SZRBW v Minister for Immigration
[2013] FCCA 104
•23 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRBW v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 104 |
| Catchwords: MIGRATION – Review of conduct leading to recommendation of Independent Merits Reviewer – whether recommendation made according to law – whether the Independent Merits Reviewer failed to consider all claims made by the applicant – whether the Independent Merits Reviewer used template reasons to reject the applicant’s claim in a manner indicating bias – application dismissed. |
| Legislation: Constitution, s.75 Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7 |
| Cases Cited: Khanv Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291 Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Queen v The Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Swift v SAS Trustee Corporation [2010] NSWCA 182 SZQXX v Minister for Immigration & Anor [2012] FMCA 415 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZRBW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 122 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cameron Jackson |
| Solicitors for the Applicant: | KTG Lawyers |
| Counsel for the Respondents: | Mr Justin Smith |
| Solicitors for the Respondents: | Minter Ellison |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 122 of 2012
| SZRBW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under para.75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an Independent Merits Reviewer (“the Reviewer”), dated 29 March 2011 and handed down on 5 April 2011, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Afghanistan and of Shia Muslim faith and Hazara ethnicity who claims to fear persecution from the Taliban in Afghanistan by reason of being a Shia Hazara.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Background
On 7 March 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 15 April 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 14 May 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 26 June 2010, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 19 August 2010, the applicant applied for Independent Merits Review of the RSA.
On 29 March 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 19 January 2012, the applicant filed an application in this Court seeking judicial review of the Reviewer’s recommendation.
Legislative framework
The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, from the Australian Government Solicitor, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3] Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4] M61 (2010) 243 CLR 319 at [70].
[5] M61 (2010) 243 CLR 319 at [66].
[6] M61 (2010) 243 CLR 319 at [67].
[7] M61 (2010) 243 CLR 319 at [73].
[8] M61 (2010) 243 CLR 319 at [76].
[9] M61 (2010) 243 CLR 319 at [89].
[10] M61 (2010) 243 CLR 319 at [78].
[11] M61 (2010) 243 CLR 319 at [73].
[12] M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14] M61 (2010) 243 CLR 319 at [99]-[100]
[15] Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16] M61 (2010) 243 CLR 319 at 360-361 [101]-[104].
The applicant’s request for Refugee Status Assessment
On 14 May 2010, the applicant made a request for a Refugee Status Assessment (RSA).
The applicant provided a statutory declaration in support of his request for an RSA in which he stated:
a)He has to pass through a Taliban stronghold to get from the village where he lives in Afghanistan to the nearest city to buy supplies.
b)The Taliban have detained and killed many Hazaras attempting this journey.
c)Since the elections in 2005, life has become “more precarious” for Hazara Shias in Afghanistan because the Taliban “say that Hazaras have voted for this government and that the Hazaras are working as interpreters for the NATO forces”.
d)He and his family were forced to give the Taliban almost half of their income and, “once a year or so”, they had to give the crops from their farm to the Taliban, because the Taliban had threatened to kill them otherwise.
e)The Taliban would check their area and spy on them.
f)His father had been beaten by the Taliban on many occasions for not having given them enough of their crop.
g)He cannot return to Afghanistan because the Taliban would deem him to be a traitor and kill him.
On 26 June 2010, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
Independent Merits Review and conduct leading to recommendation
On 19 August 2010, the applicant lodged an application for review of the RSA finding by the Reviewer.
The applicant provided further documents in support of his review application.
On 13 February 2011, the applicant was interviewed by the Reviewer.
The Reviewer noted that it had before it the Department’s file and other materials available to it from a range of sources.
The decision of the Reviewer is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“22. The Merits Reviewer set out the claims and evidence before him, the migration agent’s submissions, and some relevant law (CB 117-126). He listed the country information that he had considered and then summarised the country information regarding the situation in Afghanistan generally, the position of Hazaras, the situation in Ghazni, and the position of refugees returning to Afghanistan (CB 126-137).
