SZQZM v Minister for Immigration
[2012] FMCA 1136
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1136 |
| MIGRATION – Review of decision of Independent Merits Reviewer – whether Reviewer failed to put to applicant substance of adverse information relevant to Reviewer’s decision – where applicant’s advisers aware of information prior to decision – whether applicant aware of information after hearing – where Reviewer’s reasons refer to Reviewer’s investigations beyond materials before him – whether substance of investigations required to be disclosed – whether Reviewer required to provide reasons – whether Reviewer failed to consider “reasonably foreseeable future” – whether Reviewer failed to provide applicant procedural fairness. |
| Migration Act 1958 (Cth), ss.91S(1)(a), 91S(1)(b) |
| SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152 Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 PlaintiffM61/2010v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Applicant VEAL of 2002 v Minister for Immigration & Anor [2006] 222 ALR 411 Kioa v West (1985) 159 CLR 550 Minister for Immigration & Anor v SZQHH [2012] 200 FCR 223 Minister for Immigration & Anor v SZQKB [2012] FCA 1189 MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520 SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011 Minister for Immigration & Anor v Jama [1999] FCA 1680 SZQXE v Minister for Immigration & Anor [2012] FCA 1292 |
| Applicant: | SZQZM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER MCDERMOTT IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2953 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 November 2012 |
| Date of Last Submission: | 21 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT DECLARES THAT:
In recommending to the Minister that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees the second respondent failed to provide the Applicant with procedural fairness by not providing him with an opportunity to comment upon adverse information contained in a New York Times Report dated 26 June 2010. The Reviewer also failed to provide the applicant with procedural fairness by not giving him an opportunity to comment upon information contained in his investigations concerning the existence of a particular social group of failed “asylum seekers returning from a western country”.
THE COURT ORDERS THAT:
The First Respondent pay the Applicant’s costs assessed in the sum of $6,741.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2953 of 2011
| SZQZM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER MCDERMOTT IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan of Hazara ethnicity and Shia Muslim religion. He made an unauthorised boat arrival in Australia on 26 March 2010. He was interviewed by an officer of the department on 12 April 2010. On 7 June 2010 he made a request for a refugee status assessment. He was interviewed by an RSA officer who determined on 26 August 2010 that he did not meet the definition of a refugee in Article 1A of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The applicant applied for an independent merits review of the decision. He was assisted in this regard by a migration agent who provided a lengthy submission to the Reviewer dated 16 September 2010. His agent continued to send information to the Reviewer who interviewed the applicant on 29 April 2011. At that time his claim to be a person to whom Australia owed protection obligations was based upon an alleged well founded fear of persecution arising out of his ethnicity, his religion and his membership of a particular social group, namely a failed asylum seeker returning from a western country. He also made a claim that he was a member of a particular social group of family of persons threatened with a blood feud. At the conclusion of the interview the agent indicated that she would be making further submissions in writing after she had an opportunity to interview the applicant but no post interview submissions was made save the transmission of emails from the applicant to the Reviewer. On 30 November 2011 the Reviewer recommended that the claimant not be recognised as a person to whom Australia had protection obligations.
The applicant told the Reviewer that he was a single man who lived in Zabul province of Afghanistan where he had been born. Approximately fourteen years ago he left his village and moved to Quetta in Pakistan. He was educated to high school level in Pakistan but had no rights to return to that country. He told that his family used to have land in Zabul but the area was now controlled by the Pashtun and the Kuchi. He claimed that his grandfather had been killed in 1979 and his uncle had been killed in 1994, both killings being due to his relatives’ ethnicity and religion. The Reviewer questioned the applicant about his claims to fear persecution on the grounds of a blood feud and also upon his general reasons for not wishing to return to Afghanistan. The applicant made it clear in relation to the latter claim that he feared the Taliban because of his ethnicity and religion and believed that the same thing would happen to him as happened to his grandfather and uncle.
