SZQVI v Minister for Immigration & Anor

[2012] FMCA 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 222

MIGRATION – Independent merits review of refugee claims of offshore entry person – Afghani national living in Iran – Reviewer’s finding that applicant would be given Afghani identity documents – whether supported by any evidence – whether denial of procedural fairness – no grounds for relief established.

Migration Act 1958 (Cth), ss.36, 46A

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Jones v Dunkel (1959) 101 CLR 298
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319
QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 98 ALD 695, [2007] FCA 1918
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZLPO v Minister for Immigration & Citizenship (2009) 177 FCR 1, [2009] FCAFC 51
SZQHC v Minister for Immigration & Anor [2011] FMCA 851
SZQNF v Minister for Immigration & Anor [2011] FMCA 965

Applicant: SZQVI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

PETER TYLER, IN HIS CAPACITY AS

INDEPENDENT MERITS REVIEWER

File Number: SYG 2563 of 2011

Judgment of: Smith FM

Hearing date: 8 March 2012

Delivered at: Sydney

Delivered on: 8 March 2012

REPRESENTATION

Counsel for the Applicant: Mr L Robison

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the First Respondent: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2563 of 2011

SZQVI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PETER TYLER, IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in April 2010, when he was taken to Christmas Island as an unauthorised boat arrival without any travel or identity documents.  At various interviews, he presented claims to refugee status in support of an application for an assessment of his status under the Refugees Convention (the “RSA”), in accordance with procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. Throughout that process, he was assisted by Florin Burhala Lawyers of Melbourne. A negative assessment of his refugee status was made by an officer in the Department of Immigration on 10 November 2010.

2. The same assessment of the applicant’s refugee status was arrived at by an independent reviewer, Mr Tyler, in a report to the Minister dated 25 October 2011, and notified to the applicant by a letter dated 27 October 2011 (the “IMR”). 

3. The present application was filed by the applicant on 10 November 2011.  At that time, the applicant had no legal representative, and his application was filed in Sydney from Curtin Immigration Detention Centre in Derby, Western Australia.  It contained no grounds for judicial review of Mr Tyler’s report.  The matter was case managed in my docket, and has been brought to hearing today.  On all occasions when it has been in my list, the applicant has been represented by a barrister from Sydney. 

4. No issue is taken by the Minister as to this Court’s jurisdiction to address the application for judicial review, pursuant to the jurisdiction recognised by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, in so far as this Court has the same jurisdiction. No issues arise as to time limits on this Court’s jurisdiction.

5. Under the judicial review jurisdiction upheld by the High Court in Plaintiff M61, it is the function of the Court to consider whether Mr Tyler’s report reveals any error of law, including denial of procedural fairness, in its reasoning or the procedures followed before its making. The relief sought in the present application, which is declarations of error and injunctions against the Minister and his officers, can be contemplated only if I am satisfied that Mr Tyler made such an error. It is not the function of the Court to engage in merits review of Mr Tyler’s conclusions concerning the risks facing the applicant in Afghanistan, nor to decide for itself his status as a refugee under the Refugees Convention as adopted by s.36 of the Migration Act.

6. The applicant’s history recounted at interviews was accepted by all decision‑makers, and can be sketched shortly.  The applicant was born in Afghanistan in the province of Helmand, which country information shows has been considerably unsettled by the Taliban insurgency, and where the minority Hazara ethnic community, to which the applicant belongs, has suffered persecution from time to time based on that ethnicity and their religion as Shia Muslims. 

7. The applicant was taken by his parents to live in Iran at the age of two or three, and he lived there without rights of residence for the remainder of his life until he came to Australia at the age of 34.  According to his history, he was deported on several occasions from Iran back to Afghanistan, and then returned.  On the last occasion, after he was deported in 2009 or 2010, he employed a people smuggler to come to Australia.  In Iran, he lived in a city and eventually found employment as a concreter and welder sufficient to support his immediate and extended family, who have remained in Iran. 

