SZRET v Minister for Immigration
[2012] FMCA 901
•10 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRET v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 901 |
| MIGRATION – Review of conduct leading to recommendation of Independent Merits Reviewer – whether recommendation made according to law – whether the Reviewer failed to accord the applicant procedural fairness – application dismissed. |
| Constitution, s.75 Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7 |
| SZQXX v Minister for Immigration & Anor [2012] FMCA 415 Kioa v West (1985) 159 CLR 550 SZGUR v Minister for Immigration & Anor (2011) 241 CLR 594 Commissioner for Australian Territory and Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 |
| Applicant: | SZRET |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 391 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 September 2012 |
| Date of Last Submission: | 25 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Appearing for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 16 February 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 391 of 2012
| SZRET |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN 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 paragraph 75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by an Independent Merits Reviewer (“the Second Reviewer”), dated 20 November 2011 and handed down on 23 November 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 Shi’a faith and Hazara-Jayed ethnicity.
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 and refugee status assessment, 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 11 February 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 12 March 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 18 April 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 22 July 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 30 July 2010, the applicant applied for Independent Merits Review of the RSA.
On 29 March 2010, a different Independent Merits Reviewer (“the First Reviewer”) recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 22 August 2011, Burchardt FM declared that the recommendation of the First Reviewer was affected by an error of law.
On 20 November 2011, the Second Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
On 16 February 2012, the applicant filed an application in this Court seeking judicial review of the Second 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, 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 claims and refugee status assessment
The applicant provided a statutory declaration in support of his claims to be a refugee. The applicant’s claims in support of his refugee status assessment were essentially that he has a fear of persecution in Afghanistan because of his Shi’a religion and Hazara ethnicity and because he is Sayed. The applicant claimed that being a Hazara male and a Sayed put him at risk by the Taliban.
The applicant claimed that one of his occupations in Afghanistan was as a taxi driver. He claimed that, in 2007, he was fired upon by the Taliban whilst driving his taxi. He claimed that since that time, he returned to farming but because of problems with the Kuchi, he was unable to sustain himself “and my farm”. The applicant claimed that his harvest was stolen by the Kuchi who were supported by the Taliban.
In 2007, the applicant said that he and his family were driving when they came upon a roadblock set up by members of the Taliban. The applicant said that he feared being killed so drove fast to escape, whereupon the Taliban fired upon them, hitting one of the members in the applicant’s car.
The applicant claimed that the Kuchi attacked members of the applicant’s village during summer to prevent the villagers growing their crops and grazing their animals.
The applicant claimed that the Taliban sent letters to the local mosque in Deba, following which the Kuchi came to their village and took their animals. The applicant claimed that the Kuchi were funded by the Taliban.
The applicant claimed that in 2009 he decided that the situation in Jaghori was too dangerous and that he needed to escape to Pakistan. However, the applicant claimed that the situation in Pakistan was also very difficult for Hazara Shi’as, where their mosques are “constantly being bombed” by Wahhabis.
The applicant claimed that the police in Jaghori could not protect him from the Taliban and the Kuchi and that he is in constant danger in Afghanistan.
The refugee status assessment record, dated 22 July 2010, found that there is no evidence of a current campaign in Afghanistan to target Hazaras. The assessor found that the applicant was not at risk of harm for a Convention reason. The assessor found that the applicant’s interaction with the Kuchi arose from land disputes arising from the wish of the Kuchi’s to graze their livestock on the applicant’s farming lands.
Reviewer’s conduct leading to recommendation
On 30 July 2010, the applicant requested an independent merits review which was duly conducted by the First Reviewer.
On 8 February 2011, the applicant’s migration agent sent a submission to the First Reviewer in support of the applicant’s claims. Those submissions referred to a claim that the applicant’s “attempts to farm his land were met with violence by nomadic Kuchi, who were also supported by the Taliban”. The submission also claimed that the applicant was a member of a particular social group of “Hazara landowners/farmers”. The migration agent’s submission also attached a statement by the applicant that stated that the applicant disagreed that the problems faced with Kuchis was only because of access to land. The applicant stated “We have problems with the Kuchis because they bring their animals on our land but Kuchis also hate us because we are Hazaras and Shi’as”.
