SZRUE v Minister for Immigration

[2013] FCCA 893

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 893

Catchwords:
MIGRATION – Application for review of decision of Independent Protection Assessment Reviewer – allegation of no evidence for findings made by the reviewer – alleged failure by the reviewer to consider a claim – no error – application dismissed.

Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Applicant: SZRUE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: SYG 2003 of 2012

Judgment of: Judge Nicholls

Hearing date: 28 May 2013

Date of Last Submission: 28 May 2013

Delivered at: Sydney

Delivered on: 30 July 2013

REPRESENTATION

Counsel for the Applicant: Ms A Douglas-Baker

Solicitors for the Applicant: Juris Australia Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 14 September 2012 and amended on 19 November 2012 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $8,000.00

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2003 of 2012

SZRUE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 14 September 2012, and amended on 19 November 2012, seeking a declaration in respect of the recommendation of Ms R Gagliardi, in her capacity as “Independent Protection Assessment Reviewer”, (“the reviewer”) to the Minister that the applicant not be recognised as a person to whom Australia had protection obligations, under the Refugee Convention.[1]

   [1] United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”)

2. The application to the Court also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“M61/M69”).

Background

1. The applicant arrived in Australia on 22 December 2009 (Court Book – “CB” – CB 35). Given the circumstances of his arrival (by boat and without documentation) he was classified by the Australian authorities to be an “unauthorised arrival” (CB 1).

2. On entry, the applicant, who claimed to be an Afghani national, was interviewed with the assistance of an interpreter in the Hazaraghi language (CB 1 to CB 30) (“the entry interview”).

3. On 29 January 2010, the applicant requested a refugee status assessment (“RSA”). He was assisted in making that request by a registered migration agent (CB 48). He used a particular name which, in the circumstances, can be best described as “S.H.H”. He submitted a bundle of documents in support of his RSA request, including a statement as to his claims to protection and his personal details (CB 52 to CB 53) (“statement attached to the first RSA request”). It is of note (given ground one in the amended application to the Court), that the applicant also provided a Statutory Declaration made in the name of “S.H.H” (CB 66).

4. On 29 April 2010, the applicant made a second RSA request, with the assistance of the same migration agency, but a different registered migration agent (CB 101). In that application he used a different name which can be described as “S.H.K” (CB 67 to CB 107). He also provided a Statutory Declaration in that name (CB 106).

5. It is not clear from the material on the Court Book what action, if any, was taken by the Minister’s department in relation to the first RSA request. It appears the applicant may have been interviewed, because material in the Court Book refers to a “second” RSA interview (see the “first” reviewer’s statement of assessment). Nor was it clear why, and in what circumstances, the applicant lodged a second RSA request in another name. There was some suggestion by the Minister before the Court that the applicant did so after being “confronted” with documentary evidence of an application for asylum in the United Kingdom in which he used the name he used in the second RSA request, that is, “S.H.K”. I have proceeded on the basis, given the evidence before the Court, that there was only one RSA decision, although, as noted above, there are references to two RSA interviews elsewhere in the Court Book.

6. The applicant was interviewed in regard to the second RSA request by an officer of the Minister’s department (CB 111) (“the second RSA interview”). The departmental officer found that the applicant did not meet the definition of a refugee (CB 108 to CB 125) (“the RSA decision”).

7. With assistance from a different registered migration agent, the applicant sought Independent Merits Review (“IMR”) of the RSA decision (CB 126 to CB 129). His migration agent made written submissions on his behalf (CB 130 to CB 135) (“the representative’s written submissions”).

8. The applicant was interviewed by another reviewer to the one whose recommendation is the subject of these proceedings (“the first reviewer” and “the first IMR interview”) ([15] at CB 141 to [42] at CB 145). In the first reviewer’s statement of assessment, various references were made to the applicant’s claims as they emerged up to that time (CB 139 to CB 141). The first reviewer’s findings are at [62] (at CB 161) to [93] (at CB 175).

9. Following the High Court’s judgment in M61/M69 the applicant was offered another opportunity for his claims to be reviewed (CB 177). The applicant was interviewed by a different reviewer. It is that reviewer’s recommendation (Ms Gagliardi) that is currently before the Court ([50] at CB 189 to [121] at CB 201). The reviewer’s statement of assessment contains her understanding of what the applicant had submitted in writing and had previously said at the various interviews ([8] at CB 181 to [49] at CB 189). Her findings and reasons are at [129] (at CB 206) to [165] (at CB 211).

Claims to Protection

1. While much detail in the applicant’s claims changed over the RSA and IMR processes outlined above (for example, his name), the following elements are relevant to the determination of the grounds before the Court.

2. The applicant claimed to be of Hazara ethnicity, Shia Muslim religion and originally from the sub-district of Jaghori in the province of Ghazni in Afghanistan.

3. The applicant claimed to have first left Afghanistan in 2001. Some time later he applied for protection in the United Kingdom. That application was “rejected” by United Kingdom authorities (CB 85). He then obtained a passport in the name of “S.H.K” and returned to Afghanistan in 2007. He continued to fear for his safety and, therefore, moved his family to Quetta in Pakistan.