On the applicant’s behalf his agent:
“…Referred to the article about the 2010 beheadings as evidence of the specific targeting [sic] killing of the Hazara people” [25] [CB248]
This was an article referred to in the agent’s first submission [CB 120-121] sourced from Reuters and dated 25 June 2010 which stated:
“The bodies of 11 men, their heads cut off and placed next to them, have been found in a violent southern province of Afghanistan, a senior police official said on Friday.
A police patrol discovered the bodies on Thursday in the Khas Uruzgan district of Uruzgan province, north of the Taliban stronghold of Kandahar, said police official Mohammad Gulab Wardak.
“This was the work of the Taliban. They beheaded these men because they were ethnic Hazaras and Shi’ite Muslims,” he said.
The Taliban were not immediately available for comment about the incident. The militants usually dispute claims by Afghan and foreign security forces.
Hazaras, who make up roughly 15 percent of Afghanistan’s population of around 30 million, largely follow the Shi’ite sect of Islam, a minority in Afghanistan, rather than the Sunni Muslim Taliban, who are also primarily ethnic Pashtuns.
Hazaras faced widespread oppression from the Taliban when the Islamists ruled most of the country during the 1990s. Mass graves containing the bodies of Hazaras have been found since the militants were overthrown in late 2001.
Violence in Afghanistan is as its worst levels in the 9-year war, with the Taliban stepping up their campaign of suicide bombings and assassinations, particularly in their Kandahar heartland.
U.N. Secretary-General Ban Ki-moon, in a report to the 15-nation Security Council last week, said there had been an “alarming” rise in bomb and suicide attacks in Afghanistan over the past few months.
Some 80 foreign troops have been killed so far in June, making it the deadliest month for international forces since the war began. More than 300 troops have been killed so far this year compared with about 520 deaths for all of 2009.
On Friday, the NATO-led International Security Assistance Force reported the deaths of two more troops in Afghanistan, one in the east and one in the south.”
In the review decision the Reviewer refers to country information noting at [32] [CB 249]:
“[32]I have examined the considerable country information concerning Afghanistan. This has taken some time in view of the vast and often contradictory information that is available.”
The Reviewer then lists some information that he has sought comment from the claimant upon and made reference to certain articles and reports that the applicant had referred to him. The Reviewer concludes at [43]:
“[43]The claimant also gave me an article from Reuters (June 25, 2010) is [sic] headed “Police find 11 beheaded bodies in Afghan South”. That article is mentioned in the article of Ms Phillips.” [An article referred to at [42] dated August 2010].
In his findings and reasons the Reviewer reiterated the basis of the applicant’s claims for protection before saying at [52]:
“[52]The profile of the claimant as an ethnic Shia Muslim does fit the category of people who are currently of concern to the UNHCR as being at risk of human rights abuses either by the state or non-state actors. The country information that I provided to the claimant about persons of concern to the UNHCR as being at risk of human rights abuses was not challenged by the claimant. The claimant was advised that this country information was mentioned in the cable from the Department of Foreign Affairs and Trade of 21 February 2010. I also note that the claimant has not had any political involvement. He has also not been employed by the Government. I also rely upon the DFAT reporting cable of February 2010 which acknowledged that while unofficial discrimination of Hazaras still persists, Hazaras have found some peace, since Shia representation has increased in the central government and there has been a decrease in hostility from Sunnis.”
At [56] the Reviewer turns to the article from Reuters dated 25 June 2010 saying:
“[56]I have earlier mentioned that the claimant gave me an article from Reuters (June 25, 2010) is [sic] entitled “Police find 11 beheaded bodes [sic] in Afghan South”. At the IMR interview the agent referred to that article on the 2010 beheadings as evidence of the specific targeting [sic] killing of the Hazara people. The Reuters article contains a quotation from a police chief Mohammed Gulah Wardak who is reported in that Reuters report as stating: “This was the work of the Taliban. They beheaded these men because they were ethnic Hazaras and Shi’ite Muslims”. The Reuters report does not disclose any details of the incident or why the men were beheaded. The incident is also mentioned in an article by Professor William Maley entitled “Asylum delay tantamount to murder” which appeared in “The Australian” (July 2, 2010). This article was part of the submission of 16 September 2010.
