SZRBA v Minister for Immigration
[2013] FCCA 1361
•24 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRBA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1361 |
| Catchwords: ADMINISTRATIVE LAW – Reviewer’s reasons for recommendation repeated passages used in earlier reasons in similar matters – allegation that the Reviewer was biased or that a reasonable observer might have apprehended the possibility that he was. |
| Legislation: Migration Act 1958, ss.36, 46A, 91R, 195A |
| Cases Cited: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQEN v Minister for Immigration & Citizenship (2012) 202 FCR 514 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 Swift v SAS Trustee Corporation [2010] NSWCA 182 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Kioa v West (1985) 159 CLR 550 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 |
| Applicant: | SZRBA |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 55 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 14 June 2012, 22 August 2012 |
| Date of Last Submission: | 25 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S.J. Burchett |
| Solicitors for the Applicant: | Carroll & O’Dea Lawyers |
| Counsel for the First Respondent: | Mr H.P.T. Bevan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 55 of 2012
| SZRBA |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 1 May 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 16 October 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 21 December 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. The applicant then sought an independent merits review (“IMR”) of that decision. The officer’s decision was reviewed by the second respondent (“Reviewer”) who, on 13 May 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island and was thus an “offshore entry person”. As such, he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Migration Act 1958 (“Act”) provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has applied to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation. He also seeks writs of certiorari and mandamus but it can be said at this point that mandamus is not available in proceedings such as these and that consequently there would be no utility in granting certiorari: Plaintiff M61/2010 at 358 [99]-[100].
In order to succeed the applicant must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 12 of those reasons.
At para.8 of his reasons the Reviewer recorded that he had before him:
· Part of the Department of Immigration and Citizenship (DIAC’s) file relating to the claimant including his claims to engage Australia’s protection obligations under the Refugees Convention and the request for review.
· A copy of the interview report conducted on Christmas Island on 19 May 2010 with an officer from DIAC and an interpreter in the Hazaragi language.
· A copy of the an application for refugee status by the claimant dated 16 October 2010 and a Request for Refugee Status Assessment (RSA) and Statement of Claims dated 16 October 2010 and a Statutory Declaration by the claimant dated 16 October 2010.
· A copy of the Refugee Status Assessment Record dated 21 September 2010.
· A submission made by the claimant’s legal adviser and agent dated 24 February 2011 and a number of country information articles and reports submitted under cover of the adviser’s letter dated 25 February 2011.
· Copies of articles and reports downloaded from the internet and on the claimant’s file including a Presentation by Halima Kazem on 8 October 2010 in Sydney and a paper by Professor Maley dated 20 May 2010.
At para.17 of his reasons the Reviewer also recorded that he had received a further written submission from the applicant’s advisers in April 2011, after he had interviewed the applicant.
The Reviewer summarised the applicant’s claims in the following terms:
The claimant, in short, claimed he was fearful of being returned to Afghanistan as he would suffer persecution and/or possible death at the hands of the Taliban/Pashtuns on account of either cumulatively or separately:
· His Hazara ethnicity;
· His Shia religion;
· As a member of a particular social group – children in Afghanistan;
· Being discriminated against so severely by the Afghan government and Afghan society that he will not be able to support himself or his family; that is to say, he and his family’s ability to subsist will be threatened;
· His imputed political opinion in opposition to the Taliban on account of his Hazara ethnicity and his Shia religion;
· His imputed political opinion in favour of the West.
The applicant was interviewed by the Reviewer on 16 April 2011 who recorded him as having made the following claims:
a)he was born in a village in Jaghori in Ghazni province. His family fled to Pakistan when he was two years old because Hazaras were being targeted and killed in Afghanistan. He had not been back to Afghanistan since;
b)he had an aunt and an uncle in Afghanistan but had not had any contact with them. He was not sure if they still lived there;
c)he had lived and grown up in Pakistan. As at the date of the interview, he was seventeen years old. He was turning eighteen at the end of the year (i.e. 2011);
d)after his father’s death in 2007 he became the family’s sole provider. His mother and siblings continued to live in Pakistan;
e)he could not return to his village in Afghanistan because he was unfamiliar with it and would not be able to provide for or look after his family. His home area was also surrounded by Pashtuns. As an outsider and a minor, the Taliban would take advantage of him and “do things” to him;
f)the roads in Afghanistan were dangerous. There was a chance that he would not make it back to his area;
g)it was unsafe for Hazaras in Afghanistan. There was no law or stability there;
h)he and his family had had no direct involvement with the Taliban. However, the Taliban targeted all Hazara Shias;
i)he had heard that people returning to Afghanistan had been killed and abducted. Things happened to Hazara returnees which did not happen to Pashtun returnees;
j)he was a Sayed and would be targeted by the Taliban for this reason too; and
k)he could not relocate to another part of Afghanistan. Nowhere was safe for him.
At the interview the applicant’s advisers submitted that the applicant would be persecuted by the Taliban and/or extremist Sunni groups in Afghanistan because of his Hazara/Sayed ethnicity, his Shia religion, his membership of the particular social groups of Afghani minors and foreigners and his status as a failed asylum seeker returning from the West. The applicant’s advisers also submitted that Hazaras faced obstacles and discrimination from the Sunni Muslim majority. It was submitted that without contacts and family support in Afghanistan, the applicant would face difficulties including difficulties in relation to housing and employment.
As already noted, the applicant’s advisers provided further submissions after the interview.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)on the basis of material he described as current and authoritative, the Reviewer did not accept that the Taliban specifically targeted Hazaras or Shias differentially from the population at large or that Hazaras faced a real chance of harm amounting to persecution at the hands of non-state actors (i.e. Pashtuns in general and the Taliban in particular) simply by reason of their ethnicity and/or religion. In reaching this conclusion, the Reviewer noted the following matters:
i)he was not satisfied that the material consulted provided independent corroboration of claims that the Taliban specifically targeted Hazara Shias on a general and indiscriminate basis, notwithstanding that individual Hazaras might have been targeted individually for other reasons or as part of the general insurgency;
ii)there was no evidence before the Reviewer to support the assertion that social discrimination, as referred to in a US State Department Report, was so severe that it amounted to persecution. Rather, the material cited by the Reviewer concerning the general situation of Hazaras post-2001 indicated a significant lessening of such discrimination; and
iii)the Reviewer attached particular weight to a report by the Department of Foreign Affairs and Trade (“DFAT”) which, by reference to other sources, reported that there was no evidence of a campaign by the insurgency to target Harazas nor were there reports of Hazaras being specifically targeted or discriminated against in the then-current environment;
b)for these reasons also, the Reviewer was not satisfied that the applicant would be persecuted in Afghanistan on the basis that he was a Sayed;
c)given that the applicant had not lived in Afghanistan for many years and had not, whilst there, had any personal involvement or incidents with the Taliban, the Reviewer did not accept that the Taliban would be interested in him or that he would suffer Convention-related persecution were he to return;
d)the Reviewer accepted that the applicant was seventeen years old at the time of their interview and that children in Afghanistan, especially vulnerable children, constituted a “particular social class”. However, the Reviewer noted that the applicant would (if he had not already) be turning eighteen in 2011, was not easily recognized by his appearance to be a minor and did not present as a child with a particular or specific profile. Although the applicant submitted that having been raised outside Afghanistan he would, by his accent and mannerisms, be easily identified as a foreigner and possibly be exploited, the Reviewer did not accept, given the applicant’s circumstances, that there was a real chance that this would occur for a Convention reason;
e)the Reviewer noted that a lack of familial support in Afghanistan did not lead to a finding that the applicant would be persecuted. The Reviewer found that any difficulties or discrimination the applicant might suffer or encounter in terms of lack of employment, housing or opportunity would not be persecution but would perhaps be because of a lack of services in Afghanistan;
f)the Reviewer accepted that the applicant might be affected by the armed insurgency in Afghanistan in terms of general insecurity and hardships, but found that this did not amount to a well-founded fear of persecution for a Convention reason;
g)the Reviewer found that there was no credible evidence supporting the assertion that persons returning to Afghanistan from the West, whether or not as failed asylum seekers, were for that reason alone targeted and persecuted by the Taliban or others. The Reviewer did not accept in any event that the applicant would be readily identified as a person returning from a Western country given his long residence in Pakistan, the porous borders and what appeared to be a mobile Afghani workforce travelling to and from neighbouring and other countries; and
h)overall, based on the information before the Reviewer, including the available evidence about the applicant’s and his family’s experiences, the applicant’s age and situation, as well as the fact that it was the applicant’s family’s decision both to leave Afghanistan and to send him to Australia to seek protection, the Reviewer was not satisfied that the applicant would suffer persecution and/or possible death at the hands of the Taliban/Pashtuns or Sunni extremists were he to return to Afghanistan.