On 13 February 2011, the applicant attended a hearing before the First Reviewer.
On 27 February 2011, the applicant’s migration agent provided a further submission addressing concerns the First Reviewer expressed at the hearing about the applicant’s credibility. Extracts from that submission are as follows:
“At the applicant’s hearing on 13 February 2011, the Reviewer indicated that he had some credibility concerns in relation to certain aspects of the applicant’s evidence and in light of the fact that it appears the applicant had not previously provided information that he disclosed at hearing about his previous dealings with the Taliban.
We note that there was some confusion in relation to the applicant’s evidence at his hearing and advise that the enclosed statutory declaration signed by the applicant on 14 February 2011 provides clarification on these matters and an accurate account of what happened to the applicant prior to leaving Afghanistan.
Although the applicant raised several matters at hearing which were not mentioned in his Refugee Status Assessment request…, we wish to advise that the applicant had, prior to hearing, advised persons in our office that the Taliban had asked about him…
We note that at his IMR hearing, the applicant stated that, contrary to what was stated in his Entry Interview notes and RSA request, that he has never engaged in farming and that… it was his wife and younger brother who engaged in farming. The applicant confirms in his attached statutory declaration that this is correct. We note that the Reviewer appeared to have concerns in relation to this consistency…
We also note that Reviewer’s concerns that the applicant did not mention any of the specific claims set out in his RSA request or at IMR, during his Entry Interview….
We note that the applicant has raised provided new information in relation to his claims at hearing….
Our own experiences and observations of the applicant indicate that he does not seem to provide information unless specifically asked about a matter. In our submission, this should not be seen as evasive or as an excuse as to why the applicant did not previously disclose certain information…
Before reaching a conclusion that an applicant’s experiences sound implausible, we submit that a decision maker must bear in mind the political and human rights available in the country of reference…
We further note that, given the applicant’s instructions that he has never had any other employment it is foreseeable that he would be forced to return to driving taxis in order to earn a livelihood if forced to return to Afghanistan…
We submit that the applicant may face a well-founded fear of persecution on account of his membership of the above particular social groups. ”
I note that the particular social groups referred to in the submission relate only to Hazara taxi drivers.
In the applicant’s statutory declaration, declared 14 February 2011 and provided post-hearing, the applicant stated, inter alia, as follows:
“21. Furthermore, I’d like to clarify that I owned two pieces of land. They were close to each other but some distance from our house. This was on the land, not in the mountains. The Kuchis were coming and leaving their animals to graze on the land. Their animals grazed on both my pieces of land. Kuchis are coming to our village from Zargallo and travelling towards Nahur. Our village is in their path.
22. We couldn’t get any produce from our land because the animals grazed on the land and ate all of our crops. My wife and brother could grow and plant crops but before we could get the harvest, the Kuchis would come and bring their animals onto our land. We couldn’t complain about this because there was no government there and if there is, they are scared of Kuchis.”
The First Reviewer found that there were a number of inconsistencies in the applicant’s claims made to the assessor and the claims made to the First Reviewer. The First Reviewer found the applicant’s evidence of the Kuchis ruining his crops on his farming land to be “vague, confusing and inconsistent”. The First Reviewer expressed doubt as to whether the applicant had personal involvement with the Kuchis. The First Reviewer did not accept that the inconsistencies it found were due to the applicant’s stress and was not satisfied with the applicant’s explanations about concerns it put to the applicant about his evidence. The First Reviewer found that the applicant had “embellished and exaggerated” aspects of his claims and formed an “overall impression” that the applicant lacked credibility.