8. His grounds for seeking protection in Australia were shortly explained in a statutory declaration that accompanied his RSA application: 

   Why I left my country: 

   My father told me that he decided to leave Afghanistan when I was young because of the troubles we faced as Hazara Shia’s with other tribal groups particularly the Pashtuns.  He said that the Pashtuns would always threaten us and claim that our land belonged to them.  He said they would often accuse us of being infidels because we are Hazara Shia and that because we are Hazara Shia they did not consider us as true Muslims or Afghan nationals. 

   Having left Afghanistan when I was only 2 years old and living most of my life in Iran, I cannot return to Afghanistan because I am unfamiliar with the land and no longer have any family connections there.  I also fear returning to Afghanistan because I am Hazara Shia and will be killed by the Taliban.  I have read many books and reports, and have heard many stories about the treatment of Hazara people in Afghanistan.  I have known many people who have been killed by the Taliban just because they are Hazara Shia.  Like the Pashtun’s, the Taliban do not consider Hazara people as Muslim’s or Afghan nationals because we are Shia and Hazara. 

   Also, in December 2009 when I was deported back to Afghanistan, I was beaten and sexually abused by a Pashtun man.  Luckily I was able to hit him and escape.  I believe I was abused in this way because I was the only Hazara Shia there and was an easy target. 

9. His claims for refugee protection by Australia were addressed in several very lengthy written submissions by his legal representatives, in particular, relying on general submissions which appear to have been made by them in support of a number of Hazara Shia refugee applicants from Afghanistan.  In addition, they referred to a claim by the applicant that he would be at risk if he returned to Afghanistan as a result of being seen as a foreigner with an unusual accent.  

10. The officer in the Department of Immigration who determined that the applicant was not a refugee, accepted that he was a national of Afghanistan by birth, and appears to have accepted that he could not be expected to return to the place of his family’s origins in Helmand province.  However, the delegate said that “the available evidence indicates that he would not be at risk of Convention related persecution in Kabul”, and cited various pieces of country information concerning the situation of the Hazara population of Kabul. 

11. In their submission in support of the IMR application, the applicant’s lawyers addressed the issue of relocation.  They submitted:  

    Given the Applicant departed Afghanistan when he was only two years of age, he cannot return there because he is entirely unfamiliar with life in the country, and he has no friend or family connection for support and protection if necessary.  He is afraid to go back because he is a Hazara Shia and will be persecuted and killed by the Taliban who continue to target those who share his ethnicity. 

    The Applicant fears because he is also easily identifiable as a person who lived abroad. 

12. They also made a submission that “relocation to Kabul is deemed unsuitable”, and referred to the absence of relatives or support in Kabul and the security situation in Kabul, in support of a general submission that “relocation is not a safe option in Afghanistan”. 

13. There was no suggestion in this written submission nor, indeed, any other evidence or submissions that were given by the applicant and his lawyers to Mr Tyler, that the applicant would have any difficulty obtaining any necessary identification documents required to live in Afghanistan, and they made no reference to any country information raising that as a possibility at all. 

14. The applicant attended an interview with Mr Tyler on 15 April 2011 at Curtin Immigration Detention Centre, which was also attended by his representative.  A transcript of the interview is not in evidence before me, and I rely on Mr Tyler’s summary of it given in his report. 

15. Mr Tyler raised whether the applicant could live in a large city in Afghanistan.  According to his report:  

    23.I asked the claimant why he and his family could not move to a large city in Afghanistan and he responded that because he grew up in Iran he speaks differently and is used to a different environment; he will be treated as a stranger; he is recognised as Iranian in Afghanistan; he is not familiar with Afghan society; he does not have a taskera; he is the sole supporter of his family; and there is no difference between the Taliban and Pashtuns in Afghanistan. 

    24.I asked him what serious harm he felt he would suffer if he returned to Afghanistan and he said that he and his family will be treated badly and discriminated against; he has an accent that will identify him as Iranian; he is not familiar with Afghanistan and therefore will not know what area will be safe him. 

