SZRAE v Minister for Immigration
[2012] FMCA 409
•9 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 409 |
| MIGRATION – Independent merits review – Afghani claiming persecution by divorced wife’s family – further evidence submitted after interview – findings of inconsistency and recent invention – no denial of procedural fairness – findings open on the evidence – application dismissed. MIGRATION – Practice and procedure – award of costs to successful Minister – exceptional solicitor/client costs – unnecessary copying of country information – no difficult or novel legal issues – amendments to applicant’s grounds of review did not require adjournment nor additional written submissions – departure from scale amount not justified. |
| Federal Magistrates Court Rules 2001 (Cth), Pt.12, Sch.1 Pt.2 Migration Act 1958 (Cth), ss.36(2), 46A |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331, [2012] FCAFC 26 SZQGU v Minister for Immigration & Citizenship [2012] FCA 340 SZQGU v Minister for Immigration & Anor [2011] FMCA 718 SZQNF v Minister for Immigration & Anor [2011] FMCA 965 SZQVI v Minister for Immigration & Anor [2012] FMCA 222 |
| Applicant: | SZRAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER MCDERMOTT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 3008 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 9 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Ford Criminal Lawyers |
| Counsel for the First Respondent: | Ms K Morgan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3008 of 2011
| SZRAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER MCDERMOTT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia on an intercepted boat which was taken to Christmas Island in April 2010. At interviews on Christmas Island, he claimed refugee status based on fears of returning to his country of nationality, Afghanistan. On 12 July 2010, he made an application for recognition of his refugee status (the “RSA”), under administrative procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an onshore application for a protection visa. A negative assessment of his refugee status was made in a determination by an officer of the Department on 3 September 2010, after interviewing the applicant again.
The applicant then applied for an independent merits review of the determination under the same procedures (the “IMR”). Dr McDermott performed that function, and in a report dated 21 November 2011 found that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act, and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. He also interviewed the applicant before arriving at that conclusion.
Throughout the RSA and IMR proceedings, the applicant was assisted by competent representatives employed by the Refugee Advice + Casework Service of Sydney (“RACS”). They made detailed written submissions before the RSA determination, and after Dr McDermott’s interview with the applicant, and a representative was also in attendance at the two interviews.
The applicant now seeks judicial review of Dr McDermott’s report, seeking a declaration that his report was not made in accordance with law, and an injunction restraining the Minister by himself or his Department officers, delegates or agents from relying on its recommendation. This Court’s jurisdiction to entertain the application and to grant relief of this kind in accordance with the reasoning of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 has been upheld by the Full Court in SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331, [2012] FCAFC 26.
The applicant commenced the present proceedings without legal assistance while held at Pontville Immigration Detention Centre in Tasmania, having been moved there from Scherger Immigration Detention Centre in Queensland. However, after a referral by me under Part 12 of the Federal Magistrates Court Rules 2001 (Cth), a solicitor has represented the applicant, and he was represented today before me by counsel who relied on a further amended application filed at the hearing. I note that I was informed at today’s hearing that the applicant has been released into community detention in Melbourne.
Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Dr McDermott’s report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed. The relief sought in the present application can only be contemplated if I am satisfied that Dr McDermott made such an error. It is not the function of the Court to engage in merits review of Dr McDermott’s findings on the credibility of the applicant’s evidence and refugee claims, nor to form its own opinions on whether the applicant should be permitted to reside in Australia as a refugee or otherwise.
The original application contained no particularised grounds of review, and the amended application contained grounds that were completely abandoned in a further amended application. It presented the following grounds:
GROUND ONE:
The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error.
Particulars
a)After the interview the agent provided a translated copy of a letter from the nephew of the applicant which was approved by the elders in the applicant’s village.
b)The letter contains specific assertions that: the applicant had refused to join the Taliban; that this refusal was connected with the circumstances leading to the applicant’s divorce from his wife; and that the Taliban have a photograph of the applicant and that the Taliban “keep enquiring from the villagers about my cousins”.
c)The document was not provided to the IMR before the interview.
d)On 19 May 2011 the document was submitted to the IMR to form part of the post‑IMR hearing submissions.
e)On 13 October 2011 a natural justice letter was sent by the IMR regarding matters raised in the post‑IMR hearing decisions.
f)The natural justice letter did not raise any matters relating to the letter ‑ including the circumstances around which the document came to the attention of the IMR hearing after the hearing and what knowledge the witnesses would have of the claims of the nephew.
g)The second respondent therefore erred in rejecting the contents of the letter without giving the applicant an opportunity to give evidence and make submissions on that issue.
GROUND TWO:
The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error.
Particulars
a)After the interview the agent to the Reviewer provided a translated copy of a letter to RACS in which the applicant referred to an incident on 15 September 2010 proximate to the Afghan Parliamentary election.
b)The document was not provided to the IMR before the interview.
c)On 19 May 2011 the document was submitted to the IMR to form part of the post‑IMR submissions.
d)On 13 October 2011 the applicant was given an opportunity to respond about why he did not raise the incident.
e)On 26 October 2011 the Refugee Advice and Casework Service explained the misunderstanding that he had put the document before and did not know that he needed to raise it separately.
f)In so finding that “if this incident had indeed occurred the claimant had the opportunity to mention this incident at the interview with me and he did not do so”, the Reviewer did not deal with or take into account the explanation offered for why he did not mention the 15 September incident (although he took into account the explanation for why the document had not been provided prior to the hearing).
GROUND THREE:
The second respondent fell into jurisdictional error by:
A.Making a finding for which there was no evidence; and/or
B.Denying the applicant procedural fairness and thereby fell into jurisdictional error.
Particulars
a)The IMR did find that “even though the brothers‑[in‑law of the applicant] were not in attendance at the religious court I can assume that the father would have advised them of the ruling of the mullah”;
b)The assumption identified above was not put to the applicant for comment during the IMR hearing - or subsequently; or
c)It was not an assumption that obviously arose from the material.
GROUND FOUR:
The second respondent fell into jurisdictional error by:
a. Making a finding for which there was no evidence; and/or
b.By coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Particulars
a)The second respondent made a material finding that the first time the applicant made a claim that he is at harm from the Taliban because he was against their beliefs “was in the interview before me”.
b)The said proposition was used by the IMR as a makeweight in the finding that the applicant that he was threatened because he was against the beliefs of the Taliban.
c)There was no evidence before the IMR to support this finding that the claim was tantamount to a “recent invention” by the applicant.
d)In the alternative and in light of the evidence available to the second respondent, this was a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
These grounds all concern Dr McDermott’s procedures and reasoning in relation to refugee claims made by the applicant which were dependent upon acceptance of his claims about his personal history. The applicant also made claims, which were elaborated by his representatives with abundant reference to country information, suggesting that the applicant was generally at risk of Convention‑related persecution, by reason only of his identity as a person with Hazara ethnicity and Shia Muslim religion, and perhaps generally also by reason of his home region being a location in Jaghori District in Ghazni Province of Afghanistan. However, it is unnecessary for me to recount background concerning those claims, the country information relied upon by the applicant and considered by Dr McDermott, and Dr McDermott’s reasoning before rejecting the ‘generic’ claims. It is also unnecessary for me to consider how he dealt with a significant issue concerning the reasonableness of expecting the applicant to relocate from his home region to live in Kabul if, as in fact Dr McDermott did not decide, it was decided that he would have a well‑founded fear of persecution in his home area.
It is necessary only that I trace how the applicant’s claims of facing a heightened risk of persecution based on his individual circumstances were presented in the course of the RSA and IMR proceedings.
The refugee claims
The applicant was interviewed on Christmas Island on 17 May 2010, shortly after his arrival, at which notes were taken of his responses to questions, inter alia, concerning his fears of returning to Afghanistan. The applicant sketched a personal history which was accepted by all decision makers in its basic structure.
This was that he was a man in his mid‑40s who had lived and worked in his home region in the district of Jaghori in Ghazni province, until going to Iran in 2000. He had been married to a lady to whom he is still married as his first wife, but she had not been able to have children, and one of the reasons for going to Iran appears to have been to seek medical assistance in relation to that difficulty. He also claimed to have moved because of the power of the Taliban at the time.