4. At issue in these proceedings is what the applicant now says he, variously, claimed before Australian authorities and during the RSA and the IMR processes. For ease of comprehension, the following is what the applicant says he relevantly claimed during the processes:

   1)The applicant claimed to fear harm from the Taliban and that his movements had been monitored by them.

   2)His father had “made” an enemy of a person who had a “strong connection” with the “Taliban [Bismullah]”. That person cooperated with the Taliban and reported the applicant’s movements to them.

   3)A group affiliated with the Taliban (the Kuchis) moved into his area and began “squatting” on Hazara land. The Kuchis terrorized and murdered Hazaras.

   4)On his return to Afghanistan he would be forced to fight with the Taliban.

   5)He also feared harm as a returned asylum seeker from a Western country.

5. The reviewer made a number of detailed findings rejecting the applicant’s claims to be a refugee. At the core of the reviewer’s findings were the serious concerns she developed about the applicant’s credibility. Some of these concerns included his inability to provide detailed information about his claims, his “concealment” of critical information, his “extremely vague testimony” and his avoidance of answering direct questions ([135] – [136] at CB 207).

The Application to the Court

1. The grounds of the amended application before the Court are in the following terms:

   “1. The reviewer found in paragraph 137 of her statement of reasons that ‘the claimant has admitted after being confronted with documentary evidence that he was untruthful at his interview on arrival, used a different name to that he had used in past applications for asylum elsewhere, made false statement of claims and then denied that he had ever applied for refugee status in Britain, even when confronted with written and photographic evidence that he had been to Britain’ and that the claimant, after consultation with his adviser, ‘finally admitted prior to interview with me that he had been untruthful’ (‘the Admission and Denial Findings’). The reviewer relied on the Admission and Denial Findings to make adverse credibility findings against the claimant (see paragraphs 135 to 137). The reviewer then relied on the adverse credibility finding as a basis for finding that the claimant did not have a subjective fear of persecution (paragraph 136) or a well-founded fear of persecution (paragraph 163). However, there was no evidence before the reviewer to support some of the Admission and Denial Findings. Specifically, there was no evidence before the reviewer:

   a) that the claimant admitted that he was untruthful at his interview on arrival;

   b) that the claimant admitted making false statements of claims;

   c) that the claimant denied that he had ever applied for refugee status in Britain; and

   d) that the claimant admitted that he had been untruthful.

   Where there is no evidence to support a finding on which a decision is based, there may be jurisdictional error in the decision. In the present case, there was jurisdictional error.

   2. The country information before the reviewer indicated that, although the Jaghori district (from which the claimant came) was populated primarily by Hazaras and was ‘out of reach of the Taliban control’ (see paragraph 125 of the statement of reasons), the Taliban were present around Jaghori district (see paragraphs 124 and 125 of the statement of reasons). A question is whether the claimant, if he was returned to Afghanistan, faced a real chance of harm travelling from Kabul to the Jaghori district. The reviewer did not address this question and hence deal with this aspect of the claimant’s claims, despite the fact that the claimant expressly made the claim (see for example paragraphs 28 and 65). This is a jurisdictional error.”

Ground One

1. Ground one asserts that there was “no evidence” for a number of key findings made by the reviewer. The applicant directed attention to [137] of the reviewer’s statement of assessment (at CB 207):

   “…In this case, however, and the claimant has admitted, after being confronted with documentary evidence, that he was untruthful at his interview on arrival [1], used a different name to that he had used in past applications for asylum elsewhere [2], made false Statements of Claim [3], and then denied that he had ever applied for refugee status in Britain [4], even when confronted with written and photographic evidence that he had been to Britain. Eventually, after consultation with his adviser, the claimant finally admitted prior to interview with me that he had been untruthful [5]. I place significant weight on the claimant’s continued and persistent credibility difficulties.”

   [Note: the matters set out in [137] (at CB 207) are relevant to the “particulars” set out below at [21] – in particular, [1] above and [21](i), [2] above and [21](ii), [3] above and [21](iii), [4] above and [21](iv) and [5] and [21](v).]

2. Before the Court, the applicant explained that, unlike the “usual adverse credibility” findings found in some matters of this type, the reviewer in the current case made “positive findings” about admissions said to have been made by the applicant and which were “against his interest”. While the applicant’s submissions were made in relation to the reviewer’s impugned findings, it is the case that the reviewer also made similar adverse findings about the vague evidence and the lack of detail provided by the applicant.

3. In any event, the important submission made by the applicant was that these impugned findings were critical to the reviewer’s ultimate recommendation that there was no well founded fear of persecution in the applicant’s case.