    25.He said that his dilemma was that he looks like he is Hazara but he speaks like an Iranian therefore he will be despised and persecuted.  He said that most Afghanis who went to Iran and later returned to Afghanistan had bad experiences because Afghanis hate people speaking like Iranians.  He said that the government may also think he is a spy. 

    26.I asked him why fellow Hazaras would not have pity on him because of his history and he said that even in the detention centre he is referred to in abusive terms because Hazaras are nice people that hate Iranian accents. 

16. Following the interview, the applicant was invited to comment on various extracts from country information.  It is unclear exactly when that was sent or how it was addressed, but I consider that this was probably answered in an undated post‑hearing submission from the applicant’s representatives.  

17. The submission of 21 pages, included further extracts from country information concerning the situation of returning asylum seekers to Afghanistan in particular.  A submission was made that “based on a range of reasons, specified below, such relocation is inappropriate and should not be considered”.  No claim was made in the submission that the applicant would be at a disadvantage if he returned to live in Afghanistan, by not being able to obtain an appropriate Afghani identity document or ‘taskera’.  Nor can I find in the country information cited by the agent any suggestion that this was a possibility. 

18. Mr Tyler’s report is dated 25 October 2011.  He recommended that the applicant not be recognised as a person to whom Australia has protection obligations.  The report sets out the applicant’s claims and evidence and the post‑hearing correspondence of the applicant’s lawyers. 

19. Under the heading “Country Information”, Mr Tyler said: 

    30.In the process of review I have had regard to country information cited and specifically referred to in the RSA assessment as well as material submitted by the claimant and his representative and other relevant material. 

    31.Uncontentious general and historical background is set out in the United Kingdom Foreign and Commonwealth Office, Country Profile, Afghanistan, May 2010 (at and in the BBC News, Afghanistan Country Profile, May 2010 (at

    32.There is a range of information and reports in relation to Afghanistan, although much of it is subject to limitations relating to provenance, range of data and accuracy.  A great deal is sourced from news reports and advocacy websites on the Internet.  I do not consider that because an item is reported, appears in print or is posted on the Internet its provenance or accuracy is guaranteed.  I have therefore generally given most weight to considered reports and analysis prepared by national and international authorities and reputable non‑government organisations. 

20. Mr Tyler then referred to some specific reports from the Department of Foreign Affairs and Trade and other sources, extracts from which had been provided to the applicant’s representative.  The full contents of those reports is not in evidence before me today.  Mr Tyler also referred to “other material of particular relevance consulted by the reviewer”, including six additional documents, of which only some extracts are in evidence in the material before me. 

21. Under the heading “Findings and Reasons”, Mr Tyler said that he accepted that “the claimant is a Hazara and a Shia Muslim”.  He said: “the claimant claims to be a national of Afghanistan.  I accept that he is an Afghani national and, for the purposes of the Convention, have therefore assessed his claims against Afghanistan as his country of nationality”. 

22. Mr Tyler then explained a conclusion that he was not satisfied that the applicant faced persecution simply as a Hazara and a Shia in Afghanistan.  He said that “it is therefore necessary to examine the claimant’s particular experiences and claims”. 

23. He identified the applicant’s history of having left Afghanistan when he was three years old, and subsequently living in Iran, subject to three brief deportations back to Afghanistan. 

24. Mr Tyler addressed the applicant’s concern that he would be persecuted if he returned to Afghanistan because of having a different accent and being seen as an Iranian Hazara or a foreign person.  However, he noted the composition of the population in Kabul, and said that “it would not be unusual to find Iranian or Iranian/Hazara accents in Kabul”.  Noting that 100,000 Afghans had returned from Pakistan and Iran in 2010, he concluded that the applicant would not “stand out within the general population and therefore does not have a well‑founded fear of persecution for reason of his ethnicity, race, nationality or membership of a particular social group being either Iranian, Iranian Hazara or foreign person”. 