In Iran, he married a second wife because his first wife was unable to have children, and he now has three children with that wife. However, he encountered difficulties with the brothers of his second wife which led to a divorce with his second wife at their demand, threats from his brothers‑in‑law, his return to his home in Afghanistan in 2009 because of the brothers‑in‑law’s threats, and further fears as a result of the brothers‑in‑law returning to their father’s home in a neighbouring district of Afghanistan.
At the applicant’s entry interview he pointed to some of this background, and he is recorded as answering in response to the question, “Why did you leave your country of nationality?”:
My former wife’s family forced me to divorce my wife. I went back to Afghanistan and my former wife’s brothers followed me and found me in Afghanistan at my house. Why? They tried to force me to pay money in compensation to them. I left Afghanistan because the family are powerful and kept warning me they will take my money from me. Any other reason you left Afghanistan? Because travel from [location] to KABUL is dangerous because people are captured and kidnapped by the TALIBAN. How does this relate to you? Because they stop people like me who are HAZARA and SHIA. Has this happened to you? No.
I want to bring my family to Australia for safety from the fighting and from my wife’s family. Can the police help you? No. Why? Because my area is a long way from the Police.
In response to the question, “Do you have any reasons for not wishing to return to your country of nationality?”, he is recorded to have responded:
Because Afghanistan is not secure. How? Because I come from Jaghori and the area around Jaghori is very dangerous. Why dangerous for you? Because I am Hazara and the Pashtun people there always are cruel to and kill Hazara people. Why? Because of the Hazara ethnicity and religion, and it has been going on through history and still now. All the time it is happening and it is not included in the news, only a small amount is reported.
Any other reasons? No.
These concerns were then fleshed out somewhat in a statement prepared with the assistance of the applicant’s representative, which was attached to his RSA application. In this statement, he said:
1.I was born in [home town], Jaghuri, Ghazni in [year].
2.I am an ethnic Hazara and a Shiite Muslim.
3.I fear that if I was forced to return to Afghanistan I would be at risk of being harmed because I am a Hazara and a Shiite Muslim.
My religion and ethnicity
4.I can not leave Jaghuri because the Taliban are surrounding Jaghuri and it is not safe for me to leave the area. If my family become sick I can not take my family out of Jaghuri.
My family background and problems
5.In 1990 I was married to [first wife]. We do not have any biological children together. We are still married.
6.In 1999 I moved to Iran because the Taliban were in power in our area. Many Hazaras were killed by the Taliban and many disappeared. Homes were looted by the Taliban. We also thought we could get some medical assistance to help my wife bear a child.
7.In 2001 I married my second wife [second wife] in Iran because my first wife was unable to have children. We now have three children together: [first child], born in 2004, and [second child], born in 2006, and [third child] born in 2008.
8.In the middle of 2008 I started having problems with the brothers of my wife who were living in Iran at the time. The brothers of my second wife [second wife] are called [first brother‑in‑law], [second brother‑in‑law] and [third brother‑in‑law]. They were shady characters and were addicted to opium. They were connected to Iranian underworld gangsters. Because of this I did not want them to come to my house.
9.The brothers of my former wife forced me to divorce my wife. They said they wanted us to divorce because they were not allowed to enter my house. I believe they wanted us to divorce so I would be forced to pay a large dowry to her family. The amount of the dowry was set at US $3500. Under Islamic Law the dowry can be paid at the time of marriage or deferred until a later time, for example, at the time of divorce. I did not pay the dowry because I was advised by the Mullah that I did not have to pay the dowry if one party did not consent to divorce. According to Islamic Law, the payment of the dowry is only activated when both parties consent to the divorce. I believe they wanted to use the money to fund the purchase of opium and to fund their gangster activities.
10.The brothers threatened to kill [my second wife] if she did not divorce me. She was beaten by her brothers with a plastic pipe because she said she wanted to stay married to me. She was left with bruising on her legs and back.
11.[My second wife] and I were legally divorced in the beginning of 2009 in Iran. The two older children stayed with me and the youngest son went with his mother.
12.After the divorce the brothers of my former wife then threatened to kill me or kidnap my son, [my first child], because I did not pay a dowry to my wife and her family. They made these threats at my house.
13.In July 2009 my family and I returned from Iran and went to [my home town], Jaghuri, Ghazni in Afghanistan because of the threats.
14.About two months after we returned to Ghazni the brothers also returned to Ghazni. They returned to their fathers home in [their] district. I came to know the brothers had returned because a second cousin of mine by the name of [second cousin] informed me that they had returned to the Afghanistan. [My second cousin] lived near the brothers in Iran and my wife also told him that these brothers are leaving for [their district].
15.The brothers took up work on farms for the Taliban in [their] district. They acted as spies for the Taliban and they were armed with pistols. They acted with impunity as they were supported by the Taliban and they travelled freely between the districts in Ghazni province. My father‑in‑law once said to me I should keep a beard like the Taliban.
16.My children do not attend school in Afghanistan because they were at risk of being kidnapped by the family of my former wife. I told my wife not to send them to school.
17.I did not go to the police because they do not have authority to venture out of Jaghuri. Around October 2009 I went to the district office in [location] and lodged a formal complaint against the brothers of my former wife. However, I was told by the deputy district officer that they can not help me because the [brothers‑in‑law’s district] is outside of their control because the brothers lived and operated in a Pashtun area.
18.I did not go to the provincial police in Ghazni city because they refer us back to the district police.
19.One month before I departed for Australia (approximately February 2010) my former wife called me and told me that her brothers are looking for me.
20.After this I took my children to live with the father of [my first wife]. They live [in a different location] which is 1½ hour walk from my village. [My first wife] and the children are there now.
Coming to Australia
21.I flew from Kabul to Dubai and stayed in Dubai for 2 nights in March 2010. I then flew to Malaysia and stayed there for 6 days. I then travelled to Indonesia and stayed there for 16 days. I arrived in Australia on 15 April 2010 after 17 days on a boat.
What I fear would happen if I was forced to return to Afghanistan
22.I fear that I would be kidnapped and killed by the brothers of my former wife if I was returned to Afghanistan. There is nowhere safe for me in Afghanistan because they are associated with the Taliban.
23.For all of the above reasons, I ask the Australian government to protect me and not send me back to Afghanistan. …
The applicant was interviewed by a Department officer on 14 July 2010, and it does not appear that he elaborated or altered his claims in any material way from how they had been previously explained.
Following the interview, the applicant’s agents formulated the applicant’s fears of return by reference to the Convention:
1. Background Information
[The applicant] fears serious harm in Afghanistan for the following reasons:
·He is of Hazara ethnicity in a country where Hazaras are subjected to attack by the increasingly powerful Pashtu Taliban (ethnicity);
·He is a Shia Muslim and Shia Muslims are considered infidels by the Sunni Taliban (religion); and
·He has lodged a formal report to the district office in Jaghori against his ex‑wife’s brothers in which he disclosed that they were spies for the Taliban and criminals. In short, he is at risk of harm from the Taliban because he acted as a government informant by disclosing the names and details of three of their spies (imputed political opinion).
In addition to this, [the applicant’s] family has faced the following problems in Afghanistan:
·He and his family have been threatened with death and kidnappings by Taliban spies; and
·His ex‑wife was beaten by her brothers, who are Taliban spies and gangsters; and
·His children are unable to attend school on account of their fear from the Taliban spies.
We note that [the applicant’s] account of his experiences in Afghanistan and his reasons for leaving that country were substantially consistent at his entry interview and at his RSA interview.
In the reasons given by the RSA assessor for the adverse decision, the assessor referred to the applicant’s history, including the threats made by the applicant’s former brothers‑in‑law which continued in Afghanistan. The delegate concluded:
I find that the harm feared by [sic: from] the brothers of [the applicant’s] former wife are due to circumstances personal to [the applicant], that is his failure to pay the appropriate dowry due to the family of his former wife. I find that the harm feared by [the applicant] does not arise for any of the five Convention grounds. Therefore, I am not satisfied that the essential and significant reason for the harm feared includes at least one of the Refugees Convention grounds.
