SZSHH v Minister for Immigration
[2014] FCCA 1500
•14 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1500 |
| Catchwords: MIGRATION – Application seeking review of recommendation of Independent Merits Reviewer – whether there was a failure to consider applicant’s claim – whether there was a failure to re-put an ambiguous question – whether correct test in respect of state protection was applied – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 424(1) , 427(1) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZSHH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | J BARTLETT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2761 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 11 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Broadbent |
| Solicitors for the Applicant: | Mr H. Collings-Begg of Allens Linklaters |
| Counsel for the First Respondent: | Ms R. Graycar |
| Solicitor for the First Respondent: | Mr J. Pinder of Minster Ellison |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2761 of 2012
| SZSHH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| J BARTLETT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) for declaratory relief in respect of a recommendation made by the Independent Merits Reviewer (the “Reviewer”) to the first respondent, the Minister for Immigration and Border Protection (formerly the Minister for Immigration and Citizenship) (the “Minister”) that the applicant should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Statute of Refugees (the “Convention”), as amended by the 1967 Protocol relating to the Status of Refugees.
The solicitors for the Minister were required to file a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”. At the hearing the applicant’s representatives read the Affidavit of Trieste Corby, affirmed 15 April 2013 and filed the same day (the “Corby Affidavit”). Annexed to the Corby Affidavit is the transcript of the recording of the Independent Merits Review interview.
By consent, orders were made by the Court on 11 February 2013 (later amended) where the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The applicant filed an amended application on 26 April 2013.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant was born on 8 April 1958 in Farah, Afghanistan and lived in the village of Yazdeh until 2010. He is a citizen of Afghanistan. Between the years of 1978 and 1982 he attended Jalalabad University qualifying with a Bachelor of Science. He was employed on his own farm as a farmer between 1983 and 2010.
The applicant’s religion is Shia Muslim, his ethnic group Tajik and his preferred language is Dari. He married in 1985 and his wife and five children are now living in Karaj, Iran.
The applicant left Afghanistan on 11 September 2010 and travelled to Pakistan (CB 93). He subsequently travelled to Malaysia and then Indonesia, where he joined a boat headed to Australia with other asylum seekers (CB 96). His boat (code named TARRO) was intercepted by the Australian Navy and he was taken to Christmas Island on 4 December 2012 (CB 93).
On 4 December 2010 the applicant was interviewed by an immigration officer at Christmas Island (CB 7-45).
On 26 December 2010 with the assistance of a migration agent, the applicant applied for a refugee status assessment (CB 46-84), thereby invoking a process where he sought to be acknowledged as a refugee for the purposes of the Convention. The Department of Immigration and Citizenship (as it was then) (the “Department”) conducted an interview with the applicant on 28 December 2010. On 12 July 2010 the applicant provided further information to the Department (CB 88-89).
On 21 March 2011 the Department found that the applicant did not meet the definition of a refugee and was not someone to whom Australia owed protection obligations (CB 90-104).
The applicant requested merits review of the refugee status assessment (CB 108-116) and provided written submissions to the Reviewer (CB 96-104). The Reviewer interviewed the applicant on 29 November 2010 (CB 114).
The applicant submitted a complaint against his original migration agent on 3 April 2011 to the Department (CB 117-123) and obtained a new migration agent (CB 124-143). The applicant, with the assistance of his new migration agent, provided further information to the Department on 5 October 2010 (CB 125-177).
On 23 September 2011 the Department notified the applicant that his refugee status assessment was being reviewed for currency (CB 178). Following that review, the Department informed the applicant on 12 October 2011 that his refugee status assessment would not be changed (CB 181).
On 9 February 20112, the Department provided the applicant with a ‘natural justice’ letter, in which they invited the applicant to provide evidence in support of his claim for refugee status (CB 190-191). The applicant provided submissions on this subject to the Department on 24 February 2012 (CB 192-208).
On the basis of a report made on 6 March 2012, the Reviewer recommended to the Minister that he should not accept that the applicant was a person to whom Australia owed protection obligations under the Convention (CB 227-268). The applicant was notified of the refusal by letter dated 5 April 2012 (CB 225-226).
On 26 November 2012 the applicant filed an application for juridical review. The application for judicial review was filed more than 35 days from the date of the migration decision under review: s.477(1) of the Migration Act. In SZQDZ v Minister of Immigration and Citizenship (2012) 200 FCR 207, the Full Federal Court held that the 35 day time limit required by s.477(1) of the Migration Act does not apply to offshore entry person such as the applicant.
Current Proceedings
The orders sought by the applicant in the amended application are as follows:
1. A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2. An injunction restraining the Minster, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
3. An order that the first respondent pay the applicant’s costs.
4. Such further orders as the Court sees fit.
The grounds of the amended application are as follows:
Ground 1: Failure properly to consider the applicant’s claim that he feared persecution as a Shia Muslim
1. The second respondent:
a) committed jurisdictional error, by failing to have regard to relevant evidence; and
b) committed jurisdictional error and failed to afford the applicant procedural fairness, by not accepting claims made by the applicant’s migration agent as claims made by the applicant himself.
Particulars
i. The applicant claimed that if he was forced to return to Afghanistan there was a real chance he would be seriously harmed for reason specified under Article 1A(2) of the 195 Convention Relating to the Status of Refugees (the Convention), being that he is a Shia Muslim.
ii. The second respondent stated that the only evidence in support of the claim was the uncorroborated assertion of the applicant’s adviser. This statement contained 4 errors:
1. it implicitly and incorrectly assumed that a claim put forward by the applicant’s adviser was not a claim being put forward by the applicant himself;
2. it failed to have regard to the applicant’s statement in his entry interview that, when he was captured, detained and tortured by the Taliban, they abused him for being a Shia;
3. it failed to have regard to the applicant’s statement in his IMR interview that, when the Taliban attacked his house, they abused him over a loudspeaker for being Shia; and
4. it failed to have regard to the applicant’s statement in his IMR interview that Lashkar Jangwi are group active in Afghanistan that persecute Shia.