23. In relation to the claimant’s fears that he will face persecution because he is a Hazara Shia, the Merits Reviewer:
a) found that when Hazaras come to the adverse attention of the Taliban (most commonly for imputed support for the government or foreign forces or imputed antipathy towards the Taliban) the chance and extent of the harm faced is exacerbated by reason of their Hazara ethnicity and Shia religion (CB 138, [48]);
b) found that the Taliban have a predisposition to perceive Hazaras as potential political opponents (CB 138, [49]):
c) was not satisfied that the material before him corroborated claims that the Taliban specifically targets Hazara Shias on a general and indiscriminate basis (CB 138, [49]):
d) was not satisfied that the country information before him established that Hazaras face a real chance of general social discrimination amounting to persecution, in particular because some of the country information indicated a significant lessening of such discrimination (CB 138, [50]);
e) was not satisfied that the Taliban specifically targets Hazaras or Shias differently from the population at large and was not satisfied that Hazaras or Shias face a real chance of harm amounting to persecution by Pashtuns or the Taliban, and thus did not accept that the applicant’s identity as a Hazara Shia caused him to fall within the Convention’s definition of a refugee (CB 139, [53]).
24. In relation to the applicant’s credibility, the Merits Reviewer:
a) found that the applicant was deliberately untruthful about his reasons for leaving Afghanistan (CB 147, [77]);
b) found that the applicant appeared to have fabricated or embellished incidents with the Taliban during the RSA process (CB 145, [75]);
c) rejected as implausible the applicant’s insistence that he had told his advisers of relevant material and the submission that it might have been omitted from his Statutory Declaration (CB 146, [75]);
d) found omissions, significant inconsistencies, and contradictions in the applicant’s evidence at various stages of the process, and the emergence of substantial new information at the hearing before the Merits Reviewer (CB 143, [66], CB 146 [75]);
e) found that the inconsistencies and new information were not merely vagueness or inconsistencies in recounting peripheral details (CB 143, [66]);
f) was not satisfied that the inconsistencies and new material were reasonably explicable or without significance for the substance of the applicant’s account (CB 143, [66]);
g) found that the applicant’s explanations regarding omissions and inconsistencies in his evidence were unsatisfactory (CB 146, [75], [76]); and
h) therefore did not find the claimant to be a satisfactory witness in relation to the identified inconsistencies and new material (CB 143, [66]).
25. In relation to the applicant’s evidence of his personal interaction with the Taliban and fear of the Taliban, the Merits Reviewer:
a) found that the applicant had not had any personal involvement or incidents with the Taliban (CB 147, [79]);
b) did not accept that the applicant left Afghanistan for Dubai out of fear (CB 147, [79]);
c) did not accept that the applicant is unable to return to Afghanistan because he fears the Taliban (CB 147, [79]);
d) did not accept that the Taliban would target the applicant because he had claimed asylum in a Western country, including because photographs of him participating in a demonstration in Darwin had been shown in Afghanistan (CB 147; [79]);
e) accepted that the applicant may have to return to Ghazni, where his immediate family is largely supported by its farm land, and that he might suffer lack or employment, services and opportunities, but not for a reason relevant to the Convention (CB 148, [81]);
f) accepted that the claimant may suffer insecurity and hardship as a result of incidents of armed insurgency but that did not amount, separately or cumulatively, to a well founded fear of persecution for a Convention reason (CB 148, [82]); and
g) did not accept that, should the applicant return to Afghanistan, there was a real chance that the applicant would suffer persecution or possible death from the Taliban or others now or in the foreseeable future (CB 147-148, [79], [81], [82]).