[57]The beheading incident, which is the subject of the article entitled “Police find 11 beheaded bodies in Afghan South”, concerns an incident that is mentioned in the December 2010 UNHCR Eligibility Guidelines for Afghanistan, page 31, footnote 226). The guidelines mention that this incident occurred in Uruzgan province and is reported in another news article entitled “Taliban Kill 9 Members of Minority in Ambush”, New York Times, 26 June 2010.
[58]An examination of the report of the incident in the New York Times article reveals differences with the Reuters report which claimed that 11 Hazaras were killed. The article also quotes Mr Hari, the local police chief, as having said that he was unable to verify that he men were beheaded in view of the remote location of the incident. This comment certainly raises questions about the reliability of the Reuters report which is quoted verbatim by Ms Denis Phillips, Ph.D. candidate, in her paper entitled “Hazara’s Persecution Worsens”. Ms Phillips does not refer to the New York Times article which, in my view, gives a more comprehensive report of the incident.
[59]The New York Times article quotes Afghan law enforcement officials as saying that the Hazara men who were killed in an ambush were suspected of being informants for NATO troops and Special Operation forces. What is not mentioned in the submission of 16 September 2010 is the fact that Special Operations forces soldiers working with the Afghan army had raided an area where mostly Hazaras live. The Special Operations commandos had recently targeted a house in Uruzgan in which several Taliban militants and three brothers of a Taliban commander who were all in the house had been killed. The Taliban was advised that the Hazaras had tipped off the Special Operations forces about the house. The New York Times article also reveals that the Hazara men were also defying Taliban directives by forming an arbiquis (a local militia) contrary to Taliban directives of two years’ standing in an area which was controlled by the Taliban (see also the December 2010 UNHCR Eligibility Guidelines for Afghanistan, footnote 226). This action of forming an arbiquis could be seen by the Taliban as a threat to them.
[60]After reviewing the New York Times report of the alleged beheading incident in 2010 I do not accept the submission of the agent that the Reuters article on the incident is evidence of the specific targeting killing of the Hazara people.”
The Reviewer dismissed the applicant’s claim concerning him being a victim of a blood feud on credibility grounds. He also applied ss.91S(1)(a) and 91S(1)(b) of the Migration Act 1958 (Cth) to his consideration of this claim stating at [72]:
“[72]Quite apart from s 91S(1) of the Act, the authorities on the meaning of “particular social group” have emphasised that there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals: see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 241 per Dawson J, at 263 per McHugh J; Minister for Immigration & Ethnic Affairs v Zamora (1998) 85 FCR 458. On the current state of these authorities I am not satisfied that a “family threatened by a blood feud” can be regarded as a particular social group. I have not to come to a firm view on this issue as I do not accept that the family of the claimant is threatened by a blood feud”
In regard to the claim that the applicant was a member of the particular social group of failed asylum seekers returning from a Western country he stated:
“[74]I have consulted the December 2010 UNHCR Eligibility Guidelines for Afghanistan and have not found any observation that he Taliban will harm the families of people who are unsuccessful in seeking asylum. If this was a matter of current concern of the UNHCR, I would have expected some mention of this practice in the Guidelines which contain information about particular social groups The Guidelines were issued some months after Ms Kesam was said to have made her presentation.
