SZQZD v Minister for Immigration
[2013] FCCA 656
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQZD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 656 |
| Catchwords: MIGRATION – Independent Merits Reviewer – proceeding dismissed for non-appearance – application for reinstatement – reasonable prospects of success. |
| Legislation: Federal Circuit Court Rules 2001 rr.13.02C(1)(c), 16.05(2)(a) |
| Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256; [2012] FCA 868 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 47 ALD 1; (1997) 148 ALR 578 |
| Applicant: | SZQZD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | SYG 2902 of 2011 |
| Judgment of: | Judge Riley |
| Hearing date: | 19 June 2013 |
| Date of last submission: | 19 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Nola Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Katherine Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The proceeding filed on 16 December 2011 and dismissed for non-appearance on 2 May 2012 be reinstated.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYG 2902 of 2011
| SZQZD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside an order made by the Registrar.
The Registrar, on 2 May 2012, under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001, dismissed an application for review of a recommendation made by an Independent Merits Reviewer.The reason for the dismissal was that the applicant failed to appear on
2 May 2012 at the first directions hearing in the matter.
The application to set aside the order made on 2 May 2012 was made by an application in a case filed on 23 November 2012.
The parties were in broad agreement that the factors to be considered in an application to set aside an order dismissing a proceeding for non-appearance are:
a)the explanation for the failure to appear;
b)the extent of delay in the bringing the application to set aside the orders and the explanation for any such delay;
c)any prejudice to the applicant;
d)any prejudice to the respondent; and
e)the prospects of success of the substantive application.
Nevertheless, the first respondent argued, on the basis of Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 47 ALD 1; (1997) 148 ALR 578 at 550, that the discretion to reopen a matter that had been finally determined should be exercised with great caution and only in exceptional circumstances. Wati actually dealt with a somewhat different issue to the issue that arose in this case. Wati decided that a judge determining not to extend the time in which to institute an appeal was exercising the appellate jurisdiction of the court. The present case concerns reinstatement of a proceeding that has been dismissed in the absence of a party.
It seems to me that the decision of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 is more apposite. In that case, his Honour said at [7]:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
(emphasis added)
Ryan J did not specifically mention the delay in bringing the reinstatement application. However, it is clearly a relevant factor in the present case, where there was a delay of nearly seven months in bringing the reinstatement application. Accordingly, I will deal with the matter on the basis that the relevant factors are those set out in paragraph 2 above.
The explanation for the failure to appear
The applicant said, in his affidavits and in cross examination, that:
a)he arrived in Australia in April 2010;
b)he was in detention until the end of February 2012;
c)the decision of the independent merits reviewer was handed down on 8 December 2011, while he was still in detention;
d)he had been assisted by a lawyer in relation to the independent merits review but the lawyer said that he could not assist further;
e)
the applicant filed the application to this court himself on
16 December 2011 with the help of some friends;
f)he received a letter from the court dated 3 April 2012 advising him of the date of the first directions hearing on 2 May 2012;
g)he could not remember if the letter gave the address of the court;
h)he could read some English;
i)he telephoned the court to check that his application had been filed;
j)he was not aware that he could appear without a lawyer in court;
k)he tried to get legal representation by contacting Victoria Legal Aid and PILCH but they were not able to assist him;
l)he lived in Melbourne from the time of his release from detention in late February 2012;
m)he shared a house with asylum seekers;
n)he was not familiar with Melbourne by the time of the directions hearing on 2 May 2012;
o)he was not able to travel around Melbourne without the assistance of friends, who were busy at work;
p)his friends had no idea where the court is;
q)he did not telephone the court to ask how to get to it; and
r)he was on tablets which prevented him from thinking clearly.
The applicant denied that Victoria Legal Aid and PILCH told him that he could appear in court without a lawyer.
The applicant did not impress as a truthful witness. He did not produce any medical evidence about the tablets he claimed to have been taking. His was unconvincing in his claims that:
a)he did not know that he could attend court without a lawyer;
b)he did not know how to find the court; and
c)his friends were unable to help him.
It may be readily accepted that, as a person who had only been out of detention for three months, the applicant might have had some difficulty in finding his way the court. However, I am not persuaded that the applicant would not have been able to overcome those difficulties if he had wanted to come to court.