26. In relation to the applicant’s specific fear that he may be suspected by the Taliban of being a Western spy or having anti-Islamic views because he has returned from a Western country the Merits Reviewer:
a) found that there was no credible evidence before the Merits Reviewer to satisfy him that persons returning to Afghanistan from Western countries are targeted or persecuted by the Taliban for that reason (CB 149-150; [84]);
b) did not accept that the applicant would be readily identifiable as a person returned from a Western country (CB 150; [84]);
c) was not satisfied that members of the Taliban would be able to recognise the applicant from the Darwin protest, or that the media reports of the Darwin demonstration show that the claimant was displaying anti-Taliban material or speaking disparagingly of the Taliban, and found that it was highly implausible that members of the Taliban would be trawling through such footage to identify persons of interest (CB 150-151, [86]);
d) consequently was satisfied that the applicant’s participation in the Darwin demonstration would not give rise to a real chance of serious harm to him in the reasonably foreseeable future (CB 150-151, [86]).”
The proceeding before this Court
The applicant was represented before this Court by Mr Cameron Jackson, of counsel.
On 30 March 2012, the applicant filed an Amended Application. On 2 April 2012 the Respondents filed an Amended Response.
By consent, the Applicant was given leave to file in court and rely upon a Second Amended Application in the following terms:
“Ground one.
1. The Second Respondent;
(i) failed to give genuine, realistic, and proper consideration to the Applicant’s claim (Khan and Minister for Immigration (1987) 14 ALD 291, at [43]), per Gummow J), and/or
(ii) failed to give adequate reasons for the Applicant’s claim (Vegan (2006) 67 NSWLR 372), and/or(ii) failed to take into account relevant considerations in relation to the Applicant’s claim.
Particulars
1.1 The Second Respondent accepted that;
(i) the Applicant was from Qarabagh in Ghazni province, and
(ii) country information suggested that the Taliban were targeting key roads within Ghazni, including the road from Jaghori and Qarabah (RD133 [36]), and
(iii) the Taliban had persecuted the Hazaras in the period before 2001 when they were in power (Relevant Documents, page 148 [80] (“RD148[80]”) (including “committing atrocities against them” (RD132 [32])), and
(iv) that the Taliban were resurgent in Afghanistan (RD133 [37]), that the Taliban were the dominant political force in numerous regions in Afghanistan (including those parts of Ghazni not Hazara-dominated), and that the government “struggled to extend its authority beyond the capital” (RD129 [20]), and
(v) that the Taliban have a predisposition to perceive Hazara as potential political opponents, and that should they come to the adverse attention of the Taliban for some other reason, they are more likely to be harmed by reason of their ethnicity and religion (RD138 [48]), and
(vi) that most Hazara had a genuine fear of the Taliban (at RD148 [80])
1.2 Given those facts, the Second Respondent had to consider (and did not consider);
(i) if the Applicant returned to his home in Qarabagh, whether there was a real risk that he would be stopped by the Taliban while taking the route to Qarabagh, and whether his religious and/or ethnic background would mean that he was at increased risk of harm if so apprehended;
(ii) whether it was reasonable to expect the Applicant to relocate to another part of Afghanistan;
(iii) whether the resurgence of the Taliban accepted by the Second Respondent was likely to continue and extend to more areas of Afghanistan including areas populated by Hazaras, as claimed by the Applicant’s agent (at RD91);
(iv) whether, if there was a real chance that such a resurgence would continue, there was a real chance that a male Shia Hazara in his thirties from Ghazni province would be at risk of persecution from the Taliban.
Ground two.2. The Applicant was denied procedural fairness, because particulars of information which was credible, relevant and significant, were not put to him.Particular.(i) As understood by the Second Respondent, country information indicated that neither Hazaras or Shias were specifically targeted by the Hazaras or treated differentially from the population at large.Ground three.
3. The Applicant was not accorded procedural fairness, in that the use of a template set of reasons for the recommendation of the Second Respondent gave rise, in the particular circumstances of this case, to a reasonable apprehension of bias.
(i) Large parts of the Second Respondent’s reasons were identical to the reasons given in numerous other decisions prior to this decision, including paragraphs in the findings and reasons section of the decision, so that a reasonable lay-person, properly informed of the nature of the proceedings, might reasonably hold an apprehension that the Second Respondent did not approach the task of making a recommendation with an open mind.”