25. No challenge to that reasoning is made in the proceedings before me. 

26. Mr Tyler then addressed a claim by the applicant that he “will be seen as a spy”, but Mr Tyler said that “this claim was a throwaway line at the closing stages of the interview and that there is no substance to it”. 

27. Mr Tyler then said: 

    54.The claimant said that one of the reasons why he could not return to Afghanistan was that he did not have a taskera.  He did not elaborate as to the harm he might suffer for this reason.  A taskera is the primary identification document in Afghanistan and as the claimant’s nationality is Afghani, I am satisfied that he will, upon application, be granted a taskera and therefore I do not consider there is a real chance of him suffering persecution for this reason. 

    It is Mr Tyler’s conclusion in this paragraph which provides the ground of judicial review which was argued before me today by the applicant’s counsel. 

28. Mr Tyler then further explained why he was satisfied that the applicant, if he returned to Afghanistan, could live in Kabul without facing persecution for a Convention reason.  In the course of this discussion, he addressed the other issues raised by the applicant, and the practical situation facing the applicant in Kabul, noting similarities of that city with the city in which the applicant had been living and working in Iran. 

29. No challenge is made in the proceedings before me as to the conclusion in relation to the risks of persecution facing the applicant if he lived in Kabul, nor as to the practicality of his doing so under principles established in the authorities, including SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18.

30. It was, however, as I have noted, submitted that the applicant’s express concern at interview that “he does not have a taskera” was a point which was required to be addressed by Mr Tyler, and was addressed by an adverse finding in the absence of evidence.  Alternatively, on a variant of the ground of review which was raised at the hearing, it was submitted that procedural fairness was denied because the information relied on by Mr Tyler when making this finding had not been put to the applicant. 

31. The ground as pleaded in the amended application was: 

    1.The second respondent found that the applicant would be able to obtain a taskera (Afghan identification document) upon return to Afghanistan in the absence of evidence in respect of same, thereby breaching the no evidence rule (“the breach”). 

    2.As a result of the breach, the recommendation of the second respondent is affected by legal error. 

32. Counsel submitted in his written submissions: 

    Breach of ‘no evidence’ rule 

    8.The second respondent found, at paragraph 54 of the recommendation, that the applicant would have no difficulty in obtaining a Taskera (Afghan identity document). 

    9.There was no evidence supplied by the applicant or his adviser substantiating a finding that a Taskera would be issued to the applicant.  Nor does any material disclosed in the recommendation contain any evidence that a Taskera could be issued. 

    10.As there was no evidence to support the finding that the document could be issued, the second respondent has erred in making such a finding. 

    (citation omitted) 

33. Counsel cited a number of authorities that error of law is constituted by the making of a finding of fact in the absence of any evidence providing “some basis for an inference … even if that inference appears to have been drawn as a result of illogical reasoning” (see Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356).

34. Such an error of law has been held in the Federal Court to amount to jurisdictional error, if the finding is material to a conclusion on a matter required to be found to complete the exercise of jurisdiction, and this was not challenged by the Minister’s representative.  The principles were applied by the Full Court of the Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231, which was relied on by counsel for the applicant. Their Honours said:

    18…  But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. 

    19This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene.  If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90‑91.

    20On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence.  Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    21In considering the argument now put it must be remembered that the Tribunal is not limited to the evidence that is formally put before it: see s 353(2) of the Act.  Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the Tribunal can inform itself as it thinks fit, including acting on information that is ‘public’.  Nor should it be forgotten in this context that in the course of their duties Tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world.  Within the limits imposed by the Act itself there is nothing to prevent members from using this information. 

1. The suggestion of their Honours that the broad powers of the Tribunal to inform itself may make it difficult to draw an inference of the absence of any evidence to support a finding of fact relating to a matter of possible general knowledge, is consistent with other statements in the High Court and the Federal Court, including statements by Gleeson CJ and Hayne J in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 which I extracted in SZQHC v Minister for Immigration & Anor [2011] FMCA 851.

