SZQZD v Minister For Immigration and Anor (No.2)
[2013] FCCA 1912
•18 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQZD v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2013] FCCA 1912 |
| Catchwords: MIGRATION – Independent Merits Reviewer – failure to consider an integer of claims – misconstruction of evidence – error of law – alleged denial of natural justice. |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 24(9) Leg Rep 11; [2003] HCA 26 Minister for Immigration and Citizenship & Anor v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 MZYOA v Minister for Immigration and Citizenship & Anor (2012) 135 ALD 87; [2012] FCA 146 MZYPW v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99 NABE v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 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 SZCBT v Minister for Immigration and Multicultural Affairs & Anor [2007] FCA 9 SZQGA v Minister for Immigration and Citizenship & Anor (2012) 204 FCR 557; (2012) 128 ALD 303; [2012] FCA 593 SZQRW v Minister for Immigration and Citizenship & Anor [2012] FCAFC 164 SZQZD v Minister for Immigration & Anor [2013] FCCA 656 |
| 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: | 7 October 2013 |
| Date of last submission: | 7 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Nola Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Tim Reilly |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
DECLARATION
In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by:
(a)not considering his claim to fear persecution from the Taliban by reason of his accent; and
(b)misconstruing his evidence about his uncle, the Nasr Party and the Taliban.
ORDERS
The first respondent pay the applicant’s costs fixed in the sum of $6,646.
| 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 for review of a recommendation made by an Independent Merits Reviewer. The recommendation was that Australia does not owe the applicant protection obligations.
The proceeding was dismissed for non-appearance but reinstated for the reasons given in SZQZD v Minister for Immigration & Anor [2013] FCCA 656. Some of that decision has been borrowed for the purposes of this decision.
The applicant’s claims
The applicant claimed in a statutory declaration made on 15 October 2010 that:
a)he is an Afghan of Hazara ethnicity and Shia Muslim religion;
b)the applicant’s grandfather left some land to the applicant’s father and uncle;
c)the applicant’s father and uncle had a dispute about the land;
d)the uncle was a member of the Nasr party and wanted the father to give the land to that party for its use;
e)the father refused to hand over the land to the Nasr party;
f)the Taliban persecuted the applicant’s father when he went to the city to buy supplies;
g)when the applicant was about seven years old, he moved with his family to Quetta in Pakistan, where they all remained;
h)in 2003, the applicant’s father died of natural causes in Pakistan;
i)the applicant cannot go back to Afghanistan because he will be killed by the Taliban;
j)because the applicant is a Hazara, his features will be easily recognisable;
k)in addition, because he has lived outside Afghanistan for so long, he has a “different accent”;
l)the Taliban will think he has been in another country and assume he is a Kafir (ie, a non-believer).
The Independent Merits Reviewer’s reasons
The reviewer accepted that the applicant is an Afghan of Hazara ethnicity and Shia Muslim religion. Based on country information that he cited, the reviewer did not accept that Hazara Shias in general face persecution from the Taliban. The reviewer considered that, if the applicant returned to Afghanistan, he would settle in Kabul, rather than return to the village of his birth.
The reviewer considered that there would be people with many different accents in Kabul, and “this would not be an uncommon feature of returnees”. Citing country information, the reviewer did not accept that Hazaras, such as the applicant, would be targeted because they had sought asylum in the West.
The reviewer did not find the applicant to be a credible witness, largely because of perceived inconsistencies in relation to the applicant’s claims about the land dispute between his father and uncle. The reviewer did not accept that there had been any such land dispute.
The reviewer did not accept that the applicant was at risk from the Taliban or his uncle.
Ground 1
The first ground of review in the application amended on 1 October 2013 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 said in his statutory declaration made on 15 October 2010 (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 recognisable, 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. The risk of this is especially prevalent for those Afghans [who] are educated, to some degree at least, in Pakistan. …
…
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 transcript of the hearing before the reviewer, which is annexure JW-1 to the affidavit of Jessica Williamson affirmed on 5 February 2013, shows at the foot of page 12 that the applicant told the reviewer:
If I go to Afghanistan I will be persecuted because I am Hazara, Shia and also because of my accent.
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:
a)had considered the claim about the applicant’s accent in relation to reintegration; and
b)had considered the claim about being perceived to be a non-believer because he would be a returnee from the West; but
c)had not considered the claim about being harmed by the Taliban because his accent would cause them to think he was a non-believer.