Ground 1
Ground 1 contends that the Reviewer failed to give genuine, proper and realistic consideration to particular aspects of the applicant’s claims or failed to make a finding on particular aspects of the applicant’s claims which arose clearly on the material before the decision maker. In support, the applicant’s counsel referred the Court to Khanv Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291 at [43]:
“10. The Applicant contends that a failure to do so evidenced a failure to give genuine, proper and realistic consideration to an aspect of the Applicant’ s claim, as in Khan (1987) 14 ALD 291 at [43], or a failure to deal with an integer of his claim.
11. Alternatively, the error can be characterised as a failure to make a finding on an aspect (or aspects) of the Applicant’s claim which arises (or arose) clearly on the material and the contentions before the decision maker (NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [52]-[63], especially [63]).
However, in Khan v Minister for Immigration and Ethic Affairs (1987) 14 ALD 291, Gummow J, in setting out the proper, genuine and realistic standard, cautioned that the Court has a limited role in reviewing the exercise of an administrative discretion and that it is not for the Court to study administrative decisions too precisely or finely. In Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], Basten JA, with whom Allsop P agreed, said the phrase, proper genuine and realistic consideration, ‘is apt to encourage a slide into impermissible merits review.’ That statement was quoted with approval by the High Court of Australia in Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 at 176 [30].
Further, other findings may be subsumed in a finding of greater generality. Such a finding does not establish that the Reviewer failed to give proper, genuine and realistic consideration to any aspect of the applicant’s claims (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”)).
For the reasons below, a fair reading of the Reviewer’s decision record and the bundle of documents forming part of the review and part of the Court Book, marked Exhibit 1A, does not support the applicant’s contention that the Reviewer failed to give proper, genuine and realistic consideration to any aspect of the applicant’s claim.
Ground 1.2(i)
The applicant contended that the Reviewer failed to consider whether the applicant was at risk of harm if apprehended by the Taliban on returning to his home in Qarabagh; and, whether his religious and/or ethnic background would mean that he was at increased risk of harm if so apprehended.
The Reviewer accepted that if Hazaras come to the adverse attention of the Taliban, then their chance of harm is exacerbated. However, the Reviewer was not satisfied that Hazaras face a real chance of harm amounting to Convention related persecution by the Taliban. The Reviewer did not accept that the Taliban specifically targets Hazaras or Shias differentially from the population at large simply by reason of their ethnicity and/or religion. The Reviewer did not accept that the applicant’s identity as a Hazara Shia was, of itself, sufficient to satisfy the Refugee Convention definition.
In the circumstances, the applicant’s complaint that the Reviewer was required to consider what would happen in the specific case of the applicant being stopped on route to Qarabagh was subsumed in the Reviewer’s finding of greater generality that the Reviewer was not satisfied that Hazaras face a real chance of harm amounting to persecution by the Taliban (see WAEE at 641 [47] per French, Sackville and Hely JJ).
Ground 1.2(ii)
The applicant submitted that the Reviewer failed to consider whether it was reasonable to expect the applicant to relocate to another part of Afghanistan. However, the Reviewer did not have to consider whether it was reasonable for the applicant to relocate to another part of Afghanistan, given its finding that the applicant did not face a real charge of persecution on any basis claimed by the applicant, should he return to Afghanistan now, or in the reasonably foreseeable future (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).
Ground 1.2(iii) and (iv)
The applicant also submitted that the Reviewer failed to consider whether the resurgence of the Taliban was likely to continue and extend to more areas of Afghanistan, including areas populated by Hazaras, and, if the resurgence did continue, if there was a real chance that a person in the applicant’s position (a male Shia Hazara in his thirties from Gahzni province) would be at risk of persecution from the Taliban.
As stated above, the Reviewer found that the applicant did not face a real chance of persecution on any basis claimed by the applicant, should he return to Afghanistan now or in the reasonably foreseeable future. In the circumstances, for the Reasons below, it was not necessary for the Reviewer to consider the hypothetical contended for by the applicant.