2. In SFGB, their Honours were able to arrive at a positive conclusion that there was no evidence before the Tribunal to justify a particular factual conclusion, due to their identification of “information that is clearly to the contrary” in the material before the Tribunal.  They appear to have been satisfied that the Tribunal had become confused about the effect of some country information which had been expressly identified by the Tribunal member as the basis for her findings. 

3. The principles identified by the Full Court in SFGB have been more recently identified and applied by Collier J in QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 98 ALD 695, [2007] FCA 1918 at [22]‑[33].

4. In my opinion, the conclusions arrived at in the above judgments should not be reached by me in relation to the present issue.  There are two reasons why I am not satisfied that Mr Tyler’s conclusion that the applicant “will, upon application, be granted a taskera”, was not open on evidence available to the Tribunal. 

5. The first is that I accept the submission of the Minister’s representative that it was open to Mr Tyler to have concluded that a ‘primary identification document’ showing the applicant’s Afghani citizenship was likely to have been made available to a person who was permitted to return to his country of nationality, upon establishment of his nationality before his return to the country.  In a situation where the applicant had himself claimed to have the nationality of Afghanistan, and had invited the decision‑makers to address his situation in relation to the Refugees Convention if he returned to that country as such a national, in my opinion, it was open to Mr Tyler to conclude, merely from his acceptance of that claim of nationality, that there was a likelihood of him being granted an identification document confirming his nationality if he were to return to Afghanistan. 

6. Indeed, it is difficult to see how the applicant’s status or claims in relation to the risks he faced as a returning asylum seeker could have been assessed on any other basis, than that he would be recognised by Afghanistan as a national and allowed to return with whatever necessary identification and/or travel documents were necessary to enable that result. 

7. My second reason for not being satisfied that it was not open in law for Mr Tyler to find that the applicant would be given an identity document, is that Mr Tyler did not purport to set out exhaustively in his report all the sources of his general knowledge about conditions in Afghanistan.  Patently, he and the applicant’s lawyers were in a situation where numerous refugee claims of Hazara Shia Afghanis were being addressed.  It would be unreasonable to expect all of the country information bearing on his general background knowledge to be identified in the body of his report.  He expressly indicated that he did not do so. 

8. In this situation, I would not draw an inference from the absence in the report of reference to specific information upon which Mr Tyler’s knowledge on the issuing of identification documents was based, if indeed his reasoning went beyond an inference merely from his finding of nationality.  In this respect, it is highly significant, in my opinion, that the applicant’s solicitors had not made a claim that identity documents would be refused to a returned failed asylum seeker with Afghani nationality, and they had not referred to any country information raising this as a possibility. 

9. In presenting this ground of review today, the applicant has not tendered any evidence which is to the contrary of Mr Tyler’s conclusion, whether found in the material generally cited by Mr Tyler or not.  I have neither been referred to, nor found, any such information in the Court Book.  I would not draw any inference from the absence of positively supportive information in the Court Book, since the Court Book was compiled by the Minister in response to a direction of the Court given at the first court date and before the present ground was articulated.  Nor, in my opinion, is there any inference arising or any support for an adverse inference of the absence of evidence from Mr Tyler arising under principles of Jones v Dunkel invoked by counsel for the applicant (cf. Muin’s Case (supra) at [25]). 

10. I am therefore not satisfied that the ground presented in the amended application is made out. 

11. In the course of exchanges with the bench, counsel for the applicant sought leave to add an additional ground of review, being, as I understood it, that the applicant was denied procedural fairness by not being given an opportunity to consider the information upon which Mr Tyler based the conclusion that the applicant would be granted a taskera upon application by him if he returned to Afghanistan. 

12. However, I am not satisfied that there was such a denial.  

13. The argument must obviously fail, if Mr Tyler’s finding is regarded as being based wholly or substantially upon acceptance of the fact, asserted by the applicant himself at the foundations of his case, that he is a national of Afghanistan. 

14. If there was reliance by Mr Tyler upon some general knowledge about Afghani identity documents, there is recognition in judgments of the High Court and the Full Court of the Federal Court that not all pieces of general knowledge are required for procedural fairness to be expressly identified and comments to be invited. 