The delegate then turned to consider the applicant’s generic claims, relating to his attributes of race and religion generally. The delegate arrived at conclusions that there was not a real chance of the applicant being persecuted for any Convention reason if he returned to his home district of Jaghori, and also that it would not be unreasonable for him to relocate to a large city such as Kabul.
The applicant did not present any additional documentary evidence or submissions prior to an interview conducted by Dr McDermott with the applicant on 28 April 2011 at Scherger Immigration Detention Centre, in the presence of his agent.
A transcript is in evidence and provides the basis of some of the natural justice contentions raised in the application before me. My attention was drawn to the fact that in introductory statements, Dr McDermott told the applicant:
REVIEWER: My role is to undertake a fresh re‑examination of your claims. …
REVIEWER: I’m looking at all the information available to me so that I can make an informed recommendation. I am not just looking at the papers that were before the case officer. …
REVIEWER: I will look at any new evidence. …
REVIEWER: I may give you some information about the situation in Afghanistan. …
REVIEWER: Just because I raise the information with you, it does not necessarily mean I accept that the information is true. I’m interested to hear what you think about the information. …
REVIEWER: The purpose of the interview is to give you an opportunity to tell me what it is I need to know about your claims. …
REVIEWER: I may ask you questions about any of the information you or someone on your behalf has provided to me. …
REVIEWER: --and any information you’ve provided during your refugee status assessment. …
REVIEWER: I want to know as much as you want to tell me about your claims. …
REVIEWER: Also, just because I do not ask questions about an issue, a particular issue, doesn’t mean that you cannot raise the issue. …
REVIEWER: If you think I should know something about your case that hasn’t been raised before, please tell me. …
REVIEWER: I will after I’ve asked all my questions be asking your adviser if there’s anything else I should have asked about. …
REVIEWER: I will also at the end of the interview ask you if there’s anything you want to add. …
REVIEWER: You are aware that you should answer the questions truthfully and fully? …
The applicant’s subsequent evidence emerging under questioning by Dr McDermott addressed various parts of his claims, and the general situation facing Hazara Shias, including some questioning about the applicant’s divorce proceedings which I shall extract below in relation to Ground 3.
After questioning about the applicant’s home in Jaghori and why he went to Iran, Dr McDermott asked the applicant at page 19 of the transcript: “What has happened to you in the past to think that you will be in danger because you’re a Shia Muslim”.
The applicant then referred to tensions with the brothers of his second wife:
CLAIMANT (INTERPRETER): One of the incidents has occurred to me is the brothers of my second wife, they were working with them, the Taliban. They have lived in Pashtun area, they have been grown up in that area. Their parents were farmer in that area, in [identified] area. We had religious tensions, religious issues with them because the way they had chosen was against my political views.
REVIEWER: All right. You were saying something more?
CLAIMANT (INTERPRETER): Because I was against, I was against them. They got, they forced me and my wife to get divorced. Her father always used to invite me to join Taliban and work with Taliban. I had belief against them and therefore the father and the brothers they all threatened me. When I went to Afghanistan my wife called me and told me that her brothers are now going to go to Afghanistan. They have gone to Afghanistan in order to, with an intention to kill you and they were happy and told her that it is good that he went to Afghanistan, he went to his grave.
REVIEWER: What do you think will happen to you because you are an Hazara?
CLAIMANT (INTERPRETER): I will be hundred per cent killed if I go to Afghanistan because the brothers of my wife, they have given my photo to the Taliban. I have already reported this to district mayor. I have mentioned this before in the previous interview. But they told me that they were not going to do anything, they were not able to do anything against those people.
Dr McDermott then questioned the applicant about the non‑payment of the dowry:
REVIEWER: I just want to be sure about the brothers and the dowry. Did the brothers - is the reason the brothers have threatened to kill [the applicant] because he didn’t pay a dowry?
CLAIMANT (INTERPRETER): No. Because I was, I’ve always been against their views, against their beliefs. They do know themselves that they are not entitled to get the marriage compensation.
There was then general questioning concerning the situation of Hazaras in Jaghori and whether the applicant could live in Kabul.
Dr McDermott then, at page 32 of the transcript, expressly raised with the applicant a perceived inconsistency between the applicant’s previous explanation for his fears of his former brothers‑in‑law, and his statements in the course of the interview that they were motivated because he had refused to support the Taliban. Dr McDermott put to the applicant:
REVIEWER: There’s no mention there about the Taliban, about your brothers being spies for the Taliban.
INTERPRETER: His brother‑in‑laws.
REVIEWER: The brother‑in‑laws being spies for the Taliban. There’s no mention in the interview on Christmas Island.
CLAIMANT (INTERPRETER): I have said and whatever they have answered I have answered. And I urge you if you want to ask me about the details about those spies I’m ready to answer.
REVIEWER: When were you put on the Taliban list?
CLAIMANT (INTERPRETER): On 15 September my telephone was disconnected.
REVIEWER: On 15 September?
ADVISER: 2010.
INTERPRETER: 2010.
REVIEWER: Your telephone was disconnected?
CLAIMANT (INTERPRETER): For 25 days yeah. I was not able to make, call my family for 25 days. My case manager, Miss manager’s name was [case manager], Miss [case manager], and I told her. Then after these 25 days when I talked to my family, then they told me that there was a person -
REVIEWER: 21 days or 25 days?
INTERPRETER: 25 days. They told me that there was a person by the name of [villager] from my village.
CLAIMANT (INTERPRETER): This [villager] was pulled over by Taliban. He is from my village. And he had some election papers in his car too. [Person] and [villager] and [villager] is from my village. When the Taliban look at his Taskera they show him my photo and ask him if he knows the person in the photo. He refuses. He says “No”. They hit him a lot. Then they called his father, then they called his father and ask him for a big amount of money and if they bring it, okay. If not, I remember. Come to this place and take the dead body of these people with you. When his father go there - when they transferred these boys to another place and after a few days they managed to escape. I don’t know how did they but they managed to escape from Taliban.
Then the father of this guy goes and talks to, tells my father‑in‑law about this problem and tells my father‑in‑law to take my family, to transfer my family to a safer place because it’s not safe anymore. Then my father‑in‑law moves my family from [village] to [village], another village. This incident happened to me on 15 September.
REVIEWER: 2010?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: Happened to me? How do you mean happened to me?
CLAIMANT (INTERPRETER): I was here and my photo was there and for this reason my family was moved, they moved to another place. When I asked the children of my brother on the phone, they told me that people bringing grape or bringing something to sell in the bazaar, they have been asking for me.
In this part of the applicant’s evidence, he claimed for the first time that information had been given to him by telephone from Afghanistan by a relation, concerning an incident occurring on 15 September 2010 which showed that he was individually targeted by the Taliban. It is clear, in my opinion, that the applicant’s agent was aware of a concern as to the credibility of these new claims. This appears clearly at the end of the transcript, where the adviser started her submissions by saying:
ADVISER: I just want to make a few observations about [the applicant’s] credibility.
She identified two issues that she thought had been raised by Dr McDermott’s questioning. One of them concerned the applicant’s failure to mention his brother’s disappearance, and the other concerned “the failure to mention that they were connected to the Taliban” in paragraph 22 in the RSA statement. In relation to this, the agent said:
ADVISER: It was mentioned, a considerable amount of time. The fact that it wasn’t included in the RSA statement is indicative of the curtailed time that’s available to prepare that statement, and the primary focus of [the applicant’s] claims which are in fact his relationship with his brothers‑in‑law and his problems with the Taliban.
Now you’ve referred to question 22 in the entry interview and I think a few other questions where the brothers‑in‑law are not mentioned in the response. However, we note that they are mentioned, or the problems that he’s had with his brothers‑in‑law are mentioned in question 1. And he notes that the family are very powerful.
INTERPRETER: The family?
ADVISER: The family of the brothers‑in‑law, his ex‑wife’s family, are very powerful. And he also notes that the problems he would experience on the roads in Afghanistan in answer to that question, and that later he returns to that issue with his brothers‑in‑law.