I do not accept that the applicant did not know that he could attend court without a lawyer. It is a matter of common knowledge. People attend court without lawyers all around the world. It is not a special feature of Australian law. Asylum seekers routinely attend court without lawyers. It is completely implausible that the applicant’s friends and housemates would not have told the applicant that he could attend court without a lawyer if, by some chance, the applicant had not been aware of that fact.
The applicant’s explanation for his absence from the hearing on 2 May 2012 is inadequate.
The extent of delay in the bringing the application to set aside the orders and the explanation for any such delay
The applicant in the present case did not bring his reinstatement application for almost seven months.
However, the applicant did see his present lawyers on 17 September 2012, about four and a half months after the dismissal of his application. Counsel for the applicant submitted that any delay beyond that point was not the applicant’s responsibility, but the natural consequence of his lawyers being underfunded and overstretched.
I accept that argument.
Nevertheless, there was a delay of four and a half months that, on any view, was the applicant’s responsibility. That is a long time in a reinstatement application. The applicant did not provide any explanation for it, except that he had difficulty finding a lawyer.
He did not explain why he did not file the reinstatement application himself, as many people in his situation do.
Prejudice to the applicant
As the applicant is seeking refugee status, the effect on the applicant of a refusal to reinstate could be expected to be profound.
Prejudice to the respondent
The first respondent did not identify any prejudice to him if the reinstatement application is granted save as to costs.
The prospects of success of the substantive application
The only ground of review in the application filed on 16 December 2011 is:
That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
However, if the proceeding is reinstated, the applicant will seek leave to file an amended application in the terms of the draft amended application exhibited to the affidavit affirmed by Alexandra Jannetto on 22 November 2012.
I will consider the prospects of success in the light of the draft amended application.
Proposed ground 1: accent
Ground 1 in the proposed amended application is:
The Second Respondent failed to consider an integer of the applicant’s claims.
Particulars
(a)The applicant claimed to fear persecution by the Taliban because he was a Hazara Shia with a different accent.
(b)It was also claimed that the applicant’s Urdu accent increased his risk of harm and made him “more easily identifiable to the Taliban, placing the applicant in greater risk of harm.”
(c)The Second Respondent was not satisfied that the Taliban specifically targeted Hazara Shias on a general and discriminatory basis.
(d)The Second Respondent failed to consider whether the applicant was at risk of harm as a Hazara Shia with a different accent, causing the Taliban to think he had been in another country and assume he was a “Kafir”.
(e)The Second Respondent only considered the applicants (sic) accent in considering whether he would have difficulty in integrating into Kabul. The Second Respondent considered that “given the large number of people returning to Afghanistan from both Pakistan and Iran, that there would be many accents and this would not be an uncommon feature of returnees”.
(f)The finding of the Second Respondent did not consider or deal with the distinct and clearly articulated claim that the applicant was at risk of harm by the Taliban because of his ethnicity, religion and distinctive accent.
The applicant claimed in his statutory declaration at CB49 filed in support of his initial application:
Why I believe they will harm or mistreat me if I go back:
I am Hazara, my features are easily recognizable, I also will be detected as having a different accent. The Taliban will think I have been in another country and assume I am a Kafir [that is, a non-believer].
In submissions filed on behalf of the applicant for the independent merits review (at CB163-4), the applicant’s adviser said:
Urdu Accent Increasing Risk of Harm
The Applicant has submitted that he has lived outside Afghanistan since the age of 7 and has not returned since. As a result, he has developed a distinguishable Urdu accent when he speaks Hazaragi, which is easily identified by other Afghan citizens. This indicates that the applicant has grown up and lived outside Afghanistan, and will put him at prejudice by other Afghan citizens who will not accept him.