2. Further, the second respondent committed jurisdictional error by failing to consider and/or request relevant evidence corroborative of his fears, namely:(a) country’s information as to the existence and/ or prevalence of kidnapping in Afghanistan, as opposed to other, more extreme forms of violence;(b) medical evidence of scarring to the buttocks or other injuries; and(c) the applicant’s evidence of scarring or other injuries.Ground 2: Failure to re-put ambiguous questions and making a finding not based on the evidence
3. The second respondent committed jurisdictional error by failing to afford the applicant procedural fairness by:
o not re-putting a question to the applicant which the applicant had not properly understood; and
o failing to make a decision based upon the evidence.
Particulars
(a) The applicant claimed during his Independent Merits Review (IMR) interview that he had conducted talks at various village mosques in Afghanistan.
(b) The applicant was asked by correspondence following the interview, why the applicant had not claimed prior to the IMR interview that he conducted talks at mosques in the villages of Wazdeh, Nowbahar and Darabad.
(c) This question was ambiguous. It could be interpreted as:
i. a question as to why he had not claimed he had conducted talks in those 3 specific villages (the first interpretation); or
ii. a question as to why he had not claimed that he had spoken himself, as distinct from preparing talks (the second interpretation).
(d) The applicant’s response to this question, by correspondence, claimed that no one has asked the applicant for the names of the towns in which he had conducted talks at mosques.
(e) It was or should have been apparent to the respondent that in providing this answer the applicant has adopted the first interpretation.
(f) It is apparent from the second respondent’s reasons that she had intended the second interpretation. Nevertheless, the second respondent failed to re-put the question to the applicant in such a way that the applicant understood the question being asked of him.
(g) The second respondent determined that the applicant’s response to the question of why the applicant had failed to mention his talks at public mosques prior to the IMR interview, was that “he was not asked”.
(h) Accordingly, the second respondent determined that the applicant’s claim that the applicant conducted talks at various village mosques was a new claim raised at the IMR interview.
(i) Accordingly, the second respondent failed to make a finding on the evidence, and failed to afford procedural fairness by:
i. not having proper regard to the answers that were given;
ii. not providing the applicant with a proper opportunity to answer a question; and
iii. making a finding purportedly based on the applicant’s evidence, when the applicant had not given such evidence.
Ground 3: Applying incorrect test for state protection
4. the second respondent committed jurisdictional error and made an error of law by applying the wrong principle or test.
Particulars
(a) The applicant submitted that he is unable to avail himself of effective state protection in Afghanistan because the state is unwilling and unable to protect the applicant due to his Shia Religious faith.
(b) The Convention requires that a state must consider whether the applicant, claiming asylum from his country of nationality on the basis of a well-founded fear of being persecuted, is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
(c) the second respondent determined there was no evidence to suggest that Afghanistan would be unwilling to provide protection to the applicant.
(d) The second respondent failed to consider whether Afghanistan would be unable to provide protection to the applicant.
(e) Accordingly, the second respondent misapplied the test of whether the applicant is unable or, owing to his fear of persecution, is unwilling to avail himself of the protection of the state.
(f) In finding that the applicant:i. had not been openly vocal against the Taliban; andii. had not undertaken any activities able to be characterised as “strident opposition to the Taliban’s philosophies” in the form of writing, public speaking and political activism ,because to do so would be to place the applicant’s life in danger and lead to physical harm, the second respondent failed to apply the correct test and took into account irrelevant considerations.
Applicant’s Submissions
The applicant is of Tajik ethnicity and a Shia Muslim. He is a citizen of Afghanistan who fears harm because of his religion, political opinion or imputed political opinion, and his membership of a social group. Specifically, the applicant claimed that he feared the Taliban who:
a)Had kidnapped and tortured him on one occasion, as well as attacked his home, because he is a Shia Muslim (CB 264);
b)Had persecuted him as an opponent of the Taliban and a supporter of the Afghan government (CB 258 at [111]; CB 257 at [107]; CB 263 at [124]); and
c)May potentially harm him in the future as a returnee from a Western country and, in particular, a failed asylum seeker from Australia (CB 263).
The applicant’s claims were rejected due to a finding by the Reviewer that the applicant was not a credible witness. This finding as to the applicant’s credibility affected each limb of the applicant’s claim. The Reviewer held that the applicant’s accounts of his writing and public speaking, his abduction by the Taliban and the attack by the Taliban on his house were “inconsistencies aside, objectively implausible” (CB 255 at [102]). Consequently, the following factors regarding the applicant’s credibility are particularly relevant to the current grounds of appeal:
a)The applicant had failed to mention at his original interview that he had conducted public talks at mosques in his local area (CB 257 at [106]);
b)Because of the applicant’s asserted level of education and ability to provide detailed descriptions of his house, the applicant could not have misunderstood certain questions posed as claimed, and the applicant’s failure to advance information regarding his public speaking at mosques prior to the Merits Review interview “because ‘he was not asked’” was also implausible (CB 257 at [106]);
c)Historical information regarding the Taliban’s persecution of Shia Muslims led to a conclusion that it was “objectively implausible” that the Mullah of Yazdeh Shia Mosque would have allowed the applicant to conduct talks at the mosque about the Taliban (CB 257 at [107]); and
d)It was not “objectively plausible” that the applicant was ever abducted by the Taliban, due to his Shia faith or otherwise (CB 260 at [115]).
Ground 1
The Reviewer failed to have regard to relevant evidence regarding the applicant’s fears of persecution as a Shia Muslim and, in doing so, committed jurisdictional error.
In SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557 at [158], his Honour Barker J noted that a decision-maker must properly consider the evidence before them. There may be grounds for relief if a decision-maker pursues a line of questioning and then fails to appreciate the evidence provided by the applicant in response. The Reviewer’s failure to properly consider the applicant’s assertions regarding persecution are properly characterised in this manner.
While the Reviewer accepted the applicant’s assertions that Shia Muslims have been historically discrimination against in Afghanistan, the Reviewer countered that evidence by relying on country evidence that violence against Shia Muslims has decreased in recent years (CB 264 at [129]). Further, the Reviewer stated that there was “no evidence” that the applicant “has experienced disadvantage or adverse treatment because of his Shia religion” (CB 265 at [129]). In doing do, the Reviewer failed to properly consider several claims made by the applicant that evidenced specific instances of persecution due to the applicant’s status as a Shia Muslim.
The applicant assets first that the Reviewer failed to consider the applicant’s evidence in his entry interview that when he was abducted by the Taliban, the assailants made reference to his status as a Shia Muslim.