In a written submission, dated 5 January 2010, the applicant’s agent submitted that:
‘The case officer did not give sufficient consideration to the likelihood of further deterioration of the situation in Afghanistan and the strong possibility that the Taliban will extend their control over more extensive areas in country, including areas populated by Hazaras.’
The applicant’s written submission referred to much country information about violent incidents in Afghanistan, including in Gahzni where the applicant resides, involving attacks by the Taliban upon Hazaras.
The Reviewer accepted that the Taliban had persecuted the Hazaras during the period prior to 2001 when the Taliban was in power, and that most Hazaras, whether in Afghanistan or in the Diaspora, retain a fear of the Taliban.
The Reviewer noted the applicant’s written submission, dated 5 January 2011 (the submission was incorrectly dated 5 January 2010). However, the Reviewer preferred the report of Department of Foreign Affairs and Trade (“DFAT”) on the Afghanistan situation which it found squarely addressed the issue of persecution of Hazaras.
As stated above, the Reviewer found that the applicant did not face a real chance of persecution on any basis claimed by the applicant should he return to Afghanistan now, or in the reasonably foreseeable future. A finding that there was not a real chance of a Taliban resurgence that would put a person in the position of the applicant at risk of persecution is subsumed in that finding of greater generality.
The Reviewer referred to the information from DFAT that the Hazaras do not live in fear of violence or systematic persecution as they had under the Taliban, and the current situation was described by DFAT as being ‘perhaps the best for Hazaras for centuries’.
It was open to the Reviewer to prefer that information, together with the advice from UNHCR that there is no evidence that the Taliban is targeting Hazaras. It is well settled that the country information to which the Reviewer has regard and the weight it gives that information is a matter for the Reviewer (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the second further amended application, the applicant referred to another particular in support of Ground 1. That further particular is that the Reviewer also failed to consider whether the Taliban beat the applicant’s father, took half the father’s crops, and, whether that conduct was Convention related and the implications such past events have for the applicant’s claims.
In a Statutory Declaration made 14 May 2010, the applicant made a claim that his father had often been beaten by the Taliban for not giving them enough of his crops. However, a fair reading of the Reviewer’s decision makes clear that the Reviewer considered that claim and found it to be a fabrication. That finding was open to the Reviewer on the evidence and materials before it, and for the reasons it gave.
In those circumstances, there was no obligation on the Reviewer to consider the consequence of a claim that it had rejected as a fabrication.
Accordingly, Ground 1 is not made out.
Ground 3
Ground 3 alleges apprehended bias on the basis that the Reviewer used a template in making his recommendation to the Minister as to whether or not Afghani Hazara claims satisfy the criteria for the grant of a protection visa.
The applicant tendered twelve recommendations made by the Reviewer, between August 2010 and March 2011 on the basis that they are representative of 56 recommendations made by the Reviewer over that period. The twelve decisions, together with the submissions in support, were marked Exhibit 3A. The 56 recommendations from which Exhibit 3A came were together marked Exhibit 2A. However, the only material referred to by the applicant was Exhibit 3A.
The applicant conceded that the template evolved over seven months. However, the applicant submitted that the template remained largely unchanged during the period, even after the personal testimony of over 50 asylum seekers and extended beyond a mere summary of country information. The Reviewer’s conclusion that the ethnicity and religion of being Afghani Hazara did not found a claim for asylum based on the same templated information gave rise to a reasonable apprehension of bias in accordance with the test outlined in Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 at [28].
The applicant submitted that the effect of the template used by the Reviewer was that, unless an Hazara has already come to the adverse attention of the Taliban for some reason other than their religion or ethnicity, they will not be found to satisfy the Convention definition. The applicant submitted that where an account given by a claimant concerned conflicts with the Reviewer’s fixed view as reflected in the template, the claimant is subjected to adverse credibility findings based on the same formula. Further, the applicant submitted that the Reviewer used the same ‘scaffolding’ and, to a significant extent, the same wording in dealing with the ‘runt’ of the claims not disposed of by use of the Reviewer’s template.
In Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 (“SZQHH”), the majority of the Full Court of the Federal Court, Rares and Jago JJ, found that generic claims made by the appellants in nine different claims were based on the appellants’ ethnicity and religion and that there was a real chance that the appellants would suffer persecution for those reasons were they to return to Afghanistan. The Court found that the Reviewer’s assessments of those generic claims used substantially the same language and reference material resulting in the same reasoning and findings in respect of the generic claims. The Court noted that there was no evidence before it that any material or submission put on behalf of the nine appellants was different, or materially different, in respect of the generic claims. The Court found that, ‘given that position, we would infer that there was no, or no substantive, difference in any of the material or submissions of those nine persons and the applicant before the reviewer.’ (See SZQHH at 230).
Ultimately, Rares and Jago JJ concluded as follows:
37. An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435 ([28]-[29]) per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at 268-269 ([14]-[21]) per Allsop J, with whom Moore and Tamberlin JJ agreed.
38. The mere fact that a decision-maker has previously expressed a view on the same or a similar subject does not, of itself, give rise to an apprehension that he or she will not bring a fair and impartial mind to the new decision to be made: see for example in relation to judges Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J. After all, decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way. Likewise, decision-makers in the position of a reviewer or administrative official frequently will have to decide the same issues raised by different persons in separate applications including when a number of persons make generic claims. A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic. As Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 554:
“Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”
…
44. If claims or applications made by a number of persons involve common features, a decision-maker who must determine all of those individuals’ claims or applications at about the same time ordinarily will work out his or her findings about the common aspects and apply those consistently in each individual case. For example, claims for refugee status based on conditions prevailing in a claimant’s country of nationality relating to persons of a particular race or religion require a decision-maker to analyse country information in order to form a conclusion as to the facts. Assume that 100 persons arrive at the same time in Australia and claim that they are citizens of country A, adherents of religion B and that country A persecutes anyone who adheres to religion B. Each of those 100 claims will raise at least two individual issues and one common issue. First, the individual issues will be whether each of 100 is, in fact, a citizen of country A, and an adherent of religion B. Secondly, the common issue is whether country A does persecute adherents of religion B. The decision-maker in this situation must decide each of the individual issues based on the particular facts put before him or her by each of the 100 claimants.
45. Next, the decision-maker must ascertain what the position is for adherents of religion B in country A. This aspect of the process involves the decision-maker forming a view about a generic or common issue affecting every one of the 100 claimants on the most recent, up-to-date information available about that issue: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 44-45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); see too SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563; [2008] FCA 1938 at 571 [27]- [29] per Rares J. Once he or she reaches that view and decides that issue in the first of the 100 claims, it is difficult to imagine that he or she would decide any of the other 99 differently or for different, or differently expressed, reasons on the same point. Of course, if any of the 100 persons put to the decision-maker substantive, new country or other information about the generic position concerning country A’s treatment of adherents of religion B, then the decision-maker must consider that information and reconsider his or her earlier finding and the reasons for it. For example, the new information may be that a change of government had just occurred in country A and the new government had begun killing all adherents of religion B, reversing a previous policy of peaceful religious toleration. Obviously, if the decision-maker’s earlier decisions were made on the basis of information of country A’s peaceful religious toleration of adherents of religion B, he or she could be expected to reconsider his or her earlier findings on the generic or common question on the undecided claims by assessing the new information.” (emphasis added).
The applicant sought to distinguish the majority in SZQHH by submitting that the Court in SZQHH did not have any evidence of the submissions that were made in those cases.
The applicant also submitted that this Court should share the unease expressed in the reasons of the trial judge (at [81]-[84]) and Flick J in the minority in SZQHH (from [83]-[96]).