[75]I certainly accept that the expression “particular social group” should not be narrowly construed but I am not satisfied on the material before me as well as my investigations that there is a particular social group of “failed asylum seekers returning from a western country” who face persecution from the Taliban. There may be circumstances where a person who has returned from the West may have adopted practices that may be anathema to the local population such as a conversation to Christianity. There was certainly no suggestion that the profile of the claimant would attract unwelcome attention from the Taliban.” [emphasis added]
He concluded at [76]:
“[76]Having considered all the evidence I find that the claimant does not have a well-founded risk of persecution on account of his ethnicity or his religion. The claimant has not given me any credible explanation of why he would face danger if he returned to Afghanistan. I have also consulted the evidence before me as well as the UNHCR Eligibility Guidelines for Afghanistan and I do not consider that there is any basis for regarding this as a case of “group discrimination”. I am not satisfied that the claimant has a well-founded fear of being persecuted for the Convention grounds which have been raised.”
The Reviewer considered the applicant’s ability to return to his home village noting his concern that he may not have support there as it was a Pashtun village and then stating at [78]:
“[78]The RSA officer has not recommended relocation. I have taken a different view of the circumstances of this case and consider that relocation is a prudent course of action. I consider that the claimant, a young able-bodied man, could relocate to Kabul. When I questioned the claimant he denied that he could find work in Kabul. However, his retail experience in the textile industry as well as his knowledge of English would, in my view, stand him in good stead for future employment in Kabul. I advised the claimant of the DFAT cable which has stated that there is a cohesive Hazara community in Kabul, and a Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate in the city, where they can move freely. That country information was not challenged by the agent.”
On 21 November 2012 at the hearing of this matter the applicant filed an Amended Application in respect of which there were two grounds although ground 1 is divided into (a) and (b) which relate to different matters. I shall deal with each part in the grounds of application in turn.
Ground 1(a)
This ground is articulated as follows:
“1. The recommendation was affected by denial of justice.
Particulars
(a)The reviewer failed to disclose to the applicant the substance of information in an article in the New York Times of 26 June 2010 which was relevant to the reviewer’s consideration of reports of 11 Hazaras being executed and beheaded by the Taliban.”
It will be seen from the extracted sections of the Reviewer’s decision record that considerable emphasis was placed upon the refutation, utilising the New York Times report, of the Reuter’s article that had been submitted on behalf of the applicant. The Minister accepts by way of a notice of agreed fact that:
“The parties agree that the substance of the information contained in an article of the New York Times of 26 June 2010 was not disclosed to the applicant for comment during the second respondent’s interview with the applicant.”
The obligations of a person such as a Reviewer towards a person such as the applicant are now well understood. In SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152[1] The High Court of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ noted with approval what had been said by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [26] that:
“[26]Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.”
[1] “SZBEL”
The requirement of procedural fairness in matters of this nature was further considered by the High Court in PlaintiffM61/2010v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 the Court opined at [91]:
“[91]Thirdly, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s 424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.”
See also SZBEL at [29] and Applicant VEAL of 2002 v Minister for Immigration & Anor [2006] 222 ALR 411 where reference was made to Kioa v West (1985) 159 CLR 550 and the proposition of Brennan J [at 629] that:
“In the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
This obligation of procedural fairness was given some consideration by the Full Bench of the Federal Court Rares, Flick and Jagot JJ in Minister for Immigration & Anor v SZQHH [2012] 200 FCR 223[2] where the majority said at [30]:
“[30]However, the reviewer's obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person's answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.”