Secondly, the Reviewer also did not properly appreciate the applicant’s claim that his house was attacked because he was a Shia (CB 265 at [129]). In particular, the applicant contended that the Taliban made statements such as “A Youssef Shia infidel, you have to give yourself to us and you have to all surrender (Transcript p.57); “Youssef Shia infidel, you must give yourself to us”; and “Youssef Shia infidel, you have to surrender. This time you’re going to die, this is the end of your life” on loud speaker (Transcript p.59 and CB 237 at [65]). The Reviewer asked the applicant why the Taliban might make statements such as “Shia infidel” (CB 237 at [65]). The applicant responded by providing information regarding a Mullah Zakir who, the applicant alleged, was targeting him (CB 236 at [60] and CB 238 at [65]).
Finally the applicant also provided evidence regarding the operation of Lashkar Jangri, a group that persecute Shia in his area (Transcript p.77 and CB 239 at [75]).
The Reviewer failed to have regard to the evidence provided by the applicant when forming his conclusions, and so committed jurisdictional error.
In addition, in relation to Ground 1(b), the Reviewer failed to afford the applicant procedural fairness by failing to acknowledge that any claim posited by the applicant’s adviser was a claim being made by the applicant himself. The Reviewer stated that the only evidence supporting the applicant’s fear of persecution was “uncorroborated” and provided by the applicant’s adviser (CB 265 at [129]). The Reviewer also did not give proper, realistic and genuine consideration to assertions by the applicant via his adviser (CB 266 at [133]; CB 267 at [136] and CB 263 at [124]). The applicant was entitled to make claims through his adviser, and the Reviewer’s failure to accept applicant’s submissions in this manner was a denial of procedural fairness.
In relation to Ground 1, Part 2, the Reviewer found that it was not “objectively plausible” that the applicant was ever abducted by the Taliban, due to his Shia faith or otherwise (CB 260 at [115]). He did not accept that the applicant had been abducted on the roadside by the Taliban, held for any length of time at Shivan, stabbed in the buttock, or required to pay a ransom payment of 30 million toman.
In Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, their Honours held that the duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
The applicant expressed a willingness to show the Reviewer the spot or scar where he had been stabbed. This was declined by the Reviewer. It is submitted that the injury is a novel one, the nature and/or origin of which may have been able to have been determined by way of simple medical examination. It was an obvious inquiry that was not undertaken at all, even by the Reviewer herself. The opportunity to inquire was lost at that point and gave rise to a jurisdictional error. The question of scarring and/or infection was critical, it is submitted, in assessing the objective plausibility of the applicant’s entire account, particularly given that despite declining to have the applicant examined, the Reviewer specifically rejected the incident in making his finding.
Ground 2
The applicant argues that the Reviewer committee jurisdictional error by failing to afford the applicant procedural fairness by:
a)Not re-putting a question to the applicant which the applicant had not properly understood; and
b)Failing to make a decision based upon evidence.
In this instance, the Reviewer’s failure to properly put the substance of a question to the applicant in a manner that was not ambiguous significantly influenced his ultimate decision, and resulted in a denial of procedural fairness.
The applicant claimed during his interview that he had conducted talks at various village mosques in Afghanistan (CB 357 at [106]). The applicant was asked by correspondence following the interview why he had not claimed, prior to the interview, that he had conducted talks at mosques in the villages of Yazdeh, Nowbahar and Darabad (CB 240-241 at [77]-[78] and CB 257 at [106]).
The applicant responded that he had not provided that specific information as no one had asked him the name of the towns (CB 241 at [78]). The applicant, in his response adopted the first interpretation of the question, while the Reviewer adopted the second interpretation. The Reviewer stated:
106. I note that on none of these occasions did (the applicant) state he gave public talks (as distinct from writing or preparing speeches) about his critical views of the Taliban… Nor do I accept, in light of (the applicant’s) claimed tertiary education and his demonstrated ability to advance sophisticated technical descriptions… that his failure to mention prior to the Merits Review interview his having publicly spoken in Mosques is attributable to his lacking an understanding of the relevance of such claim and thus that he did not mention it because ‘he was not asked’. I find (the applicant’s) claim of giving talks to groups of approximately twenty worshippers at a time at three different mosques on a total of at least five occasions is a new claim raised at his (Merits Reviewer) interview.
(CB 257)
There is no basis in evidence for the Reviewer’s finding that the question was only to one interpretation and moreover no basis in evidence that the applicant’s claim of giving speeches was a new claim. The Reviewer failed to have regard to the evidence provided by the applicant at several stages of the review process regarding these talks (CB 257 at [106]; CB 214). In particular, during his refugee status assessment interview, the following was asked (CB 214):
So you were distributing your own work? I was writing and copying and distributing amongst youth, I was writing speeches as well. Where were you doing this? In other villages and sometimes the (sic) came to my home and sometimes the village mosque.
The applicant said he was writing speeches, however, he also said that he was “distributing his work”, and “doing this” in other villages. The Reviewer’s conclusion that the applicant’s claim of giving speeches at mosques is a new claim raised at the Reviewer interview stage, stems from a fundamental misunderstanding in respect of the question put to the applicant in correspondence and an unduly narrow construction of earlier responses.
Consequently, the applicant’s misunderstanding regarding the nature of the question affected his ability to adequately respond and, as the Reviewer relied on that evidence in his conclusion, that misunderstanding impacted on the ultimate decision. The Reviewer’s denial of procedural fairness therefore has three aspects: a failure to have proper regard to the applicant’s answers; a failure to allow the applicant the opportunity to properly answer the question; and the making of a finding purportedly based on the applicant’s evidence, when the applicant had not given such evidence.
Ground 3
Pursuant to Article 1A(2) of the Convention, an applicant may seek asylum on the basis of a well-founded fear of persecution if they are unable or, owing to their fear, unwilling to avail themselves of the protection of that country. The applicant submitted that he is unable to avail himself of effective state protection in Afghanistan as the State is unwilling and unable to protect him. In correctly applying the test, an assessment of a state’s inability to protect the applicant should be considered separately from the state’s willingness to protect, and the Reviewer failed to do so.
Gleeson CJ in Minister for Immigration and Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1 at [29]-[30] has described the relevant test for a state’s inability to provide the relevant protection under the Convention as being:
[W]hether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it.