Proceedings in this Court
Ground 1
In ground one of his second further amended application the applicant alleged:
1.The Reviewer failed to apply the correct test in law of a well-founded fear or persecution, in that:
(a)He did not conclude a real chance of persecution for a convention reason arose from his finding of fact of an exacerbation of the chance and extent of harm from the Taliban by reason of the applicant’s Hazara ethnicity and Shia religion, including imputed political opinion, if he came to their adverse attention for any reason.
(b)He applied a test which required, that the specific targeting of Hazaras by the Taliban be general and indiscriminate, when the targeting of individuals within that group as a result of a predisposition to perceive them as potential political opponents is sufficient; particular in this case, where members of the applicant’s family had already been so targeted.
(c)He accepted the applicant faced a real chance of social or economic discrimination, but improperly required such discrimination to be both “severe” and “general”; which requirements in any event could only have been satisfied by his found inability to obtain employment, housing or secure opportunities for advancement.
(d) He wrongly found the facts, that:
i) the applicant himself did not make the decision to leave Afghanistan as a 2 year old, but that decision was made for him by his parents, and
ii) the applicant himself did not make the decision to leave Pakistan as a 16 year old, but that decision was made for him by his parents,
prevented the applicant having a subjectively well-founded fear of persecution.
(e)He failed to ask himself the material question, whether it was reasonably practicable in the circumstances for the applicant to relocate to Ghazni.
This ground alleged that the Reviewer misapplied the Convention test:
a)by failing to conclude that certain accepted evidence proved that the applicant had a well-founded fear of persecution for a Convention reason in Afghanistan;
b)by applying a test which required that the targeting of Hazaras by the Taliban be general and indiscriminate;
c)by requiring the economic or social discrimination faced by the applicant be severe and general;
d)by concluding that the applicant did not have a well-founded fear of persecution in Afghanistan because his moves from Afghanistan to Pakistan and from Pakistan to Australia had been decided on by his parents rather than by him; and
e)by failing to ask whether it was reasonably practicable for the applicant to relocate to Ghazni.
Particular (a)
In para.52 of his reasons the Reviewer said:
In particular, taking into account the established historical background and the undoubted animosity of many Pashtuns towards Shias for ethnic and religious reasons, the Reviewer is satisfied that when Hazaras come to the adverse attention of the Taliban for some other reason (for example, and most commonly, imputed political opinion of support for the government or foreign forces and/or antipathy towards the Taliban) the chance and extent of harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion. Furthermore, given the past history of Pashtun/Hazara relations in general, and Taliban/Hazara relations in particular, the Reviewer is satisfied that the Taliban have a predisposition to perceive Hazaras as potential political opponents. Factors in a particular area may also be of significance. ·
The applicant submitted that:
The Reviewer’s generic finding at (52), that Hazaras face an exacerbation of the chance and extent of harm … from the Taliban by reason of their ethnicity and Shia religion … is a finding of relevant persecution …
and that the Reviewer failed to act on that finding.
The applicant submitted that in the circumstances as found by the Reviewer, namely that there was “undoubted animosity […] for ethnic and religious reasons” and a “predisposition to perceive Hazaras as potential political opponents”, there was obviously a real risk of the applicant coming to the attention of the Taliban were he to return by Taliban-controlled roads to Ghazni (his place of birth). In addresses the applicant submitted that those findings were sufficient to warrant a further finding that he had a well-founded fear of persecution. He also submitted that the Reviewer’s finding at para.57 of his reasons, that the Taliban did not specifically target Hazara or Shias “differently from the population at large”, was inconsistent with his finding at para.52 and that this allegedly inconsistent reasoning disclosed “a failure to apply the correct test of persecution, which was satisfied by the finding of fact made”.
Those submissions ignore what the Reviewer said at para.53 of his reasons:
The Reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a general and indiscriminate basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and its attacks on communications and facilities.
That statement was clearly intended to qualify what the Reviewer had said in para.52.
In those circumstances, the Reviewer did not err in concluding that “a person’s identity as a Hazara Shia of itself [did not cause] him or her to fall within the Refugee Convention definition”.
Particular (b)
The applicant submitted that the Reviewer’s finding at para.52 of his reasons that some Hazara Shias had been targeted as a result of a “predisposition to perceive Hazaras as potential political opponents” was inconsistent with his finding at para.53 that he was not satisfied that:
... the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a general and indiscriminate basis…
The applicant submitted that the first finding was sufficient to show a real chance of persecution, particularly where, he said, the Taliban had already targeted his family for Convention reasons and where being a minor and Sayed provided additional reasons why he would come to the Taliban’s attention.
However, the Reviewer’s reference in para.53 of his reasons to the lack of evidentiary support for claims that the Taliban targeted Hazara Shias “on a general and indiscriminate basis” should be understood to be a reference to persecution of individuals because they possessed those characteristics. So much is made clear by the next part of the paragraph which distinguishes such conduct from the targeting of individuals “individually or for other reasons”.
The applicant’s statement in this particular, that the targeting of individuals for political reasons would be sufficient to satisfy the Convention test, was correct, at least as far as such individuals would be concerned. However, although the Reviewer did say in para.52 of his reasons that the Taliban had a predisposition to perceive Hazaras as potential political opponents, he did not go further and find that persecution of Hazaras occurred for that reason or, to adopt the wording of the particular, that there had been “targeting of individuals” for that reason. There having been no factual finding to that effect, there is no basis for this particular of the allegation.
Particular (c)
In para.54 of his reasons the Reviewer said:
Nor was there evidence before the Reviewer to support the assertion that the “social discrimination” referred to in the US State Department Report is so severe as to amount to persecution; indeed, other material cited discussing the general post-2001 situation of Hazaras indicates a significant lessening of such discrimination (see for example The Christian Science Monitor, “Afghanistan’s success story: The liberated Hazara minority”, 6 August, 2007, … The Reviewer therefore does not accept that Hazaras faces a real chance of general social discrimination amounting to persecution.
The applicant submitted that there was no requirement that social discrimination suffered by Hazaras had to be “severe” and “general” before it would amount to persecution. He submitted that the relevant test was to be found in s.91R of the Act and required “serious harm to the person”.
Section 91R of the Act relevantly provides:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The Reviewer’s reference to social discrimination being “severe” and “general” was a shorthand reference to the criteria set out in s.91R(2) and, specifically, to s.91R(2)(a)-(d) and s.91R(2)(e) and (f) respectively. In those circumstances, the Reviewer’s statement was not erroneous.
The applicant also submitted that the Reviewer had elided social discrimination with economic discrimination with the consequence that he failed to deal with questions of social discrimination which the applicant had raised in his submissions. That submission was incorrect as the Reviewer dealt with the question of social discrimination in para.54 of his reasons, quoted earlier, and with economic discrimination at para.80 of his reasons where he said:
It was submitted that the claimant who had lived most of his life in Pakistan with a “Quetta accent” would be at risk in Afghanistan and face discrimination so severe that he will be unable to subsist. The Reviewer notes that the claimant left Afghanistan many years ago aged 2 and a claimed lack of familial support in his country or area of origin does not lead to a finding that he would be persecuted let alone for a Convention reason. I accept that he would possibly be returning to Ghazni where he indicated he had no other immediate family or relatives except possibly for 2 aunts and an uncle (with whom he claims there has been no contact) and where he lived before going to Pakistan at the age of 2. I find that any difficulties or discrimination he might suffer or encounter for lack of employment, housing or opportunity and the like is not persecution or that if he were refused employment or housing in Afghanistan it would be perhaps for lack of services and the like and not for a Convention reason.
Particular (d)
In para.81 of his reasons the Reviewer said:
Overall, based on the information available to me, including the available evidence about his and his family’s experiences and the fact that it was his family’s decision to leave Afghanistan and later that he should leave Pakistan to seek protection in Australia, I am not satisfied that the claimant has a well founded fear of persecution or that he would suffer persecution and/or possible death from the Taliban and/or Pashtun and Sunni extremists should he return to Afghanistan now or in the reasonably foreseeable future. Indeed, given the circumstances of this case, the claimant may be affected in part by the incidents of an armed insurgency in terms of general insecurity and hardships, but this does not amount separately or cumulatively to a well founded fear of persecution for a Convention reason.
The applicant submitted that the Reviewer was stating in this passage that because it had been one or both of his parents who had decided that he should leave Afghanistan and Pakistan, he could not form his own subjective fear of persecution in Afghanistan were he to return there.
The submission misreads the Reviewer’s finding. He was not referring to the applicant’s claimed subjective fear but was saying that any fear the applicant did have was not objectively well-founded.