The applicant relied upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 24(9) Leg Rep 11; [2003] HCA 26 at [24], where Gummow and Callinan JJ said:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice.
The applicant also relied upon MZYOA v Minister for Immigration and Citizenship & Anor (2012) 135 ALD 87; [2012] FCA 146. In that case, Murphy J noted at [14] that:
The appellant claimed that because he was an Hazara who had lived in Iran for 22 years:
(a)he would be imputed with a political ideology or foreign affiliations or sympathies that would make him a target for persecution;
(b)he would be imputed to have wealth that would make him a target for persecution; and
(c)he was culturally or socially changed and identifiable and, as such, would be a target for persecution.
The appellant in MZYOA argued that the third of those claims had not been considered. Murphy J accepted that contention, saying that:
30.As is clear from the heading to [40]-[42] of the reasons (see [15] above) the reviewer grouped together the claims relating to political opinion of returnees, westernisation of returnees and returnees who were asylum seekers. The minister argues that there is no relevant distinction to be made between an Afghan returnee from Iran and Afghans who have been “westernised” or who are failed asylum seekers and are then forced to return to Afghanistan. The minister submits:
The appellant’s fear was from the Taliban and associated groups. The appellant’s submissions concentrated on the risk he claimed to face as a result of a perception he would be seen as pro-western and/or returned from a western country. It is also of significance in this context that the Reviewer rejected the appellant’s claim to fear [of] persecution from the Taliban for reasons of the imputation to him of an adverse or anti-Taliban political opinion.
31.I do not agree. The appellant has lived a large part of his life in Iran and claims that this experience sets him apart from those who have lived only in Afghanistan, and from those who have only been away from Afghanistan for a short period. The appellant claims that he stands out because of his lengthy period in Iran and that he faces a real risk of persecution as a result. The appellant’s submissions in the March 2011 RILC letter (as set out at [12] above) made clear his claim that he was culturally or socially changed by his long stay in an urban environment in Iran, and likely to stand out. The submissions in the June 2011 RILC letter as to the view of Professor Farooqi of Kabul University (set out at [13] above) indicated his claim that, amongst other things, the accent acquired by an Afghan who had lived for a long time in Iran was likely to expose such a person to degrading conduct.
32.This was not a claim by reference to “westernisation”, as it could not be contended that Iran is a western country. Nor was it a claim to having an imputed affiliation with certain political ideas or foreign interests. This integer of the returnee from Iran claim could stand alone, that is, even if the appellant made no claim by reference to his Shia religion or Hazara heritage, Australian asylum claim or any imputed political affiliation.
33.In my view the reviewer’s consideration of the returnee from Iran claim in para 40 of her reasons (set out at [15] above) did not deal with the integer of that claim relating to the cultural and social changes that the appellant underwent while in Iran, which made him identifiable and liable to be targeted for persecution. The reviewer considered only that integer of the claim relating to imputed political ideology or western affiliations and sympathies.
The applicant also relied upon SZCBT v Minister for Immigration and Multicultural Affairs & Anor [2007] FCA 9 at [26] where Stone J said:
26.The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.
Finally, the applicant relied on the decision of Flick and Jagot JJ in MZYPW v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99 at [19] and [24], which are as follows:
19.Even construing the reasons provided in a “beneficial” manner, it is respectfully concluded that they expose jurisdictional error, namely:
(i)a failure to consider the lack of family support that the Appellant will have if he relocates to Kabul; and
(ii)a failure to consider the difficulties associated with the manner in which the children spoke Hazaragi, namely with a noticeable dialect which would identify them as having been living in Pakistan.
The failure to address the lack of family support in either paragraph [84] and [85] is not redressed by a reference to paragraph [76] of the independent merits reviewer’s reasons where it is stated that the appellant “would not have the family support networks to enable him to easily reintegrate into Afghanistan”. Whether the absence of family networks were taken into account when considering the reasonableness of the appellant being relocated to Kabul remains unknown. And, although there is a reference in [84] to the fact that “his children would be noticeable because they learnt their language in Pakistan”, that reference is in the context of recording a “submission” being made by the appellant. How that submission was resolved is left unstated. Nor can the ultimate findings and conclusions of the independent merits reviewer be supplemented by reference to [38], as the respondent minister contended. That paragraph is but a summary of an exchange that occurred during the course of an interview.