…
The primary risk for such returnees is reintegration failure. …
…
It is our submission that social disintegration will make the Applicant more easily identifiable to the Taliban, placing the Applicant in greater risk of harm. …
The reviewer dealt with the issue of the accent at paragraph 66 of his reasons as follows:
One of the major concerns expressed by the claimant which he claims would make it difficult to integrate into Kabul is his accent, which would make him stand out. I consider, given the large number of people returning to Afghanistan from both Pakistan and Iran, that there would be many accents and this would not be an uncommon feature of returnees. The claimant also stated that he feared persecution because he was a returnee from a Western country and that he would be considered to be a non-believer. In this regard I accept the advice of DFAT in its report of 28 September 2010 where it states that “Interlocutors did not believe Hazaras would be targeted because they has (sic) sought asylum in the west”. I therefore do not accept that the claimant would suffer persecution for this reason if he were to settle in Kabul.
The applicant submitted that the reviewer had considered the consequences for the applicant of his accent in relation to reintegration but not in relation to harm by the Taliban because they would think he was a non-believer.
The first respondent submitted that the reviewer had clearly considered both the reintegration issue and the harm from the Taliban issue in connection with the applicant’s accent.
The DFAT report the reviewer mentioned is at CB186. It says, relevantly:
But interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west.
The applicant’s claim was that, because he had a certain accent, the Taliban would think he had been in another country and would think that he had therefore become a non-believer. The reviewer clearly considered and rejected the claim that a returnee from the West would be targeted because he had sought asylum. The reviewer also noted the claim that the applicant would be targeted because he would be considered to be a non-believer.
However, it is by no means clear that the reviewer actually considered the claim that the applicant would be perceived to be a non-believer and would therefore be targeted by the Taliban. The reviewer confined his conclusion to Hazaras who had sought asylum in the West.
This proposed ground is arguable and has some prospect of success.
Proposed ground 2: misconstruing claim
Ground 2 in the proposed amended application is:
The Second Respondent denied the applicant procedural fairness and/or committed an error of law by failing to consider the claims made by the applicant and/or misconstruing the claims made by the applicant.
Particulars
(a)The Second Respondent did not accept any of the applicant’s relevant factual claims and in particular did not accept that the applicants (sic) father and uncle had been in a dispute over family land or that his father had suffered any threats or harm from his uncle, the Taliban or members of the Nasr Party.
(b)The Second Respondent did not accept the applicant’s evidence because of purported “significant” inconsistencies and implausibilities.
(c)The matters identified by the Second Respondent as “inconsistencies” were not capable, on a proper assessment of the applicant’s claims, as constituting “inconsistencies.”
(d)The implausibility finding concerned the applicant’s evidence as to the Nasr Party and the Taliban’s involvement. The reviewer did not “accept as plausible that the Taliban would take an interest in his father refusing the transfer land to the Nasr Party which is in conflict with the Taliban.”
(e)The transcript of the hearing with the Second Respondent conducted on 16 April 2011 demonstrates that the applicant did not claim that the Taliban was involved in his father’s land dispute or the Nasr Party and that the applicant gave evidence to the contrary.
(f)The Second Respondent erroneously noted the applicant’s evidence as follows “the uncle said that the land was for the Nasr Party and that the claimant’s father should join the party. After he failed to do so he was harassed by the Taliban.”
(g)This issue as to the implausibility of the Taliban being involved in the land dispute or with the Nasr Party was a significant matter that caused and/or influenced the Second Respondent to reject the applicant’s central factual claims.
During the interview with the reviewer, the following exchange occurred:
APPLICANT: No did not say when my uncle took the land and said this land will belong to the Nasr Party because I work for the Nasr party, that’s why this land is for the Nasr party also my uncle told my father to join to the Nasr party so he didn’t join and when he was going outside he was receive like annoying by Taliban and by Pashtuns and my father was only a farmer.
REVIEWER: What was it about the Taliban and the Pashtun?
APPLICANT: Like receiving threats, harassment.
REVIEWER: Why would your uncle, who was a Hazara, do deals with the Taliban?
APPLICANT: No he did not have any dealing with the Taliban because the Nasr party is a separate party and the Taliban is separate.
REVIEWER: But did you … Right so the harassment your father got from the Taliban had nothing to do with your uncle?
APPLICANT: As I said, my father was a farmer. When he needed to buy something for his farm to buy some material or something for his land, then he goes out of the area to buy things for his land that why on the way sometimes he meet the Taliban and the Taliban teasing and bullying him. That’s why, because of Hazara because of his Shia and when he come to his own area he was threatened same as outside of his area by Nasr people.