Particular (e)
The applicant submitted that the Reviewer had failed to ask whether it was reasonable in the circumstances to expect him to relocate to Ghazni. He referred to the Reviewer’ statement at para.80 of his reasons:
I accept that he would possibly be returning to Ghazni where he indicated he had no other immediate family or relatives except possibly for 2 aunts and an uncle (with whom he claims there has been no contact) and where he lived before going to Pakistan at the age of 2.
The applicant submitted that there was “no basis in fact or law for the Reviewer to judge the claim to asylum solely by reference to Ghazni”. However, the Reviewer did not do that. He did not suggest that the applicant could avoid persecution in Afghanistan by living in Ghazni. He tested the applicant’s fear of persecution in Afghanistan by reference to the whole country and not by reference to any particular part of it. Specifically, the Reviewer did not find that the applicant could live without fear of persecution in Ghazni or even discuss, other than in the above passage, that Ghazni might be a place where the applicant might live. However, even if he had, a return by the applicant to his home area would not be a relocation in the relevant sense: SZQEN v Minister for Immigration & Citizenship (2012) 202 FCR 514.
Ground 2
Ground two of the second further amended application alleged:
2.The Reviewer applied an impermissible onus upon the applicant:
(a)To provide ‘independent corroboration’ of his claims, that the Taliban targets Hazara Shias on a general or indiscriminate basis.
(b)To prove a well-founded fear of persecution for a convention reason at a particular place in Afghanistan; namely Ghazni, to which the Reviewer speculated he could relocate without considering the reasonable practicability of his doing so.
(c)To disprove, that the social or economic discrimination he was likely to suffer upon return to Afghanistan could ‘perhaps’ be related to a lack of services, rather than for a convention reason, when a real chance, that it was for a convention reason was sufficient.
(d)To prove, that he would be persecuted for a convention reason, if ‘returned’ to Afghanistan, when a real chance was sufficient in law.
It was submitted in relation to this ground that, whereas the Reviewer only had to be satisfied that the applicant faced a real chance of persecution, the Reviewer had required him to prove the risk of persecution to a more exacting standard. In this regard, the applicant referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 where it was said that a real, substantial basis for a fear may exist even though there is much less than a fifty per cent chance that the object of the fear will occur.
Particular (a)
As noted earlier, the Reviewer said at para.53 of his reasons:
The Reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a general and indiscriminate basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and its attacks on communications and facilities.
The applicant alleged that the Reviewer had required him to provide corroboration of his claim that the Taliban targeted Hazara Shias on a general and indiscriminate basis although, unless his own evidence was found to be unreliable, he did not need, and was not obliged, to supply corroborative evidence. Contrary to the applicant’s allegation, the Reviewer did not require him to provide corroborative evidence. The Reviewer simply observed that there was none.
The applicant also submitted that persecution did not require “targeting” but involved “serious harm” as defined by s.91R of the Act. While that is so, the Reviewer did not confuse those concepts. The Reviewer’s use of the word “target” refers to the Taliban identifying people as objects of mistreatment. The Reviewer should be understood to have been remarking on the absence of evidence that Shia Hazaras were identified by the Taliban for mistreatment solely because of their ethnic and religious characteristics although persons with those characteristics might be identified for mistreatment for other reasons or could be caught up in violence of a more general nature which was not directed specifically at them. The Reviewer was referring to the likelihood of mistreatment, not to whether it would be so severe that it would amount to persecution.
The applicant also referred to the final sentence of para.84 of the reasons for recommendation where the Reviewer said:
As well, the Reviewer notes that reference is made to returnees from Western European and other countries being targeted and individuals in Kabul being beaten up and valuables stolen and others being killed during suicide attacks but it is not clear that those incidents occurred as part of generalized violence by criminals or insurgents or that they were targeted for a Convention reason.
The applicant submitted that that passage showed
… that the Reviewer has again imposed an onus on the applicant to make it ‘clear’, that the targeting was ‘for a Convention reason’, rather than merely being satisfied of a ‘real chance’ it was, as he ought to have been.
That submission mischaracterises what the Reviewer was saying. Far from imposing a particular standard of proof on the applicant, the Reviewer was simply stating that the evidence did not permit a conclusion on what motivated the attacks in question.
Particular (b)
The applicant submitted that the Reviewer had selected Ghazni as a place to which he might return and that it was not proper to impose an onus on him to “prove a well-founded fear of persecution at Ghazni, rather than in Afghanistan generally”. As noted earlier in the context of the first ground of the application, the Reviewer did not consider the applicant’s claims by reference to Ghazni in particular but by reference to Afghanistan as a whole. However, even if he had, as Ghazni was the applicant’s home area and the one to which he might be expected to return, it would not have been inappropriate of the Reviewer to have first considered whether the applicant had a well-founded fear of persecution for a Convention reason there.
Particular (c)
As noted earlier, at para.80 of his reasons the Reviewer said that any difficulties or discrimination which the applicant might encounter because of a lack of employment, housing or opportunity and the like would not be
… persecution or that if he were refused employment or housing in Afghanistan it would be perhaps for lack of services and the like and not for a Convention reason.
The applicant submitted in relation to this passage that the Reviewer had been required to make a decision rather than speculate on alternatives which might or might not create Convention obligations. He went on to say:
A chance of an ulterior cause does not negate the real chance, that the applicant’s suffering would be for a convention cause. It appears the Reviewer misunderstood, that the applicant has to show the only possible reason for his persecution is a convention reason, rather than a ‘real chance’, that it would be ‘the essential and significant reason’.
The submission mischaracterises the Reviewer’s finding which was that any difficulties which the applicant might face in the areas of employment, housing or opportunity would not be so severe as to amount to persecution. The fact that the Reviewer then went on to speculate about the possible cause or causes of such difficulties, to the effect that whatever they might be they were not Convention-related, is therefore of no material significance.
Particular (d)
The applicant made no specific submissions in relation to this particular although his general submissions in relation to the fourth ground of the second further amended application appeared to be directed to it. Assuming that to be so, the applicant did not identify in what way the Reviewer relevantly required him to show anything other than that his claimed fear was well-founded, which is the relevant test and which the Reviewer quoted in the fourth paragraph of his reasons.
Ground 3
Ground three of the second further amended application alleged:
3.The Reviewer failed to take into account or give adequate weight to relevant considerations, being:
(a)His finding of undoubted persecution by the Taliban of the Hazaras generally in the period prior to 2001 and in particular of the applicant’s family, which drove them and him from Afghanistan, including the deaths of the applicant’s uncle and grandfather by his now potential persecutors in Afghanistan;
(b)The death of the applicant’s father in Pakistan in 2007 and attacks against and threats to him and his mother in Pakistan by the same group of potential persecutors in Afghanistan, prompting his own flight to Australia;
(c)His finding, that most Hazara do fear the Taliban as a result of their persecution at least during the period prior to 2001;
(d)His finding, that the government of Afghanistan has little real control over large areas of the country;
(e)The reasonable impracticability of the applicant relocating to Ghazni:
i) through Pashtun or Taliban controlled areas of Afghanistan;
ii) as an unattached minor with no known relatives, contacts or property in the area;
iii) having no experience since the age of 2 yrs nor practical knowledge of the area or its inhabitants or how to support himself there;
iv) having a Quetta accent and mannerisms identifying him as a foreigner and as such risking a lack of acceptance by other Hazaras and drawing adverse attention from Pashtuns and/or Taliban.
(f)His identification as a Sayed being likely to draw adverse attention of the Pashtuns or Taliban to him from among the Hazaras.
The applicant submitted that a number of considerations, which he described as “obviously relevant”, had been urged on the Reviewer but did not “feature in the decision-making process” although they were noted as findings of fact. He submitted that they were not taken into account sufficiently or at all.
Before consideration turns to the various particulars of this allegation reference needs to be made to that part of the allegation where it is said that the Reviewer failed “to give adequate weight” to relevant considerations. That is not a cognisable ground of review. The question is whether the Reviewer, in substance rather than in form, considered the claims made by the applicant, not whether a mandatory consideration was more or less significant in the Reviewer’s reasoning process. Further, the reference to “weight” appears to direct attention to the Reviewer’s findings of fact and to that extent invites impermissible merits review.
In his written submissions, the applicant said
… a failure to give adequate weight to relevant considerations shows unreasonableness in the decision-making, which if it is so unreasonable, that no reasonable decision maker could so act, amounts to an error going to jurisdiction.
Despite its reference to relevant considerations, this appears to be a reference to Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and to the possibility that the Reviewer’s ultimate conclusion on the review was so unreasonable that no reasonable reviewer could have reached it. Although a different reviewer might have reached a conclusion on the review different from the Reviewer’s, I am not persuaded that the Reviewer’s conclusion satisfied the Wednesbury test.