…
24.The reasons for the recommendation are the very means by which the minister is informed of the facts peculiar to each particular claimant and why, if at all, their circumstances warrant allowing them to make an application for a protection visa. They serve a centrally important and fundamental purpose. The document recording the recommendation to the minister is important to both the claimant and the minister. Even though it may be accepted that the reasons for a recommendation may not be drafted by those persons with the skills and expertise of an experienced legal practitioner, the reasons must clearly and accurately set forth the claimant’s case and the findings and reasons for either accepting or rejecting those claims. It may safely be assumed that the minister, when considering a recommendation that has been made, will not always have available to him a member of the Inner Bar to guide him through the text.
The first respondent said in his written submissions that:
a)the reviewer found at [66] of his reasons that the applicant would not stand out because of his accent; and
b)that finding addressed the applicant’s claim to fear harm from the Taliban or anyone else in Kabul because of his accent.
The reviewer said at [66] that:
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.
I do not accept that the reviewer found that the applicant would not stand out because of his accent. The reviewer certainly did not say so, in terms. The reviewer found that there are a large number of returnees in Kabul and it would not be uncommon for them to have an accent. (As an aside, that might not be correct. A person who had lived outside Afghanistan for only a few years as an adult would probably not have as pronounced an accent as the applicant, who had lived outside Afghanistan since he was seven years old.)
However, just because there are a “large number” of returnees with accents does not mean that they would not all stand out. (For example, women in Afghanistan presumably stand out, even though they constitute a very large number of people.) Consequently, as the reviewer did not make the finding alleged by the first respondent, the first respondent has not identified a finding that addressed the claim of harm from the Taliban occasioned by the applicant’s accent.
At the hearing before this court, the first respondent submitted that the applicant’s counsel had possibly misunderstood the claim that the applicant put. The first respondent noted that the applicant’s claim at CB49 was that:
I am Hazara, my features are easily recognisable, 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].
The first respondent submitted that the applicant’s point about being a non-believer was not connected with the applicant’s point about having an accent. The first respondent submitted that, as the applicant had an Urdu accent that he picked up in Pakistan (a Muslim country), no one would think he was a non-believer because he had an Urdu accent, and the applicant did not make that claim. Rather, the first respondent submitted, the applicant claimed that, because he had been in Australia, and would be a returnee from a Western country if he went back to Afghanistan, the Taliban would think he was a non-believer. It was not disputed that the reviewer addressed the claim based on the applicant being a returnee from a Western country.
I do not consider the first respondent’s interpretation of the applicant’s claim to be correct. I consider that the applicant in his statutory declaration clearly meant:
Because of my accent, the Taliban will think I have been in another country and assume I am a Kafir.
The submission made by the applicant’s adviser may have put a certain gloss on the applicant’s claim, or emphasised a certain facet of it. However, the applicant’s claim as he stated it still had to be addressed. The reviewer did not do so. It is not for the court on review to consider the merits of a claim. The first ground is made out.
Ground 2
The second ground of review in the application amended on 1 October 2013 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 to 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 his father 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 said that he had responded to the reviewer’s 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 applicant argued that the reviewer, by misconstruing the claim, had failed to consider the claim as put.
The applicant relied on SZQGA v Minister for Immigration and Citizenship & Anor (2012) 204 FCR 557; (2012) 128 ALD 303; [2012] FCA 593. In that case, at [26], the appellant argued that:
The Reviewer failed to accord the applicant a fair hearing by failing to take into account the applicant’s answer to questions, posed by the reviewer, as to his relationship with his ‘aunt’ and why the applicant, rather than his ‘aunt’, would be targeted by the EPDP[.]
Barker J accepted that argument, and found error of law and a denial of natural justice. His Honour said:
30.On the face of it, the statement at [29] of the reviewer’s report, that the appellant “could not explain why they had not targeted his aunty” is not correct and not a fair rendering of what in fact he said. Through the interpreter, the appellant plainly said that “his auntie is not connected to his father and he is his son and the person they are angry about so to get revenge they would get his sons and not the aunt”.
31.It might be that what the reviewer wrote in [29] of the report was the reviewer’s understanding of what the appellant had said in answer to the questions put to him, and that the explanation was considered no explanation at all. However, to so conclude involves a degree of speculation. The appellant’s position was clear: his aunt was not sufficiently connected to his father and the sins of the father would be visited on the sons; that is why the aunt had not and would not be targeted. That was what was conveyed to the reviewer, but not what the reviewer took account of. In effect, what the appellant said in relation to a question evidently considered relevant was ignored by the reviewer.