The reviewer said at paragraph 19 of his reasons that the applicant had said during the interview that:
The uncle said that the land was for the Nasr Party and that the claimant’s father should join the party. After his father failed to do so he was harassed by the Taliban.
The reviewer described this part of the interview in his reasons at paragraphs 71 and 72 as follows:
At the interview with me the claimant initially stated that his uncle took the land away from his father by force. He said that when his father refused to hand over the land, he was harassed by the Taliban. …
… In his interview he said that the Nasr Party had put pressure on him to hand over the land and when he refused to do so he was harassed by the Taliban and threatened by members of the Nasr Party. He also said that his uncle took the land by force.
The reviewer stated his conclusion about this matter at paragraph 74, which is as follows:
I consider the inconsistencies set out above as significant and demonstrate an evolving story that is not based on the claimant’s personal experience. Further, I do not accept as plausible that the Taliban would take an interest in his father refusing to transfer land to the Nasr Party which is in conflict with the Taliban.
The applicant argued that the reviewer had made an implausibility finding based on a misunderstanding of the evidence. The applicant said that he had not said in the interview that his father was harassed by the Taliban because he had not handed over the land. The applicant said that the reviewer, during the interview, had actually clarified that the harassment of his father by the Taliban had nothing to do with his uncle and the land dispute. The applicant responded to the clarification by saying that the harassment experienced by his father from the Taliban occurred when he was outside his home region.
The applicant argued that the reviewer had misconstrued the claims, and relied on that misconstruction to make an implausibility finding. In addition, the reviewer, by misconstruing the claim, had failed to consider the correct claim.
The first respondent argued that the reviewer had been correct to say that the applicant had put forward an evolving story and had correctly summarised the applicant’s claims as they were stated before the reviewer clarified them.
I consider that the reviewer did misconstrue the claims. The applicant never said that the Taliban harassed his father because he did not hand over the land to the Nasr Party and his uncle. The reviewer relied on that misconstruction to make an implausibility finding that added to the reasons that the reviewer rejected the applicant’s claims overall. It seems to me that this proposed ground is reasonably arguable.
Proposed ground 3: failure to alert
Ground 3 in the proposed amended application is:
The Second Respondent denied the applicant procedural fairness by failing to alert him to a live issue under review
Particulars
(a)The Refugee Status Assessment of 11 November 2010 accepted the applicant’s claims concerning the property dispute between his father and uncle but found that the dispute was “significantly for a personal matter” and not Convention-related.
(b)Procedural fairness requires a decision maker to alert an applicant to a live issue under review so that an applicant is afforded opportunity to respond.
(c)The Second Respondent failed to put to the applicant its serious doubts as to whether (i) the applicant’s father and his uncle were involved in a land dispute; and/or (ii) the applicant’s father and his uncle were involved in a land dispute and the uncle was assisted by the Nasr Party.
The applicant noted that the original decision maker, the refugee status assessor, had accepted that the applicant’s father had been in a land dispute with the applicant’s uncle. The assessor said at CB89:
In any event, I find that the claimant’s fear of harm relating to the dispute between his father and uncle is essentially and significantly for a personal matter. Consequently, I find that his claimed fear of serious harm is not for a Convention-related reason.
However, the reviewer did not accept that there had been any land dispute between the applicant’s father and the applicant’s uncle. The reviewer said, at paragraph 75 of his reasons:
Accordingly, I do not accept that the claimant’s father and uncle have been in dispute over family land or that his father suffered any threats or harm from his uncle, the Taliban or members of the Nasir Party.