Particulars (a,) (b), and (c)
The applicant submitted that although the Reviewer noted:
a)the Taliban persecution of Hazaras generally in the period prior to 2001;
b)the Taliban’s persecution of the applicant’s family which drove them and him from Afghanistan
c)the death of the applicant’s father in Pakistan in 2007;
d)the attacks against and threats to the applicant and his mother in Pakistan “by the same group of potential persecutors”; and
e)that most Hazaras fear the Taliban as a result of their persecution at least in the period before 2001,
he went on to conclude that those factors:
… [had] no role to play in his determination on the basis, that the applicant himself had not had any ‘personal involvement or incidents with the Taliban when he and his family left for Pakistan all those years ago’ and it was not his own decision to leave Afghanistan and then Pakistan (81).
The applicant submitted that the two bases for the Tribunal’s conclusions were
… simply not ‘reasons’ to disregard the evidence of past incidents suggestive of a continuing risk of such serious harm to the applicant for convention reasons from the Taliban, whether they be in Pakistan or Afghanistan.
The issue which the Reviewer had to consider was whether the applicant had a well-founded fear of persecution for a Convention reason. The applicant’s claim to fear persecution in Afghanistan had six bases: his race, his religion, his membership of the particular social group of Sayed, his minority, his foreignness and his membership of the particular social group of failed asylum seekers from the West. The matters to which the applicant has referred in particulars (a), (b) and (c) of this allegation formed part of the evidentiary basis on which the applicant relied in seeking to demonstrate that he had a well-founded fear that he would be persecuted in Afghanistan for one or all of the six reasons he advanced; they were not considerations which the Reviewer was bound to take into account in order to reach a lawful conclusion: see Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 39 per Mason J.
Particular (d)
At para.18 of his reasons the Reviewer said:
It appears from the independent country information that the government of Hamid Kharzai in Afghanistan has little real control over large areas of the country and that violent incidents continue to occur.
The applicant submitted that:
This generic, template finding does not feature in the Reviewer’s consideration of the particular claims. It is obviously relevant to any finding of security based on the applicant reaching a particular area, Ghazni; especially when the Reviewer has found, that the potential persecutors are active in at least some parts of that area (34) and control the only practical route to it (36) & (47).
This submission ignores the bases of the Reviewer’s conclusion which were:
a)the Reviewer did not accept that the Taliban specifically targeted Hazaras or Shias differently from the population at large;
b)the Reviewer was not satisfied that Hazaras faced a real chance of harm amounting to persecution by non-state actors simply by reason of their ethnicity and/or religion;
c)the Taliban were not interested in the applicant given the period of time he had lived outside Afghanistan;
d)the applicant would shortly be an adult, if he was not already, and in any event did not look like a minor;
e)the applicant would not be identified as a “foreigner”;
f)any difficulties or discrimination which the applicant might suffer for lack of employment, housing or opportunity would not be so severe as to amount to persecution and in any event would not be for a Convention reason;
g)the Reviewer was not satisfied that the applicant would be persecuted because of his identity as a Sayed for the same reasons that he would not be persecuted as a Hazara Shia;
h)the Reviewer did not accept that the applicant faced persecution as a failed asylum seeker returning from a Western country; and
i)the Reviewer did not accept that the applicant would be readily identified as a person returning from a Western country or as a convert to Christianity.
None of those reasons turned on the availability of state protection. Consequently, the Reviewer did not need to consider it. In any event, what the applicant characterises as a template “finding” was nothing of the sort. It was merely a summary of independent country information on the question of the effectiveness of the Afghan central government.
Particular (e)
As noted earlier, the Reviewer’s decision did not assume or expect that the applicant would return to Ghazni. In any event, the alleged “reasonable impracticability” of a journey through Afghanistan to Ghazni depended on the applicant having a well-founded fear of persecution for a Convention reason in those parts of Afghanistan through which he would have to travel. The Reviewer did not accept that any such fear was well-founded and so any failure by him to consider this question would not have led to a different recommendation to the Minister.
Particular (f)
The applicant submitted that the Reviewer had not dealt with his claim to fear persecution because he was a Sayed. As the summary of the Reviewer’s findings set out earlier in relation to particular (d) of this allegation shows, that is not correct. The applicant’s submissions also appeared to argue that the Reviewer had not dealt with this claim in sufficient depth, but, even if that were so that would not demonstrate that the issue had not been considered, which is the relevant question.
Ground 4
Ground four of the second further amended application alleged:
4.The Reviewer failed to consider all the submissions and material tendered on the behalf of the Applicant; in particular his submission of 28 April 2011 and the material there referred to.
The applicant submitted that apart from acknowledging that he had received a post-interview submission from the applicant, the Reviewer did not further refer to it or to the material which it cited. For that reason, he submitted, it was not possible to know how or if those matters had been considered by the Reviewer. The applicant submitted that, given that the Minister’s Guidelines for the Independent Review of Refugee Status Assessments (“IMR Guidelines”) required reviewers to refer in their reasons for recommendation to the information on which their findings were based, it could be inferred from the Reviewer’s failure to refer to the submission or to the information it cited that he had not taken them into account.
The fact that the Reviewer summarised the content of the submission at para.17 of his reasons demonstrates that, at least when referring to the information before him, he was aware of it. More importantly, however, at paras.78, 80, 83 and 84 of his reasons the Reviewer did address the issues it raised. The submission directed itself to the following questions:
a)“Are returnees to Afghanistan persecuted?”
b)“Are Sayed Hazaras uniquely victimised?”
c)“Are Afghans who have lived most of their lives in Pakistan at risk in Afghanistan? In particular, will they face discrimination so severe that they will be unable to subsist?”
d)“Are young people at particular risk in Afghanistan?”
In relation to the first of those questions, the applicant’s advisers submitted:
It is our submission that failed asylum seekers face heightened risks upon their return to Afghanistan. Due to their time spent in Australia, they may be regarded as ‘Westernised’, or as spies for ISAF nations; their attempt to seek permanent residence in a nation, viewed as an ‘infidel’ or ‘Christian’ nation by the Taliban, may lead Pashtun extremists to view returning Hazaras as ‘converts’. The truth, or otherwise, of these perceptions is irrelevant; in the circumstances, what is significant is how ‘Westernised’ or ‘Christianised’ Hazaras may be viewed in light of their extended stay in Australia.
That submission was expressly referred to by the Reviewer at para.84 of his reasons.
In relation to the second of the questions, the post-interview submission to the Reviewer referred to the leadership position enjoyed by Sayeds and submitted that they were “targeted by the Taliban due to their venerated place in the Shi’a faith”. The applicant submitted in addresses that the evidence concerning the Sayed, which had been addressed in some detail in his post-interview submission, was given a “vanilla” treatment by the Reviewer. Although the Reviewer’s exposition on the Sayed does not appear to draw from the information contained in the applicant’s submission, it nevertheless discussed their status and role in Hazara society and cited a DFAT report which said that they did not face persecution in Afghanistan for being Sayed. The Reviewer thereby addressed the matter raised by the submission on this issue, even if not in a way which satisfied the applicant.
The applicant submitted that the “vanilla” treatment of his submission on the potential consequences of being a Sayed was followed by a “rather odd” discussion of the issue in para.83 of the reasons. There the Reviewer said:
It was submitted that the claimant might be at a heightened risk given his identity as a Sayed who have a venerated place in the Shia faith. However, the Reviewer is not satisfied that he would be persecuted on account of his being identified as a Sayed for the same reasons that he would not be persecuted as a Hazara as already indicated above.
In substance, the Reviewer concluded that as Hazara Shias did not have a well-founded fear of persecution in Afghanistan the Sayed, as a sub-set of that community, did not either. Given that that finding rested on that foundation, there was no need for the Reviewer to refer in his reasoning to, or to express a view on, the information which the applicant had submitted on this subject. Consequently, the fact that he did not do so does not lead to an inference that the information in question was not considered.
In relation to the third of the four questions, the post-interview submission to the Reviewer said:
There is substantial independent evidence to indicate that Hazaras who have spent most of their lives in Pakistan – in particular, in Quetta, identified with a distinctive ‘Quetta accent’ amongst returnees – may face discrimination and an inability to reintegrate upon their return to Afghanistan. Due to their perceived identity as ‘foreigners’, they will be ostracised and isolated from the Hazara community, upon whom they will depend in order to find employment; they may also face extensive discrimination from the Afghan community as a whole, compounding the discrimination that they are already likely to face due to their Shi’a faith and Hazara ethnicity. Our client, who left Afghanistan when he was 2 years old, will face particular risks in this respect.
…
Our client’s knowledge of Afghanistan is so limited that he is not even aware if his aunt or maternal uncle are still present in Afghanistan …
…
In light of the above, we submit that the discrimination likely to be encountered by our client due to his Hazara ethnicity and Shi’a faith will be so exacerbated by his long-term absence from Afghanistan as to render him unable to subsist, amounting to ‘serious harm’ for the purposes of the Migration Act.