The First Reviewer noted the applicant’s claim to be at risk as a member of a particular social group of “landowners/farmers in Pakistan and/or Hazara landowners/farmers”. However, the First Reviewer was not satisfied that such a particular social group exists in the circumstances. In particular, the First Reviewer found as follows:
“Nevertheless, the Reviewer is not satisfied that the claimant in the circumstances would suffer persecution as a landowner/farmer and/or as a Hazara landowner/farmer as submitted in the foreseeable future if he were to return to Afghanistan especially given the claim by him that he was never a farmer in spite of some statements to the contrary during the RSA process. Further, the Reviewer notes that the claimant indicated that his wife and brother worked as farmers for years, even though he referred to the Kuchis interfering with his lands at times and grazing their livestock on it in a general way. Again it was submitted late in the process that the claimant was a member of a particular social group of Hazara drivers, and/or Hazara taxi drivers and/or taxi drivers. However for the reasons expressed above the Reviewer doubts that there is such a particular social group(s) and further the claimant sold his taxi a number of years ago and lived in Afghanistan for years without driving a taxi while his wife and brother who were not accosted, harassed or threatened by the Taliban farmed his land.”
On 22 August 2011, the First Reviewer’s recommendation was found to have made an error of law by misconstruing the test for determining the existence of a particular social group. The matter was then referred to the Second Reviewer to complete a recommendation to the first respondent.
On 20 October 2011, the applicant’s migration agent wrote to the Second Reviewer providing a further submission. In particular, the submission confirmed the applicant’s claim of his membership of a particular social group of “Hazara landowners in Afghanistan” and/or “Hazara farmers in Afghanistan”. The letter submitted that “Hazara landowners in Afghanistan” is a particular social group identifiable by its common characteristic of ownership of farmland. The letter submitted that while the Kuchis who persecuted the applicant may have been motivated by wanting access to grazing land and/or crops of the applicant, the applicant was targeted because of his Hazara ethnicity, his Shi’a religion and his membership of the particular social group of “Hazara landowners/farmers”.
On 24 October 2011, the applicant was interviewed by the Second Reviewer.
The recommendation of the Second Reviewer is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“11. The Reviewer made a recommendation on 20 November 2011 (CB 247-270) that the applicant not be recognised as a refugee.
12. In summary, the Reviewer found as follows :
12.1 The applicant is an Afghani national. The Reviewer, however, found the applicant overall not to be a credible witness (CB 266 at [53]). This was due to a number of inconsistencies in the applicant's evidence over time, including regarding whether he faced any harm, regarding his work in Afghanistan as both a taxi driver and a farmer, whether he had ceased driving after an incident involving the Taliban and whether he had received ‘night letters’ from the Taliban personally.
12.2 In making these findings, the Reviewer considered that the applicant had suffered psychological difficulties, was illiterate and may have had difficulties instructing his agents but did not accept these adequately explained the inconsistencies (CB 267 at [54]).
12.3 The Reviewer accepted that the applicant and his mother and cousin had been fired upon by the Taliban while driving to Ghazni city and that his cousin had been injured. The Reviewer considered that country information supported this claim and the applicant had been consistent in this claim over time. (CB 267 at [55])
12.4 The Reviewer did not accept that the applicant was ever engaged in farming directly or indirectly as a landholder or that he worked as a taxi driver (CB 267 at [56]). This was due to the fundamental inconsistent nature of the applicant’s claims regarding his work and his general lack of credibility. The Reviewer also did not accept that the applicant was later targeted by the Talban because of this or that he received letters or other threats from them, although it accepted that the Taliban may have distributed such letters generally. As the Reviewer did not accept that the applicant was involved in farming, he did not accept that the Kuchis grazed the applicant’s land or the claimed issues with the Kuchis as a result. The Reviewer did accept that the Kuchis may have blocked roads in the area but did not accept that this would constitute serious harm.
