps the applicant could have taken if the IMR had followed correct procedure (cf ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62 at [34] per McHugh, Gummow, Callinan and Heydon JJ). Reliance was placed on the affidavit of the applicant sworn on 24 February 2012 in which he attested that he decided to depart the UK voluntarily because he thought he would be deported in any event and in the circumstances thought it was better to accept the assistance and financial support of the IOM and because he also believed the IOM’s assurance at the time that Afghanistan was safe. This was said to demonstrate that the applicant could have given evidence to the IMR capable of explaining why his voluntary return to Afghanistan was consistent with a subjective fear of serious harm.
In oral submissions Mr Knowles confirmed that no issue was taken in relation to information before the reviewer that the applicant’s asylum claims were not finally determined in the UK until 2010. It was confirmed that the issue relied on in this part of ground one related to the fact that the reviewer had made a finding that the applicant did not hold a subjective fear of persecution when he returned to Afghanistan in 2008 because he returned voluntarily. It was submitted that the relevance of his voluntary return had to be disclosed to the applicant.
In this respect, reference was made to the discussion in SZBEL of the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 in which it was held at [30] that the requirement of procedural fairness:
…extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
It was acknowledged that this particular part of the decision in Alphaone was not expressly approved of by the High Court in SZBEL (although their Honours did not disapprove of the authority), but pointed out that at [32] in SZBEL, their Honours expressly approved the passage in Alphaone in which the Full Court stated that procedural fairness “would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues”. Similarly, in Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594 at 599; [2011] HCA 1 at [9], French CJ and Kiefel J stated that “Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”.
It was acknowledged that the reviewer had identified the information to the applicant, but submitted that the issue that the information went to, that is the applicant’s subjective fear of persecution, was not identified. Rather, the issue of voluntary return to Afghanistan was said to have been dealt with only “in a very abstract and passing way” in the interview in the context of a consideration of the applicant’s circumstances in Kabul in 2008. The reviewer was said to have put the information to “a very different use” which would not have been obvious to a person in the position of the applicant or to his adviser.
It was submitted that information as to the voluntary return of the applicant’s return to Afghanistan would not indicate to an applicant as an obvious conclusion, the possibility that he did not hold a subjective fear of persecution. This submission was based on the fact that an applicant not schooled in migration law could not know from the way the issue was raised in passing that this was the issue to which the information went.
The applicant also submitted that it could not be said that the fact that the applicant returned voluntarily was merely an inference confirmed at the hearing, rather than material from the UK Border Agency. Reference was made to paragraph [80] of the reviewer’s reasons, in which the reviewer referred to “Verification from the UK” demonstrating that the applicant “travelled to and stayed in the UK in 2005, applied for protection in 2006 and voluntarily returned to Afghanistan in September 2008”.
Further, insofar as it might be said that the reviewer did not actually rely on the information in forming her conclusion and therefore that procedural fairness would not require the reviewer to put the information to the applicant, it was submitted that it could be concluded that this was at least part of the basis for the decision of the reviewer. It was suggested that if this was not a part of the reviewer’s reasons, then one might ask why the reviewer made that particular finding. Further the applicant submitted that the IMR’s finding about whether or not the applicant had a subjective fear of harm in 2008 was central to the decision because the decision turned to a large extent on the conditions in Afghanistan prior to 2001 and the conditions after 2001 and that if the reviewer had found that the applicant had a subjective fear of returning to Afghanistan in 2008 that would have been of significance in relation to at least one of the factors relevant in establishing a well-founded fear of persecution within the Refugees Convention. It was also suggested that if the IMR had been made aware in more detail of the circumstances of the applicant’s voluntary return to Afghanistan, that may have affected the adverse credit findings relevant to the reviewer’s findings.
As the first respondent contended, this ground is not made out. First, insofar as the applicant maintains any contention that the IMR was obliged to put information obtained from the UK authority that he voluntarily returned to Afghanistan in 2008, as counsel for the first respondent pointed out, the applicant himself had noted that he had applied for refugee status in the UK in his application for refugee status assessment and, critically, the RSA officer noted information from the UK Border Agency to the effect that the applicant had claimed refugee status in the UK in 2006 and departed there in 2008. The only additional information in this respect referred to in the RSA officer’s decision was that the applicant had returned from the UK “voluntarily” in 2008. However the reviewer put this to the applicant at the interview (transcript p.19) and he agreed.
It has not been established that the reviewer relied on any information from the UK Border Agency other than that already known to the applicant from the RSA decision or as raised with him during the interview. In the circumstances of this case it has not been suggested that procedural fairness would generally require that any document itself be given to the applicant. It is sufficient if the gist or gravamen of information is put to the applicant (see for example NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [25]). In this case, it has not been established that this was not done.
In fact, it is not possible on the evidence before the court to determine whether the information from the UK Border Agency noted by the RSA expressly stated that the applicant returned to Afghanistan voluntarily or whether this was an inference from the applicant’s departure from the UK in 2008 that he confirmed during the IMR interview.