…
155.… Taking the reviewer’s words at face value and then comparing them to what the appellant actually said, the reviewer either misunderstood or misconstrued the clear evidence of the appellant. Either way the appellant was denied the opportunity to have the reviewer consider his answer to a question evidently considered relevant by the reviewer. That was a denial of procedural fairness, as the appellant had claimed in ground 1(e). It was not an issue advanced as an error of law or as jurisdictional error, although the federal magistrate proceeded to deal with the issue as if it were the latter. The federal magistrate treated the identified difficulty with the evidence substantively as an instance of “jurisdictional error”, and as one falling “within jurisdiction”. The federal magistrate considered the denial of procedural fairness not to be material to the decision ultimately made by the reviewer. He did not think it affected the assessment and recommendation made.
The first respondent argued in his written submissions that the extract set out above from the hearing before the reviewer was equivocal and, implicitly, it was open to the reviewer to conclude that the applicant had put forward an evolving story and the reviewer had correctly summarised the applicant’s claims.
I reject that argument. 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 applicant said very clearly that the Taliban and Nasr party were separate. When the reviewer clarified the position by saying “so the harassment your father got from the Taliban had nothing to do with your uncle”, the applicant’s response proceeded on the basis that the reviewer had accurately stated the position, and went on to explain the circumstances surrounding the difficulties the applicant’s father had experienced with the Taliban.
The first respondent then said that, even if the reviewer had misconstrued the applicant’s evidence, it would not amount to a legal error as long as the applicant’s claims had been addressed. The first respondent relied on Minister for Immigration and Citizenship & Anor v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28], where North and Lander JJ said:
However, 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: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
The first respondent argued that the applicant’s claims had been addressed, in the finding that the applicant would be safe in Kabul and in the rejection of the claimed fear of harm from the uncle.
I note that the circumstances of SZNPG actually concerned the weight given to an item of evidence rather than a misunderstanding of the evidence. Additionally, it was a review of a decision of the Refugee Review Tribunal.
The first respondent also relied on NABE v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 at [68] where the Full Federal Court said:
… This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
The first respondent also relied on SZQRW v Minister for Immigration and Citizenship & Anor [2012] FCAFC 164 at [56] where the Full Federal Court said:
56.In our view, the reviewer’s error did not amount to a failure to consider a claim, or an integer of a claim made by the appellant. It is plain that the reviewer considered, and rejected, the appellant’s claims and, in particular, the integer of those claims (of which the period of the alleged detention was but one part of the narrative) that his fear of persecution stemmed from the threats made to his brother whilst in the captivity of three kidnappers. Rather, the error made by the reviewer in this case is to be characterised in the same way as the error in the MZXSA, namely, as an instance of errant fact-finding which occurred in the course of considering the appellant’s claims, and which was relied on only in a peripheral way. In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome.
I also note [57] of SZQRW, where the court said:
57.The error in this case is to be distinguished from that in VAAD. In VAAD, the Tribunal’s error went directly to a core element of the claim made by the visa applicant, namely, to have been preselected as a candidate for the UNP in a local provincial council election. The Full Court found that the error “had an adverse effect” on the Tribunal’s assessment of the visa applicant’s credibility, that the error “tainted” the further consideration of the evidence in the review, and “greatly influenced” the Tribunal’s finding that the UNP support letter was fabricated. In other words, the error was such as to undermine the integrity of the review process. By contrast, the reviewer’s error in this case was relied on only in a peripheral way, did not obscure the reviewer’s understanding of the claims made by the appellant, and was an error which could have had no material influence on the reviewer’s conclusion.
The reviewer’s error in this case cannot be seen as peripheral. It was central to the reviewer’s rejection of the applicant’s claim to fear his uncle and the Nasr Party. Consequently, SZQRW, and MZXSA for that matter, are distinguishable.
Nevertheless, the first respondent argued that NABE was authority for the proposition that a misunderstanding of the evidence that could have affected the outcome of the decision was not a jurisdictional error, provided that the claims themselves were considered. I note that, in addition to the paragraph referred to by the first respondent which is set out above, the Full Court said in NABE at [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [75 ALJR 542] [35] per McHugh J.