[2] “SZQHH”
But this expression of opinion was qualified somewhat in the following paragraph where their Honours said:
“[31]But the substance of such information is, generally, distinct from the particular mode or source of its expression, which could be in a book, a news or journal article, or in an audio or audio visual form, such as a radio or television program, or in a number of those. In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her. The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance. For example, a decision-maker might put to a person information that had been taken out of context. Depending on the circumstances, such conduct might fall short of what procedural fairness would require unless the decision-maker also identified the context or the way in which the context affected the information being put.” [Emphasis added]
In Minister for Immigration & Anor v SZQKB [2012] FCA 1189[3] Yates J dismissed an appeal against a decision of a Federal Magistrate finding that a Reviewer had not provided procedural fairness to an applicant when, in dealing with the applicant’s submissions upon a report of a Professor Saikal which was adverse to him, the Reviewer stated:
“[17] In his reasons the IMR dealt with that challenge (at [74]) in the following way:
“The post-interview submission of April [sic] 2011 by the claimant’s agent appears to impugn the opinions of Professor Saikal on the basis of his ethnicity, religion and imputed political opinion. This reviewer hesitates to reject expert testimony on the basis of ethnicity or religion when no specific bias or inaccuracy has been asserted or demonstrated (while noting that some of the more colourful reporting comes from the various Hazara websites, as amply demonstrated in relation to the report discussed below under ‘Kuchis’, that the police / army have massacred Hazaras in Kabul). As for imputed political opinion, the reviewer notes that the overall tenor of Professor Saikal’s article is very far from uncritical of the Karzai Government, and nor does it suggest in any way that Afghanistan is safe. One might as well dismiss Professor Maley as an “independent observer” on the basis of his Vice-Presidency of refugee advocacy and services umbrella organisation, the Refugee Council of Australia (RCOA).””
[3] “SZQKB”
At [35] of the Judgment his Honour noted:
“[35]On the question of the denial of procedural fairness the Minister’s submissions can be summarised as follows:
· All the IMR had done was to find some more material (that is, the three undisclosed publications) on the subject of the treatment of Hazaras in Kabul, an issue which the first respondent himself had raised. The information referred to was not adverse to the first respondent’s interests: Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at [27]- [30].
…
· All that the IMR had done was to engage in an evaluation of country information, which was a factual matter for the IMR: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 10 at [11]- [13].
·Even if this task was affected by the view that some Hazara websites have colourful reporting, this is not so surprising a conclusion that procedural fairness would have required specific disclosure: Minister for Immigration and Citizenship v SZGUR[2011] HCA 1; (2011) 241 CLR 594 at [9].”
His Honour’s conclusions in respect of these submissions are found at [36] and [37]:
“[36]In my view these submissions do not fully engage the apparent use made by the IMR of the three publications. Procedural fairness required the IMR to put before the first respondent for his consideration and comment those aspects of country information known to the IMR which he considered may bear upon the first respondent’s claims: Plaintiff M61/2010E v The Commonwealth of Australia[2010] HCA 41; (2010) 243 CLR 319 at [91]. The IMR used the information in the three publications to contradict and discount the country information which the first respondent had advanced to demonstrate the adverse treatment of Hazaras in Kabul in the context of Kuchi-Hazara clashes. He referred to the material submitted by the first respondent as having painted “a highly coloured picture” and as presenting “a very partial picture”. Plainly he considered the country information submitted by the first respondent in this regard to be unreliable based, at least in part, on the information in the three undisclosed publications. Importantly for present purposes, this view seems to have been carried over by the IMR into his consideration of “the present general situation of Hazaras in Afghanistan” and used to bolster his acceptance of the views expressed by Professor Saikal: see the IMR’s reference in [74], quoted above, to his belief that “the more colourful reporting comes from the various Hazara websites”. Thus it can be seen that, contrary to the Minister’s submission, the information in the three undisclosed publications was plainly adverse to the first respondent because, amongst other things, it was deployed by the IMR, indirectly, to support his apparent acceptance of Professor Saikal’s views which the first respondent had specifically challenged.
[37]In all the circumstances I am not persuaded that the presiding Federal Magistrate erred in concluding (at [15]) that the information which led the IMR to come to his conclusion about the reliability of the country information advanced by the first respondent should have been put to the first respondent for comment, and that the failure to do so constituted a denial of procedural fairness.”