4. The five findings impugned in ground one are said to be ([20] of the applicant’s written submissions):

   “(i) after being confronted with documentary evidence, he was untruthful at his Entry Interview; [particular (a) of ground one of the amended application – ‘particular one’]

   (ii) used a different name to that he had used in past applications for asylum elsewhere; [not included in ground one of the amended application – ‘particular two’]

   (iii) made false ‘Statement of Claims’; [particular (b) of ground one of the amended application – ‘particular three’]

   (iv) denied he had applied for refugees status in Britain, even when confronted with written and photographic evidence that he had been to Britain; [particular (c) at ground one of the amended application – ‘particular four’] and

   (v) after consultation with his adviser, had been untruthful prior to the Second IMR Hearing. [particular (d) at ground one of the amended application – ‘particular five’]”

   [Footnotes omitted.]

5. I note that only four of the complaints are particularised in the amended application to the Court (see [17] above). However, I have taken the view that all five matters (per the written submissions and as set out at [21] above) are to be treated as particulars to ground one.

6. I can only agree with the applicant to the extent that one of those particulars may present a “problem” for the Minister (particular four: denying previous applications for asylum – see further below). As to the others, taking each in turn, the applicant has not established the necessary factual basis for his assertion.

7. What must be remembered here is that, to make out his “no evidence” assertion, let alone to show that legal error is revealed, the threshold is set, as stated, at “no evidence”. That is, if there is some evidence (even a “skerrick”) to support the reviewer’s finding, then no legal error is revealed (Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480 at [31] per Tracey J). Even where some subsequent miscalculation may have occurred on the part of the decision maker, that would be an error in a finding of fact which would not lead to jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ).

8. In particular one, the applicant asserts that he made no admission that he had been untruthful at the entry interview on arrival in Australia. The emphasis in the applicant’s attack was not so much on the reviewer’s finding, that the applicant had been untruthful at the entry interview, but that the reviewer had found that the applicant had made an admission to that effect (“the claimant has admitted….” [137] at CB 207).

9. The applicant argued that this particular could be made out with reference to [13] of the first IMR “decision” where the first reviewer set out what happened at the second RSA interview ([13] at CB 141):

   “At the second RSA interview, the claimant added:

   …

   - When asked why he did not provide the Departmental officers with information about his residence in London, he said he did not do so because he was not asked. He said that he was uneducated and he did not know he was in England. If he had been asked, he said, he would have told the truth.

   …”

10. The applicant submitted that that is not evidence that he made an admission that he did not tell the truth at the entry interview. Rather, the applicant argued that what appears at [13] (at CB 141) is a statement, by him, that had he been asked about his residence in England at the entry interview, he would have told the truth. That is, on the applicant’s view, different to admitting that he had not told the truth. In particular, there was no express admission by him that he had been untruthful. In these circumstances, the applicant submitted that the reviewer’s finding that he had made an admission was baseless and there was “no evidence” for that finding.

11. In response, the Minister took the Court to the reviewer’s recitation of what occurred at the second RSA interview ([17] at CB 184, which is in identical terms to [13] at CB 141 of the first reviewer’s statement of assessment set out at [26] above). The Minister argued that there was an “open inference” from that that the applicant did not tell the truth at his entry interview.

12. I agree with the Minister. When the applicant’s evidence is properly understood, in context, what he said was that, had he been specifically asked about his residence in London, he would have told the truth. However, given that he was not asked, he did not provide the “departmental officer” with the relevant, and truthful, information. In seeking to explain why he had not done so, he admitted that he had concealed relevant information. That is, he admitted he had not told the whole truth.

13. That view of the evidentiary basis for the reviewer’s finding is strengthened, as the Minister submitted, when regard is had to written submissions made by the applicant’s representative, on his behalf, on 23 September 2010 (see CB 130 to CB 131):

    “…Mr [applicant] regrets providing incorrect evidence in his initial statement. After his experiences in the United Kingdom he was extremely fearful that he would once again be refused and, believing that he would probably be quickly rejected if he told the truth about his recent past, he decided to omit this information.

    Because Mr [applicant] failed to provide an accurate account of his experiences in recent years, the Case Officer doubted some of his evidence regarding the situation in his local area. Mr [applicant] maintains that he fears the Taliban and the Kuchi, both of whom have threatened and harmed Hazaras in his local area. He looks forward to the opportunity to explain history and his fears to the Independent Reviewer in person.”

14. See also [18] at CB 185 of the reviewer’s statement of assessment:

    “On 23 September 2010, the claimant’s representative provided a submission in support of the claimant’s claims. The adviser reiterated the claim that he had departed the UK in 2007. It was also stated that the claimant regretted having provided incorrect evidence in his initial statement, excusing the incorrect evidence by advising that his experience in the UK had made him extremely fearful that he would once again be refused. Believing that he would be quickly rejected if he told the truth about his recent past, he decided to omit this information.”

1. The applicant attempted to confine the reviewer’s finding at [137] (at CB 207) (“has admitted …that he was untruthful at his interview on arrival”) to only the matter of information about his residence in London. He relied on what the first reviewer recorded the applicant as saying at the second RSA interview ([13] at CB 141, and set out above at [26]).

2. On a plain reading, let alone a fair reading, of the reviewer’s statement of assessment, what is set out at [137] (at CB 207) cannot be so confined.

3. What the reviewer found was that the applicant admitted that he was untruthful at his entry interview on arrival. The applicant has now assumed that that must have only been a reference to the matter of his residence in London. I cannot see that the reviewer’s finding is so confined. The lack of truth plainly extended to a number of matters, including his name.