In his conclusions, the Reviewer rejected the suggestion that the applicant “anymore than all citizens who have limited or no access to protection by the authorities, will be denied what assistance is able to be provided by the authorities, for reasons personal to himself” (CB 267 at [136]). he based this conclusion, and the evidence underpinning it, on the state’s willingness to provide protection to the applicant, rather than its inability.
The applicant provided information regarding the state’s ability to provide protection at several stages of the application process. At the entry interview cited in the Reviewer’s report, the applicant submitted that “[t]he Taliban have a huge presence in his province and the government has no control of beyond 10km, because the Taliban are controlling that” (CB 231 at [21]). The applicant also submitted that “if it could be guaranteed that if he returned he would not be killed he would go back” (CB 231 at [23]).
In his written statement, the applicant submitted that “I believe that if I return to Afghanistan the Taliban will target me and kill me for the above reasons (claims of persecution. The authorities in Afghanistan has (sic) no control whatsoever in Farah province. I cannot relocate because if the Taliban targets someone they will assassinate you wherever you go in Afghanistan. I have tribal links to my area and relocation is not an option” (CB 232 at [36]-[38]).
Despite substantial evidence provided by the applicant, the Reviewer concluded there was no proof that Afghanistan would be unwilling to protect the applicant, other than the “implausible” and “unsubstantiated assertion” made by the applicant’s adviser regarding Afghanistan’s incapacity to protect its citizens (CB 267 at [136]). In forming that conclusion, the Reviewer noted that “no independent information or primary sources have been identified to support this assertion (of unwillingness to protect the applicant)” (CB 266 at [133]).
Further, the Reviewer accepted the applicant’s evidence that the Taliban have the ability to target anyone in any area and, in particular, the applicant’s evidence that the authorities do not have control in the Farah area (CB 267 at [135]). Despite this, the Reviewer, while rejecting the applicant’s claim that Afghanistan would be unwilling to provide protection, failed to turn his mind to whether Afghanistan would be unable to provide that protection.
The Reviewer considered evidence relevant to the state’s capacity to provide protection. The Reviewer accepted country evidence that “since 2009 Taliban influence and insurgent violence has increased in Farah Province” and that at the same time, there had been an increase in security operations carried out by the Afghan state (CB 265 at [130]). Despite evidence being provided regarding the state’s ability to provide protection, the Reviewer did not explicitly address the issue nor form any conclusions on that subject.
Consequently, the Reviewer misapplied the test of whether the applicant is unable or, owing to his fear of persecution, is unwilling to avail himself of the protection of the state, by only considering the ‘unwillingness’ limb of the formula.
This ground of appeal must be read in conjunction with Ground 2, as the findings made by the merits reviewer in relation to it, particularly in relation to the applicant’s political agitations are central to this ground.
The applicant said that he was speaking out against the Taliban because “…I’m against Taliban and Taliban are against me, against my religion, against my thinking, against my point of view. So I’m personally against Taliban…” (Transcript p.63, see also CB 198). He said that his abduction in fact motivated him (CB 197).
The inference that can be drawn from the reasoning of the Reviewer at CB 259 is that, in the face of a brutal and oppressive regime, the Reviewer considered it irrational and implausible that an individual of advanced age, health problems, direct experiences of serious harm and a present and persistent threat ongoing threat to his life would risk their life (including risking being beheaded) and “doggedly pursue” furtherance of a political ideal (CB 259). What this implies is that where an individual may be able to eliminate or minimise the chance of persecution by concealing certain traits (such as political sentiment) or modifying their conduct (for example, remaining discreet about their political views), they must do so.
The applicant argues that there is no principle under the Convention or the Migration Act to support any such inference or conclusion. The High Court, in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (see also Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1), held that the fact that individuals can take steps to avoid coming to the notice of their persecutors does not disentitle them from refugee status. As Gleeson CJ held in Appellant S395/2002 (supra), the Convention would give no protection from persecution at all if this were a precondition.
The Reviewer impermissibly applied a standard of rational behaviour without any evidentiary basis aside from, apparently, his own sense of what would have been appropriate and sensible in the circumstances. This was an irrelevant consideration, and indeed the only consideration taken into account, which had dire consequences for the applicant as it was the basis for rejecting the plausibility of the applicant’s account of his political stances against the Taliban, the question as to whether he had ever come to the attention of the Taliban, and his well-founded fear. Notably, there is no reference to the country information made at this junction in the decision by the Reviewer.
Minister’s Submissions
Ground 1
The Minister submits that the applicant asserts that the Reviewer failed to have regard to relevant evidence, and, by doing so, committed jurisdictional error. It is specifically claimed that the Reviewer failed to have regard to the evidence given by the applicant in his entry interview that related to his status as a Shia Muslim.
The Minister submits that this ground cannot be sustained as there is clear reference to this claim having been made by the applicant in his entry interview recounted by the Reviewer at CB 230. The applicant claims that the Reviewer “did not properly appreciate” that the applicant’s house was attacked because he was Shia (referring to CB 265 at [129]). Again, this was a matter clearly referred to by the Reviewer at CB 237 at [65] where the Reviewer recounts the applicant as having said that the people who attacked his house were saying “Yusuf-Shia infidel this is the end of your life” via a loudspeaker for approximately five to ten minutes. In fact the Reviewer noted in that paragraph that he had questioned the applicant as to why they were attacking his house, and the applicant said that this was because of his writings. He was then asked why this was the reason if they were shouting “Shia infidel”: (see CB 237 at [65] and Transcript of Trieste Corby, p. 60, lines 12-15).
The Minister argues that ultimately, in the reasons set out by the Reviewer for his recommendation (at CB 260-262 at [116]), the Reviewer referred to the claim that the Taliban shouted “Shia infidel” at his front door using a loud speaker as “internally incompatible and objectively implausible”. Thus it cannot be said that the Reviewer did not consider this evidence, or overlooked any relevant evidence regarding claims about the applicant’s religion: compare Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47]; and also Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [28]. In fact, a section of the Reviewer’s reasons for decision (CB 264-266 at [128]-[131]) is expressly devoted to the claim made about persecution on the basis of being a Shia Muslim.