In para.80 of his reasons, the Reviewer said:
It was submitted that the claimant who had lived most of his life in Pakistan with a “Quetta accent” would be at risk in Afghanistan and face discrimination so severe that he will be unable to subsist. The Reviewer notes that the claimant left Afghanistan many years ago aged 2 and a claimed lack of familial support in his country or area of origin does not lead to a finding that he would be persecuted let alone for a Convention reason. I accept that he would possibly be returning to Ghazni where he indicated he had no other immediate family or relatives except possibly for 2 aunts and an uncle (with whom he claims there has been no contact) and where he lived before going to Pakistan at the age of 2. I find that any difficulties or discrimination he might suffer or encounter for lack of employment, housing or opportunity and the like is not persecution or that if he were refused employment or housing in Afghanistan it would be perhaps for lack of services and the like and not for a Convention reason.
That passage leaves no doubt that the Reviewer considered the applicant’s post-interview submission.
In relation to the last of the four questions, review of the Reviewer’s reasons indicates that at para.78, although he acknowledged the vulnerability of children in Afghanistan to trafficking and abuse, he also concluded that the issue was not relevant to the applicant because he was, in effect, an adult. In the circumstances, the Reviewer was not required to say any more about the submission’s fourth topic than he did and the fact that he did not do so does not suggest that it was not considered.
In addresses the applicant suggested that the fact that the Reviewer had referred to the June 2010 edition of a US State Department report rather than to the April 2011 edition of that report, which had been cited in his submission, indicated that his submission had not been considered. However, the information relevant to the issue in question was plainly to the same effect in both editions of the report, and also supportive of the applicant’s submission so, even if the Reviewer did overlook the more recent edition in favour of the earlier one, it was an error of no practical significance.
The applicant’s related submission that the UNHCR’s Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Afghanistan (“UNHCR Guidelines”) were not specifically referred to in the context of the claim he made concerning the risks he faced as a young person, as they had been in his post-interview submission, fails to take account of the Reviewer’s reasoning on the issue. That was that if the applicant was not already, at the time of the recommendation, an adult he nevertheless looked like one and did not present as a child with a particular or specific profile. As the UNHCR Guidelines played no part in the relevant finding, and thus were not required by the Minister’s IMR Guidelines to be referred to in the Reviewer’s reasons, I do not infer from the fact that the Reviewer did not cite them in the context of this particular issue that they had been overlooked.
More generally, in addresses the applicant submitted that in citing country information in his possession the Reviewer had repeated a number of paragraphs which had also appeared in earlier reviews conducted by him, such that certain of the paragraphs in the reasons for recommendation concerning his case could be characterised as “template” reasons. Relevantly for the present ground, the applicant submitted that his post-interview submission to the Reviewer and the information to which he had referred in that submission had had no effect on the Reviewer’s repetition of template paragraphs which also dealt with those issues. However, the fact that the Reviewer did not see fit to modify portions of his template paragraphs would only point to a failure to consider the substance of the submission if the matters it raised were not addressed by the information referred to in the Reviewer’s reasons, which is not the case in relation to the matters the applicant has raised in this ground of the application. It may therefore be inferred that the Reviewer simply preferred the information on which his template reasons were based to the information cited by the applicant in his submission.
Ground 5
Ground five of the second further amended application alleged:
5.The Reviewer failed to bring an unprejudiced mind to bear upon his decision in relation to the issues dealt with in the ‘Country Information’ and/or gave rise to a reasonable apprehension of prejudgment bias upon those issues by merely repeating, without disclosing the fact he was doing so, his discussion and conclusions upon that material from decisions by him 2 months earlier on 28 and 29 March 2011 concerning approximately 10 unrelated applicants, the subject of SZQEK v The Minister for Immigration [2011] FMCA 628, SZQEL No.2 [2011] FMCA 582 and The Minister v SZQHH [2012] FCAFC 45.
That allegation was particularised in the following terms:
a)The discussion and conclusions upon the issues dealt with in ‘Country Information’ in the decision from para. 18 to 59 inclusive, especially as to the risk of harm generally in Afghanistan to Shia, Hazaras, Sayeds and ‘returning refugees’ in Afghanistan and particularly Ghazni, including the list of documents consulted by the Reviewer, upon which they were said to be based, substantially reproduced the Reviewer's such discussion, conclusions and list of consulted documents from approximately 60 prior decisions by the Reviewer in the period 31 August 2010 to 13 May 2011, wherever those issues arose.
b)In all those decisions the Reviewer stated his conclusions upon those issues in effectively identical terms ‘notwithstanding the claimant’s general assertions to the contrary’ (57) without identification of any particular claimant’s such assertions or disclosure of any fresh consideration of the evidence, upon which those conclusions were based, or why he maintained those conclusions in light of any particular claimant's evidence and assertions of the risk of harm generally in Afghanistan to Shia, Hazaras, Sayeds or ‘returning refugees’ in Afghanistan or Ghazni.
c)All consideration by the Reviewer of any evidence or submissions tendered on the behalf of the applicant relevant to the issues of the risk of harm generally in Afghanistan to Shia, Hazaras, Sayeds and ‘returning refugees’ in Afghanistan, particularly Ghazni, was confined by the Reviewer to that part of his decision said to deal with the applicant’s individual circumstances and experiences in light of his conclusions as to the general risk of harm (from para.59 onwards).
d)Substantial parts of the decision ostensibly dealing with the applicant’s individual circumstances were also reproduced from the Reviewe’'s previous decisions, such that effectively the only original discussion of his own application was confined to paragraphs 8-17, 60-66, 78, 80, 81, 83, 84 and 85; 21 of the 88 paragraphs of the decision.
e)The Reviewer thus exhibited a closed mind upon the issues of the risk of harm generally in Afghanistan to Shia, Hazaras, Sayeds and ‘returning refugees’ in Afghanistan, particularly Ghazni, and a lack of preparedness to consider those issues afresh in light of the information and evidence provided by the applicant.
3.As further particulars of ground 5 the Applicant relies on the context, in which the Reviewer acted in this case as pleaded in that ground, being the conduct, which is the subject of grounds 2, 3, 4, 6 and 7. That conduct was, as relied upon for those grounds:
Ground 2.
a)The assertion in template para.53, that the Reviewer was not satisfied that ‘the material consulted’ (referring to the material listed as having been consulted independently of the applicant in previous decisions) provided ‘independent corroboration’ of ‘claims’ (undisclosed by whom), that the Taliban targets Hazara Shias on a general or indiscriminate basis. The Reviewer thus indicated the imposition of an onus on the applicant to overcome his prior views, upon which he was not prepared to consider new material.
b)The only consideration of a particular place in Afghanistan, where the applicant might live was in relation to Ghazni, in respect of which the Reviewer merely applied his template, without considering the reasonable practicability of the applicant relocating there or anywhere else in Afghanistan. He thus indicated a lack of preparedness to consider the real issues raised by the applicant himself inconsistent with the template.
c)The statement in para.80, that the social or economic discrimination the applicant was likely to suffer upon return to Afghanistan would ‘perhaps’ be related to a lack of services, rather than for a convention reason, showed a disposition against reconsideration of the Reviewer’s template conclusions, at least unless there was shown to be no chance at all, that such discrimination was not for a convention reason.
d)The statement in para.84, that there was no ‘credible evidence before the Reviewer to satisfy him’ of persecution of returnees to Afghanistan, without disclosing any consideration of the evidence or submissions of the applicant upon the point, shows a closed mind upon the issues determined in his template paragraphs 44-50.
Ground 3.
The Reviewer’s failure to give in his decision any or any adequate consideration of the particular facts or findings of the applicant’s case relevant to the issues of general and individual risk of harm for convention reasons, supports the inference, that his mind was closed to the issues raised by the applicant:
[Here the applicant repeated the particulars of the third ground of the application]
Ground 4.
The failure of the Reviewer to disclose in writing his consideration of the submissions and material tendered on the behalf of the Applicant; in particular the Applicant’s submission of 28 April 2011 and the material there referred to; while merely reproducing his template paragraphs on their subject-matter, supports the appearance and inference, that his mind was closed to the issues raised (irrespective of whether the submissions in fact were required to be, but were not considered, as alleged).
Ground 6.
It also supports the appearance and inference of pre-judgment bias, that the Reviewer failed to act as alleged to result in an absence of a ‘proper, genuine and realistic consideration’ to the merits of the case presented by the applicant of relevant risk of harm generally in Afghanistan, particularly in Ghazni, to Shia Hazaras, Sayeds, failed asylum-seekers and minors. He merely restated his template paragraphs on those issues, apart from the issue of the applicant’s minority, upon which at para. 78 he failed to engage with the claims of the applicant upon the previously undisclosed basis, that he was nearly 18 and did not ‘present as a child’. In general, as particularised under this ground:
[Here the applicant repeated the particulars of the sixth ground of the application]
Ground 7.