4. The applicant noted before the Court that what the reviewer said at [137] (at CB 207) was in “identical terms” to what was relevantly said by the first reviewer (see [64] at CB 166 – the first reviewer’s statement of assessment). While not in identical terms (the first reviewer said the applicant “lied’, the current reviewer said that he was “untruthful”), it may be allowed that the reviewers’ findings, and their general expression of their findings, were similar.

5. I should note that this similarity does not reveal legal error, nor did the applicant contend before the Court that it did. It is open to the reviewer to consider, and even adopt, what was earlier found.

6. The first reviewer said ([64] at CB 166):

   “In this case, however, the claimant has admitted, after being confronted with documentary evidence, that he lied at his interview on arrival, used a different name to that he had used in past applications for asylum elsewhere, made false Statement of Claims and then denied that he had ever applied for refugee status in Britain, even when confronted with written and photographic evidence that he had been in Britain. Eventually, after consultation with his adviser, he admitted that he had been untruthful…”

7. It is not entirely clear whether the first reviewer meant that the applicant had consulted with his representative at the first IMR interview. However, given what was set out in the applicant’s representative’s written submissions of 23 September 2010, the particular timing of that consultation is of no moment.

8. In my view, the reviewer’s particular finding at [137] (at CB 207) can be traced to the first reviewer’s finding at [64] (at CB 166) which, in turn, refers directly to the applicant’s admission, given through his representative’s written submissions, which occurred at some time after the entry interview and the RSA interviews but prior to the first reviewer’s interview and the review which is the subject of current consideration.

9. The representative’s written submissions are an admission that the applicant had not told the truth at the entry interview. Plainly that was not just about his residence in London, but “…about his recent past…” (CB 130.8) and “his experiences in recent years” (CB 131.1). That is the evidence that the reviewer relied upon.

10. It is important to note that there was no suggestion, either before the reviewer or even now before the Court, that the applicant’s representative acted without authority, or misrepresented the applicant’s position. In these circumstances, the representative’s written submissions, being in essence the applicant’s submissions, are evidence that the applicant made the admission. The “no evidence” assertion is not made out in relation to particular one of ground one.

11. Particular two asserts that the reviewer found, without an evidentiary basis, that the applicant admitted that he used a different name to that used in past refugee applications.

12. There may be some argument to say that the reviewer’s finding ([137] at CB 207) was restricted to the first item in the sentence. That is, the applicant admitted being untruthful in his entry interview. [In light of what is set out above at [32] – [40], that is not confined to just the matter of his residence in London.] However, on balance and as set out above, I accept the applicant’s reading as being a fair reading. That is, that the reviewer meant to say that the applicant made admissions in relation to each of the items that follow at [137] (at CB 207) (except for particular four – see further below).

13. However, even on this reading, the applicant’s admission, as conveyed by his representative’s written submissions and as set out above, provided the evidentiary basis for this finding. At the entry interview the applicant plainly used a different name to that which he used in the United Kingdom and to that which he subsequently gave to Australian immigration authorities.

14. A similar situation applies to the third particular, being that the applicant admitted making a false statement of claim. That statement of claim was the one submitted by the applicant on 29 January 2010 (CB 52 to CB 53 and CB 66). It is “false” to the extent, at least, that the applicant gave a false name. The applicant’s admission in this regard came by his conduct when he submitted his second RSA request on 29 April 2010 (CB 85 to CB 86).

15. Particular five also falls into the same category. It relates to the reviewer’s finding that the applicant admitted, after consultation with his representative, that he had been untruthful prior his interview with the current reviewer. The representative’s written submissions to the reviewer are the basis for the reviewer’s finding.

16. Particular four, relates to the reviewer’s finding that the applicant admitted that he had denied that he had applied for refugee status in the United Kingdom, even when confronted with documentary evidence that he had been to the United Kingdom. The applicant asserted that there was no evidence of that admission. That is, no evidence that he ever made an admission about such a denial.

17. I have some difficulty in accepting that the fourth particular can be seen as an “admission” by the applicant (as asserted by the applicant now – see [20] of his written submissions). It may be accepted that the “admission” related to being untruthful at the entry interview, using a different name and making a false statement.

18. However, in my view, and on a fair reading, the reviewer then turned from the list of those  “admissions” (“and then…”) to record that, even after this long list of admitted untruths, the applicant denied seeking asylum in the United Kingdom, even when he was confronted with written and photographic evidence (see further at [53] below).

19. Before the Court, the applicant urged a holistic reading of the reviewer’s statement of assessment. The applicant’s submission was that the reference to there being “no evidence” of that “denial” (that he applied for asylum in the United Kingdom) was that “there is simply nothing that appears in the reviewer’s statement of assessment”.