The difficulty with relying on NABE in the present circumstances is that NABE concerned a decision of the Refugee Review Tribunal whereas the present case concerns a recommendation made by an independent merits reviewer. In SZQGA, Barker J dealt in considerable detail with the consequences for a reviewing court of the differences between a Tribunal’s decision and a reviewer’s recommendation.
Without repeating that analysis here, the grounds of review available in relation to Tribunal decisions are not the same as the grounds of review that are available in relation to recommendations made by independent merits reviewers.I consider that SZQGA is on all fours with the present case whereas the other cases cited to me in relation to this ground are not, for the reasons given above. Consequently, I consider that I am bound by SZQGA.
The consequence is that I accept that the reviewer misconstrued the applicant’s evidence and thus made an error of law and denied the applicant procedural fairness. This ground is made out.
Ground 3
The third ground of review in the application amended on 1 October 2013 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 said 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, in the first paragraph 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 Nasr 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 drew the court’s attention to the following paragraph from the refugee status assessor’s reasons, which is the last paragraph on CB88:
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.
The first respondent submitted that the assessor’s comments in that paragraph did not constitute a definite acceptance that the land dispute had occurred.
I do not consider that assessor’s reasons 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 assessor did not say “the alleged land dispute” or “the land dispute, if any”. The assessor only gave one reason for not accepting that the applicant faced persecution in relation to the alleged land dispute and that was that the dispute was personal and therefore not Convention-related.
The first respondent then relied on SZBEL at [47] and [48] which are as follows:
47.First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48.Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
“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. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an 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. (citation omitted)
The first respondent 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 notice was said to consist of:
a)questioning the applicant at length about the land dispute (at pages 5 to 10 of the transcript);
b)asking certain questions about the land dispute (at page 9 of the transcript, set out in bold below); and
c)saying (at page 14.8 of the transcript, set out in bold below):
Leaving aside the circumstances and whether it’s all plausible. …
The questions and answers relating to the land dispute at pages 5 to 10 of the transcript of the reviewer’s interview are as follows:
Page 5
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?
Page 6
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: 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.
REVIEWER: But Nasr people were a Hazara party weren’t they?
APPLICANT: Yes that’s right. The Nasr party are Hazaras but anything benefit to the Nasr party they were doing. They don’t care about either his brother or relative, are you Hazara, whatever they want you to do their party, their wish, they do that.
REVIEWER: Did you tell me members of the Nasr party caused problems for your father too?
Page 7
APPLICANT: Yes.
REVIEWER: And why do you think they caused trouble for your father?
APPLICANT: Because of the land, my father didn’t want to give the land to them and also they wanted him to join the Nasr party but he did not join.
REVIEWER: Did he ever suffer any injuries from the people from the Nasr party?
APPLICANT: Yes, when I was in Pakistan he was telling this story but he did not mention because maybe if he mentioned to me that they were beating me or they did torture me maybe that I would do something to get revenge from them.
REVIEWER: But he didn’t give you any details?
APPLICANT: No.
REVIEWER: And what is your understanding of the current state of the Nasr party?
APPLICANT: The Nasr party still has power and also with the government.
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.
Page 8
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 by 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.
Page 9
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. (emphasis added)
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 to what you’ve just told me because you’ve just told me that the members of the Nasr party went to your father. (emphasis added)
APPLICANT: Other thing my uncle was saying to the Nasr party’s group they did
REVIEWER: Sorry the uncle was saying to the Nasr party?
Page 10
APPLICANT: Like giving order to do whatever they want and my uncle wanted to do, they give order to the Nasr group people to do that or to do that to take the land from my brother like that so.
REVIEWER: Ok.
APPLICANT: So the main thing is my uncle like maybe ask what … All because of my uncle, he was in the Nasr party and he has a high position in the Nasr party, anything he wanted to do, to have, the Nasr people did for him.
REVIEWER: So why didn’t your father go to other relatives and family members in the district to get their help?
APPLICANT: It depends on the groups, some groups are very strong and the other is minor group, cannot do anything, that’s why, so people are not interested to have to do something over land, like in other words I’m saying, the Nasr party was a strong party in our religion and so the minor party or minor group has no power to deal with them, I mean to fight with them like a.
REVIEWER: Did your father belong to any particular group?
APPLICANT: No.
REVIEWER: Did your mother come from the same area?
APPLICANT: Where to?
REVIEWER: Qadi?
APPLICANT: Went to Pakistan you mean?
REVIEWER: Did your mother come from Qadi, was she born, were her family in Qadi?