In any event, counsel for the applicant clarified in submissions that the applicant’s concern was not whether any information obtained from the UK authorities about his “voluntary” return to Afghanistan from England was put to him (consistent with p.19 of the transcript of the interview with the reviewer) and that this ground does not relate to the timing of the applicant’s return to Afghanistan. Rather, as explained in oral submissions, the applicant contended that there had been a failure to afford him procedural fairness because the IMR failed to put to him that his decision to return voluntarily from the UK indicated that he did not have a subjective fear of return at that time and invite him to comment. As presented, the contention is in essence that the reviewer failed to advise the applicant of an adverse conclusion arrived at which would not be obviously open on the known material (see Alphaone at [26] and SZBEL at [29] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
In determining whether the relevance of the applicant’s voluntary return to Afghanistan had to be put to him by the reviewer, it is also relevant to have regard to the issues already raised by the RSA officer. It is clear that the information obtained from the UK authorities was not only put to the applicant by the RSA officer, who also raised a concern about whether the applicant’s case had been finalised at that stage, but was also referred to in the RSA decision.
In the RSA interview the RSA officer asked the applicant about whether he had worked while he was in the UK (transcript p.15 – 16), to which the applicant, through the interpreter, responded:
Applicant (interpreter): For the first two years the Government was supporting me because my case were under assessment and I still have the card, that card, that’s a bank card or something that we used to get money. But after that, when I was refused, when I got the refusal, then I did a little bit of work just to support myself. It’s also in a cash one, it’s not an official one.
Officer: I’m a little confused here. You say you were refused but the information we have received from UK immigration says you first claimed asylum on 3 March 2006.
Applicant (interpreter): What was the date?
Officer: 3 March 2006. It says that you voluntarily departed the UK on 24 September 2008. The case had not been finalised at that stage and the United Kingdom government has told us that you were only refused, your claims were only formally refused on 14 March this year. So what the United Kingdom Government has told us, and I have no reason to doubt the accuracy of what they’ve told us is that whereas your primary application might have been refused, you still had an appeal going against that decision.
Applicant (interpreter): I was rejected three times.
Officer: Well I can only go by what the United Kingdom Government has told us and they’ve told us that you were formally refused asylum on 14 March this year. That’s the only thing I can go on and I’ve got no reason to doubt the genuineness of what the United Kingdom Government is telling us. So you’re welcome to read this with your agent if you wish.
Applicant (interpreter): When I got the refusal, even two hours after that I didn’t have the right to appeal once again.
Officer: Well I am just reading what the UK government is telling the Australian Government.
Applicant (interpreter): I went to the Department, I was rejected by the Department, I was rejected by the court. I got a letter 15 days before that and they told me that I don’t have the right to stay in that house anymore and I don’t have the right to appeal any more.
Officer: Okay.
Applicant (interpreter): Once I was rejected from the Department and the second time I was rejected by the court and the third time I wanted to appeal again through court but I got the letter that we don’t have the right to appeal.
Officer: So do you have that letter somewhere?
Applicant (interpreter): Unfortunately when I was going back I threw everything away and the only thing that I have is my ID and that card, that’s it.
In the reasons for the Refugee Status Assessment the RSA addressed in detail the difference between the name and date of birth provided by the applicant on entry and details said to have been provided by the UK Border Agency after a fingerprint check indicated that the applicant had remained in the UK from 2006 to 2008. Reference was made to the applicant’s subsequent provision of his UK immigration registration card and his evidence that he resided in the UK as well as the differences in his evidence about when his claim was finally rejected in the UK and the information from the UK that his case was not finally refused until March 2010 and that he voluntarily departed the UK before his case was finalised. The RSA did not specifically rely on information about the applicant’s voluntary departure from the UK in its finding and reasons but the applicant’s testimony was found to be “[o]verall… unconvincing and appeared contrived in an effort to secure an immigration outcome.”
In addition, in the IMR interview the reviewer put to the applicant that he went back to Afghanistan from the UK voluntarily. The applicant confirmed that this was the case. In her reasons the reviewer did not rely on any information other than that already known to the applicant from the RSA interview and decision or as raised with him during the IMR interview.
In all the circumstances, having regard to the definition of refugee in the Refugees Convention, the claims made by the applicant and the known material, it has not been established that the reviewer was obliged as a matter of procedural fairness to put to the applicant that his voluntary return to Afghanistan in 2008 may lead it to find that he did not have a subjective fear of harm at that time. Contrary to the applicant’s contention, this cannot be said to be an adverse conclusion arrived at which would not obviously be open on the known material. Rather it was an obvious conclusion. The relevance of the information was apparent. Having regard to the claims made by the applicant (cf SZBEL at [32] – [43]), the fact that the applicant was not “schooled” in migration law and that at the interview the reviewer went on to ask about circumstances in Kabul does not lead to the conclusion that the reviewer had to raise expressly the possibility that the fact that the applicant had returned voluntarily to a country where he claimed to have a fear of persecution was relevant to whether he had such a fear at the time of that return. The applicant consistently claimed that he feared harm if he returned to Afghanistan based on incidents that had occurred prior to 2008.
As referred to with approval in SZBEL at [48], as Lord Diplock said in F. Hoffman-La Roche & Co. A.G. and Others v Secretary of State for Trade and Industry [1975] AC 295 at 369; [1974] 2 All ER 1128:
…the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.
Similarly, the reviewer was not obliged to disclose his thought processes or preliminary reasons in advance. Further, as the High Court went on to observe in SZBEL at [48]:
Procedural fairness does not require the [decision maker] to give the applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
These observations are in point in the present case. Nor was the reviewer obliged to identify such reasoning as a critical issue not apparent from the nature of the decision. Clearly the applicant’s fear of persecution in Afghanistan was in issue. The relevance of past conduct and past fear was obvious.