20. It must be said that the reviewer’s statement of assessment is lengthy. The “Findings and Reasons” are exhaustively presented. Paragraph 137 (at CB 207), as with [135] – [136] (at CB 207), represents the reviewer’s introduction and summary of the “thesis” of her recommendation to the Minister. That is, as summarised at

    
    

    [135] – [137] (at CB 207), that the applicant should not be believed when he says he has a well founded fear of persecution because there were a large number of concerns about his claims, and the various ways in which he elected to present those claims over time.

21. The absence of any reference to an admission of a denial in what follows, at [138] (at CB 207) to [165] (at CB 211), under each of the headings representing areas of concern to the reviewer about the applicant’s claims and their presentation, supports the reading that I have taken of what is impugned at [137] (at CB 207).

22. The reviewer’s statement of assessment is an exposition of each of the matters of concern. There is no reference in the statement of assessment to an admission of a denial (as there is of the admission of falsehoods) because none was made. A holistic reading of the reviewer’s statement of assessment supports the view that, at [137] (at CB 207), she made no finding of any admission of a denial. There were a number of admissions of falsehoods listed “and then” she emphasised the applicant’s untruthfulness with reference to the applicant’s egregious denial “even when confronted” with overwhelming evidence that did not support his denial.

23. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) the High Court directed that such records are not to be read with an “eye keenly attuned to the perception of error” (Wu Shan Liang at [30] and the reference there to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280). The applicant’s reading of [137] (at CB 207) does just that.

24. What remains, therefore, is whether there is evidence to base the reviewer’s assertion that the applicant denied that he had ever applied for refugee status in the United Kingdom ([137] at CB 207).

25. The Minister was unable to point to any part of the material before the Court to say, conclusively, that there was a basis for the reviewer’s finding in that regard. He could only refer the Court to the following extract from the RSA record (at CB 111):

    “When in the course of the second RSA interview, the information about biometric match (fingerprint) was put to the client and when asked as to why he did not provide the department with the information about his residence in England in his first RSA request, his response was that he was not asked whether he resided in London. He went on saying, as he is an uneducated person he was not aware that he actually lived in England but was aware that he resided in London, and if he had been asked whether he lived in London he would have replied in the affirmative. The delegate explained to him that at the time the department did not have any information of him living anywhere outside of Afghanistan and Pakistan, the two countries, he declared in his RSA request form that he resided in.”

26. However, the Minister “conceded” that that was not “the same” as the reviewer’s statement that the applicant denied that he had ever applied for refugee status in Britain.

27. I agree with the Minister’s “concession” here. There is a distinction between omitting, or conceding, the fact that he had applied for refugee status in Britain and denying that he had done so when confronted with evidence.

28. The applicant says that, in the absence of any evidence for this denial, the reviewer fell into jurisdictional error. The applicant relies on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 (“SFGB”) at

    
    

    [18] – [19] per Mansfield, Selway and Bennett J citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 355 – 357:

    “[18] The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.

    [19] This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (`S20') at 62, 67, 76, 90-91.”

29. What is important to note here, as the Minister submitted, is the explanation provided by the Full Federal Court as to the relevant test. The first is that there is “no evidence” for a particular finding. That is what occurred here. The second is that the impugned finding by the relevant decision maker is a “critical step” in their ultimate conclusion (or in this case, recommendation).

30. In SFGB, the Refugee Review Tribunal (“the Tribunal”) had before it another Afghani national. In that case, the Tribunal found that there was no well founded fear of persecution. The error was explained by the Full Federal Court as such ([24] – [25] of SFGB):

    “[24] As to that claim as put before the Tribunal, the Tribunal found:

    (a)     as a general statement the Taliban had been defeated in Afghanistan. An interim government had been established. Previous circumstances of religious and political persecution were being addressed;

    (b)     the area where the appellant lived was under the de facto or de jure control of Karim Khalili, a Hazari leader from the adjoining province of Bamian;

    (c) although there were reports of Taliban / al Qaeda in Oruzgan, those reports refer to areas that are not close to or accessible to the part of the province where the appellant lives;

    (d)     in any event in recent reports the US Defence Secretary has reiterated a commitment to `go after' the elements of the Taliban that remain.

    [25] The difficulty with all this is that there is no material that either party could point to that would support the factual conclusions (b) and (c). On the other hand, there is information that is clearly to the contrary. For example, a report in Time Magazine (‘After Shah-I-Kot: The Next Campaign’ vol 159, issue 12) of 25 March 2002, which was cited with apparent approval by the Tribunal, referred to the strength of the Taliban and al Qaeda in Oruzgan province and said that they had dispersed into small fighting forces. But most importantly the Tribunal set out at some length a DFAT report (‘Oruzgan province’, Country Information Report No 81/02, 2 April 2002, CX63508) dealing expressly with the situation in Oruzgan province. That report stated:

    ‘The security situation in Oruzgan is uncertain. There are reportedly pockets of Taliban/al Qaeda in the northern part of the province, although there have been some signs that security in the rest of the province is improving slightly.’”

31. In the current case the situation is clearly distinguishable. The reviewer found that the applicant did not have a well founded fear of persecution because ([163] at CB 211):

    “On the basis of my serious concerns about the claimant’s credibility and his repeated refusal to be transparent with immigration authorities about his identity and past, I find that the claimant does not have a real chance of persecution were he to return to Afghanistan now or in the reasonably foreseeable future on account of his ethnicity, religion or membership of a particular social group.”