As the claim is articulated, the failure to ‘appreciate’ the matter appears to be little more than an attempt to cavil with the Reviewer’s findings. It is no part of the Court’s role in judicial reviewer proceedings to undertake merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [194]; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.
The Minister submits that it has also been held that “a challenge to the (Reviewer’s) findings and conclusions will usually be considered an impermissible attempt to undertake further merits review”: SZKMX v Minister for Immigration and Citizenship [2009] FCA 842 at [26]. This is the case even if the Reviewer makes an error of fact. There is no error of law in an administrative decision-maker making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
Moreover, a credibility assessment is quintessentially a matter of fact for the decision maker, in this case the Reviewer. It is well established that a credibility finding is a matter “par excellence” for a fact finder, in this case, the Reviewer: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; SZKMX (supra) at [26] per Barker J, referring to SZKMV v Minister for Immigration and Citizenship [2009] FCA 157 at [18] per Stone J, SZMFH v Minister for Immigration and Citizenship [2009] FCA 105 at [14]-[15] per Graham J and SZMLR v Minister Immigration and Citizenship [2008] FCA 1853 at [11] per Spender J.
The Minister argues that the decision of Barker J in SZQGA (supra), on which the applicant relies, is of no assistance to the applicant. The Minister accepts the proposition set out at [22] above that a decision maker must properly consider the application before him or her, but his Honour did not find in SZQGA (supra) that a failure to “appreciate” evidence constitutes a failure properly to consider the application. The decision was set aside in that case because his Honour held that the appellant’s response to a particular question had been “ignored” by the Reviewer who stated in his reasons that “[the appellant] could not explain” the matter about which he had been asked when in fact he had given an explanation: see SZQGA at [23], [30]-[31], [158]. By contrast with SZQGA, the applicant here has taken issue with how the Reviewer has responded to the matters that were considered. In the Minister’s submissions, that cannot constitute jurisdictional error, nor can it amount to a failure to afford the applicant procedural fairness.
The Minister argues that the applicant also claims that the Reviewer failed to have regard to the evidence given by the applicant regarding Lashkar Jangri group and its persecution of Shia Muslims in Afghanistan. This was discussed by the Reviewer and the applicant in the interview (Transcript at 77-78). At Transcript p.78, line 15, the applicant was asked how this was relevant to his particular circumstances and he responded by saying it was “about the future of Afghanistan”. While the Reviewer mentioned this matter in his reasons for decision at CB 239 [75], there is no express finding on this matter. This does not however, give rise to any legal error, as the Full Federal Court noted in WAEE at [47], where their Honours stated:
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…
The Transcript shows that the Reviewer questioned the applicant as to any specific, rather than general, claim that followed from his information about Lashkar Jangri. It was thus clearly open to the Reviewer not to make a specific finding, and, in any event, given the findings that were made about the applicant’s claim to fear persecution on the basis of his Shia religion (at CB 264-265 [128]-[131]), it can be inferred that the matter is subsumed within those findings of “greater generality”.
Claim made by ‘adviser’ or claim made by the applicant
It is asserted by the applicant at [28] above that by the Reviewer’s reference to and rejection of “the adviser’s uncorroborated assertions” (CB 265 at [129]) relating to the applicant’s fears that flow from his Shia religion, the Reviewer denied the applicant procedural fairness by not acknowledging that the claim was made by the applicant, not the adviser (including to the written submission provided on the applicant’s behalf) at [124], [131] and [136], and indicate that the Reviewer did not give “proper, genuine and realistic consideration” to the applicant’s claims.
This ground of review is, in the Minister’s submission, misconceived. In Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164, the High Court rejected an argument that a claimed failure to give proper, genuine and realistic consideration to the merits of a case was a proper ground of judicial review, holding instead that such a claim constituted no more than emphatic disagreement with the merits: see [32]-[34]. In any event, there is no basis in the reasons for decision for inferring that the Reviewer did not consider the applicant’s claims on the basis that they were put by the applicant’s adviser; the emphasis in [129] at CB 265 of the Decision Record is on the uncorroborated nature of the claims, not that they were put forward by the adviser on behalf of the applicant.
The Minister argues that the applicant relies on the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (supra) at [25] for the proposition that, rather than rejecting aspects of the applicant’s case as not “objectively plausible”, the Reviewer ought instead to have made further inquiries about his case. In particular, the applicant takes issue with the failure of the Reviewer to accept the invitation from the applicant to examine the scar he claims to have as a result of being stabbed in the buttocks after being held for some 19 days after being kidnapped (CB 260 at [114]-[115]).
In SZIAI (supra), the High Court said at [25]:
25. …The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
(emphasis added)(footnote removed)
The Minister submits that it is well established that as the Reviewer does not make a decision under the Migration Act, but rather, makes a recommendation to the Minister on which the latter relies if he is to make a decision. The concept of “jurisdictional error” does not strictly apply to a Reviewer: SZQDZ (supra) at [27], [46] and SZQGA (supra) at [144]-[145]. However, the recommendations of the Reviewer are subject to review for relevant legal error, and, in appropriate cases, those recommendations may be the subject of declarations and/or injunctions.
In SZIAI (supra) the high Court went on to find that there had been no error in not making any such inquiry since “there was nothing on the record to indicate that any further inquiry by the Tribunal… could have yielded a useful result” at [26]. In the current matter, the only inquiry which it is claimed could have been, but was not, made was an examination by the Reviewer herself of the scar on the applicant’s buttock. But, in the Minister’s submissions, the Reviewer did not err when he rejected the applicant’s offer to show him the scar and stated:
That’s not necessary for you to show me for two reasons, because you could have that injury from any source. I don’t know where an injury comes from. And also this is only one very small part of all your circumstances.
(Transcript, p.28)
The Minister submits that there was no material before the Reviewer that could have indicated that any particular investigation would have, in the sense described by the High Court in SZIAI, established the provenance of the scars and therefore provided a “sufficient link” to a relevant issue – here, whether the events found implausible by the Reviewer actually occurred. In SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 per Griffiths J at [42], his Honour dealt with a claim that a failure to “make inquiry about and regarding the cause of scars on (the applicant’s) body” breached ss.424(1) and 427(1) of the Migration Act. His Honour held, referring to SZIAI at [26] that there was no material before the Tribunal in that case to suggest that any particular investigation or medical examination would have established the origin of the appellant’s scars, which, it is argued, is the same situation is obtained in the matter before the Court. Thus this aspect of the ground must also fail.