12.5 The Reviewer considered a letter in support of the applicant’s refugee claims (purported to be from a person who lives in the same village in Afghanistan as the applicant) provided to him, but found that the letter did not provide detailed support for the applicant's claims and, in light of the credibility concerns with the applicant, gave the letter no weight. For the same reasons, the Reviewer did not make any enquiries of the writer. (CB 268 at [58])
12.6 The Reviewer considered country information to assess the future risk of harm to the applicant. The Reviewer found that the overall weight of the country information, which had been put to the applicant at interview, indicated that there is no general campaign by the Taliban to target Hazara Shi'as or that Hazaras are consistently targeted. Further, he found that the applicant came from Jaghori which is 100% Hazara and that the applicant will not face a real chance of persecution there. (CB 268 at [60])
12.7 In light of the findings made regarding the past claimed incidents, the Reviewer did not accept in the applicant's particular circumstances that he will face a real chance of persecution now or in the reasonably foreseeable future on account of his being a Hazara Shi'a generally or a Sayed Hazara Shia in his home area of Jaghori. [CB268-269 at [61])
12.8 Given that he did not accept the applicant had been a landowner, the Reviewer did not accept that there was a real chance of the applicant facing persecution in Jaghori from the Kuchis and found that any issue with them blocking roads would not constitute serious harm. Further, given its findings regarding the applicant not being a taxi driver or landowner, it did not accept the applicant would be persecuted due to belonging to any particular social group related to these occupations. (CB 269 at [62]-[63])
12.9 The Reviewer accepted there are insecure routes leading from Jaghori to Ghazni but country information indicated that there was a secure road into Jaghori and another secure but arduous route. The Reviewer was therefore satisfied that the applicant could return safely to his home area without facing a real chance of persecution. (CB 269 at [64])
12.10 The Reviewer also considered whether the applicant would face harm due to him having been involved in a demonstration at Darwin IDC. The Reviewer accepted that the applicant had been shown on the internet, but did not accept that he had been shown denouncing the Taliban such that he would face harm for this reason. Further, DFAT information put to the applicant at hearing indicated he would not face harm as a failed asylum seeker. The Reviewer therefore did not accept that the applicant will face harm for any of the reasons associated with him having sought refugee status in Australia, including as claimed at the interview with the Reviewer due to being imputed with being a Christian. (CB 269 at [65])
13. The Reviewer therefore found that the applicant should not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.”
The proceeding before this Court
The applicant was represented before this Court by Mr Julian Gormly, of counsel.
The applicant was given leave to file in Court and rely upon a Further Amended Application identifying the following ground:
“That the decision of the second respondent (the reviewer) was affected by legal error in that:
1. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant a critical issue or factor on which the decision was likely to turn.
Particulars
· The applicant had claimed fear of persecution by the Kuchi and the Taliban as a member of a social group of ‘Hazara landowners/farmers’. This claim was supported by substantial country information in addition to the applicant’s own account of Kuchi attacks in his area.
· On the basis of what the reviewer regarded as the fundamentally inconsistent nature of the claimant’s claims concerning his work and his general lack of credibility the reviewer did not accept that the applicant owned a farm or was engaged in farming (either directly or indirectly as a landholder). As a result the reviewer did not accept that the applicant was a member of a particular social group of ‘Hazara landowners’ or ‘Hazara landowners/farmers;
· The reviewer did not bring to the attention of the applicant or his advisor that a decisive factual basis of his Kuchi and social group claims, ie that he owned a farm, was in issue;
· The said factual basis of the applicant’s social group claims was accepted in both the Refugee Status Assessment (RSA) and an earlier IMR review, and each decision maker rejected the Kuchi claims on the basis that they were not convention related;
· The social group claim was not raised in the RSA and was dealt with by an earlier IMR reviewer without challenge to the said factual basis;
· The reviewer made no finding that even if the said factual basis of the Kuchi claims was accepted, the social group claims would be rejected, including for reason that the claim was not convention related.”