The applicant submitted that the reviewer had not alerted the applicant to the possibility that the reviewer would not accept a fact that the assessor had accepted. Consequently, the applicant submitted that there had been a denial of procedural fairness of the type described by the unanimous High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 at [35] to [36]. Those paragraphs are as follows:
35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36.It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The first respondent submitted that the assessor had actually expressed doubts about the veracity of the claim concerning the land dispute. The first respondent drew the court’s attention to the last paragraph on CB88, which is as follows:
In regards to the harm feared, at interview, the claimant was asked about his uncle but stated that he did not know whether he is alive or not. He also stated that he does not know in which village his mother was born. Notably, he stated that his grandfather was rich but did not appear to be aware of the situation relating to the disputed land. I find it difficult to accept that he would not have been told such details of his family in the 14 years since the family had left Afghanistan given, among other things, the strong family and clan ties of the Hazaras and he is the eldest son who would have responsibilities for the welfare of the family including the possible ownership of any property and inheritances, on the passing of his father.
I do not consider that passage to contain an expression of doubt about the land dispute overall. The assessor only expressed doubt about the applicant not having been told certain details relating to his family. In any event, the assessor went on to find that the land dispute was essentially a personal matter. In making that finding, the assessor accepted that the claim about the land dispute was true.
The first respondent then argued that the applicant had been put on notice that the reviewer might not accept the veracity of the claim about the land dispute. The first respondent relied on MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256; [2012] FCA 868, particularly at [93] to [95], which are as follows:
93.In contrast [to a decision of the Refugee Review Tribunal], in the context of an entirely fresh determination, such as that conducted by an IMR, where it is made clear to the applicant that all claims are the subject of a fresh determination, there is no equivalent need to identify the crucial issues in contention by specifically notifying the applicant of any intended divergence from the delegate’s findings on dispositive facts or issues.
94.In the present case, as the federal magistrate observed, the IMR at the outset made abundantly clear that she was conducting a fresh hearing of the claims and would make a completely new and independent assessment of the evidence. Moreover, the IMR’s extensive questions and reiterated concerns about the credibility of the appellant’s account clearly expressed pervasive doubt about the appellant’s entire story. While neither party adverted to it, the IMR, on one view, during the interview (transcript extracted at [28] above), specifically expressed doubt about the occurrence of the kidnapping incident. Even if the IMR did not express doubt about the occurrence of the kidnapping while specifically indicating doubt about other particular aspects of the appellant’s claim, the appellant was unambiguously apprised that all of his claims and all evidence would be considered and determined afresh, and that the IMR had substantial difficulties with his whole story not limited to her specifically expressed doubts. Further, the appellant was given a full opportunity to put his case.
95.In such circumstances, the appellant was not entitled to assume that in the absence of specific notice, the IMR would not deviate from the delegate’s finding that the kidnapping incident occurred, albeit not for convention reasons. Any failure specifically to notify the appellant that the IMR would or might make a different finding did not deny the appellant procedural fairness.
In MZYOI, the court summarised the interview with the reviewer at [15] to [29] which are as follows:
The IMR Interview
15.In the interview, the IMR informed the appellant at the outset that “[m]y role is to undertake a fresh rehearing of your claims. I will make a completely new and independent assessment of the evidence ... the purpose of the interview is to take a new look at the claims you’ve made”. The IMR explained that she might put country information and concerns to the appellant for comment but it did not mean that she agreed with the information or had made up her mind.
16.The IMR questioned the appellant about the Taliban, his travel to and from Jaghori for supplies, the available travel routes, his family, his relationship with Danish, the views, history and role of Danish, the date of Danish’s death, why the relationship with Danish caused the appellant’s ill-treatment and the kidnapping.
17.The IMR questioned the appellant about Danish, including when and why he was killed. The appellant stated that Danish was his mother’s uncle who was “against the Mullahs”. He thought that Danish was a socialist. The appellant could give no information about Danish’s life in Kabul or his political activities in Jaghori. The IMR stated that she had difficulty with the appellant’s simplistic description of Danish’s ideas. The appellant stated that he did not know exactly when Danish was killed but thought that it was maybe 10 to 12 years ago in winter time. He claimed that he was ill-treated because he was a friend of Danish who shared the same ideas. (emphasis added)
18.The IMR questioned why (if the appellant were imprisoned at the time) he could not recall the year in which Danish died. The IMR stated that the appellant was very vague. The appellant stated that his son (who was now 12) was
1-year-old at the time, which would make the year 1999. (emphasis added)19.The IMR asked the appellant about the claim that he had been harassed continuously by Irfani’s men for many years. The IMR stated that she was having difficulty with the appellant’s evidence. (emphasis added)
20.The IMR also questioned the appellant about the kidnapping claim.