The Minister contends that as for the suggestion in the particulars to the claim that the Reviewer failed to consider and/or request relevant evidence, including country information about the existence and prevalence of kidnapping in Afghanistan, such a claim cannot succeed. It is well established that while the Tribunal (and a Reviewer) may obtain any information they consider relevant, there is no general obligation to do so and the weight given to country information is a matter entirely for the Tribunal of fact. Moreover, even reliance on erroneous country information does not constitute legal error as the “question of the accuracy of the “country information” is one for the Tribunal, not for the Court”: see NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
Ground 2
The Minister argues that the applicant claims the Reviewer committed legal error by not “re-putting a question to the applicant which the applicant had not properly understood” and by “failing to make a decision based on evidence”. This ground is particularised by reference to correspondence sent to the applicant (a natural justice letter) (CB 190-191) which raised a number of identified inconsistencies with the applicant and gave him an opportunity to respond to them. The letter included the following:
There is no record of you claiming to the IMR interview that you conducted talks to worshippers at Yazdeh, Nowbahar and Darabad village mosques.
(CB 190)
The applicant claims that the question could have one of two meanings and his response is noted at [37] above. However, it is incorrect to state, as the applicant has at [38] above, that the Reviewer found that the “question was only open to one interpretation”. At no point does the Reviewer indicate that. In fact, the impugned sentence is a statement, not a question and it sought and received an open-ended response. At CB 195, in a letter from the applicant’s adviser, it is stated that the applicant had mentioned the matters referred to in the natural justice letter at the RSA interview, but did not mention the names of the towns at the interview because he was not asked. There is also further reference in the adviser’s submission to the applicant’s having previously stated that he was “distributing [his] own writing to educate people” (CB 195); and was doing this in “other villages and sometimes they came to [his] home” (CB 196). On the same page of that letter, the adviser also refers to statements about “writing speeches” and a/the “village mosque” in the interview with the Department on 28 December 2010. In that submission, the adviser concludes the response by stating that the applicant “did not mention prior to the [IMR] interview that he had written speeches and spoken in village mosques, however, this information was not explored in the manner it was in the [IMR] interview” (CB 196).
Thus it is apparent that if there were two possible interpretations, as claimed by the applicant, both have been responded to by him via his adviser (i.e., the claim as to not having mentioned the three villages by name; and the claim as to speaking at mosques as opposed to preparing written material). It was clearly open to the Reviewer, having considered the responses, to find, as he did at CB 257 at [106], that the applicant’s “claims of giving talks to groups of approximately twenty worshippers at a time at three different mosques on a total of at least five occasions is a new claim” raised first before the Reviewer.
The Minister submits that in order to establish a breach of the common law rules of procedural fairness, the applicant would need to show that there was a breach of the obligation to provide him with notice of any critical issues that could lead to an adverse decision, and a failure to afford him an opportunity to respond to such information: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; Kioa v West (1985) 159 CLR 550. The natural justice letter informed him of those issues and he was, in the Minister’s submission, given sufficient opportunity to provide a response and to advance his claims, and in fact did so.
In any event, even if there had not been clear responses to this question in all its aspects, the onus is on the applicant to advance whatever argument or evidence he wishes to put in support of his claim to fear persecution: Abebe (supra) at [187]. Thus there could be no basis for a finding that there was a denial of procedural fairness in relation to the question put to the applicant in the natural justice letter.
Nor is it correct to say that the Reviewer failed to make a finding based on evidence by not having proper regard to the answers given by the applicant or, as is claimed in [37] above, that the Reviewer failed to have regard to the evidence given by the applicant at several stages of the review process.
The Minister submits that it is clear that the “no evidence” ground of review cannot succeed in a case such as this; that ground applies only where there is no evidence at all, rather than, for example, insufficient evidence: Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 356 per Mason CJ. In Shop, Distributive and Allied Employees Association v National Retail Association & Anor (No 2) (2012) 205 FCR 227, Tracey J observed at [31] that the ‘“no evidence rule” cuts out when even a “skerrick of evidence appears”’: SZRKY Minister for Immigration and Citizenship [2013] FCA 352 at [24] per Cowdroy J.
The Minister submits that ultimately, however, the applicant’s complaint here appears to be not that there was no evidence, but that the evidence available to the Reviewer ought to have led him to a difference result. But as the High Court put in SZJSS (supra) at [33], “[t]he weighing of various pieces of evidence is ultimately a matter for the Tribunal (or Reviewer)”. Consequently, this ground constitutes no more than an impermissible challenge to seek merits review, and, on that basis, must fail.
Ground 3
The Minister argues that the applicant claims that the Reviewer erred in law by applying the wrong test for state protection, as the Reviewer considered only whether Afghanistan was unwilling to protect the applicant due to his Shia faith, and did not consider whether the state of Afghanistan was unable to provide protection to the applicant. The applicant claims that the Reviewer was required to consider both unwillingness and inability and that the failure to consider the latter independently constitutes an error of law.
The Minister submits that in cases where a claim relates to alleged persecution from a non-state (such as, in this case, the Taliban), consideration of the willingness or ability of the state to protect its citizens may be relevant to a number of factors. Including whether the applicant’s feared harm is well-founded, whether the feared harm amounts to persecution, and whether the applicant is unable or, owing to their fear, unwilling to avail himself or herself of the protection of the country of nationality: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [20]-[24].
Contrary, however, to the applicant’s claim, there is no authority for the proposition that the aspects of “unwillingness” or “inability” are separate mandatory relevant consideration: Respondents S152/2003 (supra) at [23]. In this case, after consideration of relevant country information, the Reviewer rejected the applicant’s claim that the state would be unwilling to protect the applicant by reasons of his Shia religion (at CB 267 at [136]), having found that claim “implausible”.
The Reviewer found there was not a real chance that the applicant would suffer persecution from non-state actors, including the Taliban, for any Convention reason. Having made that finding, there was no independent requirement that he consider whether the state of Afghanistan would be able or unable to provide protection.