Counsel for the applicant contended that the Second Reviewer failed to accord the applicant procedural fairness by not putting the applicant on notice that whether or not the applicant was a landowner was an issue for the Second Reviewer. Mr Gormly submitted that the applicant’s ownership of land was a fundamental factual basis of his claim to be a member of a particular social group of Hazari landowners. Mr Gormly submitted that the applicant’s ownership of land was not an issue either for the assessor or the First Reviewer and that both accepted that the applicant had encounters with the Kuchi in relation to the applicant’s land. Mr Gormly submitted that the Second Reviewer did not put to the applicant that he did not own his land.
Mr Gormly submitted that a transcript of the hearing before the Second Reviewer disclosed only that the Second Reviewer asked questions about inconsistencies in the applicant’s initial claims that he personally had farmed his land and later claims that his wife and brother worked the land. Mr Gormly conceded that the Second Reviewer also put other inconsistencies to the applicant relating to other claims.
The solicitor for the first respondent, Ms Watson, submitted that a fair reading of the First Reviewer’s decision made clear that the First Reviewer had significant doubts about the applicant’s credibility and at no stage made a positive finding that the applicant was a landowner.
The Second Reviewer commenced the interview with the following comments:
“… I’m going to make a fresh assessment of your claims taking into account the information that you’ve already previously provided and what you say to me today.
Now, you’re aware that you’ve already had one assessment by an IMR Reviewer, but again I am independent and will be making a fresh assessment.”
The transcript makes clear that the Second Reviewer asked the applicant about whether he had ever been involved in farming, the type of work he used to do, whether his father had owned the land, what had happened to the land when the applicant’s father had died and what had happened with the land more recently. The Second Reviewer also explored with the applicant his claims regarding the Kuchi and the involvement of his wife and brother. In particular, the Second Reviewer had the following exchange with the applicant:
“Reviewer: And what happened to that land after your father died?
Applicant: After the threat I received from the Kuchi and from the Taliban I was very conscious and I was very careful and my wife and my brother was working in the farm.
Reviewer: In your first interview you had here you said that you were both a farmer and a taxi driver, and in a Statutory Declaration that you provided you also said that when you weren’t driving you worked on your farm. That seems a little bit inconsistent with what you've said now.
Applicant: When my father was alive he was a farmer looking after our family land and I used to deliver tea and food and so on to him and I used to help him every now and then but I was a driver. But after my father was died my wife and my brother was looking after the farm and I received threat from the Taliban.”
The transcript makes clear that at the end of the interview, the applicant’s migration agent stated as follows:
“And in relation to the particular social group submission I would like to limit the paragraph really to Hazara landowners only rather than Hazara farmers.”
It is common ground that the Second Reviewer did not put to the applicant that his claim to be a landowner might not be accepted.
However, even if the applicant’s credibility was not squarely raised as an issue for the Second Reviewer, it is well accepted that the issues before the Second Reviewer must be seen in context of the applicant’s claims for a protection visa and the statutory framework within which the consideration of those facts arises (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]).
Part of the context of the applicant’s claim for a protection visa is the refugee status assessment and the recommendation of the First Reviewer and the evolving nature of the applicant’s claims during those interviews and the interview with the Second Reviewer. The First Reviewer clearly made adverse credibility findings in respect of the applicant’s evidence which were well recognised by the applicant and referred to in submissions by his migration agent (see above). Further, as stated above, the First Reviewer did not make a finding that the applicant was a landowner.
It is well established that procedural fairness would require the Second Reviewer to advise of any adverse conclusion which would not obviously be open on the known material. However, it is also well established that a decision maker is not otherwise required to expose his or her thought processes or provisional views before making a decision (see Kioa v West (1985) 159 CLR 550 at 587 per Mason J; SZGUR v Minister for Immigration & Anor (2011) 241 CLR 594 at [9] per French CJ and Kiefel J; Commissioner for Australian Territory and Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 per the Court; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 161-162 per the Court).
It is clear from the decision of the Second Reviewer, that the Second Reviewer found the applicant to be generally lacking in credibility. The issue of the applicant’s credibility was clearly in issue also for the First Reviewer. In those circumstances, the rejection of the applicant’s claims on the grounds of his adverse credibility findings is a finding that was obviously open on the known material.