21.The IMR asked the appellant whether he had ever been stopped by the Taliban when travelling and the appellant replied that “[o]n the side of the road [he was] stopped by the Taliban ... in a van” returning from Ghazni to Jaghori.
22.The IMR informed the appellant that she had difficulties with his story for a number of reasons, one of which was his lack of knowledge about Danish. (emphasis added)
23.The appellant informed the IMR that his donation of $4000 to a school, which he had not previously mentioned, was the reason for his problem. The IMR stated that this was a new claim and was a significant shift in the appellant’s story. (emphasis added)
24.The IMR put some information about Danish to the appellant for comment, including that Danish had only about 250 supporters in Jaghori, whereas the appellant stated that he had a lot of support. Further, the IMR put to the appellant country information that Danish “had no formal organisation, he didn’t lead a formal organisation” which concerned her as the appellant’s information was not consistent. The appellant responded that Danish was the second in command and had much support among ordinary people. (emphasis added)
25.The IMR also put the following country information to the appellant:
I also had problems with your story because our reports indicate that the only people that would be [at] risk of having been associated with Danesh was if they were actively involved in the reformation of a faction similar to that which Danish led in the early 1990s but just a fact that you’re a close relative would not result in persecution. (emphasis added)
26. The IMR then read an extract of a report, which stated that:
Intellectuals, former associates and former supporters of Ismael [Danish] could face a threat if they became actively involved in the reformation of a faction similar to that which Ismael led in the 1990s but previous association has not “generally” resulted in persecution...”
but omitted to read the word “generally”.
27.The IMR stated that she had difficulty in accepting that the appellant would be of interest due to an association with Danish, who died 13 years ago. The IMR stated:
There’s also a problem with you not being aware of when Danesh died ... You have ... shift in your story as to when he exactly died. It ranges anywhere between 10, 11, 12 and 13 years. (emphasis added)
28. The IMR then stated that:
Okay. I also have difficulty with the fact that this continues for 13 years when Danesh is no longer a threat to anyone and yet coincidentally just a week before you leave you suddenly have this incident of people coming to your house and asking about your relationship with Danesh which they had asked you 13 years ago and I have real difficulty with that story; I just find it implausible that – I mean ... you know, if 13 years ago they imprison you and ask you about Danesh why 13 years later they come to your house and still be asking you about your relationship. Can you explain that to me? (emphasis added)
29.The IMR invited comment on the difficulties she had identified.
The first respondent argued that, in the present case, the reviewer said similar things in the interview, so the same result should follow. The first respondent particularly noted the reviewer’s opening comments, at page 1 of the transcript of the reviewer’s interview which is exhibited to the affidavit of Ms Williamson affirmed on 5 February 2013:
So, today, I want to ask you some questions to get a (sic) clear a picture as I can of your situation. And I want to give you the opportunity to tell me why you left Pakistan and Afghanistan and you don’t want to return. So do you have any questions about what I’ve said so far?‑‑‑No.
Now, it’s very important that you tell me everything that you think is relevant to your case today.
Those comments fall well short of the opening remarks made by the reviewer in MZYOI. In MZYOI, the reviewer said:
[m]y role is to undertake a fresh rehearing of your claims. I will make a completely new and independent assessment of the evidence ... the purpose of the interview is to take a new look at the claims you’ve made.
In the present case, the reviewer merely said that he wanted to get a clear picture. That remark would not have alerted the applicant to the possibility that claims that had been accepted by the assessor might not be accepted by the reviewer.
The first respondent then said that the reviewer could alert an applicant to the possibility that his or her claims might not be accepted by the manner of questioning about those claims. The first respondent, in relation to the land dispute, referred to the following passages from pages 5 to 6, 7 to 9 and 14 of the transcript of the reviewer’s interview exhibited to the affidavit of Ms Williamson affirmed on 5 February 2013:
REVIEWER: Right. So do you know why the family moved away from Afghanistan?
APPLICANT: During that time I didn’t know when I became a mature age and my father told me this is the reason we left Afghanistan.