Whether or not it amounted to a failure to accord procedural fairness to the applicant, the failure of the Reviewer to disclose his established views on the risk of harm generally in Afghanistan and the evidence, upon which those views were based, to enable him to comment upon those views and that evidence, supports the appearance or inference of fact, that he was not prepared to reconsider those views or that evidence. At para.19 the Reviewer reproduced his non-exhaustive list of 58 documents said to have been consulted by him, of which all, but 7 appeared in his template decisions going back to 31 August 2010. The 6 documents at the end of the list were first added to the template in decisions made on 11 January 2011 and the last to be added was inserted as the second document in the list in decisions on 29 March 2011. None of these documents was supplied to the applicant for comment and they do not include the documents tendered by the applicant.
Applicant’s submissions
In addresses the applicant took the Court to numerous examples of passages in the Reviewer’s reasons in his IMR which were expressed in terms similar or identical to passages in the Reviewer’s reasons in a number of other, earlier IMRs. In this connection, the applicant introduced into evidence sixty-one other sets of reasons given by the Reviewer in support of IMR recommendations he made in relation to sixty-one other offshore entry persons from Afghanistan.
The applicant submitted that at para.19 of the reasons in his case, under the heading “Independent Evidence, Country Information”, the Reviewer cited a standard list of country information to which he had referred and which also appeared in other reasons. He queried how a reasonably informed observer might know whether the Reviewer had referred to that information at any point after the template was drafted and submitted that the list had been reproduced so many times in the Reviewer’s various sets of reasons that his failure to mention information submitted on this occasion suggested that it had not been considered.
The applicant submitted that practically all of the Reviewer’s discussion at paras.20 to 50 of the reasons in his case, of the picture which country information painted of the recent history of Afghanistan generally, the Hazaras, Ghazni, the Sayed and the return of refugees, was in terms identical or very similar to his discussion of the same matters in other IMRs where applicants had been unsuccessful. The applicant also observed that much of that material was not reproduced in the reasons concerning applicants whose applications had been successful. The applicant described that as “cherry picking”, saying that this led to a concern that the Reviewer had selected passages adverse to his case and had not included ones which might have supported it.
The applicant further submitted that the Reviewer’s findings and reasons at paras.51 to 87 of the reasons in his IMR should have been unique to him but instead included template passages which had already appeared in a number of other IMRs. He again observed that the reasons in cases where an applicant was successful did not include material which was included in the reasons in cases, including his own, where the applicant was not successful. He submitted that the reasons in his case were only a cut-and-paste from the Reviewer’s previous decisions, which would suggest to a reasonable lay observer that the Reviewer had not considered information the applicant had supplied to him. The applicant submitted that the extent of reproduction from other cases descended to the level of words, phrases and sentences.
The applicant then referred to para.78 of the reasons in his IMR which contained a number of template elements as well as the Reviewer’s assessment of his age based on his physical appearance. The applicant submitted that the Reviewer was not prepared to reconsider what he had already decided and had simply included “a couple of additional things which are made to fit the profile that he has already determined, decided upon, in the template”.
The applicant submitted that in para.80 of the reasons in his case the Reviewer again fitted a “very small amount of material” relevant to his claim into an otherwise template paragraph and did not acknowledge what he was doing. He submitted that para.80 gave the impression that the Reviewer was dealing with the claim he had made but it was “straight out reproduction”. The applicant next submitted that the following paragraph, para.81, gave the impression that it dealt with material specific to his claim but was again a copy of what had appeared in other IMRs.
Paragraph 85 of the Reviewer’s reasons in the present case, which was a template paragraph, commenced with the words
The Reviewer has considered other relevant material provided …
The applicant argued that the information referred to there was information available to the Reviewer at the time the paragraph was originally drafted, not material supplied to him for the purposes of this case, and that the Reviewer’s failure to disclose this would cause a reasonable observer to be suspicious that he had not considered that more recent material.
The applicant submitted that although the Reviewer was engaged in a reasoning process which involved balancing items of evidence against each other, he did not refer to information the applicant had supplied. The applicant submitted that the Reviewer never “grappled” with his evidence.
Consideration - generally
The applicant’s allegation was that the Reviewer was biased or that a reasonable lay observer might apprehend the possibility that he was, and that findings to that effect ought to be made because the Reviewer:
a)repeated in his reasons in the applicant’s case passages and words which he had used in reasons he had given in the IMRs of other offshore entry persons from Afghanistan;
b)failed to disclose consideration of the applicant’s evidence or a fresh consideration of information he had previously considered;
c)considered the applicant’s evidence, when he did consider it, only in that part of his reasons which concerned the applicant’s particular circumstances; and
d)had not disclosed that he was repeating passages and words from reasons he had given in other IMRs.
Bias in the nature of prejudgment involves a mind which is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence might be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507 at 532 [72]. For the applicant to make out his allegation of apprehended bias it is necessary for him to demonstrate that a fair minded lay observer who was properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility that the Reviewer was not bringing an impartial and unprejudiced mind to the resolution of the question he was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Consideration – actual bias
The evidence does demonstrate that throughout his reasons the Reviewer repeated passages and words which had appeared in reasons he had given in other IMRs, particularly on the security situation in Afghanistan generally and Ghazni in particular, the situation of Hazaras and the Sayed and issues relating to the return of refugees. In this regard, particular (a) of this allegation specifically referred to paras.18 to 59 of the Reviewer’s reasons. There, the Reviewer used template passages to set out his summary of “Independent Evidence” before him under the headings “Country Information”, which concerned the situation in Afghanistan generally, “Hazaras”, “Ghazni”, “Sayed (Sayyid)”, “Return of Refugees” and his findings on those issues.
Although the substance of the applicant’s allegation of actual bias was that the Reviewer’s reasoning in this case was driven by the template passages rather than by the circumstances of the case, the applicant himself identified in his address that the Reviewer had “cherry picked” passages from his template, using particular passages in some sets of reasons and not in others. That alone suggests that the template was the servant not the master of the Reviewer’s reasoning. Also, at at least one point the template changed, apparently to take additional information into account, which indicates that the template was not used mechanically regardless of new information.
In written submissions the applicant said that he had tendered “his own different up-to-date” material. However, the fact that the Reviewer might not have altered previously expressed views on a number of high level issues, such as the situations in Afghanistan of Hazara Shias, of the Sayed and of returnees from the West, after the applicant placed certain information before him does not, without more, support a finding of bias. The Reviewer, particularly as he had previously considered claims similar to the applicant’s, could not have been expected to have had a mind which was entirely blank on issues relevant to the case: Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 at 235-236 [38]–[39], 237 [43]. Consequently, the question is whether he had a mind open to persuasion and the fact that some evidence was not cited, in circumstances where the template was used selectively and not in an undiscriminating way, does not support a conclusion that his mind was not open to persuasion. The conclusion must be that the information supplied by the applicant was not relied on by the Reviewer.
The fact that the Reviewer cited in para 19 of his reasons a list of material to which he had also referred in other reasons is insufficient to support a conclusion that other material submitted by the applicant was not considered. It should be noted that the list in question appeared under the heading “Independent Evidence” and followed a section of the reasons under the heading “Submissions by Legal Adviser” which noted that the applicant’s submission had referred to “reports, media articles and the like”. Plainly, the Reviewer was only setting out the material before him, some provided by the applicant and some obtained by other means which included, it might be noted, some material also cited by the applicant.
But, more significantly and as identified by the applicant, template passages were not used only when the Reviewer made a recommendation adverse to an applicant but also in reasons supporting recommendations that the Minister lift the ban preventing particular applicants from applying for protection visas. That evidence indicates that the Reviewer used his template as an aid in the expression of his reasons for reaching particular conclusions, not to assist in reaching those conclusions, much less to determine the outcomes of reviews.
Nor does the fact that the Reviewer’s discussion of the applicant’s particular circumstances, in paras.78 and 86 of his reasons, drew on words, phrases and sentences found in other sets of reasons suggest pre-judgment. A review of the reasons in the other sixty-one IMR matters which the applicant introduced into evidence indicates that in the present case the Reviewer employed passages which he had used in earlier cases to address the same or similar claims made by other applicants with backgrounds like the applicant’s and which presented the same or similar issues. It also appears from that review that standard passages not relevant to the applicant’s circumstances were not included in the reasons in his case. The applicant submitted that the use of template passages or words raised concerns of a pre-determined decision, on the basis that his profile was fitted into the profile of other IMR applicants. However, it is apparent that the template passages were selected and modified to address the applicant’s particular claims. The process of selection to which the submission itself drew attention demonstrates the submission’s critical flaw.