It has not been established that the decision-maker failed to identify for the applicant a critical issue not apparent from the nature of the decision or an adverse conclusion not obviously open on the known material in the sense referred to in SZGUR at [10] by reference to Alphaone at [26] (and also see SZBEL at [29]) such as to constitute a failure to accord the applicant procedural fairness in the manner contended for in the first part of ground one.
Country information
The second aspect of ground one in the amended application is that the reviewer failed to afford the applicant procedural fairness as follows:
The IMR held, by reference to independent country information, that the Applicant’s father and cousin were killed in the 1990s (CB 158-160 at [76]-[90]). The IMR did not refer the Applicant to this country information nor did the IMR put to the Applicant that this information indicated that his version of events was inaccurate.
In written submissions, the applicant contended that in two aspects of the findings and reasons (at [85] and [91]), the reviewer had relied on independent country information to support its findings (at [79]) that the applicant’s father and his father’s cousin had been killed prior to 2001 and that it would appear that none of this information was provided to the applicant or his representative, and that the IMR had failed to inform the applicant of the substance of the information or indicate to him its relevance as tending to prove that his father and father’s cousin were killed prior to 2001.
As the applicant submitted, the IMR’s obligations of procedural fairness may extend to independent country information which is not specific to the applicant: Plaintiff M61/2010E at [91] per curiam. It was contended that even if not all independent country information is such as to trigger obligations of procedural fairness, in this case the circumstances were such that the obligation did arise: see discussion in SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at [29] – [39] per Smith FM. In particular, the following circumstances of this case were said to be such that it was reasonable to require that the IMR put the substance of the independent country information to the applicant and given him an opportunity to comment:
a)The issue of when the applicant’s father and father’s cousin were killed was said to be central to the IMR’s findings, both as to credit and as to whether the applicant faced a continuing threat of serious harm in Daikundi.
b)It was submitted that to the extent that the independent country information was the basis for the IMR’s finding concerning the activities of HIG and the Harakat during the Afghan civil (CB 161 at [91]) this issue had never been raised with the applicant either by the RSA Officer or the IMR.
c)Finally, it was contended that the relevance of the county information was not obvious in the circumstances insofar as the IMR was said to have used the country information about the current security conditions in Daikundi for a specific (and non-obvious) purpose – to show that it was likely that the applicant’s father and father’s cousin were killed prior to 2001. It was submitted that this apparent relevance would not be immediately obvious to a person in the position of the applicant.
On this basis it was submitted that the country information that the IMR relied on to conclude that the applicant’s father and father’s cousin had been killed prior to 2001 attracted obligations of procedural fairness and that the IMR failed to comply with this obligation by failing to put the substance of the information to the applicant and failing to allow the applicant an opportunity to comment on the information.
The extent of the applicant’s claim was modified in oral submissions. Hence it is necessary to set out the parts of the decision in issue and the concessions made for the applicant. The findings in question were said to be in paragraphs [79], [85] and [91].
Paragraph 79 contains a summary of the IMR’s findings as follows:
In summary I do not find [the applicant] a credible witness. For reasons explained later in this report I do not accept his claim that his father’s cousin and his father were killed in 2003/2004 respectively, I find they were killed in the late 1990’s. I do not accept that his father’s conflict with Rabini is based on their respective memberships of the Harakat and HIG parties; I find that the Hazara Rabini and [the applicant’s] families have a dispute about land in Mir Amur. I do not accept the interchangeable use of the terms Kuchis’, ‘Pashtuns’ and ‘Gulbuddin’. I find that the late inclusion of his imputed Harakat sympathies as a Convention reason is a deliberate attempt to enhance his claim for protection.
Paragraph [85] of the reasons is as follows:
I do not accept [the applicant’s] claim that his father and his father’s cousin were killed in 2003/2004. I find they were killed in the late 1990s. In his own agent’s submission, [the applicant’s] illiteracy resulted in a ‘tentative view’ of the dates of their deaths in 2003/2004. The RSA Officer found they were more likely to have occurred prior to the overthrow of the Taliban in 2002. [The applicant’s] agent submits that insecurity and sectarian conflicts in the Hazarajat (including Daikundi) continued following the establishment of the Karzai government. I accept the agent’s point, which I find supported by authoritative sources. UNAMA, US Department of State and ANSO point to Daikundi being stable since the overthrow of the Taliban in 2001, with continuing infrequent conflict between the Anti-Government Elements/Armed Opposition Groups and locals. I find that, from [the applicant’s] oral information provided at interview, he described “war” – frequent, rather ferocious fighting, using kalishnakovs – between his father/cousin, and both the Kuchis and the alleged Rabini/Gulbuddin supporters. He said his father and his father’s cousin belonged to Harakat prior to the Karzai government. I find that the fighting between his father/cousin and the Kuchis and Gulbuddin supporters, referred to by [the applicant], took place prior to 2001.
Paragraph [91] provides:
[The applicant] provided conflicting descriptions of Rabini.
· In his signed statement of claim he stated a man named Rabini had connections with the Kuchis. At interview with me he stated, for the first time in the protection process, that Rabini was a Gulbuddin commander. [The applicant] told me Rabini was an Hazara and his agent submits that Rabini must have been a traitorous Hazara, supporting the HIG for personal advantage and that an Hazara supporting a Sunni fundamentalist party is not unprecedented. Examples from the Finnish Immigration Service (2007) and the Human Rights Watch (2002) were provided of the coercion and cooperation of local leaders as a frequently applied tactic of Pashtun fundamentalists, despite their ideological contempt for Shia Hazaras as a whole. Neither my own research, nor his agent’s, conclusively identified any Rabini who was Hazara and a member of HIG. I find it speculative to assume that Rabini could be an Hazara traitor and a member of Gulbuddin, especially a Gulbuddin commander.