In terms of the failure to mention that they were connected to the Taliban, we note that he’s clearly in paragraph 8 of his statement documenting that he had a lot of tensions with his brothers‑in‑law while in Iran, and that he’s instructed me previously that in fact he wasn’t aware that his brothers‑in‑law were involved with the Taliban. It was something that he found out later once he was married to his wife. And in fact he’s made it clear he wouldn’t have married her if he had known the problems with the brothers and their political views and activities.
CLAIMANT (INTERPRETER): I would never have.
ADVISER: What I would like to emphasise in terms of the Convention nexus in [the applicant’s] case is the relationship between his brothers‑in‑law and the Taliban. Now, while [the applicant] has said they’re spies for the Taliban, we would also emphasise that clearly the Taliban have a relationship with some of these criminal drug routes, and as you would be well aware drug cultivation is one of the sources of income for the Taliban, and access to poppy fields is in fact a political issue in Pakistan, a very, very important one in fact. And it reflects the political struggles between different groups in Afghanistan who are vying for control of territory.
So the act of [the applicant] going to the [Location] Central Government and explaining to them what has happened to him and the problems that he’s had with his brothers‑in‑law is in fact a very political act. And it’s a very clear sign to both the Taliban and the criminal operatives in this area that he’s against their activities, and that he is a threat to their power struggle or their power relationships in that area.
CLAIMANT (INTERPRETER): Yes.
At the end of her submissions, the adviser said:
ADVISER: … Unless there’s any further issues you would like me to address I’m happy to provide what I’ve said in writing at the earlier convenience. But we would like to conclude by noting that [the applicant’s] account has been consistent on all possible occasions and that the RSA Officer had no concerns about [the applicant’s] credibility or the truthfulness of what he told her. Rather, her concern was the independent country information which she was considering in July 2010.
We would submit that the deterioration of circumstances in Afghanistan put that information out of date, and indicate that a person in the position of [the applicant] certainly would not be safe if they were to return to Afghanistan for at least three Convention reasons.
There was then discussion about the length of time needed to put in submissions, and Dr McDermott suggested:
REVIEWER: Two weeks?
ADVISER: - if not--
REVIEWER: I thought just to be fair, you’ve got translations and things that you want to send me, I thought two weeks would be a -
ADVISER: And with the translations, I will check if there’s any delay in them. Usually they give me an estimate as to how long it will take.
REVIEWER: That’s why I thought two weeks just in case, and if you need more time please let us know and we’ll extend time.
CLAIMANT (INTERPRETER): Thank you very much.
REVIEWER: That’s all right. And if I find any information myself which I’ll invite you to comment on, I’ll send it to you. All right? Likewise.
CLAIMANT (INTERPRETER): Okay.
REVIEWER: I’ll send it myself.
CLAIMANT (INTERPRETER): Very good.
ADVISER: Okay.
REVIEWER: Thank you very much.
CLAIMANT (INTERPRETER): I wouldn’t be tired if you need some more questions.
REVIEWER: That’s all right. Well, if I have any I might give it to your agent, all right?
CLAIMANT (INTERPRETER): Okay.
REVIEWER: I’m going to consider what’s been said already and thank you and we’ll conclude the interview.
INTERVIEW CONCLUDED
Following the interview, the applicant’s agents did present a written submission, mostly addressing country information relevant to the applicant’s generic claims. They also summarised the applicant’s “essential background facts” he had put forward in his evidence, and submitted new documentary evidence. At the start of the submission, they said:
In support of his application we are instructed to provide the following enclosed documents:
i.a letter from the elders in [the applicant’s] village in Afghanistan in Dari, accompanied by a certified English translation;
ii.a letter to Ms Nadia Khan, [the applicant’s] previous RACS lawyer in Dari, along with a certified English translation; and
iii.an article concerning the attack on the Afghan defence Ministry. This attack was described by [the applicant] towards the end of the IMR Hearing.
Grounds 1 and 2 of the present application concern Dr McDermott’s treatment of the two letters, and I will extract their contents below in dealing with those grounds. It may be noted at this point, that the agents made no submissions concerning the evidentiary weight and significance which might be given to these new pieces of evidence presented after the interview. This is notwithstanding that a reading of each of them obviously gave rise to some further concerns as to their consistency with the applicant’s previous written and oral evidence.
After receipt of that submission, an officer of the Department of Immigration assisting Dr McDermott in an administrative capacity, asked for clarification of one of the general articles cited by the applicant’s agent at the interview. In response, he was sent a full copy of the International Crisis Group paper with no further submissions.
A further letter was also written to RACS on behalf of Dr McDermott, which said:
I refer to the IMR interview conducted in April 2011 in relation to the claimant [the applicant].
We have now received advice from the Reviewer Mr Peter McDermott in regard to this matter.
Mr McDermott states that the post ‑ interview submission has raised the issue of country information from the Finnish Immigration Service concerning the availability of alternative travel routes out of Jaghori. Mr McDermott has accordingly made a survey of available country information.
The latest country information concerning “Road Security in Ghazni” (Ref AFG12298, 21 September 2011) is from the Department of Foreign Affairs. This country information indicates that some international interlocutors indicate that travel between Jaghori and Ghazni and Kabul is “quite safe”. That country information also confirms the availability of a safe travel route from Kabul to Ghazni. That country information also confirms that the level of risk depends on the individuals involved.
Can you advise when [the applicant] received the letter from Ms Khan. This letter refers to an incident on “15th September”. Was this incident on the 15 September 2010. If so could [the applicant] confirm that he is sure that this date is accurate. The letter does not bear a date and can [the applicant] confirm when he wrote the letter and advise why he did not inform Mr McDermott of the incident at the interview when he had the opportunity to inform Mr McDermott of the threat to his life from the Taliban.
Can he also confirm how he is sure that there were election ballot papers in the vehicle.
Would [the applicant] be aware why those individuals would be in possession of election ballot papers when travelling in a Pashtun area?
Mr McDermott would like a response to this matter within seven (7) days from the date of this letter.
A response to this letter was then provided by RACS dated 26 October 2011, which dealt with the specific matters raised in the letter, but made no further submissions concerning matters that were not raised. In relation to the letter of instructions given by the applicant to his agents, their submissions said:
We are instructed [the applicant] wrote this letter after he spoke to family members after the incident on 15 September 2010. We are unaware as to the exact date the letter was written, however it was written between the 15th of September 2010 and 13th of October 2010, when RACS received the letter.
We advise that it was RACS’ decision not to forward the letter written by [the applicant] to the Reviewer at an earlier date and was not a decision made by [the applicant]. Due to the change of caseworkers, each new caseworker considered the information that was at hand. The letter that [the applicant] sent to RACS was a privileged document and it was decided to submit this document to form part of the post‑IMR submissions to the Reviewer and not earlier. [The applicant] would not have been aware of this and would not have thought to bring up the matter again at the Hearing unless requested by the Reviewer or his caseworker. We stress that this was not a decision by [the applicant] to withhold this information from the Reviewer at the interview.
…
The letter concluded:
We submit that [the applicant] has provided consistent and credible testimony during his matter. We reiterate that [the applicant] is at real risk of being harmed if he were forced to return to Afghanistan because of his ethnicity as a Hazara, because of his religion as a Shi’a Muslim and because of his imputed support for the government in Afghanistan.
Please contact Radhika Kumar if you require any further information or assistance.
No further communication occurred between the applicant, his representative or Dr McDermott before his report was published and notified to the applicant.
Dr McDermott’s report
In his report, Dr McDermott narrated the applicant’s claims and some relevant country information, and then set out findings and reasons which dealt with the applicant’s claims in a very thorough fashion. He noted how he had put concerns to the applicant in the course of the interview, including concerns about “certain aspects of his account of events, including his claims about the Taliban that were not mentioned when he first sought the protection of Australia”. He said:
62.One of the central aspects of the claims of the claimant relates to his failure to pay a dowry to the family of his second wife whom he divorced. There have been inconsistent explanations of why the divorce occurred.