Further, I do not conclude that a finding of bias should be made because the respondent dealt with the applicant’s particular circumstances after having discussed, using template paragraphs, issues of general significance, such as those referred to earlier. The implication of the applicant’s allegation was that the Reviewer’s repetitive use of template paragraphs to discuss those common issues had the practical effect of requiring him, by reference to his own circumstances, to change the Reviewer’s mind on them. I am not of the view that the Reviewer’s mind was closed. Consequently, the structure he employed to express his reasons does not lead to a finding of bias.
Related to the submission that the Reviewer applied his template without considering the material referred to by the applicant was the submission that the Reviewer had not “grappled” with the applicant’s evidence. This appeared to be a complaint that the Reviewer had not discussed the merits of each piece of information before him in a critical exposition of matters for and against a proposition before then expressing a finding on the outcome of that dialectic. The Reviewer was not required to do that. At most his duty was to observe the IMR Guidelines which, relevantly, were to set out clear findings on material questions of fact and to refer to the evidence on which those findings were based. The fact that the Reviewer did not do something he was not required to do does not furnish a reason to conclude that he was biased.
In any event, the Reviewer’s reasons do not support a conclusion that he did not take the applicant’s evidence and submissions into account when reaching the findings on which his recommendation was based. It will be recalled that those findings were:
a)the Reviewer did not accept that the Taliban specifically targeted Hazaras or Shias differently from the population at large;
b)the Reviewer was not satisfied that Hazaras faced a real chance of harm amounting to persecution by non-state actors simply by reason of their ethnicity and/or religion;
c)the Taliban were not interested in the applicant given the period of time he had lived outside Afghanistan;
d)the applicant would shortly be an adult, if he was not already, and in any event did not look like a minor;
e)the applicant would not be identified as a “foreigner”;
f)any difficulties or discrimination which the applicant might suffer for lack of employment, housing or opportunity would not be so severe as to amount to persecution and in any event would not be for a Convention reason;
g)the Reviewer was not satisfied that the applicant would be persecuted because of his identity as a Sayed for the same reasons that he would not be persecuted as a Hazara Shia;
h)the Reviewer did not accept that the applicant faced persecution as a failed asylum seeker returning from a Western country; and
i)the Reviewer did not accept that the applicant would be readily identified as a person returning from a Western country or as a convert to Christianity.
Finding (a)
In support of his claim to fear persecution on the grounds of his ethnicity, the applicant’s pre-interview submission relied significantly on the US State Department 2009 Country Report on Human Rights Practices – Afghanistan, the 2010 UNHCR Guidelines and the report of Professor William Maley entitled On the Position of the Hazara Minority in Afghanistan. Each of those documents was cited by the Reviewer in the context of his independent researches. The other material referred to in the applicant’s pre-interview submission relevantly referred to the Taliban being active in areas where they had not been active previously, particularly in or near Ghazni, and that Hazaras were regularly victims of both “generalised and targeted violence”. It will be noted that the former information was not specifically addressed to the situation of Hazaras and that the latter expressed a conclusion; any evidence which might have supported it was not provided in the submission other than an antecedent statement by its author that the Taliban were encroaching in Ghazni.
Further, at para.29 of his reasons the Reviewer cited UNHCR advice that there was “no evidence that the Taliban is targeting Hazaras”. He went on to say at para.53 that he was not satisfied that the material which he had independently consulted, which included the reports relied on by the applicant to which I have referred, provided independent corroboration of the applicant’s claims that the Taliban “now specifically targets Hazara Shia on a general and indiscriminate basis”.
As the information which appeared only in the applicant’s submission was of no particular relevance to the finding in question, any failure by the Reviewer to refer to it in his reasons for that finding would not support an inference that it had been ignored. The other documents were cited by the Reviewer. For those reasons, I do not find that the Reviewer failed to consider material relevant to the claim concerning the applicant’s ethnicity.
The relevant part of the applicant’s pre-interview submissions did not draw a distinction between the applicant’s ethnicity and his Islamic denomination when saying why his claimed fear of persecution was well-founded and they also relied only on the material referred to above at [100] without discriminating between the two parts of the claim. Whereas the applicant’s evidence did not deal with Shia Afghanis separately from Hazara Afghanis, the Reviewer did address that question separately and cited the US State Department’s 2009 International Religious Freedom Report from Afghanistan which indicated that attacks based on religion were directed at religious leaders. Although a Sayed, the applicant could not be considered a religious leader and consequently there was no reason to consider him as something different from other Afghani Shias. Consequently, the Reviewer went on to reach the conclusions referred to above at [99(a)] and [99(g)]. For the reasons expressed at [102], I do not find that the Reviewer failed to consider material relevant to the applicant’s claim concerning his religion.
Finding (b)
The second finding of fact raises the same issues and attracts the same conclusion as the first finding.
Finding (c)
The applicant did not submit that the Reviewer failed to consider evidence specifically relevant to this finding.
Finding (d)
Because the Reviewer concluded that the applicant was, in effect, an adult, it was unnecessary for him to give particular consideration to the situation of minors in Afghanistan, although reference was made to it. Bias is not to be inferred from a failure to cite in detail material which was largely irrelevant.
Finding (e)
In para.78 of his reasons the Reviewer recorded that it had been submitted that:
… because of his accent, mannerisms and the like from being raised outside of Afghanistan he would be easily identified as a “foreigner” and be possibly exploited sexually or otherwise the Reviewer does not accept that there is a real chance that this will occur given the claimant’s circumstances for a Convention reason.
He went on to record at para.80 that it had been submitted that
… the claimant who had lived most of his life in Pakistan with a “Quetta accent” would be at risk in Afghanistan and face discrimination so severe that he will be unable to subsist
and that, at most, his family remaining in Afghanistan comprised two aunts and an uncle. Those two quoted passages themselves, in effect, quote expressions used in the applicant’s post-hearing submission. It was not necessary that the Reviewer do more to demonstrate that the submission had not been ignored.
Finding (f)
The first element of the sixth finding is that such difficulties or discrimination as the applicant might confront on return to Afghanistan would not be so severe that they would amount to persecution. The burden of the applicant’s submission was that he really had no kinship ties in Afghanistan anymore and that without them he faced severe difficulty in re-establishing himself and even in subsisting. He also painted a picture of poverty and deprivation in many places in Afghanistan. However, the factual material contained in his submission did not go much beyond those propositions. Because the Reviewer clearly drew from the applicant’s submission in para.80 of his reasons, I conclude that when he said later in that paragraph that a
claimed lack of familial support in the country or area of origin does not lead to a finding that he would be persecuted … ,
he sufficiently addressed arguments and allegations which had been expressed in quite general terms.
The second element of this finding concerned whether any difficulties or discrimination which the applicant might confront on return to Afghanistan would be for a Convention reason. In addition to what is said above at [108], the discussion at para.80 of the Reviewer’s reasons appearing above in the context of the fourth ground of the application also demonstrates that the Reviewer did consider the applicant’s claim that he would suffer difficulty and discrimination in Afghanistan and the claimed basis for that treatment. His conclusion that any such treatment would not be for a Convention reason can be understood to address that aspect of the claim.
Finding (g)
The applicant’s post-hearing submission on the risk he claimed to face in Afghanistan as a Sayed has also been discussed earlier in relation to the fourth ground of the application.
Further to those comments, it is important to note that the applicant’s post-interview submission to the Reviewer described the risk said to face the Sayed as arising out of their roles as “‘tribal elders’, or otherwise as significant cultural and religious figures” as befitted their venerated place in Shia Islam and was because the Taliban targeted senior community leaders “who are disproportionately Sayeds”. But the applicant did not claim that he would be considered or treated as a senior community leader, a tribal elder or a significant cultural or religious figure because he was a Sayed. Consequently, there was no need for the Reviewer to deal with the submission based on his Sayed identity with any particularity. Therefore, it should not be inferred from the fact that he did not do so that he did not consider it, particularly as it is plain that he did consider other parts of the post-interview submission.
Finding (h)
As noted earlier in relation to the fourth ground of the application, the applicant’s submissions on this question were specifically referred to at para.84 of the Reviewer’s reasons.
Finding (i)
The reasons given above in relation to finding (h) apply equally to finding (i). Further, the Reviewer modified his template to include a reference to the applicant’s claim to fear persecution by reason of an association with Christianity or Christian countries and the perceived effects of that. That is sufficient to indicate that the Reviewer did not fail to take this part of the post-interview submission into account.
Conclusion – actual bias
I conclude that the Reviewer’s selection of template passages in the applicant’s IMR reasons expressed in a way convenient to him his consideration of the applicant’s case on its own merits. The evidence does not support a finding that the Reviewer brought to the review a mind so committed to a particular conclusion as to be incapable of alteration. The allegation of actual bias is not made out.