It will be seen immediately that there is considerable similarity between this case and the instant case. The Minister seeks to draw a distinction from the fact that according to its evidence the applicant’s advisors were aware of the existence of the New York Times report when they made a submission on behalf of another applicant to another IMR on 18 November 2011 some twelve days before the IMR handed down his decision in the instant case. In that representation the advisor said in connection with the New York Times article:
“An article which appeared in the New York Times in June 2010 notes that nine Hazara men who were killed by the Taliban have been accused of being spys for NATO. According to the article many interpreters for NATO and special operations forces are Hazaras. It appears that this has created a perception that Hazaras are genuinely supportive of the government and the presence of foreign troops.”
The Minister argues that if the applicant is aware of the information procedural fairness does not dictate that it should be put to him. The question should be; “did the applicant have an opportunity to address the article in respect of his case?” The question is not “whether the applicant is obliged to trawl through all available information in order to rebut information that might be used by the Reviewer that is adverse to him”. The Minister argues that the applicant was not denied an opportunity to address the information, it was information that he had and could have addressed. The responsibility to deal with adverse information that he is aware of lies squarely upon the applicant.
Articulated in this way the Minister’s arguments has its attractions. But because we are dealing with a concept of fairness involving a particular individual it is best to look slightly more deeply into the factual matrix. It would appear that the New York Times article came into existence on 26 June 2010, the day after the Reuter’s report. Notwithstanding this, it was not referred to by the Reviewer or by the agent at the hearing from which one could assume that it was unknown to both of them. The affidavit of Mr Alderton reveals that the Department did a search to find:
“A copy of any written submissions provided by the applicant’s appointed migration agent to the department during the period between December 2010 and 30 November 2011 which refer to either the December 2010 UNHCR guidelines or an article from the New York Times dated 25 June 2010.”
The response stated:
“I was only able to find one submission which specifically cited the New York Times article“ Taliban kill 9 members of minority in ambush”.
The submission in question is the one of 12 November 2011. I believe I am entitled to draw the inference that knowledge of this article did not come into the possession of the applicant’s advisors until considerably later than his hearing.
The Minister’s submissions would have the effect of requiring an applicant and his advisors to be constantly monitoring independent country information, not for the purpose of assisting applicants, but for the purpose of rebutting some information not referred to by a Reviewer that might have come along at a later time, might have been discovered by the Reviewer and might be used adversely to the client. In the instant case the hearing occurred on 29 April 2011 but the decision was not given until 30 November 2011. The Minister’s arguments would require the agents to continue their retainer for the applicant throughout this lengthy period in order to estop a determination based upon a document that had not been shown to or discussed with the applicant nor the substance of it discussed. I do not believe that SZQHH stands for this proposition. I would find that the Reviewer failed to provide this applicant with procedural fairness by not disclosing to him the New York Times article advising him of the relevance to the decision and offering him an opportunity to comment upon it.
Ground 1(b)
“1. The recommendation was affected by denial of justice.
Particulars
(b)The reviewer failed to disclose the investigation he made, and the documents that he consulted, in addition to those formally before him, that left him unsatisfied that there is a particular social group of “failed asylum seekers returning from a western country” who face persecution from the Taliban.”
At [75] of the Reviewer’s decision he states:
“[75]I certainly accept that the expression “particular social group” should not be narrowly construed but I am not satisfied on the material before me as well as my investigations that there is a particular social group of “failed asylum seekers returning from a western country”. [Emphasis added].
The applicant’s claim is that he was not given notice of these investigations and what they may have turned up. As Mr Karp says in his helpful written submissions:
“[23]The reviewer wrote at CB 254 [75] that he was not satisfied on the basis of the material before him, and his own investigations, that he applicant faced persecution as a returnee from a western country. What investigations? There was information which has been cited several times in these submissions, that returnees, including children, had been murdered. If there was additional material consulted by the reviewer that was not formally before him, that material needed to have been disclosed pursuant to the requirements of natural justice. That it was not indicates error of law.”
The respondent’s argument is contained in his written submissions:
“[6]The second particular of the first ground has related, though slightly different, problems. The IMR stated that it had taken some time for him to have “examined the considerable country information concerning Afghanistan”: CB 249 at [32]. He was not required to put to the applicant every bit of that information, only those parts that were credible, relevant and significant and of which the applicant was not aware: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [30].