When considering the applicant’s evidence about his divorce, Dr McDermott made a key finding which provides the basis of Ground 3:
66.Even though the brothers were not in attendance at the religious court I can assume that the father would have advised them of the ruling of the mullah. In these circumstances I am not prepared to make a finding that the failure of the claimant to pay the dowry means that he has a “perceived anti‑Islamic attitude” in refusing to pay the dowry.
Dr McDermott noted that the applicant’s differing explanations as to his divorce had included a claim at the interview that there were “religious issues” why they “forced me and my wife to get divorced”. Dr McDermott said:
71.I should mention that the claimant has given differing explanations of why he was divorced from his second wife. At the interview before me he cited “religious issues” why they “forced me and my wife to get divorced”. He remarked: “They always advised me to work with the Taliban. Therefore the father and brothers all threatened me”. This statement raises a new claim not just of “religious reasons” but also about his “imputed political opinion”
Dr McDermott addressed the applicant’s claim that the Taliban would persecute him for imputed political opinions opposed to their activities, by reason of him having reported his brothers‑in‑laws’ activities and threats to government agents. However, Dr McDermott did not accept that the actions of the applicant in going to the district office were a basis for a claim that he had a well‑founded fear of persecution based on his assessment of all the applicant’s evidence.
Dr McDermott then returned to the applicant’s claims that he was at risk of the Taliban because his brothers‑in‑law had been Taliban spies. He said:
83.When the claimant was first interviewed at Christmas Island, the claimant was asked why he could not return to his country. He then made no claim that the brothers of his second wife are spies for the Taliban.
84.When I interviewed the claimant I considered that, as a matter of procedural fairness, I should advise the claimant (in the presence of his legal advisor and agent) that there is no mention in the records of that interview “about your former wife’s brothers being spies for the Taliban”. I did not receive any explanation from the claimant either at the interview or in later submissions. The lack of any explanation, submission or comments from the claimant causes me to not accept his assertions that his brothers are associates or spies for the Taliban. His new claim that the brothers wanted him to “work” for the Taliban was also not earlier mentioned.
85.The first time that the claimant made a claim that he is at harm from the Taliban because he was against their beliefs was in the interview before me. At the interview before me the claimant asserted that the brothers threatened to kill the claimant because of his beliefs. That new claim is not consistent with the claims in an earlier statement of 12 July 2010 (that was prepared with the assistance of the expertise of RACS) when he claimed that he received the threat because of the failure to pay a dowry. Earlier at Christmas Island the claimant did not make a claim that he would be harmed if he did not pay the dowry, although he did assert that the family of the second wife are “powerful”.
86.The assertion of the claimant that he is at harm from the Taliban because he was against their beliefs was not mentioned in his Christmas Island interview. The claimant did not also make any claim in his statement of 12 July 2010.
87.During my interview with the claimant I read out to him paragraph 12 of his statement of 12 July 2010 in which he remarked: “After the divorce the brothers of my former wife then threatened to kill me or kidnap my son, [first child], because I did not pay a dowry to my wife and her family. They made these threats at my house”. I thought that it was only fair to select that paragraph from the statement which had been settled after the claimant had the benefit of having seen his RACS lawyer rather than just relying on what was said by the claimant at the entry interview.
88.I informed the claimant that there was no claim in his statement of 12 July 2010 that he was at risk of serious harm because he was against the beliefs of the Taliban. I did not receive any explanation from the claimant either at the interview or in any later submission.
89.I have earlier mentioned that the first time that the claimant asserted a claim that he was against the beliefs of the Taliban was at the interview that he had with me. I did not receive any explanation from the claimant about why he did not earlier assert any claim that he was threatened because he was against the beliefs of the Taliban. I decline to give any weight to the claim of the claimant that he received a death threat because he was against the beliefs of the Taliban.
90.I am not satisfied that there is any plausible evidence that the claimant has either any actual or imputed political opinion (anti‑Taliban and pro‑international forces).
I shall return to consider the reasoning in paragraph 85 when I address Ground 4 below.
Dr McDermott rejected the applicant’s claims that he and his children had been threatened with kidnapping and death, based on an analysis of the manner and timing in which these claims have been put forward.
Dr McDermott then addressed the weight to be given to the two letters, which had been submitted by the applicant’s representatives after the interview, in a manner which I shall address below when dealing with Grounds 1 and 2. In the course of this discussion, he explained why he would not give weight to those pieces of evidence, where they were inconsistent with the claims as originally presented by the applicant in support of his refugee claim.
Dr McDermott’s general conclusions concerning the risk of persecution based on the applicant’s individual circumstances were:
119.Having reviewed all of the evidence before me, I do not accept the contention of the claimant that he faces a risk of serious harm from the Taliban. I do not believe that his life is in danger from the Taliban or the brothers of the second wife who are associated with the Taliban. There is an assertion by the claimant that he is on a Taliban list. I do not give that statement any weight as there is no credible explanation placed before me of why he would be placed on a Taliban list. I do not accept that the Taliban took his brother. I also do not accept the post‑interview claim that the claimant had to divorce his wife because he did not accept the invitation to join the Taliban.
120.Having regard to all of the evidence I also find that the claimant does not have a well‑founded risk of persecution from the Taliban on account of any actual or imputed beliefs or from the brothers of his second wife who are alleged to be associates or members of the Taliban.
Dr McDermott’s report then examined the applicant’s general risk because of his ethnicity or his religion, in a manner which I do not need to summarise nor address.
Ground 1
As explained in counsel’s written and oral submissions, Ground 1 contended that a denial of a fair procedure occurred because Dr McDermott gave no weight to the first of the letters submitted after the interview by the applicant’s agent, which I shall refer to as “the nephew’s letter”. The translation of the letter was:
To Respected Chief of Jaghori District:
It is hereby to state that; [the brothers‑in‑law] sons of [the father‑in‑law], residents of [identified] province of Ghazni, have been and are associated with and co‑operative to the Taliban and support their mission (share the same trench).
My Uncle [the applicant] son of [applicant’s father] was their sister’s husband; henceforth he has had certain issues such as being forced to join the Taliban bands. Due to my uncle’s refusal to their invite to join the Taliban they demanded their sister’s divorce. After divorce, on multiple occasions they threaten [the applicant] to death, so he informs his sister via telephone and become impelled to leave the country.
Later on, the Taliban stop and question a passenger car while travelling to [their province]. By checking the passenger’s identity cards they find out that [the villagers] amongst the passengers are from the same area as [the applicant]. They then show [the applicant’s] picture to [the villager] and ask if he knows them, and when he says he does not know him, they physically abuse him (beat him up) very badly.
The Taliban then put him in their prison for a while, but then he manages to escape. Currently, they keep enquiring from the villagers about my cousins*1. Therefore, they were relocated to another village called [village] and from there to another remote village. Consequently, we are now being perused by Taliban because they have not yet found my cousins.
The matter has been brought to your knowledge, hope you approve of and testify it.
Respected clergy and senior citizens of [village]:
Please provide further information about the above statement being aware of its future accountabilities.
2011/02/20
Signed
Translator’s Note:
*1 The source document does not specify whether [the villagers] are the applicants’ cousins. However, from the context of the statement it appears so.
Counsel for the applicant submitted, as I understood it, that Dr McDermott was under obligations not to write his report and conclude his review, without inviting the applicant either in writing or at a further hearing to comment upon the adverse reasoning which he adopted in his consideration of that letter. His reasoning was:
113.I have examined the account given in the translation of documents in Dari which purports to be a letter from the nephew of the claimant which has been approved by the elders in the claimant’s village. I do not give any weight to the assertion of the nephew who claims that certain persons are associated with the Taliban. The nephew does not provide any reasons in support of that assertion. The account in that letter claims that the claimant “has had certain issues such as being forced to join the Taliban bands”. Those documents were provided to me well after the interview. That account alleges that the claimant is threatened from the Taliban because of his refusal “to join the Taliban”. The letter contains the following assertion: “Due to my uncle’s refusal to join the Taliban they demanded their sister’s divorce. After the divorce, on ‘multiple occasions’ they threaten him with death, so he informs his sister via telephone and become impelled to leave the country”.