However, in order to establish an apprehension of bias, the circumstances must raise in the mind of the informed person an apprehension that the decision maker might not bring a fair and impartial mind to the decision making process (see Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160 at [41] per Nicholas J). It is well accepted that ‘a vague sense of unease or disquiet’ or a ‘mere lack of nicety’ is insufficient (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 549; Queen v The Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546 at 553-4).
Counsel for the applicant, Mr Jackson, submitted that the Reviewer creates a template and accepts or rejects the evidence on how it fits with his view of the position of Hazaras in Afghanistan. Mr Jackson submitted that at the start of his decision record, the Reviewer deals in generic terms with the essence of each applicant’s case, that is, because they are Hazara and Shia, and because the Taliban still has some power and control in Afghanistan, they are at risk of harm. The Reviewer then rejects that claim in a generic form and only then does he turn to consider the applicant’s individual claims.
However, Mr Jackson acknowledged that in four of the fifty-eight cases before this Reviewer, the applicant had succeeded.
The applicant then took the Court through similarities in one of the decisions in Exhibit 3A, being representative of the Reviewer’s approach, and the Reviewer’s decision in the case before this Court.
Counsel for the Respondents, Mr Justin Smith, submitted that there is no obligation on a Reviewer to come to a hearing or to make a decision with an empty mind and that it is rationally necessary to have an understanding of what is going on in the country from which the claimant before him has come. Mr Smith submitted that it is impossible to assess and applicant’s claims in a vacuum, and that there is nothing irrational or unfair in a Reviewer having regard to, and having some view about independent country information in determining an individual’s claims.
In short, Mr Smith submitted that there is nothing wrong with a Reviewer having template reasons in relation to country information where nothing new is put by an applicant and that nothing new was put by the applicant in the case before this Court. A fair reading of the material supports Mr Smith’s submission and I do not understand the applicant to submit otherwise.
Counsel for the applicant, Mr Jackson, submitted that the Reviewer should first have assessed the applicant’s individual claims, rather than his generic claims. I do not accept that a failure to adopt such an approach demonstrates a jurisdictional error.
A fair reading of the applicant’s claims makes clear that the applicant claimed that he feared persecution in Afghanistan by reason of being an Afghani Hazari and that the Taliban have arrested, detained and killed many Hazaras caught trying to cross the city from which the applicant comes. In his statutory application, affirmed 14 May 2010, in support of his request for an RSA, the applicant stated that:
‘Until 2005, the situation wasn’t too bad although very dangerous but since the elections in Afghanistan, the life has become more precarious for Hazaras Shia in Afghanistan because the Taliban say that Hazaras have voted for this government and that the Hazaras are working as interpreters for the NATO forces.’
The applicant further claimed that his father had often been beaten by the Taliban for not having given enough of his crops to the Taliban. The applicant also stated that he thinks the Taliban would harm him in Afghanistan, ‘because I am Hazara and Shia and the Taliban in my area know that I have left Afghanistan and went overseas.’
The content of that statutory declaration was expressly referred to and relied upon in the applicant’s migration agent’s submission to the Reviewer dated 5 January 2010.
At the commencement of the Independent Merits Review decision record, the Reviewer summarised the applicant’s claims as follows:
“11. The claimant, in short, claimed he was fearful of being returned to Afghanistan because he would suffer persecution and/or possible death at the hands of the Taliban on account of either cumulatively or separately:
· His Hazara race and ethnicity;
· His Shia religion;
· As a returnee from a Western country who sought asylum there and who will be imputed with anti-Taliban views;
· His imputed political opinion in opposition to the Taliban on account of his Hazara ethnicity and his Shia religion;
· His imputed political opinion (his perceived support for the government);
· His imputed political opinion in favour of the West.”
The Reviewer then summarised the evidence given by the applicant at interview in some significant detail. The Reviewer then summarised the submissions made by the applicant’s legal advisor.
The Reviewer then identified the independent country information to which he had regard. Some of the information referred to post dates the decisions in Exhibit 3A, indicating that the material considered by the Reviewer did not remain static. The inclusion of such material does not suggest a blind adherence to country information referred to in other decisions of the Reviewer. In particular, the Reviewer had regard to country information provided by the applicant’s migration agent in his written submission.