· However, research provided by [the applicant’s] agent did identify the nominal government of Burhanuddin Rabbani that existed during the 1992-1996 Afghan civil war. Rabbani’s government was anti-Taliban and anti-HIG and was supported by Harakat (Crisis States Research Centre, June 2009). Indeed the fighting between the factions was so violent that over 2,000 people, many in Hazara areas, were killed in Kabul in August 1992 when HIG launched an artillery and rocket blitz of the city (Human Rights Watch, July 2005). At interview [the applicant] told me that Rabini was the leader of an Hazara political party, the Gulbuddin party, and I had initially considered this a mistake in communication. However, this information about the alliance between Rabbani and Harakat during the Afghan civil war supports my findings and the timing of [the applicant’s] father’s and cousin’s participation in offensives against the HIG prior to 2001.
In oral submissions it was conceded for the applicant that the substance of information relied on to support the reviewer’s findings in the second dot point in paragraph [91] of the reviewer’s reasons (about the alliance between Rabbani and Harakat during the Afghan civil war, which was said to support the reviewer’s findings about the timing of the applicant’s father’s and father’s cousin’s participation in offensives against the HIG as prior to 2001), was in fact contained in information that was put to the reviewer in written submissions from the applicant’s adviser.
Insofar as the first part of paragraph [91] of the findings and reasons referred to the Human Rights Watch report of July 2005 no reliance was placed on that information in support of this ground. Counsel for the applicant then specifically disavowed reliance on the whole of the country information referred to in [91] in submitting “Put paragraph 91 aside”.
Lest there be any doubt, I note in any event that the Finnish Immigration Service and the Crisis States Research Centre reports referred to in paragraph [91] were also referred to in the applicant’s adviser’s submission to the IMR and that the applicant cannot be said to be unaware of the material referred to in paragraph [91]. Nor can it be said that the IMR drew a conclusion not obviously open on the material provided by the applicant’s adviser (cf Alphaone at [30]). The fact that the IMR was of the view that some of the information (about the alliance between Rabbini and Harakat during the Afghan civil war) supported his finding about the timing of the applicant’s father’s and cousin’s participation in offensives against the HIG prior to 2001 did not have to be put to the applicant for comment, and, indeed, there was no suggestion to this effect for the applicant. Information that is not adverse would not ordinarily have to be disclosed (Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [141] per McHugh J).
No failure to accord procedural fairness is established in relation to the country information referred to in paragraph [91] of the IMR’s decision.
Counsel for the applicant maintained that, notwithstanding that there were some references to some of the material referred to in paragraph [85] of the reviewer’s reasons in the applicant’s adviser’s submissions, there was nonetheless a lack of procedural fairness insofar as the reviewer failed to put to the applicant the particular matters for which such information was used.
It is important to note that there were a number of reasons for the reviewer’s findings that he did not accept the applicant’s claim that his father and father’s cousin were killed in 2003/2004 and that they were killed in the late 1990s. First, the applicant’s claim as to the dates had been submitted to be a “tentative view” by his agent, in view of the applicant’s illiteracy. The IMR accepted the agent’s submission that “insecurity and sectarian conflicts in the Hazarajat (including Daikundi) continued following the establishment of the Karzai government” but, found that sources referred to in the agent’s submissions (UNAMA and US Department of State) as well as ANSO (which appears not to have been referred to by the agent) “point[ed] to Daikundi being stable since the overthrow of the Taliban in 2001, with continuing infrequent conflict between Anti-Government Elements/Armed Opposition Groups and locals”.
The applicant has not put before the court copies of this information. It has not been established that the IMR’s conclusions in this respect were not obviously open on such material. In that respect, it is not to the point that the adviser may have cited such sources for other purposes (and see SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at [52] – [66]).
To the extent that the reviewer relied on such information in support of the proposition put to it by the applicant’s agent that insecurity and sectarian conflicts in the applicant’s area continued following the establishment of the Karzai government, it was not necessary for the reviewer, as a matter of procedural fairness, to put such supportive information to the applicant for comment (see Miah).
Further, insofar as it was contended that such an obligation arose because the reviewer referred to this information as pointing to “Daikundi being stable since the overthrow of the Taliban in 2001, with continuing infrequent conflict between Anti-Government Elements/ Armed Opposition Groups and locals” the information in question (or information to the same effect) was put to the reviewer by the applicant’s adviser. The adviser initially relied on such information in support of the proposition that the Hazarajat could no longer be said to be immune from the influence of and attacks from Sunni insurgent groups and that there was an increasing presence of the Taliban and other insurgent groups in the Hazarajat and a general decrease in government capabilities in the region and spreading insecurity and lawlessness in previously peaceful provinces, including Wardak in the heart of the Hazarajat falling under Taliban control. However the adviser’s post-interview submissions specifically addressed information in relation to historical conflicts involving entities such as the Harakat and the Gulbuddin during the civil war, post-war tensions and what occurred thereafter. The reviewer’s findings addressed the relevance of such information to the applicant’s claims about circumstances before and after the fall of the Taliban (not the present time). It cannot be said that the reviewer’s findings were not obviously open on the known material or that there was any “practical injustice” in the reviewer not specifically referring the applicant to all the information cited in this respect (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at 37; [2003] HCA 6 at [37] per Gleeson CJ).