REVIEWER: And what reasons did he tell you?
APPLICANT: My father says the reason is that your grandfather and your grandfather’s brother had lands, says my uncle was in Nasr Party they took the lands by force.
REVIEWER: Who took the lands by force?
APPLICANT: My uncle.
REVIEWER: Took the lands away from your father did they?
APPLICANT: Yes from my father, my father had the lands from his father, that’s why my grandfather passed away and his land remained to my father.
REVIEWER: Did your grandfather leave all the lands to your father or did he leave some of it to his brother?
APPLICANT: There was only one land from my grandfather and he gave it to my uncle and to my father so they should have share in one land. That’s why my uncle was in the Nasr party, as he mentioned before, and during that time the Nasr party had power to do anything and that’s why he took it by force.
REVIEWER: And did your father tell you what year his brother took the lands?
APPLICANT: No my father did not mention when he was telling the reason why we left the country, he did not mention the year.
REVIEWER: So when you say your uncle used force, did your mother or your father ever tell you exactly how they applied that force to your father?
APPLICANT: No did not say when my uncle took the land and said this land will belong to the Nasr Party because I work for the Nasr party, that’s why this land is for the Nasr party also my uncle told my father to join to the Nasr party so he didn’t join and when he was going outside he was receive like annoying by Taliban and by Pashtuns and my father was only a farmer.
…
REVIEWER: And do you know what eventually happened to your father’s land?
APPLICANT: They took the land by force and my father did not do anything to have the lands and my father talked about the family about the children and then we left Afghanistan and went to Pakistan after that.
REVIEWER: So you don’t know for certain whether the title deeds to the land are still in your fathers (sic) name or have been transferred to somebody else?
APPLICANT: In Afghanistan anybody would want to catch your land it will belong to him, in Afghanistan like situation happen.
REVIEWER: But I had somebody sitting there yesterday afternoon telling me how important title deeds were to land?
APPLICANT: Well in Afghanistan there are so many areas that people have lands, they don’t have the documents that the land belongs to them, like in our lands, my father did not have any documents that the land belong to him.
REVIEWER: So you’re saying he didn’t have any documents?
APPLICANT: No, the only thing is that my grandfather gave it to his son, that’s my father only, that’s it, in Afghanistan there is no such thing that signed papers or give a letter that this land belongs to this man like that, no, it was belonged to my grandfather before passing away and my father became the owner of the land.
REVIEWER: You mean your father and your brother jointly, don’t you? Sorry, your father and his brother jointly?
APPLICANT: Yes, after the death of my grandfather, they have two sons, my father and my uncle, so the land belonged to both of them.
REVIEWER: And did your uncle give his share of the land to the Nasr Party?
APPLICANT: He took it by force and he was telling to us to my father that I will use this land for the Nasr party and we put some office to the land to use for the Nasr Party.
REVIEWER: Do you know if (sic) has built any offices there for the Nasr party?
APPLICANT: After we left Afghanistan to Pakistan and after death of father we don’t know what happened to the land but my mother was saying that the land is still there.
REVIEWER: The land is still there but what do you think she meant by that?
APPLICANT: I don’t know about the lands, I heard from my mother when he goes for somewhere with the other peoples with some ceremonies to the other peoples’ house she heard that my uncle is still there with the Nasr party but I don’t know about the land.
REVIEWER: So it could be that your uncle simply has taken the land himself and wanted it for himself?
APPLICANT: Well God knows, but my uncle saying that he took the lands to the Nasr party and maybe saying that I’ve taken this land given to the Nasr party he use it but god knows, maybe.
REVIEWER: See the difficulty is that it is just as likely that your uncle has just taken the land for himself.
APPLICANT: It is not clear that my uncle gave the land to the Nasr party because he was an important person in the Nasr party when he took it by force he used the Nasr party’s force.
REVIEWER: I want to ask you again, what do you mean when you say he took it by force?
APPLICANT: I mean by that that the Nasr party’s, group of Nasr party came to our lands and say to my father if you do not leave the land we will beat you and if my uncle was alone he couldn’t get the land easily but he used the force by using the Nasr party, so a group of Nasr party went to our lands and took it.