In the Findings and Reasons section of the Reviewer’s decision record, the applicant identified seven paragraphs out of the forty-two paragraphs referred to in the Reviewer’s findings and reasons as being part of the Reviewer’s ‘template decision’.
Those paragraphs referred to provide a general summary by the Reviewer of the country information on which it relied. However, the Reviewer acknowledged that the applicant’s legal advisor, in a written submission dated 5 January 2011, had referred to other material.
The information relied upon by the Reviewer in relation to the treatment of Hazara Shias by the Taliban led the Reviewer to make a finding that it had made in the cases referred to in Exhibit 3A in which the Reviewer had referred to the same country information. That finding was that the Reviewer did not accept that a person’s identity as a Hazara Shia, of itself, causes an applicant to fall within the Refugee Convention definition, and nor does the UNHCR guideline suggest that it should.
The Reviewer then stated in the decision before this Court, as in the other decisions in Exhibit 3A:
“54. That does not mean that a Hazara Shia cannot be found to be a refugee on the basis that the person’s own individual circumstances and experiences (to which his ethnicity or religion may be relevant).
55. It is therefore necessary to turn to the claimant’s particular experiences and claims.”
Thereafter, the Reviewer summarised again the applicant’s evidence and various exchanges it had with the applicant about his evidence. The Reviewer found that there were significant inconsistencies and the emergence of ‘substantial new information during the RSA process and at the hearing of this matter in Curtin in a manner which caused the reviewer concern.’ The Reviewer was not satisfied that its concerns were reasonably explained by the applicant, whom the Reviewer did not find to be a ‘satisfactory witness’. The Reviewer found that the applicant had fabricated or embellished incidents with the Taliban during the RSA process and at the hearing before the Reviewer. The Reviewer found that the new information provided by the applicant about alleged happenings and incidents with the Taliban and others to be vague and confused, and at times ‘somewhat disturbing’. The Reviewer noted that the applicant with his legal advisors had had further opportunities during the RSA process to address these matters. The Reviewer found the reasons advanced by the applicant for the admissions and the inconsistencies were unsatisfactory.
Ultimately, the Reviewer rejected the applicant’s claims of individual incidents and involvements with the Taliban, although accepted that the applicant had a subjective fear of the Taliban. The Reviewer noted that the applicant relied largely upon his being Hazara Shia for his fear of return of returning to Afghanistan. The Reviewer did not accept that the Taliban were interested in the applicant as claimed. The Reviewer also rejected the applicant’s claim fear harm from the Taliban as a returnee of a Western country as a failed asylum seeker and to have been involved in protests during detention.
The Reviewer’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Reviewer (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The claims made by the applicant were similar to those made by the claimants in Exhibit 3A and the country information is obviously relevant to the same issues. It is unsurprising that the Reviewer may apply the same law to similar issues. The submissions made in support of each of the twelve decisions referred to in Exhibit 3A were submissions concerning the general situation of Hazaras in Afghanistan. I note that the written submission of counsel for the Respondents, Mr Smith, that one advisor who provided submissions openly referred to her submission as ‘a generic submission on behalf of each of the Afghan clients listed below’.
The Reviewer’s largely generic findings, in light of the material on which they were based, does not give rise to any reasonable apprehension of bias by reason of similarity of templates in different decisions addressing those same generic claims.
Accordingly Ground 3 is rejected.
Conclusion
A fair reading of the Reviewer’s decision record makes clear that the Reviewer understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Reviewer put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Reviewer also put to the applicant independent country information before it and invited the applicant to comment upon it. The Reviewer also identified independent country information to which it had regard. The Reviewer then made findings based on the evidence and material before it. Those findings of fact were open to the Reviewer on the evidence and material before it and for the reasons it gave. A fair reading of the Reviewer’s decision record makes clear that the Reviewer reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Reviewer’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 23 April 2013
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