Importantly, in paragraph [85] the IMR went on to find that notwithstanding that he accepted that insecurity and sectarian conflicts in the applicant’s home area continued following the establishment of the Karzai government consistent with the agent’s submission and the independent country information cited, it was the applicant’s own oral evidence about the nature of the “war” between his father, cousin and both the Kuchis and the alleged Rabini/Gulbuddin supporters as involving “frequent, rather ferocious fighting using kalishnakovs”, and the fact that he said that “his father and his father’s cousin belonged to the Haraket prior to the Karzai government” that led the reviewer to find that the fighting between the applicant’s father and cousin and the Kuchis and Gulbuddin supporters took place prior to 2001.
The applicant was on notice of the significance of the credibility of his claim that his father and father’s cousin were killed in 2003 – 2004 and the relevance of country information about the stability of Daikundi since the overthrow of the Taliban. At the RSA interview the applicant was asked why the applicant would be in danger as the RSA officer’s “understanding is that Daykundi is one of the safest areas in Afghanistan for Hazara” (Transcript p.20 lines 6 – 7). Moreover, in the RSA decision the RSA officer referred to country information about the stability and peacefulness of Daikundi (despite some clashes). As to the claim that the applicant had a fear that he would be targeted by the Kuchi and Taliban because of what happened to his father and his father’s cousin, the RSA had regard to the applicant’s confused and disjointed account of how and when his father was killed, the fact that the applicant was unsure when this occurred and was vague about the circumstances. The RSA officer continued:
While I accept this his father may have been killed at some stage, I am not satisfied that it happened when, in the manner and for the reasons stated.
The RSA officer continued:
Considering the circumstances of how he describes his father’s cousin being killed in a rocket attack because he fought the Taliban and the Kuchis, if this event occurred it seems more likely to have occurred before the overthrow of the Taliban regime in 2002 rather than after, especially considering Daikundi, in particular the Hazara areas, have been considered stable for some years.
As the first respondent submitted, the applicant was aware of this issue and of country information about the stability of Daikundi and its relevance to this claim from the RSA record. The reviewer did not have to inform the applicant that she may not accept his claim as to when his father was killed (SZBEL at [48]). In all the circumstances it has not been established that there was any lack of procedural fairness in the reviewer not specifically referring the applicant to the particular sources of such information cited in paragraph [85] or referred to in the second particular to ground one.
It has not been established that the IMR erred in the manner contended for in ground one in the amended application.
Whether misconstruction or misunderstanding of the applicant’s claim
Ground two in the amended application is that the reviewer “erred by misconstruing or misunderstanding the Applicant’s claim”. The particulars to this ground are as follows:
The IMR held that the Applicant was not at risk of serious harm because he told the IMR that he was not interested in reclaiming his family land and had not sought to reclaim the land when he was in Afghanistan despite the IMR pointing out that there are now government processes to assist people to reclaim land (CB 161 at [93]).
However, in his interview with the IMR, the Applicant did not disclaim any interest reclaiming his land, he simply put forward an explanation as to why he could not do so during his brief return to Afghanistan. Further, the IMR did not point out the existence of government land recovery processes (T 22:13-25).
The IMR stated that the applicant (at [93]):
…told me he is not interested in the land anymore, he did not seek to reclaim it when he returned to Afghanistan in 2008 and 2010 and would not seek to reclaim it if he returned to Afghanistan, despite me pointing out that there are now government processes to assist people to reclaim their land.
It was submitted that the IMR relied on this finding as part of the reasons for finding that the applicant did not have a well-founded fear of harm from either Kuchi groups or supporters of Mr Rabini, but that it appeared that the IMR had misunderstood the applicant’s claim in this respect.
Counsel for the applicant submitted that while at various stages during the IMR interview the applicant had mentioned the fact that his land had been occupied by Mr Rabini and his family, the only extended discussion between the reviewer and the applicant on this issue was as follows (at transcript at p.22, lines 7 – 40):
Reviewer: So 2008 when you came back from England, you went to Kabul with 500 pound, you didn’t stay very long, you found your way back to Daykundi to the village?
Claimant (interpreter): In 20 days’ time I got myself out of Daykundi.
Reviewer: Did you try and reclaim the land?
Claimant (interpreter): I didn’t have that opportunity and I just survived myself and my life.
Reviewer: Did you have friends and family that were still in Daykundi in the village?
Claimant (interpreter): Friends yeah but my family has spread out.
Reviewer: You mean out of Afghanistan or different district?
Claimant (interpreter): Out of Afghanistan.
Reviewer: Is there some kind of Government assistance to recover land, to reclaim your land?
Claimant (interpreter): To cover you mean?
Reviewer: To reclaim, yeah, Government assistance.
Claimant (interpreter): I don’t care much about the land but I care about my safety in Afghanistan and all I’m seeking is safety.
Reviewer: Did something happen to you while you were back for those 20 days in 2008?
Claimant (interpreter): Yes, I was attacked when I was in this car.
It was submitted that a fair reading of the transcript suggested that the applicant was stating that the reasons he did not make an attempt to reclaim the family land when he returned to Daikundi in 2008 were that he only stayed there for a short time because he feared for his safety and that he did not have an opportunity to recover his family’s land. This was said to suggest that the reviewer misunderstood or misconstrued his claim when she found that the applicant told her that he was not interested in reclaiming the land or that he had no intention to reclaim the land.
It was also contended that the IMR’s statement in her reasons that she had pointed out to the applicant that there were government programs to assist people to reclaim land was inaccurate, as she did not inform the applicant of the existence of such programs, but rather merely asked the applicant whether such programs existed.