114.The claimant has not before me or even previously raised the claim that his divorce from his second wife was because he refused to join the Taliban. There is no such claim at his entry interview. There is also no such claim in his statement of 12 July 2010 that was then settled after he had the benefit of legal advice from RACS. That statement also does not contain any allegations that he had had “multiple” threats from the Taliban; the only threat that is mentioned in that statement is one account where the brothers of the second wife allegedly made threats to kill the claimant or kidnap his son for his failure to pay a dowry. There is also no suggestion in that statement that he was asked to join the Taliban or that the divorce was forced because he refused to accept that invitation to join the Taliban.
115.I also do not give any weight to the letter from the nephew of the claimant as it is also inconsistent with the previous claims made by the claimant. I also mention that the claimant at the Christmas Island interview never made any assertion that he received any death threat from anyone. At the RSA interview the claimant stated that the brothers were involved in the Iranian drug trade and because of this he refused to let them into his house. He then asserted that it was because of the reason that he would not let the brothers come into his house that he was being forced to divorce his wife and not because he would not join the Taliban.
116.The account of the claimant in this statement of 12 July 2010 is that the divorce of his second wife was motivated by the assumption that he “would be forced to pay a large dowry to her family”. The claimant did not then assert that he had to divorce his wife because he had refused to join the Taliban. As I have not given any weight to the letter of the nephew I also do not accept his assertion that the Taliban have the photograph of the claimant who they are now seeking. He does not state the basis of that assertion.
117.The letter from the nephew of the claimant also contains an assertion that the Taliban “keep enquiring from the villagers about my cousins”. The person who has translated the letter has quite properly mentioned that the source document does not actually name those “cousins” who are being pursued by the Taliban. These are vague allegations which cannot form the basis of any claim by the claimant that he faces danger or persecution. The translator has also quite properly mentioned that the “Kabul validator” stamp is unreadable.
118.Although the letter from the nephew of the claimant has been approved by the elders in the claimant’s village, it is not apparent from the document what knowledge they would have of the claims of the nephew. It may be that they are witnesses to the assertions of the nephew.
It is undoubted, on the evidence before me, that Dr McDermott did not foreshadow to the applicant or his agent the reasoning which he adopted in relation to the nephew’s letter.
The applicant’s counsel submitted that the adverse nub of this reasoning is found in the first sentence of paragraph 114, where Dr McDermott made the point that the applicant had not raised a claim that his divorce was because he did not “join the Taliban”, which was the suggestion made in the nephew’s letter. He submitted that principles of natural justice required that the possibility of this finding should have been warned to the applicant and that he should have been invited to comment.
Counsel took me to the passages in the transcript which I have referred to above, at the start of the hearing, and at the conclusion. He submitted that the circumstances were indistinguishable from those addressed by the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1, in which it found amounted to a denial of procedural fairness or failure to exercise jurisdiction according to law.
That case concerned the consequences of statements which were made by a Tribunal member at the end of a hearing. The plurality in the High Court explained:
11The conclusion of events on 5 February 2002. The parties agreed that proceedings before the Tribunal member on that day came to an end in the following way. The Tribunal member said:
‘‘Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those.’’
After that statement had been interpreted, the Tribunal member said:
‘‘So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal.’’
In fact, contrary to the procedure indicated on 5 February 2002, the Tribunal member did not write putting any questions to the appellant within a couple of days, or at all. On 25 February 2002, the Tribunal sent the appellant a letter saying that it had ‘‘considered all the material relating to your case’’ and had ‘‘made its decision’’, and that the decision would be handed down on 19 March 2002. On 19 March 2002, the Tribunal member handed down her reasons for affirming the delegate’s decision not to grant a protection visa. The date of the decision for the purposes of the Act was 19 March 2002 (s 430B(4)), although the front page of the decision stated that it had been made on 22 February 2002.
(citation omitted)
Counsel before me today invited me to draw the same inferences that were drawn by the plurality judgment at [30] of NAFF:
Inferences from the events of 5 February 2002
30There are some inferences which may reasonably be drawn from the Tribunal member’s final statements when they are set against the background recorded in her reasons for decision. One is that she regarded the appellant’s evidence about the detentions as having potential significance in the review. Another is that she had formed the belief that, despite her detailed questioning, the appellant had not done himself justice in circumstances where he had twice said he was confused and where doubts about interpretation had arisen — perhaps because he had not fully understood the questions which she had put to him, perhaps because in the stress of the moment he had not been able fully to communicate appropriate answers to them, perhaps because of the difficulty in assessing the credibility of evidence given through an interpreter. A third inference is that she believed that, as a result, the procedure had not been satisfactory because it had not been wholly fair to the appellant. In consequence, she thought that the process of review — so far as the appellant was to participate in it — should not be brought to a close, and that it was appropriate to hear more from him about the detentions. It can also be inferred that she had decided that a fair technique by which to take the matter forward was for the difficulties arising from the apparent inconsistencies to be explained to the appellant in written questions to be formulated by her, and to be calmly answered by the appellant in less stressful conditions.
Based on those inferences, the plurality found a breach of procedural fairness when the Tribunal member proceeded to make a decision without inviting further information or comment from the applicant, and without adverting in her findings and reasons as to why she had not done so in accordance with her foreshadowed procedure. Their Honours in the plurality concluded:
43The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer her questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant’s deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction.
However, I am unable to detect in the circumstances shown in the present transcript of Dr McDermott’s interview any comparable situation as was found in NAFF. I would not draw an inference that Dr McDermott at the end of the interview held any impression that his review was incomplete, in the same manner as was communicated by the Tribunal member in NAFF. It is true that he allowed the applicant’s agent an opportunity to present a written submission, and indicated that he would receive any additional evidence. He then allowed that opportunity, and he considered everything which they submitted. However, I am unable to detect any suggestion by him at the interview that he would initiate any further opportunities for comment or evidence from the applicant in response to anything they submitted.
At most, Dr McDermott indicated that he might invite further comments if “I find any information myself which I’ll invite you to comment on”. However, this statement did not suggest that he would invite further comments before drawing an adverse conclusion from any new evidence submitted by the applicant.
There is evidence that he did make requests for further comment or information concerning some specific matters, and that he then received and considered the applicant’s responses on these matters. However, I am unable to find in the subsequent correspondence between Dr McDermott’s assistants and the applicant’s representatives concerning the second letter, being the applicant’s 2010 letter of instructions, any evidence that Dr McDermott also thought that he should raise any other issues arising from his consideration of the newly presented documents. There is nothing in the correspondence which could have suggested to the applicant that Dr McDermott would further invite comment on other matters, before assessing adversely any additional piece of information submitted by the applicant and not ‘found’ by himself.
In my opinion, Dr McDermott said nothing at the hearing or in the subsequent correspondence to suggest that he would feel a need to invite further comments, nor that he would do so, before writing his report. In particular, in the circumstances in which he was invited to consider the nephew’s letter submitted after the interview.
There is also no evidence that either the applicant or the applicant’s agent were ever left under any impression that they would be invited to make further submissions in the event that Dr McDermott did not view favourably the newly submitted documents. In this respect, it is significant that no evidence has been elicited before me from either the applicant or his agents that they were under such an impression. The absence of this evidence leaves me unpersuaded that any practical injustice occurred (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]‑[38], [106], [122], and [149], and the authorities which I recently discussed in SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at [54]‑[57]).
Counsel for the applicant did not present Ground 1 as raising contentions of denial of procedural fairness on principles addressed by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, and with respect, counsel’s concessions in this respect were correctly based. There was no new or surprising issue shown by Dr McDermott’s adverse assessment of the new piece of evidence. It addressed issues of credibility which had been clearly identified at the hearing, and had been recognised by the applicant’s agent at the end of the interview. It must have become clear to both the applicant and the applicant’s agent in the course of the hearing, that Dr McDermott might have serious concerns about the applicant’s claims of political and religious reasons for his fears of the applicant’s former brothers‑in‑law and of the Taliban, and that Dr McDermott might not be persuaded by evidence submitted by the applicant in support of his new claims.
Considering the circumstances attending Dr McDermott’s adverse reasoning in relation to the nephew’s letter, I am unable to detect in the procedures which were followed any denial of procedural fairness as contended by the applicant’s counsel.