REVIEWER: So it wasn’t just your uncle who took the land it was really people, maybe including your uncle, from the Nasr party that took the land?
APPLICANT: I said before that my uncle was very important person in the Nasr party, whatever he was saying to the Nasr party’s people or his group, they did, that’s why they did take the land. He was very an important person, maybe he had a high position in the Nasr party.
REVIEWER: See the reason why this is very important, this part of your story is very important, and I really want you to have a think about your answer to this because it is very important, is that when you were first interviewed when you arrived in Australia, this is what you said, you said, well you were recorded as having said, “my grandfather was very rich.”
APPLICANT: Yes I did.
REVIEWER: “When he died my uncle had a fight with my father, he told my father he had to leave Afghanistan or he would kill him” and then you said “this was because of my grandfather’s estate.” Now to me that is a different situation to what you now describe as the Nasr party taking the land.
APPLICANT: The thing is that I did in my first interview because I was so scared I never have interview before.
REVIEWER: So you’re not scared here today are you?
APPLICANT: As I said I was so scared I didn’t give much detail in my first interview but I did in the second interview which [inaudible].
REVIEWER: You see you’ve also signed a document that your lawyers prepared.
APPLICANT: Yes.
REVIEWER: And what you’ve said in that and what you have signed in that is the following. You said “my father and uncle shared the land they had inherited from my grandfather,” which is consistent with what you’ve been saying today. You went on to say my uncle was a member of the Nasr party from what I understand and then you say my uncle asked my father to join the party and to give the land to the party to use. And so that to me is still different from what you’ve just told me because you’ve just told me that the members of the Nasr party went to your father.
…
REVIEWER: Okay. I’m just going to talk to your adviser for a minute. The interpreter will tell you what I’m saying. Leaving aside the circumstances and whether it’s all plausible, he’s consistently maintained he doesn’t have relatives back in the area that he comes from. I want to look further at the Nasr party. I did some research on it but it’s been put in a different way this time.
Those passages contain numerous questions about the land dispute but they all seem to proceed on the basis that there was a genuine land dispute between the applicant’s father and the applicant’s uncle. The point that the reviewer appeared to be having difficulty with was the involvement of the Nasr Party in the land dispute between the applicant’s father and the applicant’s uncle.
In the final passage, the reviewer said he wanted to research the Nasr party, and said:
Leaving aside … whether it’s all plausible … .
That did not indicate that the reviewer thought the whole story was not plausible. It indicated that he was concentrating on another aspect of the case, namely, the involvement of the Nasr Party, if any. Moreover, the reviewer made the passing reference to plausibility at the very end of the hearing without inviting any response to it, or giving an opportunity to the applicant to say anything further he wished to say. In his final comments, the reviewer repeated his intention to research the Nasr party and said that relocation was a live issue. The applicant’s adviser said he would provide post-interview submissions on relocation. The reviewer told the applicant that his advisor would make a further submission about the Nasr party. None of this touched on the truth or otherwise of the applicant’s claim that his father had been in a land dispute with his uncle.
The approach of the reviewer in the interview in the present case differs markedly from the approach of the reviewer in the interview in MZYOI. The reviewer in the present case did not express doubts about the very existence of the land dispute. The distinction drawn in MZYOI between SZBEL and MZYOI does not apply in the present case.
It does not appear that the reviewer in the present case in any way alerted the applicant to the possibility that the reviewer might make a fundamentally different finding in relation to the land claim to that made by the assessor. Consequently, proposed ground 3 has a reasonable prospect of success.
Conclusion
The applicant’s explanation for his failure to attend the directions hearing on 2 May 2012 was inadequate. The delay in filing the reinstatement application was lengthy. Apart from costs, there would be no prejudice to the respondent in reinstating the proceeding. There may be potentially catastrophic consequences for the applicant in not reinstating the proceeding. At least one of the applicant’s proposed grounds has reasonable prospects of success.
Taking into account all of these matters, it seems to me to be proper to exercise the discretion in the applicant’s favour. There will be an order reinstating the proceeding. I will hear the parties on any consequential matters.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Date: 28 June 2013
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