32. The impugned finding cannot be said to be a “critical step” in the reviewer’s road to her ultimate recommendation. It was certainly a part. However, when regard is had to her reasoning and analysis, as a whole, it was a very small part. The reviewer’s adverse credibility finding was amply supported by a large body of evidence (see each of the headings – “Identity” at CB 207, “Protection claims lodged in the United Kingdom” at CB 208, “Third party information put to the applicant at interview held on 15 March 2011” at CB 209, “Work in London” at CB 209 and “Protection claims lodged in Australia and real chance of persecution in the reasonably foreseeable future” at CB 211). Nowhere in her analysis is there any reference to, or reliance on, any denial by the applicant that he had applied for refugee status in the United Kingdom. Nor, it is important to note, was the reviewer’s adverse credibility finding confined even to the matters in the five particulars to ground one.

33. As the Minister submitted, the nature of the test for the common law principle of “no evidence” requires that the finding be a critical step in the review. In the current circumstances, it was not. Ground one is not made out.

Ground Two

1. In ground two, the applicant asserted that the reviewer did not address a claim expressly made by the applicant. That is, the claim that he feared persecutory harm on return to Afghanistan when travelling between Kabul and the Jaghori district.

2. The applicant relied on the following to say that this claim, or aspect of his greater claim, to fear persecutory harm from the Taliban was expressly made. In particular:

   1)During the entry interview (CB 21.6):

   “Have you even been personally affected by the Taliban? No because I was not setting out of my village, because a few people from near our village while travelling outside at different times they were caught by Taliban and killed.”

   2)The applicant’s written statement attached to the first RSA request (29 January 2010) (CB 52):

   “They began to sweep through my region a few years ago. People of the Kochi nomadic tribe (Taliban) would set up their tents and live on peoples land and use the land to raise their own animals. They would terrorise people in the village. When they first moved into my village, they killed four people on the spot, without hesitation. Other villages were also hard hit by their terrorism, with many Hazaras being murdered for no reason.

   I am particularly afraid of the Taliban because I was aware that they were monitoring my movements. A local Hazara who was cooperating with them had a personal vendetta against me based on an old family dispute, and he was providing information to them about me. I was unable to travel anywhere and lived in fear. I was unable to run my farm effectively because I could not travel to obtain machinery etc. My family was one of the wealthier families in the area with a large amount of land. I was trapped on my own land. When there was a short lull in their activities, I seized the opportunity and moved my family to Quetta in Pakistan. We were there for around two years.”

   [Emphasis added.]

   3)The applicant’s written statement attached to second RSA request (28 April 2010) (CB 85.5):

   “We also have problems with people of the Kochi nomadic tribe. The Koccis support the Taliban and many are members of the Taliban. The Taliban supports the Koccis.

   The Koccis set up their tents and live on peoples land and use the land to raise their own animals. They would terrorise people in our village. When they first moved into my village, they killed four people on the spot, without hesitation. Other villages were also hard hit by their terrorism, with many Hazaras being murdered for no reason.”

   4)Further, at CB 86.2 of the written statement attached to second RSA request:

   “After I came back from the United Kingdom my life was in more danger. I was unable to travel anywhere and lived in fear. I was unable to run my farm effectively because I could not travel to obtain machinery etc. My family was one of the wealthier families in the area with a large amount of land. I was trapped on my own land.”

   5)The first reviewer’s statement of assessment (CB 167.5 to CB 168.1)

   “The Taliban in Jaghori District

   …

   The District remains an enclave of comparative peace with little, if any, insurgent activity. Jaghori is however vulnerable to threat of blockade by the Taliban as most of the roads to and from the District are controlled by the Taliban. There is also evidence that the threat of increasing Taliban involvement with the nomadic Kuchi, including the provision of arms and transport

   …

   The claimant agreed but said that the roads were blocked and it was very dangerous to travel.”

   [Emphasis in original.] [These were part of the claims that the first reviewer said the applicant advanced.]

   6)The first reviewer’s statement of assessment at CB 156:

   “The MP said that in Jaghori, there were two main problems. First, insecurity on the routes to and from Jaghori. This applied to the routes via Qarabagh and Ghilan into Jaghori. The MP indicated a third alternative route existed which was safer than the two main routes but which took several more hours. The MP said that within Jaghori itself the situation was safe but surrounding districts were insecure. Second, because it was a mountainous area there was a great deal of economic hardship in the region and finding employment was difficult. A major social challenge for the area was opium addiction, which was on the rise.

   7)The reviewer’s own statement of assessment at [28] – [29] (at CB 186) and [33] (at CB 187):

   “[28] The claimant was asked whether he knew of the

   
   

   Hizb-I Wahdat (Nasr) Party as the Party had been able to keep Jaghori relatively safe during the Taliban era. The claimant stated that that was true but that he was a poor man and he had no connections. The reviewer stated that he understood the area to be safe. The claimant agreed but stated that the roads were blocked and it was very dangerous to travel.