Ground 2
Ground 2 attacked Dr McDermott’s reasoning in response to the applicant’s undated letter to RACS which was tendered to Dr McDermott after the interview held on 28 April 2011, but which, as was elicited in the subsequent correspondence, had been received by them from the applicant on 13 October 2010. That is, after the RSA determination and before the IMR interview. I have above noted how the applicant’s agent explained the delay in tendering the letter.
The letter, or such part of it which was presented to Dr McDermott, said:
I, [the applicant], would like to extend my regards and best wishes to Nadia Khan.
For 25 days my telephone was disconnected and I had no communication with my family. After 25 days I finally managed to have a talk to them. My father‑in‑law mentioned that he had moved my family to another area. I asked him why, he mentioned that on 15th of September, three people from our local area by the names of [the three people], were arrested by the Taliban in [identified] area while travelling from Kabul to Jaghori. The Taliban have mentioned to them that there were election ballot papers in the vehicle they were travelling in, and tortured them.
When the parents and brothers of these three men became aware about their arrest by the Taliban, they went to the Jaghori district administration office and asked for help. But they were told that they can’t do anything for them about incidences in [identified] district neither they can go there.
But finally the Taliban contacted them by mobile phone and told them to bring three vehicles and collect the bodies of their sons from three different areas. [One of the men’s] father requested the Taliban not to kill his son and he was ready to negotiate with them. The negotiation takes place in a border area between Hazara and Pushtoon people. During the negotiation the Taliban showed them four photos and said if he would make any of the four people in the photos surrender to them, they would release his son. When [the man’s] father looked carefully at the photos, he identified me and asked what I had done and that I had not been in that area ....
As I understood Ground 2 as submitted in the applicant’s counsel’s oral and written submissions, it was contended that Dr McDermott had failed to take account of the explanation given by the applicant’s agent when he drew adverse inferences from the contents of the letter to RACS in his reasoning in paragraph 109. In this paragraph, Dr McDermott said:
109.I do not know why the agent chose to submit the documents as part of the post‑IMR submissions rather than at the IMR interview. There was no indication that this was because of instructions by the claimant. The decision of the agent had the consequence that I was unable to ask the claimant any questions about his assertion that the Taliban had his photograph and asked for him. The claimant should not be prejudiced by the fact that the letter was not produced at the interview. However, if the incident had indeed occurred, I would have expected that at the IMR interview the claimant himself would have mentioned that the vehicle had been seized by the Taliban who then demanded him.
However, in my opinion, a reasonable reading of paragraph 109 and the subsequent paragraphs shows that Dr McDermott did not draw any adverse conclusions or inferences from the timing of the presentation of the applicant’s letter of instructions, but was concerned that its contents were inconsistent with the applicant’s statements at the interview concerning the 15 September 2010 incident. A consideration of the agent’s explanations was irrelevant to that reasoning, and no error of law or denial of procedural fairness is evidenced by the omission of any further discussion of these explanations.
I have set out above how the applicant presented the circumstances of that incident to Dr McDermott at interview. It is clear from the transcript that the applicant was very keen to present a complete account of the incident to Dr McDermott, and did so without interruption. It is also clear, in my opinion, there were differences between that account and the account earlier given by him to RACS, which it was open to Dr McDermott to regard as significantly reflecting on the credibility of both accounts. In particular, in his last sentence at paragraph 109, Dr McDermott identified significantly different assertions that the persons who were stopped by the Taliban had their vehicle seized, and had been the subject of a demand from the Taliban for the production of the applicant in exchange for the people detained. This is not what Dr McDermott was told by the applicant at the interview.
In effect, Dr McDermott’s adverse reasoning when rejecting the claim that the Taliban were looking for the applicant after he left Afghanistan was based entirely upon a comparison of two versions of an incident presented by the applicant. I consider that his reasoning was open to him on the evidence submitted by the applicant himself, and did not involve any denial of procedural fairness.
I do not consider that Dr McDermott was under any obligations to warn the applicant that he might draw that adverse conclusion, if this was suggested in the submissions made to me.
I am certainly not persuaded that paragraph 109 reveals any failure by Dr McDermott to take into account the contents of the agent’s explanation which, in fact, he had recited in the preceding paragraph.
Whether the error of law raised in Ground 2 is seen as error of law by reason of conclusions of fact not open on evidence, or as a denial of procedure by reason of unforeseeable findings of fact, I do not consider that the ground has been made out.
Ground 3
This ground contends that Dr McDermott made a finding of fact concerning the circumstances of the applicant’s divorce from his second wife “for which there is no evidence” upon which, as a matter of law, that finding could be made. In effect, it invokes authorities which I recently discussed in SZQVI v Minister for Immigration & Anor [2012] FMCA 222 at [33]‑[37], which are based upon the statement of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond’s case”) at 356, that it is an error of law to make a finding of fact in the absence of any evidence providing “some basis for an inference … even if that inference appears to have been drawn as a result of illogical reasoning”.
The finding which is challenged as not being open to Dr McDermott is his statement in paragraph 66 that “even though the brothers were not in attendance at the religious court I can assume that the father would have advised them of the ruling of the mullah”.
Relevant evidence as to this was given by the applicant at the interview:
REVIEWER: Was the divorce before a religious court?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: Where was that court?
CLAIMANT (INTERPRETER): We call it local court.
REVIEWER: A what?
INTERPRETER: There was an Imam, an Imam in that place.
REVIEWER: Yeah, an Imam.
CLAIMANT (INTERPRETER): A religious Hazara, a Hazaragi religious leader.
REVIEWER: Where is the location of the court?
CLAIMANT (INTERPRETER): This place is called [city], a small city in [location].
REVIEWER: In Afghanistan or in Iran?
CLAIMANT (INTERPRETER): In Iran.
REVIEWER: And the name of the place in Iran is? Can you spell it for me?
INTERPRETER: [Spelling of city] in [spelling of location] in Iran.
REVIEWER: Did the religious court consider the dowry?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: What did the court say?
CLAIMANT (INTERPRETER): The religious court told the father of my wife that she is not entitled to get the marriage compensation because she is getting divorced by force.
REVIEWER: Was her father there?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: Did he understand?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: You say by force?
CLAIMANT (INTERPRETER): Yes.
REVIEWER: Who--
CLAIMANT (INTERPRETER): Because neither I nor my wife was angry.
REVIEWER: Were the brothers there? Were the brothers there at the court?
CLAIMANT (INTERPRETER): No. I was there with her father.
I am not persuaded that Dr McDermott’s finding was not open to him upon this evidence alone. Even though minds might differ, I think it would be open to an administrative tribunal of fact to infer, in the situation described by the applicant, that the wife’s father was likely to have told other members of his family, and in particular his sons if they were concerned about the divorce, that no dowry had been paid by reason of the ruling of the mullah.
However, I also accept the submission of counsel for the Minister that the applicant’s subsequent evidence at page 20 of the transcript lent support for that inference, since it suggested that the applicant himself believed or knew that the sons had been told of the ruling of the mullah:
CLAIMANT (INTERPRETER): Yeah, it was not about dowry. When I went there and explained my problem I told the whole story what happened in that religious court and I mentioned dowry there too. And if - they had to put a complaint about this dowry, not me.
REVIEWER: I just want to be sure about the brothers and the dowry. Did the brothers - is the reason the brothers have threatened to kill [the applicant] because he didn’t pay a dowry?
CLAIMANT (INTERPRETER): No. Because I was, I’ve always been against their views, against their beliefs. They do know themselves that they are not entitled to get the marriage compensation.(emphasis added)
I therefore do not accept Ground 3.
Ground 4
I had some difficulty understanding Ground 4. Counsel’s oral submissions focused upon Dr McDermott’s reasoning in paragraph 85, which I have extracted above in its context. He submitted that it was not open to Dr McDermott to say: “The first time that the claimant made a claim that he is at harm from the Taliban because he was against their beliefs was in the interview before me”.