It was submitted that, properly construed, this extract from the transcript of the IMR interview did not give any support to the finding that the applicant did not wish to reclaim his land. Counsel for the applicant acknowledged that the question was in essence whether the reviewer correctly understood the applicant’s evidence and that if the understanding to which the decision-maker came was a “plausible one”, it was open to her to determine and put weight upon such evidence. However it was submitted that the reviewer’s finding in this respect was not open on the evidence before the IMR and hence that the IMR had failed to deal properly or at all with a claim made by the applicant. This was said to constitute reviewable error, consistent with the approach taken in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, in which the Full Court of the Federal Court held at [63] in relation to the Refugee Review Tribunal:
…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.
It is relevant to have regard to the context in which the IMR made the finding in question. In considering the applicant’s claim to fear Rabini supporters the IMR stated at [93]:
I accept that Mr Rabini’s family now lay claim to the land and reside there. I accept [the applicant’s] claim that Rabini is Hazara. I accept an ongoing conflict between [the applicant’s] and Rabini families about ownership of the land to the point where the Rabini family harassed [the applicant’s] family in [a particular place in Afghanistan] while [the applicant] was in the UK. However, I do not find that [the applicant] is at risk of serious harm from the Rabini family because he told me he is not interested in the land anymore, he did not seek to reclaim it when he returned to Afghanistan in 2008 and 2010 and would not seek to reclaim it if he returned to Afghanistan, despite me pointing out there are now government processes to assist people to reclaim their land. I find that the Rabini family would not perceive him as someone who would reclaim the land if he returned to Daikundi.
The reviewer went on to find that even if she accepted that Rabini or his family may have an interest in the applicant it was not for any Convention reason as the conflict was a land dispute, not ethnically, racially or politically based. As the first respondent submitted, the reviewer’s understanding of the applicant’s claims in this respect can be said to be based on all the applicant’s evidence in this respect, including not only on the extract from the transcript at p.22 set out above, but also the following discussion (p.31 of the transcript, lines 35 – 49) about the conflict between the applicant’s family and the Kuchis and his family and Mr Rabini in Daikundi:
Reviewer: So what I am still uncertain about is it seems like a localised conflict, only in that locality, that why would his enemies find him in Kabul?
Claimant (interpreter): This is an issue between two different party. This is not over land and this is actually coming from two different party. This dispute is not coming from the land.
Reviewer: From the local area?
Claimant (interpreter): This is not over the land, this is a political fight between two parties like Gulbuddin and Harakat. This has nothing to do with the land.
Further the reviewer again raised the issue of Gulbuddin and Harakat and stated (at p.35 of the transcript, lines 37 – 41),:
Reviewer: So I think we need to both do a little more research about that because if it is just a dispute about land or between, an argument between people, that is not a Convention reason.
Claimant (interpreter): No, it’s not over land.
Reviewer: No, I understand.
Claimant (interpreter): The land trouble started when my father was killed and I left the area after that.
In the interview the applicant did not state that he wanted to recover his land or that he actually intended to try to do so. Rather he stated that he had not tried to recover the land in the past. Further, when asked if there was some kind of government assistance to reclaim land which clearly related to the future, he indicated that he did not care much about the land, just about his safety. In such circumstances it was open to the reviewer to conclude that the applicant was not interested in the land any more, particularly having regard to the absence of a specific claim by the applicant that he was concerned with the land or that he wanted to reclaim it in the future.
Furthermore even if there could be said to be some misunderstanding by the reviewer as to precisely what the applicant said at the IMR interview, this has not been shown to amount to a legal error. The claims that were clearly articulated by the applicant were addressed (NABE at [68]). In NABE, the Full Court of the Federal Court made the point that a finding that a decision-maker has failed to consider a claim not expressly advanced is “not lightly to be made” and that the “claim must emerge clearly from the materials before the Tribunal” (at [68]). Indeed in NABE the Federal Court found that, notwithstanding that the Tribunal in that case had made an error about the appellant’s involvement with a particular organisation, the ground that it had failed to consider an unexpressed claim of want of effective state protection against persecution by that organisation was not open having regard to the threshold requirement that such a claim be “a substantial clearly articulated argument relying upon established facts” in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
While it is not contended in this case that the decision-maker failed to consider a substantial, clearly articulated argument relying upon established facts, but rather claimed that the decision-maker erred by misconstruing or misunderstanding the applicant’s claim, nonetheless such reasoning illustrates that a mere misunderstanding of an applicant’s claims does not of itself amount to legal error so long as the claims that have been clearly articulated are addressed by the decision-maker. In this case the IMR did address the applicant’s claim to fear harm from Rabini and his supporters and the basis for such claim.
Even if it could be said that the reviewer failed to have regard to evidence in support of the claim, that of itself would not of itself amount to a legal error (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46] – [47]; Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [51]). As North and Lander JJ stated in SZNPG at [28]:
…an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim.
This is not a case in which a failure to consider a piece of evidence amounted to a failure to consider an integer of the applicant’s claims (cf SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 and SZOVB and Others v Minister for Immigration and Citizenship and Another (2011) 125 ALD 38; [2011] FCA 1462 discussed further below in relation to ground three). Hence, even if the reviewer’s findings in relation to whether the applicant was interested in the land and exactly how the discussion of government land recovery processes arose could be seen to have involved some misunderstanding of what had been said by whom in the part of the transcript relied on in this ground, it cannot be said that the applicant’s claim to fear harm from the Rabini family was not addressed.