   [29] The claimant stated that he had been afraid of the Taliban and their allies the Kuchi who came through his area every year. He was asked directly whether he had ever had any difficulty with the Kuchi. He responded that he did. When asked what had happened, he said whenever the Kuchi came he ran away and hid in the mountains. Since the claimant had said the Kuchi came in spring and sometimes summer, the reviewer asked how he harvested his crops. He said that he had managed to do so.

   …

   [33] The reviewer probed about how the claimant travelled from Shashpar to Kabul. He said that it was by road. He was then asked if he had experienced any difficulties and he responded that he had not. He was asked whether he had any difficulties in Shashpar and he stated that there was a problem with the Kuchi. He was asked how long after his return this trouble arose. He said that he did not stay in the village but took his wife and children to Pakistan. He was asked when he had left and he replied that the Kuchi were attacking so he left his village.”

1. The applicant said that the Court should compare the finding made by the first reviewer with the absence of any such finding in the reviewer’s statement of assessment. In particular, [82] (at CB 173) of the first reviewer’s statement of assessment:

   “I accept that if the claimant were to return to Afghanistan, he would first arrive in Kabul and from there he would have to travel by road to Jaghori. I also accept that it the claimant would have to travel to and from Jaghori to obtain supplies and other requisites of life. I accept that by so travelling, the claimant would be at risk of coming into contact with Taliban blockading the roads. I accept that this is a risk, not a certainty. I further accept that if he were to be caught travelling by the Taliban he may well face serious harm arising from his imputed political opinion as a person travelling despite warnings from the Taliban, as the MP has noted above, not to do so. Again I accept that this is a risk, not a certainty. He would be at risk, not because of his ethnicity or religion, but because of his imputed political opinion.”

2. It is the case that an administrative decision maker (including the reviewer in this case) must deal with claims that are expressly made, or clearly arising on the material before him or her (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at [58] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [23],

   
   

   [26] – [27], [86] – [89]).

3. I agree with the Minister that, having regard to those parts of the Court Book to which the applicant took the Court, it cannot be said that a claim expressly made, nor clearly arising from the circumstances presented, was put by the applicant that he feared harm from the Taliban (or their allies) if he were to travel between Kabul and the Jaghori district.

4. The Minister submitted that the applicant’s reference, before the Court, to the material where the applicant used a “false” name does not assist him. That is because, the reviewer cannot be expected to have regard to claims made where the applicant used a false identity and he had conceded, through his representative’s written submissions, that he had not told the truth.

5. However, even if that were not the case, what is relied on at CB 21 and CB 52 is not of assistance now to the applicant. At CB 21, the applicant said he had never been personally attacked by the Taliban. He referred to a “few people” who had been travelling who had been caught by the Taliban. This claim lacks the specificity of the claim that he now says was expressed here. The reference to a “few people” remains too vague to be said to be linked to the applicant. The “few people” do not even appear to be from the applicant’s village (“near our village”).

6. At CB 52 the claim is that he was unable to “travel anywhere”. However, that claimed difficulty, at least as expressed at CB 52, appeared to be linked to a “local Hazara [Bismullah]” who was cooperating with the Taliban. That is, the difficulties with “Bismullah”. The reviewer squarely rejected the applicant’s claims in relation to “Bismullah or any other Taliban figure” ([160] at CB 211).

7. Before the Court, the applicant did not submit that these two parts of the Court Book could be said to reveal a claim expressly made, nor clearly arising. The applicant relied on the introduction here of the concept of “travel”, but submitted that the claim expressly emerged over the course of the remainder of the applicant’s various dealings with immigration authorities.

8. The applicant’s written statement, attached to the first RSA request, was said to introduce the element of the Kuchis, who were allies to the Taliban, and who terrorised and killed Hazaras. Here again the applicant stated he could not travel “anywhere”. Again, this was a statement generally removed from the specific assertion of travel between the Jaghori district and Kabul. However, it may be allowed that the generality of the “broad” travel claim may subsume the specific matter of travel between the Jaghori district and Kabul (see further below).

9. The first reviewer’s statement of assessment does record that country information before him indicated that the Jaghori district was vulnerable to the threat of blockade by the Taliban ([82] at CB 173). Further, it linked the nomadic Kuchis to the Taliban.

10. However, before the current reviewer and as recorded at [28] – [29] (at CB 186), the applicant agreed that the Jaghori district was “relatively safe” during the “Taliban era” (due to the efforts of a

    
    

    pro-Hazara party and militia). However, he said that it was “very dangerous to travel” ([28] at CB 186).

11. It is important to note that, at this point (up to and during the interview with the reviewer), the highest that the applicant’s claim to fear harm can be said to have been relevantly expressed was that the “whole problem in Afghanistan was the Taliban and the Kuchis” ([57] at CB 190).