It is clear from the context of Dr McDermott’s statements in paragraph 85 that at this point in his report he was addressing the applicant’s new claims made at interview, and in the documents submitted after the interview, that he was at risk of persecution by the Taliban because he had previously rejected requests by his brothers‑in‑law that he work for the Taliban or accept their religious and political beliefs, and was therefore known to them to be a person who was hostile to their beliefs.
Counsel’s submissions, as I understood them, were that it was not open to Dr McDermott to suggest that there was an element of inconsistency or recent invention in these claims. This was because the applicant’s earliest presentation of his refugee claims, in particular in paragraphs 15 and 22 of his RSA statement, implied these claims.
In these paragraphs, the applicant said that his brothers‑in‑laws were “spies for the Taliban” and “associated with the Taliban”. However, in my opinion, these statements did not suggest that the brothers‑in‑law had also attempted to recruit the applicant to work for the Taliban or were persecuting the applicant by reason of his political and religious opposition to the Taliban and a refusal to ‘join them’.
In my opinion, looking at all the evidence and the way in which the applicant’s claims were presented by him subsequent to the RSA assessment, including in his 2010 letter of instructions to his representative, and considering how he presented them at the interview with Dr McDermott and in the documents submitted subsequently, there was evidence before Dr McDermott which as a matter of law left it open to him to draw a conclusion that there was a degree of novelty, and a refocusing of the refugee claims in the manner which Dr McDermott described and which caused him to reject the suggested Convention relationship of the applicant’s fears of the family of his divorced wife.
I therefore do not accept Ground 4.
Since I do not accept any of the grounds that were argued before me, I must dismiss the present application.
[After further submissions on costs]
The Minister’s solicitor seeks an order for uncapped party/party costs against the applicant, by way of a referral for costs taxed under the Federal Court scales. She submitted that the Minister’s costs would far exceed the scale amount because his solicitors would be charging an amount of $18,046 for their services and disbursements prior to today’s hearing, and not including costs of today’s appearances by the solicitor nor any counsel’s fees.
The Federal Magistrates Court Rules 2001 (Cth) Sch.1 Pt.2 provides a usual scale of party/party costs of $6,240 for a migration matter, including matters of the present sought, if it proceeds through hearing and judgment. This amount has been arrived at after consideration of this Court’s vast experience in migration matters, and of the costs usually awarded for or against the Minister. In my experience, it provides a reasonable maximum amount which Minister’s solicitors do not always seek from this Court, and it is not uncommon for them to seek party/party costs in the region of $3,000 to $5,000.
I am not persuaded that the scale amount reveals any lack of realistic assessment of an appropriate maximum amount to be normally awarded on a party/party basis in fully contested migration matters. Nor am I persuaded that the scale amount operates unreasonably in migration matters involving offshore entry people. I have now had experience in very many of these cases, and my usual costs order is to award no more than the scale amount to the successful party.
In the present case, the Minister’s solicitor seeks an exceptional costs order by pointing to a number of factors.
She pointed to the fact that the Minister’s solicitor has filed seven volumes of Court Books, including six volumes of fully reproduced country information encompassing some 1,296 pages. However, in my opinion, the copying, filing and distribution of this material was unnecessary and was plainly inconsistent with the directions I made at the first court date. In accordance with my usual directions in IMR cases, I directed that the Minister should prepare a Court Book “containing all the documents in the possession of the respondents which may be relevant to the application. It should include or identify the guidelines or other instructions under which the second respondent acted, and all country information which was available for consideration by the second respondent and is relevant to a particular ground of review” (emphasis added). As I have explained to Minister’s representatives appearing before me, this does not require any country information to be included in the Court Book unless there is a discernable relevance of the particular document to a particularised ground of review of which the Minister has notice at the time of preparation of the Court Book. This approach is consistent with very long standing practice in the Sydney migration lists, which has strongly discouraged unnecessary reproduction of country information.
In the present matter, the applicant’s initiating application plainly did not include any such ground of review, since it merely pleaded: “that the decision of the second respondent, Independent Merits Reviewer, was affected by legal error”. Faced by such a ground of review, the Minister’s solicitor should not have included any country information in the Court Book filed, absent new grounds being raised in an amended application received by them prior to the preparation of a Court Book. As is conceded by the Minister’s solicitor, this was not the case, when the present material was prepared and then filed on 2 March 2012.
Moreover, none of the reproduced material ever became relevant to the grounds of review raised by the applicant. As is apparent from my above judgment, the grounds of review argued at hearing required no reference to country information at all.
The previous amended application filed on 21 February 2012 contained grounds which had been argued in many previous IMR cases in this Court, which contended error of law in reasoning that sufficient protection against persecution by the Taliban was provided to many Afghani asylum seekers by non‑State agents in their home region. The cases turned upon an analysis of the IMR reasoning and, with respect, a misreading of a paragraph in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. The flaws in the ground were pointed out in many judgments of this Court during 2011, and these were upheld on appeal, including in my judgment in SZQGU v Minister for Immigration & Anor [2011] FMCA 718 which was delivered on 23 September 2011 and upheld by Rares J in SZQGU v Minister for Immigration & Citizenship [2012] FCA 340. Examination of these grounds did not require the tender of any country information which was not reproduced in the IMR reports themselves.
I am therefore of the opinion that, to the extent that the Minister’s costs application in this case invokes the expense of preparing 7 volumes of Court Books, it would not be appropriate to take that expense into account when awarding party/party costs.
The second point made by the Minister’s solicitor suggested that there were extra costs because of the duplication of this material after the respondent became aware that the applicant’s present Sydney solicitor had accepted a referral under Pt.12 of the Federal Magistrates Court Rules and had not received the copies forwarded to the applicant in Tasmania.
For the reasons which I have just given, I do not consider that those extra costs were necessary, or should influence my assessment of party/party costs.
The Minister’s solicitor’s third reason for seeking an extended costs order was that the grounds of review which were argued before me today were not raised until they were foreshadowed with counsel’s written submission filed and served last Friday 4 May 2012. Undoubtedly, these documents did not comply with my previously directed timetable. I accept that the Minister had meanwhile filed written submissions addressing the previously pleaded grounds which I have described above.
The explanation for the delay of the applicant’s legal representatives is as shown in an affidavit which was read today, explaining the illness of the solicitor who had agreed to represent the applicant, preventing her from acting upon advice from counsel and from circulating counsel’s written material. That explanation was acceptable and understandable in the circumstances.
In the event, counsel for the Minister was able today to deal with the new grounds without seeking an adjournment to obtain further instructions and prepare another set of written submissions. She was able, very competently, to deal with the contentions of the applicant’s counsel as they were developed in the course of oral submissions. I was able to arrive at an ex tempore judgment without adjourning into the afternoon.
I accept that parts of the written submissions which had been filed by the Minister were rendered irrelevant by the applicant’s new grounds of review. However, I am not persuaded that this circumstance, in itself, would require an exceptional award of party/party costs. Taking into account all the circumstances surrounding the late amendment of the grounds of review, I am not persuaded that they justify a substantial departure from the capped costs under the scale.
Nor am I persuaded that the need for the Minister’s representatives to consider a transcript of the interview of the IMR reviewer justifies departure from the scale. This is not an exceptionally long transcript, being only some 44 pages, and had been prepared by a competent person at the expense of the applicant and not the Minister. In my experience, it is common for such transcripts to be in evidence and not to be regarded as justifying departure from the scale.
It was also submitted by the Minister’s solicitor that the original application, the first amended application, and the further amended application raised difficult legal issues requiring longer deliberations by the Minister’s legal representatives than normal. However, I am not persuaded that any of the arguments raised on behalf of the applicant, whether in the first amended application or canvassed today, or cumulatively, contained any novel or new or particularly difficult legal issues in the territory of administrative law referable to refugee matters. Indeed, as my judgment indicates, the arguments before me could be dealt with upon a routine application of well established principles and High Court authorities. The contentions raised by the previous pleading were very well canvassed in previous judgments. I am not persuaded that the nature of the legal issues raised at any time on behalf of the applicant justifies departure from the scale.
Taking into account all the submissions that were made by the Minister’s representative today in support of an exceptional costs order, I am not persuaded that I should award party/party costs except by reference to the scale amount.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 30 May 2012
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