Further, insofar as this ground involves a contention that the IMR did not “point out” the evidence of government land recovery processes (an issue not specifically elaborated on in the applicant’s submissions) it is apparent that the IMR raised the issue of the availability of government assistance to reclaim land (transcript p.22, line 27). The fact that this was done in the form of a question, rather than a statement about the availability of government assistance is not such as to establish error of law in the manner contended for in ground two. At most the manner in which the IMR described this part of the interview in the reasons could arguably constitute an error of fact (NABE at [63]) which was of no consequence to the outcome. It does not go to show that the IMR misunderstood or misconstrued the applicant’s claims in the sense considered in NABE. Ground two is not made out.
Whether no evidence to support finding
Ground three in the amended application is that there was “no evidence to support the IMR’s finding that the Applicant had told the IMR that he would not approach the Harakat for protection in Kabul (CB 163 [102])”.
The particulars to this ground are as follows:
The Applicant did not say at any stage of that he would not seek protection of the Harakat, he merely questioned the capacity of the Harakat to provide such protection (T 35:46-50).
The applicant submitted that one of the bases for the IMR’s finding that the applicant could avoid the risk of serious harm by relocating within Afghanistan (specifically by moving to Kabul) was a finding that (at [102]):
[The applicant] told me he would not approach the Harakat for protection in Kabul and I find this stated reluctance undermines his claim that he would be killed by the HIG there.
It was submitted that this finding would appear to be based on an exchange during the IMR interview recorded at transcript p.35 line 46 to p.36 line 5.
It is helpful to consider the entire question by the reviewer which led to the part of the transcript relied on by the applicant. This exchange occurred towards the end of the interview after the IMR raised with the applicant’s adviser the need for further research in light of the applicant’s new claims about the Harakat and Gulbuddin political parties. The applicant denied that there was just a land dispute (transcript p.35 line 36) and stated that “land trouble [had] started when [his] father was killed” and he “left the area after that” (lines 40-41). The reviewer then added (transcript p.35, line 43 – p.36, line 5):
Reviewer: Yes, I understand. And then if after the research I have more details and I can accept that it is a Convention reason that he is fearful about returning to Afghanistan, then I need to make a decision about whether you could go to Kabul. So I don’t think you answered me when I asked if you could go to the Harakat office in Kabul, would they help you?
Claimant (interpreter): No, they won’t be able to help me because this guy, Mohsini himself, he can’t protect himself in Kabul. Mohsini is a popular man, he can’t protect himself when it comes to me. So when he moves around Kabul, he has to have a lot of bodyguards with himself and also the car which is bullet proof.
Reviewer: I see what you mean.
It was submitted that a fair reading of the applicant’s response suggested that he was not indicating that he would not go to the Harakat office in Kabul to seek help or that he was reluctant to do so, but rather that he was merely suggesting that any approach was unlikely to be useful because the Harakat party would not be in a position to assist him. It was submitted that there was no other evidence to support the IMR’s finding that the applicant would not seek protection from the Harakat party in Kabul and that once this conversation was understood in its proper context, it could be said that there was no evidence to support that finding. Hence it was submitted that there was a material finding of fact made without the support of any probative or logical material such as to constitute error in the sense considered by Kenny J in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108 at [72].
Further, it was submitted that the IMR’s response to the applicant’s evidence (“I see what you mean”) was one of apparent approval or acceptance of the applicant’s explanation and that having indicated its apparent acceptance of the applicant’s evidence, procedural fairness would require that the IMR inform the applicant if it intended to draw any adverse inference from this evidence.
Counsel for the applicant submitted that the only part of the transcript where the applicant responded to the question of whether or not he would seek the protection of the Harakat in Kabul was the part cited above and that this was not an evidentiary foundation for the conclusion that the applicant would be reluctant to seek assistance.
It was said to be clear from the reviewer’s reasoning that the reasoning in question did not relate only to relocation, that the reviewer also thought that the applicant’s apparent reluctance to approach the Harakat for protection undermined his claim that he would be killed by the HIG and submitted that accordingly this was a matter that also went to credit which “fed into” the whole of the reviewer’s decision.
It was acknowledged for the applicant that if the court was of the view that a plausible interpretation was open on the conversation that the applicant was reluctant to seek the assistance of the Harakat, then the claim must fail. It was however submitted that there were circumstances in which evidence of itself could amount to an integer of a claim. Reliance was placed on the decision of SZOVB and Others v Minister for Immigration and Citizenship and Another (2011) 125 ALD 38; [2011] FCA 1462, in which Katzmann J, in considering whether the Refugee Review Tribunal had failed to consider a component or integer of the applicant’s claims, referred to the remarks of Lander J in SXRB v the Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]-[33], in which his Honour observed, as Katzmann J put it at [38] in SZOVB:
…whether or not a failure to consider a piece of evidence amounts to a failure to consider an integer of an applicant’s claim to be entitled to a visa depends on whether that evidence was the only or the overwhelming evidence relating to that integer or whether by itself or coupled with other evidence, direct or circumstantial, it would or might have affected the result.
The applicant acknowledged that overlooking evidence of itself would not amount to jurisdictional error, but submitted that the evidence in question was so important and significant that it had the status of an integer of a claim.