Even if the applicant had established that the state was unable to protect the applicant, which the Minister still does not concede that would have led to the Reviewer falling into reviewable error in light of the findings that were made. In Minister for Immigration and Citizenship v SZONJ (2011) 194 FCR 1, the Full Federal court applied the reasoning of the High Court in Khawar (supra) and stated at [33]:
33. …[W]here there is persecution by a non-state agent for a reason that has no Convention nexus, and that conduct is condoned or tolerated by the state for a Convention reason, the victim may be a refugee within the meaning of the Convention. However, where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied…
The Reviewer noted (CB 267 at [136]) that if the applicant experienced harm from random insurgent violence or non-Convention based criminal activity he may not be able to access the protection of the state, but that protection “would not be withheld from (the applicant) because of his race, religion, political opinion or for any other Convention reason” (at CB 267 at [136]).
Applicant’s Submissions at the Hearing
At the hearing on 11 June 2013 Mr Broadbent, appearing for the applicant, stated that he wished to rely on his written submissions, with the exception of dealing with the matters raised in the written submissions of the Minister. Mr Broadbent also noted that he no longer pressed Ground 1(2) or Ground 3(4)(f).
Mr Broadbent took the Court to [54]-[58] (above) of the Minister’s written submissions, where it states that the reference in the Reviewer’s Decision Record to the applicant’s evidence of persecution in his entry interview (at CB 230) fulfils the Reviewer’s obligation to have regard to the evidence. The applicant submits that simply reciting evidence in a discrete passage of a decision is different to having proper regard to that evidence in making a decision.
Mr Broadbent took the Court to CB 265 at [129]-[130]. He argues that these paragraphs essentially form the substance of the Reviewer’s decision:
129. Mr [SZSHH] has not made any claims about restrictions being placed upon him regarding his ability to practice Shia Islam, and whilst I have not accepted his claims of giving public speeches in three Mosques in and around his villages after prayers, I note his overall evidence is that he has been free to follow without incident or harm his Shia faith, including his ]presence at Shia Mosques. I note there is nothing in Mr [SZSHH]’s personal circumstances upon which he could be perceived to have contravened Sharia law, and I have previously not accepted mere physical presence in Australia for the purpose of claiming refugee asylum leads to or is in any way referable to a perception that a person has renounced Islam and / or is an infidel. I note Mr [SZSHH]’s evidence at the IMR interview of attributing the motivation for the Taliban’s claimed visit to his house in September 2010 (which I have not accepted) to his claimed writing and preaching (which I have also not accepted), and not his Shia faith. There is no evidence before me that Mr [SZSHH] has experienced disadvantage or adverse treatment because of his Shia religion. I do not accept the advisor’s uncorroborated assertions Mr [SZSHH] fears curtailment of his religious freedoms, religious violence, hardships threatening his capacity to subsist and/or serious harm by the Taliban because of his Shia religious faith. I find now and in the reasonable foreseeable future Mr [SZSHH] will not be persecuted by the Taliban or any other persons because of, or in relation to, his Shia religion.
130. I accept the independent information that since 2009 Taliban influence and insurgent violence has increased in Farah Province, as has the Afghan States’ presence and successful operation against insurgent activities including the opening of a coordination centre for ANSF agencies in Pusht Rod District in October 2011 and the arrest of a Taliban commander in Bala Bolok in December 2011. I note the independent information about targets of insurgent violence in Farah Province are police stations, convoys/checkpoints and leadership, and attacks against public places such as district centres and schools. I accept Mr [SZSHH] is of the Tajik ethnicity and Shia faith who has lived in Yazdeh village Farah Province throughout his adult life, and that whilst he disagrees with Taliban ideology and believes they are no good for Afghanistan, Mr [SZSHH]has not been associated or involved with any political group or organisation.
(footnotes omitted)(CB 265)
The applicant submits that there is a question as to whether or not there in fact is no evidence raised on this particular point. The applicant submits that the relevant evidence was raised in a number of places, in particular, about his abduction being due to his Shia faith:
16. … On 14 April 2010 between Farah and Yazdeh village he was ambushed and arrested by the Taliban. They blindfolded him and put him in their vehicle and it ravelled for 3-4 hours in to a village called Shiwan which he found out about afterwards. They tortured him for 17-18 days when he was captured, beat him with cables, bashed him, abused him, insulted him, they harassed him telling him that “you are a Shia”. It was the 19th night they came and hit him with something on the right buttock they said that “he does not deserve to be alive”. When he looked back he saw that it was a knife covered with blood …
(CB 230 at [16]).
Mr Broadbent submits that there is no finding in the Reviewer’s Decision Record in relation to whether the abduction was a result of the applicant’s Shia faith. Mr Broadbent submits that it was raised as a point in evidence; it is raised as something that the applicant himself said, and yet there is no reference to that.
Mr Broadbent took the Court to the Minister’s submissions at [60]-[61] above, specifically the extract form WAEE (supra) regarding general country information, which he states is not entirely on point. The applicant submits that it is a question in WAEE of issues being raised, however, in the current case it is a question of evidence. Mr Broadbent submits that it may be a slight distinction, but it applies.
Mr Broadbent referred the Court to the Minister’s submissions at [62]-[63] above, where there is a question as to whether the reading of the word uncorroborated, in reference to the Reviewer’s rejection of the “adviser’s uncorroborated assertions” (CB 265 at [129]), relating to the applicant’s fears that flow from his Shia religion. Mr Broadbent submits that the Minister has asserted that this reference is a question of an assertion uncorroborated by evidence. The applicant submits that this should be read is a different way, that is, that the Reviewer in that circumstance was referring to the fact, erroneously, and that the applicant had only raised these matters through his adviser. The applicant submits that for comparison, at CB 267 at [136] of the Decision Record there are references to unsubstantiated assertions, which is a different word, in which the applicant argues that refers to a question of evidence. The applicant submits that in the reference at [129] (CB 265) of the Decision Record, there is a finding in relation an uncorroborated assertion by the adviser. The applicant submits that the question of whether or not what the adviser said was corroborated by the applicant said is not relevant. Mr Broadbent argues that the applicant was entitled to put matters by the way of his adviser.