APPLICANT: No, she was born in Sangshanda, after marriage she came to Qadi.
REVIEWER: Do you know how, how long it takes to travel from Sangshanda to Qadi?
APPLICANT: I did not have the opportunity to ask my mother. I did not travel by myself.
REVIEWER: So does your mother have any family still living back in Sangshanda?
APPLICANT: Sangshanda. No my mother’s father and mother passed a long time ago. She has no other family in Sangshada.
REVIEWER: Where is the rest of her family?
Page 11
APPLICANT: She has only one sister and she is unknown where is she.
The relevant passage from page 14 to the end of the transcript is as follows:
Page 14
REVIEWER: Now are there any other things that you want to tell me about your situation that you think I need to know?
APPLICANT: No I have nothing to say anything more but if you want to say something.
REVIEWER: I just want to make sure that you’ve had a chance to tell me everything that you think is relevant.
APPLICANT: Everything you asked me I answer.
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. (emphasis added)
APPLICANT: Other thing is Nasr party now is called Wahdit party.
REVIEWER: Yeah I think I read that that’s right. How do you spell that?
APPLICANT: W-a-h-d-i-t.
Page 15
REVIEWER: That needs to be looked at and relocation is still a live issue in my mind as a secondary position depending on what side I come down on the returning to the home area so they are the things I have to think about really.
REPRESENTATIVE: If we provide some further info for you in a post review submission with regards to relocation and anything further we can get for your consideration.
REVIEWER: I’ll be researching but if you want to give me anything that you find in the nature of this party, as I understand it there are a couple of factions to it and there have been some problems with one party collaborating with the Taliban and this sort of thing so there’s a bit of interparty conflict as I understand it but I’m still not sure how that adversely affects [the applicant]. So what’s going to happen now, I’m going to do a little bit more research with the situation particularly with particularly the Nasr party and your adviser is going to give me a further submission that will talk about the Nasr party but it will also talk about the issues if you have to return and whether you could return to Kabul and after I get all that information I will decide whether I think you’re a refugee or not. Ok. So it will be a few more weeks yet and I will then be making a written decision that will go to your adviser and she will tell you. Okay. So before I close the interview is there anything else you wanted to tell me?
APPLICANT: I’m telling that my life is in your hand and if you have a pen either you want to sign this way or that way or using any pen you sign and my situation is in your hand now, you make decision, and should be a fair decision too.
REVIEWER: Okay. Well I’ll make a decision that I think is right and that I think is fair. Okay.
APPLICANT: Yep, thank you.
REVIEWER: Thanks for talking to me today and the interview is over at 11.20.
The reviewer asked numerous questions about the land dispute but initially they all seem to have proceeded on the basis that there was a genuine land dispute between the applicant’s father and the applicant’s uncle. The passages set out above in bold from page 8 of the transcript in particular suggest that the reviewer was thinking that there was such a dispute. The point that the reviewer appeared to be having difficulty with was the involvement of the Nasr Party in that dispute. That is the gist of the reviewer’s comments at page 9 of the transcript that are set out above in bold.
However, towards the end of the hearing, the reviewer said he wanted to research the Nasr party, there was a reference to relocation and then the reviewer said:
Leaving aside … whether it’s all plausible … .
Taken literally, that statement meant that the reviewer was leaving aside the plausibility of the applicant’s whole account and was concerned only with the involvement of the Nasr Party and the question of relocation. However, the words “Leaving aside…whether” in the present context are better understood as a turn of phrase meaning, “even if”. That is, the reviewer was saying, “even if the whole story is plausible, and I am not sure that it is, there are questions remaining about the Nasr Party and the viability of relocation.” In the light of the extensive questioning about the land dispute and the particular references to the applicant’s inconsistent claims, it seems to me that in saying,
Leaving aside… whether it’s all plausible … .
the reviewer was raising a question about the plausibility overall of the land dispute, as well as everything else that the applicant had said.
After making the reference to plausibility towards the very end of the hearing, the reviewer asked in a general way if there was anything else that the applicant wished to say, and gave the applicant’s adviser the opportunity to lodge a further written submission.
It seems to me that, in the overall context of the case, that was sufficient to meet the requirements of procedural fairness, as explained particularly at [47] of SZBEL. Consequently, ground 3 is not made out.
Conclusion
As two of the applicant’s grounds have been made out, the application must be allowed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 18 December 2013