As the Reviewer’s re-use of passages he had used previously does not support a finding of bias, the fact he did not disclose that he was repeating passages and words from reasons he had given in other IMRs lacks meaningful substance in the context of an allegation of actual bias unless it was conduct said to have been engaged in to conceal other, biased conduct. If so, it is a serious allegation which ought to have been distinctly made and clearly proved: Jia at 531 [69]. It was neither. No finding of actual bias should or will be made in respect of it.
Consideration- apprehended bias
Nor would the Reviewer’s conduct cause a reasonable observer to apprehend the possibility that he was not bringing an unprejudiced mind to reaching a conclusion on the review.
Because a decision-maker can be expected to apply the law and policies in a consistent way, the mere fact that the Reviewer previously expressed a view on the same or similar subjects, including in that part of the reasons dedicated to consideration of the applicant’s particular claim, does not, of itself, give rise to an apprehension that he did not bring a fair and impartial mind to the decision to be made on the applicant’s review: SZQHH at 235-236 [38]-[39], 237 [43]. Moreover, as the Reviewer employed words or paragraphs from his template in a discriminating way, his use of them in the applicant’s IMR reasons would not lead a reasonable observer to apprehend the possibility that his mind was not open to persuasion.
Similarly, the appearance in the applicant’s IMR reasons of a list of independently sourced country information which had appeared in other IMR reasons is of no significance given that it did not purport to include information supplied by the applicant. A reasonable observer would not apprehend a possibility that it manifested a disinclination to consider material submitted by the applicant.
As to the other matters raised by the applicant in the context of this aspect of the application, the reasons given earlier for concluding that a finding of actual bias should not be made also explain why a reasonable observer would not apprehend the possibility that the Reviewer was biased.
Not long after judgment in this matter was reserved, without leave the parties filed further submissions in relation to ground five. I have not had regard to them.
Ground 6
Ground six of the second further amended application alleged:
6.The Reviewer failed to give proper, genuine and realistic consideration to the merits of the case presented by the applicant of relevant risk of harm generally in Afghanistan, particularly in Ghazni, to Shia Hazaras, Sayeds, failed asylum seekers and minors.
Particulars
(a)The Reviewer failed to reconsider his previously stated views on the chance and extent of harm faced generally by Shia Hazaras in Ghazni and targeting of them by the Taliban in light of the more recent evidence and submissions provided by the applicant.
(b)The Reviewer failed in his reasons to deal with the effect of the evidence and submissions of the applicant at all or upon the evidence or views previously considered and expressed by him.
(c)The Reviewer failed to refer in his reasons to the updated material supplied by the applicant, rather than the superceded [sic] material from the same source(s) supporting his previously expressed views.
The applicant submitted that in order to undertake a proper, genuine and realistic assessment of his case, the Reviewer was obliged to have regard to the most current material available. Specifically, he submitted that the Reviewer should have preferred more recent material over older material, referring in particular to a report of the Christian Science Monitor which he said the Reviewer had preferred over a more recent report of the US State Department. He also referred to other material before the Reviewer which was said to be at variance with the content of the Christian Science Monitor’s report. It was further submitted that, when considering whether the applicant faced persecution in Afghanistan because he was a young person, the Reviewer should not have preferred his own “inexpert consideration” of the applicant’s appearance over information which the applicant had cited in support of this claim.
Those written submissions ostensibly invited the Court to undertake impermissible merits review but, in his address, the applicant acknowledged that merits review was not available. Even so, he went on to submit that the Reviewer’s treatment of the information before him, by preferring older over new information, indicated that he had not given the evidence genuine consideration. He also submitted that the same could be said of the way the Reviewer considered the claim based on his minority, in that the Reviewer did not engage with the entirety of the evidence before him.
The Reviewer’s preference for some information over other information is not sufficient on its own to conclude that he did not consider everything before him and the fact that he was obliged to consider all that information does not mean that he had to prefer any particular part of it over another. The applicant’s submission really argues, by saying that the Reviewer’s consideration was not genuine, that the Reviewer should have given his evidence more weight. This was an invitation to undertake impermissible merits review. As Basten JA said in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], Allsop P agreeing:
The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79].
His Honour continued:
If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made … there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]–[88] Kirby J) … Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.
That was relevantly the burden of the High Court’s reasons in Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 where it was held that the Federal Court, as intermediate court of appeal, had employed the language of “proper, genuine and realistic consideration” to register its response to a weighing of the evidence with which it disagreed. The High Court held that the Refugee Review Tribunal’s decision had been open to it on the evidence and, contrary to the conclusion reached by the Federal Court based on its disagreement with the Tribunal’s assessment of certain factual matters, did not manifest jurisdictional error.
But in any event, the two specific matters relied on by the applicant in pressing this allegation provided no support for it. In his written submissions he said:
… as mentioned above, the US State Department Reports were 2-3 years later, than the Christian Science Monitor report, as cited by him at (28) and (50) and there plainly was other more recent evidence, to which he was referred, which did support the assertion of social and other discrimination amounting to persecution. The applicant’s submissions at CB218 and 264 were replete with references to evidence and findings, including of the Refugee Review Tribunal, of recent persecution of Shia Hazaras as such.
This was a reference to that part of the applicant’s pre-hearing written submission to the Reviewer headed “The extent to which Hazaras and Shi’a Muslims are discriminated against in Afghan society” where the US State Department report in question was quoted but where no other evidence of discrimination amounting to persecution was cited. The applicant attempted to make out his present allegation by referring to material which was quoted or cited in his two written submissions to the Reviewer but none of that material addressed the question whether social discrimination suffered by Hazaras in Afghanistan was so severe that it amounted to persecution.
Moreover, the applicant’s argument misunderstands para.54 of the Reviewer’s reasons. What the Reviewer said there was:
Nor was there evidence before the Reviewer to support the assertion that the “social discrimination” referred to in the US State Department Report is so severe as to amount to persecution; indeed, other material cited discussing the general post-2001 situation of Hazaras indicates a significant lessening of such discrimination (see for example The Christian Science Monitor “Afghanistan’s success story: The liberated Hazara minority”, 6 August, 2007, at (URL omitted). The Reviewer therefore does not accept that Hazaras faces [sic] a real chance of general social discrimination amounting to persecution.
The Reviewer did not “prefer” the Christian Science Monitor article over the State Department advice; that advice did not say how significant the social discrimination it referred to was, which was the relevant substance of the Christian Science Monitor article. The latter provided detail on the matter in question which had not been given by the State Department advice. Therefore, it was complementary to, not contradictory of, the State Department advice.
The other matter, concerning the applicant’s minority, has been addressed in the reasons relating to the fourth ground of appeal.
Ground 7
Ground seven of the second further amended application alleged:
7.The Reviewer failed to accord procedural fairness to the applicant by not disclosing his established views on the risk of harm generally in Afghanistan as aforesaid and the evidence, upon which those views were based, to enable him to comment upon those views and that evidence.
On the face of it, the seventh ground of the application alleges that the Reviewer did not, but should have:
a)told the applicant what he thought of certain issues; and
b)given the applicant the information on which those opinions were based.
In his written submissions the applicant refined this issue and submitted that the Reviewer had failed to supply him with the country information relied on to recommend that he not be recognised as a person to whom Australia has protection obligations. He said that the ground concerned the Reviewer having a “preconceived view of … highly relevant material which [needed] to be responded to if the decision-maker [was] to decide in favour of the applicant”. He said that the fundamental principle was that an applicant “is to be invited to give evidence and present arguments relating to the issues arising in relation to the decision”. He then went on to say by reference to Plaintiff M61 that procedural fairness required the Reviewer to put to him the substance of the matters that the Reviewer knew of and considered might bear upon whether to accept his claims.
The applicant’s arguments were not particularly clear but, I conclude, remained focussed on the allegation as pleaded, in that its essence was that the Reviewer should have disclosed his views to the applicant and that from that obligation sprang a duty to advise him of the information on which those views were based. However, the Reviewer was under no obligation to disclose his views on particular matters: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 166 [48]. The Reviewer was only obliged to alert the applicant to conclusions he reached which would not obviously be open on the known material and to inform the applicant of credible, relevant and significant information adverse to him which the Reviewer had obtained from sources other than him: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9]. As the Reviewer had no obligation to disclose his views before publishing his reasons, any further duty which was said to depend on that purported obligation did not arise.
The allegation also appears to imply that the Reviewer preferred to abide by views previously expressed rather than consider the applicant’s information and submissions on their merits and adjust his views as appropriate in light of those matters. To the extent that ground seven does imply that, the issue has been dealt with earlier in these reasons in relation to the fifth allegation.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding one hundred and thirty-five paragraphs (135) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 September 2013
CORRECTION
Paragraph 134 line 1 – delete “not” after was.
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