15. In the course of a judgment published as SZLPO v Minister for Immigration & Citizenship (2009) 177 FCR 1, [2009] FCAFC 51, the Full Court addressed an argument presented by an applicant, SZLPP, that there was jurisdictional error from a Tribunal’s failure to identify literature from which it had gained knowledge of Falun Gong beliefs and practices upon which it questioned the applicant, and upon which it judged the applicant’s claims to have been a Falun Gong practitioner. Their Honours said:

    3.Application by SZLPP (NSD 1486 Of 2008) – Consideration 

    148It will be recalled (see [59] above) that the first ground of appeal related to the Tribunal’s statement that for SZLPP to compare Falun Gong to Kung Fu was “bizarre”.  This was one aspect of the Tribunal’s finding that SZLPP’s lack of knowledge about Falun Gong was so “comprehensive” that the Tribunal member did not accept that SZLPP had ever been a Falun Gong practitioner. 

    149The Minister relies on the following passage from the judgment of Hayne J in Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601 at [263], [264]:

    263Unlike a court, the tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review.  It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come.  It may very well be, therefore, that, as individual Tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed.  And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish. 

    264There is, therefore, a very practical reason to doubt that procedural fairness required the Tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens.  So to hold would impose an obligation that could not readily be performed and in some cases would be impossible.  But the difficulty in the argument advanced by Mr Muin is even more deep‑seated than that. 

    (footnotes omitted) 

    150The Tribunal member had access to Falun Gong literature.  He said (at 5): 

    I asked the applicant a number of questions about Falun Gong practice and beliefs.  He was not able to answer one correctly.  One concept, which is described in Falun Gong literature as the “top priority” of the practitioner, was entirely unfamiliar to him.  He was unable to name the first exercise.  He did not know how many exercises there were. 

    151We think that the passage from the judgment of Hayne J in Muin v Refugee Review Tribunal set out above answers the first ground of appeal.  It was not required that the literature from which the Tribunal member had gained his knowledge of Falun Gong beliefs and practices be identified, let alone placed before the review applicant, if, indeed, either step was possible. 

16. I have in recent judgments considered the principles upon which obligations of procedural fairness arise in relation to IMR reviewers’ reliance upon pieces of country information, particularly concerning the situation of Hazara Shia Afghanis.  I shall not repeat the principles which I identified in those authorities (see SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at [29]‑[39], and SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at [54]‑[57]). It is necessary to assess the context in which a reviewer has drawn upon general information or knowledge in relation to country circumstances, and the authorities suggest a need to assess the degree of controversy attending the particular information relied upon, as well as whether it has qualities of significance to the decision.

17. In the present case, in my opinion, there were no surrounding circumstances which raised the issue as to the likelihood of the applicant being given a taskera on application by him if he returned to Afghanistan, being a matter of controversy.  As I have noted, it was not so put by the applicant’s solicitors, including in their post‑interview submission.  The applicant’s suggestion at the hearing that he “does not have a taskera” did not, in my opinion, clearly raise a claim that he would not be given one if he chose to apply for one, and it was not presented in that manner by the applicant or his representative.  The applicant has not presented evidence from himself or his representatives to the Court showing that this finding was unexpected or that he would have wished to dispute its factual premises. 

18. I am not satisfied that the conclusion of Mr Tyler, that the applicant would be granted a taskera on application, made a finding which was in any respect surprising or unexpected, or based upon general information which was in any manner controversial.  

19. For all the above reasons, I am not satisfied that the applicant has established any denial of procedural fairness. 

20. Since I am not satisfied that any of the arguments presented to me today have pointed to legal error, or denial of procedural fairness, or any other species of jurisdictional error affecting the report of Mr Tyler, I am not satisfied that the applicant has made out grounds for the relief he seeks in his application. 

21. I must therefore dismiss the application. 

I certify that the preceding fifty‑five (55) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  28 March 2012