[7]The difficulty arises here because the applicant has not, and indeed cannot, identify any information that should have been given to him for comment. He cannot do so because the IMR’s investigations did not produce any positive information in respect of failed asylum seekers returning to Afghanistan; rather, the material to which the IMR had regard simply contained “no suggestion” that supported the applicant’s claims. In light of that, the applicant has failed to establish that there was procedural unfairness.”
What the Minister is saying is that the Reviewer does not have to tell the applicant that there is no information supporting his claim. The duty remains upon the applicant to satisfy the Reviewer that there is. This is correct. The claim being made by the applicant in this case is not that the Reviewer was wrong in his finding that there was no particular social group of failed asylum seekers (that would presumably be asking for merits review). The claim is that there was a lack of procedural fairness in coming to that conclusion.
I am afraid that I have some difficulty with the Reviewer’s conclusions. The claim of persecution on the basis of membership of a particular social group of failed asylum seekers returning from a Western country is made at [CB 112 – 115]. If the Reviewer seeks to refute that claim on the basis of information that he has seen then he must explain what that information is and if it is credible, relevant and significant the applicant should have been made aware of it or at least the substance of it. If the Reviewer had merely relied on not being satisfied by the information provided by the applicant that would have been acceptable, although perhaps some indication of why it had not satisfied him would have been in order. But he goes further and adds to it his investigations and this reads to me as if the Reviewer has found not “no information” but some rebutting information. Such information exists. The court is well aware it comes in the form of DFAT reports and other documents that have appeared in numerous of these cases. If the Reviewer is referring to these documents then they are matters which should have been put to the applicant.
It is of course possible that what the Reviewer is saying is that as a matter of law he does not believe there is such a particular social group. It is concerning, if that was the course taken by the Reviewer, that no reasons are provided in that respect. However, a failure to provide reasons may not result in an error of law: MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520,[4] SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011.
[4] “MZYPW”
In MZYPW, the Full Court of the Federal Court of Australia, Flick, Jagot and Yates JJ opined at [21]:
“There is also considerable uncertainty as to whether:
…
• the findings and reasons satisfy the requirements imposed by cl 12 of the guidelines and whether any such failure would constitute jurisdictional error. A failure to provide reasons may not vitiate a decision for jurisdictional error absent some statutory requirement requiring the provision of reasons: compare Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 ; 201 ALR 327 ;76 ALD 1 ; [2003] HCA 56. See also: Seiffert v Prisoner’s Review Board [2011] WASCA 148 at [162]–[179] per Martin CJ. In the present proceeding, it would be most unlikely that a failure on the part of the independent merits reviewer to comply with cl 12 could vitiate a decision of the minister for jurisdictional error. The guidelines are expressed at the outset to be non-binding and the entire scheme is an administrative construction rather than a statutory process. But the remedy for a failure to comply with that requirement need not presently be explored. The consequences of a failure to comply with cl 12 was not the subject of submissions.”
And concluded at [22]:
“It is, however, unnecessary to resolve these issues further. Jurisdictional error has been elsewhere exposed. These matters only serve to reinforce a general sense of unease that the independent merits reviewer has failed to truly engage with the appellant’s claims.”
In my opinion, the same is true in the present case.
Ground 2:
“2.The review failed to lawfully consider whether the applicant had a well founded fear of persecution.
Particulars
(b)Failure to consider what may happen in the future, rather than the situation pertaining at the time of the decision.”