The IMR finding in issue is under the heading “Enroute fears and other claims”. After referring to the applicant’s claim that he feared relocation to Kabul as he “believ[ed] he would need to remain indoors to avoid contact with his enemies who [would] kill him” the reviewer reiterated that the applicant was not at risk of serious harm from the HIG, the Kuchi, Rabini supporters and the Taliban in his home area and the roads leading to that area from Kabul. Relevantly, after addressing the issue of travel to the applicant’s home area, the reviewer then stated (at [102]) that “the same reasoning” in relation to harm from the applicant’s “enemies” held for Kabul and continued:
Country information confirms the presence of the military wing of the HIG in the northeastern parts of Afghanistan and on the outskirts of Kabul. The non-military wing, the HIA is registered with the Afghani Ministry of Justice in Kabul. I find [the applicant] would not attract attention, or be harmed by the HIA, in Kabul. [The applicant] told me he would not approach the Harakat for protection in Kabul and I find this stated reluctance undermines his claim that he would be killed by the HIG there. In addition Kuchis are clearly not located everywhere in Afghanistan and I do not accept that Kuchi who graze their livestock in Daikundi would target [the applicant] in Kabul. I repeat, that there is no evidence that the Taliban target people on behalf of the HIG or the Kuchi and I found that they would not do this in Kabul. There is no evidence that returnees or failed asylum seekers are targeted solely because of this status upon return to Kabul. I find that [the applicant] is not at risk of serious harm for a Convention reason from the HIG, Kuchi or Taliban if he were to return to Kabul now or in the foreseeable future.
It was in that context that the reviewer found that the applicant was not at risk of serious harm from the HIG in Kabul after addressing the risk of harm in Kabul from the Kuchi or the Taliban targeting returnees or failed asylum seekers in Kabul. The IMR concluded that the applicant was not at risk of serious harm for a Convention reason if he were to return to Kabul in the future.
First, this finding related to whether or not the applicant could relocate to Kabul. It was not part of the general credibility finding. The applicant’s reluctance to approach the Harakat for protection was said to undermine his claim that he would be killed by the HIG in Kabul (if he relocated). The finding in relation to relocation was an independent basis for the reviewer’s conclusion, separate from the principal conclusion that the applicant had no well-founded fear in his home district in Daikundi province which has not been shown to be affected by error. On this basis any error in the relocation finding would be immaterial to the reviewer’s conclusion. It would not justify the court in granting relief (VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1; Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA [2005] FCAFC 216 and SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46).
In any event, this ground is not made out. It is relevant that the issue of relocation to Kabul and whether the applicant would approach the Harakat for protection in Kabul was also raised at an earlier point of time in the IMR interview. First, after the reviewer raised with the applicant the large Hazara community in Kabul and suggested that if he went to Kabul now they could help him get a job or a home to live (transcript p.20), the applicant had indicated that he had no financial problems, that a lot of people from Daikundi lived in Kabul and that he believed he would be at risk of being found by his enemies if he got out of the house and went around in Kabul (transcript p.21). Then at p.32 of the transcript (lines 33 – 44) after the reviewer suggested that the problems were in Daikundi, the applicant claimed members of the Gulbuddin and Harakat existed in Kabul and that his dispute with Rabini supporters was not a land dispute claim (a claim later rejected by the reviewer). The reviewer asked:
Reviewer: But because your father was such an important person in the Hazara --
Claimant: Harakat.
Reviewer: -- Harakat political party, could you not go to the office in Kabul and seek their help?
Claimant (interpreter): When it comes to Commander there are different grades. Like the big leader is Mohsini so in every, like every suburb or area they have like smaller leader or Commander that represent them. So my father was a Commander in this little area.
After further discussion, the reviewer returned (at transcript p.35, lines 46 – 47) to the fact that the applicant had not answered the questions in relation to whether he could go to the Harakat office in Kabul and if they would help him. The applicant responded “No” and then elaborated on his response.
The reviewer relied on all this evidence, including the applicant’s response that the Harakat would not be able to help him, to find that the applicant was stating that he would not approach the Harakat for protection in Kabul. While his stated reason was that this was because they could not provide protection, the reviewer did not have to accept this as a complete explanation, particularly in light of the applicant’s response when first asked about this issue. Relevantly, this reluctance was said to undermine the applicant’s claim he would be killed by the HIG in Kabul (a claim already rejected in relation to his home district in Daikundi).
It has not been established that there was no evidence for the IMR’s finding that the applicant would be reluctant to seek the assistance of the Harakat in the sense considered by Kenny J in SZLSP at [72]. It was open to the IMR from what was said at the interview to find that the applicant was stating that he would not approach the Harakat for protection in Kabul. It cannot be said that the IMR’s conclusion in this respect was not “grounded in probative material and logical grounds” or that the applicant’s evidence at the interview did not disclose any material by reference to which a rational decision-maker could have reached the conclusion reached by the IMR in relation to the applicant’s reluctance to approach the Harakat for protection in Kabul.
Insofar as there also appeared from oral submissions for the applicant to be a submission that there was a misconstruction of evidence by the reviewer, this does not establish an error of law for the reasons considered in relation to ground two. The claim that the applicant could not relocate to Kabul because he would be at risk of harm from his enemies was specifically addressed and rejected by the reviewer. Even if the reviewer misunderstood an aspect of the applicant’s evidence in support of his claim in this respect that does not establish a legal error in circumstances where the claim itself was addressed. As indicated above, there is no error of law in the reviewer making a wrong finding of fact or engaging in unsound reasoning of itself (see SZNPG at [20] and cases there cited). Ground three in the amended application is not made out.
As none of the grounds relied on by the applicant have been established the application must be dismissed.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 6 July 2012
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