In the circumstances, there was no obligation on the Second Reviewer to put to the applicant that the Second Reviewer may not accept that the applicant was a landowner. To do so would have been tantamount to the Second Reviewer giving a running commentary on its thought processes in circumstances where the applicant was reasonably on notice that his overall credibility was in issue.
Moreover, I accept the submission of the solicitor for the first respondent that the Second Reviewer made clear at the outset of the interview that a fresh assessment was being made of the applicant’s claims and that the questioning of the applicant during the interview was sufficient to put the applicant on notice that his credibility was in issue. In MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [93]-[95] Dodds-Streeton J stated as follows:
“In contrast, in the context of an entirely fresh determination, such as that conducted by an IMR, where it is made clear to the applicant that all claims are the subject of a fresh determination, there is no equivalent need to identify the crucial issues in contention by specifically notifying the applicant of any intended divergence from the delegate’s findings on dispositive facts or issues.
In the present case, as the Federal Magistrate observed, the IMR at the outset made abundantly clear that she was conducting a fresh hearing of the claims and would make a completely new and independent assessment of the evidence. Moreover, the IMR’s extensive questions and reiterated concerns about the credibility of the appellant’s account clearly expressed pervasive doubt about the appellant’s entire story. While neither party adverted to it, the IMR, on one view, during the interview (transcript extracted at paragraph 28 above), specifically expressed doubt about the occurrence of the kidnapping incident. Even if the IMR did not express doubt about the occurrence of the kidnapping while specifically indicating doubt about other particular aspects of the appellant’s claim, the appellant was unambiguously apprised that all of his claims and all evidence would be considered and determined afresh, and that the IMR had substantial difficulties with his whole story not limited to her specifically expressed doubts. Further, the appellant was given a full opportunity to put his case.
In such circumstances, the appellant was not entitled to assume that in the absence of specific notice, the IMR would not deviate from the delegate’s finding that the kidnapping incident occurred, albeit not for Convention reasons. Any failure specifically to notify the appellant that the IMR would or might make a different finding did not deny the appellant procedural fairness.”
Plainly, being a landowner was capable of being a dispositive fact of which the applicant must have been aware in claiming to be a member of a particular social group of Hazara landowners. The issue of whether the applicant was a landowner was a fundamental element in the applicant’s claim to be a member of a particular social group of Hazara landowners. That was the applicant’s claim.
To the extent that the First Reviewer accepted that the applicant was a landowner, it was not a positive finding that was required in light of the applicant’s claims before the First Reviewer.
The claim relating to the applicant’s membership of a particular social group before the First Reviewer concentrated on a social group of taxi drivers and “Hazara landowners and/or farmers”. It was not until the end of the interview with the Second Reviewer that the applicant’s claim to be a member of a particular social group was confined to membership of the particular social group of Hazara landowners.
In the circumstances, the issue of the applicant’s ownership of land was an issue obvious to the applicant. The fact that the applicant’s credibility was also an issue before the First Reviewer and the Second Reviewer only reinforces the fact that the applicant was on notice that every issue arising from his claims was in issue.
Mr Gormly also submitted that the applicant had not been given a full opportunity to present his case because he was not told that the applicant’s ownership was in issue and he was therefore not aware that he needed more evidence. For the reasons above, I reject that submission. The Second Reviewer made clear to the applicant that all matters relating to his claims were in issue. The applicant’s claim of ownership of land was a fundamental element of his claims. As such, it should have been obvious to him and he should have been aware that he was required to prove that he was a landowner, given that there had been no positive finding by the assessor or First Reviewer that he was a landowner.
In the circumstances, there was no denial of procedural fairness to the applicant in the conduct of the Second Reviewer in making his recommendation to the first respondent.
Accordingly, the proceeding before this Court, commenced by way of application filed on 16 February 2012, should be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 5 October 2012
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