12. Interviews and hearings before administrative decision makers are not only important as a means of discharging procedural fairness obligations. It is the case, that they are also important as they ensure that applicants are given a fair and meaningful opportunity to give their evidence and make their arguments. Where applicants, such as the applicant in the current case, have been interviewed a number of times and various submissions have been made on their behalf, and their evidence and claims have changed over time, the interview is the opportunity for the decision maker to clarify just what the applicant’s claims are. It is also the opportunity for the decision maker to understand and explore these matters. However, there is still an onus on the applicant to make out his case.

13. In the current case the reviewer went to some length to extract some specificity from the applicant as to his claims (“I asked precisely what the Taliban had done to the applicant…” – [58] at CB 190 and “I highlighted the importance of the claimant setting out his case in detail…” – [58] at CB 190).

14. The reviewer squarely put her concerns to the applicant [59] (at CB 190):

    “I commented that given that he had a propensity to revise his account as he went along, I may find that his credibility was in doubt. He stated that no, whatever he could recall he would say and anything he had forgotten he would reveal during his interview.”

15. The account of the interview reveals that the reviewer also went to some lengths to explain relevant country information, including a reference to what was said in the “previous reviewer’s assessment” ([61] at CB 190 to [62] at CB 191).

16. Again, the applicant did not respondent with any degree of specificity, or clarity, about travel between the Jaghori district and Kabul ([63] at CB 191). The reviewer said: “I put it to the claimant that what he was saying was very vague. Did he simply have a feeling that he was in danger” ([64] at CB 191).

17. The closest that the applicant came to the travel matter was at [65] (at CB 191):

    “…The claimant stated that at that time all the roads were controlled by them and he was waiting for an opportunity to get his family out and that night he was able to get a car to flee.”

18. The interview continued with the reviewer pressing for some clarity from the applicant (for example: “I did state that his testimony concerning Bismullah and what had occurred was extremely vague and I encouraged him to elaborate” ([68] at CB 192)).

19. The reviewer then pointed out the lack of credibility in the applicant’s claims ([69] – [70] at CB 192). In response, the applicant began to advance “new claims” ([72] at CB 192 to [73] at CB 193). This led the reviewer to say: “It was again put to the claimant that he had in the past shown a propensity to be untruthful about his life and what he had been doing…” ([74] a CB 193).

20. It is important to note, therefore, that it was open to the reviewer to subsequently find, amongst other things, that the applicant had been unable to provide detail, had been extremely vague, and had avoided answering questions at the interview with her. This included the travel matter.

21. At [78] (at CB 193) the reviewer recorded that:

    “I asked the claimant that I wished to learn about how he got to London, who assisted him and why he made the decision to go there. He stated that it was due to trouble in Afghanistan; the Taliban were taking over the country and his life was in danger. He stated that a smuggler in Kabul assisted him. I noted that the claimant was able to travel to and from Kabul without difficulty. He stated that it was not that he did not have difficulty. He went there in secret. I asked how he had known the people smuggler and he stated that he did not know the people smuggler who was an Afghan but other people who also wanted to go told him about him.”

    [Emphasis added.]

22. The remainder of the interview continued over different topics in the same vein. The reviewer continued to note contradictions in the applicant’s account ([95] at CB 196).

23. Again, the matter of travel was touched on at [96] (at CB 196):

    “He stated that he disembarked in Kabul and returned home by car to his family. I asked whether anything had happened on the way. He stated no, luckily.”

24. It is the case that the first reviewer did deal specifically with the matter of travel from the Jaghori district to Kabul. There may be a number of reasons for this. In the circumstances presented to the first reviewer, as derived from what is now before the Court, it appears that that was done in an abundance of caution. I can take judicial note that this type of claim has been specifically raised by a number of Hazaras whose cases have similarly come before this Court. However, with the current applicant, it does not appear to have been specifically raised by the applicant before the first reviewer, nor the reviewer whose recommendation is the subject of current consideration.

25. In the current case there were general references to “travel” in Afghanistan in the applicant’s various accounts. As the reviewer pressed at the interview, and subsequently found, those references lacked specificity. They were vague and general assertions, on occasion with no reference to the applicant himself.

26. The evidence before the Court (the reviewer’s unchallenged account of what occurred at the interview) reveals that the applicant was, repeatedly, given a reasonable opportunity to give substance and clarification to his claims, including the vague references to “travel” and “roads”.

27. His evidence, however, remained general and vague. If anything, his inability to explain, despite the clear opportunity provided, only reinforces the reasonableness of the reviewer’s relevant conclusion.

28. Given this situation it cannot be said, contrary to the applicant’s assertion now, that the dangers of travel between the Jaghori district and Kabul as a basis of his fear of persecutory harm was a claim expressly made or clearly arising from the circumstances presented.

29. It is what was ultimately put before the reviewer, and the applicant’s evidence and explanations, that is central here. At its best, the applicant’s claims, relevantly, were of a general fear of the Taliban and Kuchis and vague references to others being attacked while travelling. In relation to the applicant himself, what the reviewer said at [162] (at CB 211) was sufficient to deal with the applicant’s claims.

30. In all, ground two is not made out.

Conclusion

1. Neither of the grounds of the amended application to the Court has been made out. The application, as amended, should be dismissed. I will make an order accordingly.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  30 July 2013