Those cases which consider whether or not the Reviewer or a Tribunal has considered “the reasonably foreseeable future” such as Minister for Immigration & Anor v Jama [1999] FCA 1680[5] and most recently SZQXE v Minister for Immigration & Anor [2012] FCA 1292 which considered all the relevant authorities, including Jama, look at the decision record as a whole to ascertain whether the focus of the Reviewer’s attention has been on the future noting the extent to which the Reviewer may have looked at the past as an indicator of the future. Many of the reviews or Tribunal decisions commence with a statement of the law that indicates that the Reviewer or Tribunal is aware of the obligation to look to the future. This particular decision does not. At [50] of the decision record the Reviewer says:
“[50]I will consider what will happen to the claimant if he returns to Afghanistan as there is no evidence before me that the claimant has the right to reside in any country other than Afghanistan.”
[5] “Jama”
The next reference to the future is found at [74] where the Reviewer says:
“[74]I have consulted the December 2010 UNHCR Eligibility Guidelines for Afghanistan and have not found any observation that the Taliban will harm the families of people who are unsuccessful in seeking asylum.”
This is followed by a reference at [76]:
“[76]Having considered all of the evidence I find that the claimant does not have a well founded risk of persecution on account of his ethnicity or his religion. The claimant has not given me any credible explanation of why he would face danger if he returned to Afghanistan.”
Whilst these references are sparse one would, I believe, be reading the decision with an eye attuned to the perception of error to conclude that the Reviewer paid no regard to the reasonably foreseeable future when coming to his conclusions. Although in SZQKB Yates J says at [42]:
“[42]I am not persuaded that the presiding Federal Magistrate erred in concluding (at [20]) that the IMR did not consider the reasonably foreseeable future when assessing the first respondent’s claims. The first respondent pointed to a number of passages in the IMR’s reasons that, in terms, identify a focus on the present situation in Afghanistan, not the foreseeable future. The Minister’s submission – that the IMR’s findings could reasonably be assumed to be based on circumstances that would continue into the future – is problematic. It is essentially question-begging. The presiding Federal Magistrate specifically referred to the possibility (at [20]) that the IMR may well have thought that the first respondent would be, and remain, safe if returned, but correctly noted that the IMR did not express himself in these terms, such that there was a doubt that the IMR did, in fact, engage with the first respondent’s circumstances in the reasonably foreseeable future. In coming to this view I do not think that the presiding Federal Magistrate analysed the IMR’s reasons with a mind attuned to the establishment of error. I share the doubts expressed by his Honour, notwithstanding that the IMR alluded to the correct test in his discussion of the relevant legal principles.”
I feel that in this particular case the balance just falls in favour of the Reviewer. I also rely on the fact that the basis of the applicant’s claim was really a generic one and the Reviewer concludes at [52]:
“[52]The profile of the claimant as an ethnic Shia Muslim does fit the category of people who are currently of concern to the UNHCR as being at risk of human rights abuses either by the state or non-state actors. The country information that I provided to the claimant about persons of concern to the UNHCR as being at risk of human rights abuses was not challenged by the claimant. The claimant was advised that this country information was mentioned in the cable from the Department of Foreign Affairs and Trade of 21 February 2010. I also note that the claimant has not had any political involvement. He has also not been employed by the Government. I also rely upon the DFAT reporting cable of February 2010 which acknowledged that while unofficial discrimination of Hazaras still persist, Hazaras have found some peace, since Shia representation has increased in the central government and there has been a decrease in hostility from Sunnis.
There should not really be any need to consider the question of the reasonably foreseeable future if the view of the Reviewer or a Tribunal is that the applicant is not within the category of persons who are at risk based upon an authoritative UNHCR report that clearly would not be limiting itself to the moment.
In the light of these reasons the court will make the following declaration.
“The court declares that in recommending to the Minister that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees the second respondent failed to provide the Applicant with procedural fairness by not providing him with an opportunity to comment upon adverse information contained in a New York Times Report dated 26 June 2010. The Reviewer also failed to provide the applicant with procedural fairness by not giving him an opportunity to comment upon information contained in his investigations concerning the existence of a particular social group of failed “asylum seekers returning from a western country”.
The court orders that the First Respondent pay the Applicant’s costs assessed in the sum of $6,741.00.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 30 November 2012
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