Mr Broadbent then took the Court to sections of the Minister’s written submissions which relate to the question of the knife attack. Mr Broadbent submits that the applicant accepts that there is not a duty to inquire and the jurisdiction of the Reviewer is an inquisitorial one. The case that was cited, being SZIAI (supra), related to a failure to make an obvious inquiry about a critical fact. Mr Broadbent noted that Ms Graycar focused on SZRLY (supra) which is a case that relates to scarring which occurred on the applicant and in which the applicant offered that material and was declined. In the current matter, Mr Broadbent notes that this case can be distinguished for this reason; the applicant was referring to a scar that he said arose out of the kidnapping incident; and the applicant argues that that would have gone a long way towards corroborating the assertions that he made in relation to the kidnapping, which were ultimately rejected as implausible.
Mr Broadbent argues that the present case, as opposed to SZRLY, is different because this was a particular incident which was a particular point of persecution arising from religious or political beliefs. It is not a question of some indiscriminate scar which may have arisen as a result of torture; it related to a specific event. Mr Broadbent took the Court to the Corby Affidavit p.28 where it states:
The Reviewer: That’s not necessary for you to show me for two reasons, because you could have that injury from any source. I don’t know where an injury comes from. And also this is only one very small part of all your circumstances. So it’s not important for me to see…
Mr Broadbent submits that in was an inquiry that was relatively simple. It was in relation to what the applicant had said was a significant event and, even if the source was ambiguous by its nature, being a stab wound, could have been identified with some medical examiner. Mr Broadbent submits that this is a circumstance where an inquiry is centrally relevant and readily available.
Mr Broadbent referred the Court to Ground 2 of the Amended Application and acknowledged the Minister’s argument at [75] above, that no evidence means no evidence at all. However, Mr Broadbent submitted that in the circumstances the Reviewer’s assertion that the applicant raised a new claim was in fact something that was made with no evidence at all. That is to say that the assertion of the new claim itself was an assertion and a finding that was made with no evidence. There is no evidence that the applicant made any such new claim. Mr Broadbent argues that the finding influenced the Reviewer’s conclusion that the claim lacked credibility. Mr Broadbent took the Court to [102] at CB 255 and argued that it was an essential step that was taken in the process and, as a result, the finding regarding the applicant’s credibility is in fact flawed for that reason.
Mr Broadbent referred the Court to the issue of the applicant writing speeches and visiting other towns. Mr Broadbent submits that it was simply incorrect to make a finding that the assertion of writing speeches could not be construed as someone making speeches. There was evidence at various stages of the review process at CB 214 and CB 257, where during the RSA, the applicant was asked about his actions and the Reviewer noted :
106. …I have listened to the audio recording of the RSA interview conducted on 28 December 2010 and note that Mr [SZSHH] states he was writing his own papers, copying and distributing to people, and preparing speeches; he was distributing his writings to educated young and educated people his age…
(CB 257)
Mr Broadbent submits that the finding that the applicant never made any public speeches cannot be sustained in view of the evidence above. Moreover, Mr Broadbent claims that it stems from a fundamental misunderstanding of the question put to the applicant in correspondence which resulted in an unduly narrow construction of the earlier responses that were given. Mr Broadbent submits that there was a denial of procedural fairness, which arose in three aspects:
a)A failure to have proper regard to the answers of the applicant;
b)A failure to allow the applicant the opportunity to answer the question in the event that there was ambiguity; and
c)The making of a finding based on the applicant’s evidence, when in fact such evidence had not been given in the context it was eventually taken to mean.
Mr Broadbent took the Court to Ground 3 which he argues was an incorrect test for state protection. Moving to the Minister’s argument that the decision in S395/2002 (supra) related to findings that were specifically made in the case, rather than findings as to a question of credibility. It is accepted that credibility was in issue in these proceedings. It is argued that the credibility of the applicant was something that was impugned; however, the applicant argues that there was a standard of behaviour that was imputed by the Reviewer for the purpose of assessing the objective plausibility of the applicant’s claim, the claim being that there was some basis on which his credibility was rejected, or the plausibility of his suggestions were rejected on the basis that he was a man of advanced age, ill health with children, facing the risk of beheading at the hands of the Taliban.
Mr Broadbent argued that it may well be the case in certain circumstances to object to that sort of threat would be irrational. However, it is argued that the question that arises in the circumstances where there is an oppressive government or regime, an educated man with a mandate of his own which, in his own view, required him to rail against the Taliban for political reasons. Mr Broadbent questioned why this is something that should be considered irrational in the face of an oppressive regime. Mr Broadbent argues that what the Reviewer has done has applied a standard consistent with a Western mindset in the context of a democratic society where life is not at risk.
Mr Broadbent argues the credibility findings in relation to this particular matter infected the entire decision. The mere fact that it might be considered irrational on one view is not the basis to make a finding that was entirely implausible. It is for those reasons that the applicant argues that the discretion was miscarried because there was such an error in the Reviewer’s findings in respect of the applicant’s credibility.
Mr Broadbent to the Court to Ground 3 relating to the test for state protection. Mr Broadbent noted that the test for state protection is that an individual may seek asylum on the basis of a well-founded fear of persecution if they are unable or, owing to their fear, unwilling to avail themselves of the protection of that country. Mr Broadbent submits that the Reviewer dealt with the question of willingness of the state to offer protection, but not of the question of ability/inability. Mr Broadbent argues that the test as propagated by Gleeson CJ in Khawar at [29] (supra) was that:
29. If there is a persecutor of a person or a group of people, who is a “non-state agent of persecution”, then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
(emphasis added)
Mr Broadbent referred the Court to [136] (CB 267) where it states:
136. …if Mr [SZSHH] experiences harm from random insurgent violence or non-Convention based criminal activity, as all citizens are at risk of in Afghanistan, he may not be able to access the protection of the State…
(CB 267)
It is argued that if it is accepted that a Convention ground exists, that the State will not be in a position to do anything about it.
Minister’s Submissions at the Hearing
Ms Graycar, appearing for the Minister, responded to the applicant’s argument about the failure of the Reviewer to, in effect, accept that the matters happened as a result of the applicant being a Shia. Ms Graycar argues that the critical point is that the Reviewer did not accept that the events happened. Ms Graycar took the Court to [115] (CB 260), where it states:
115. I do not accept Mr [SZSHH]’s account of events he claimed occurred between mid April 2010 and early May 2010 is objectively plausible. I do not accept he was ever forced to stop his vehicle on or around 14 April 2010 on the road between Farah City and Yazdeh village, blindfolded and abducted at gunpoint, held captive for any length of period at Shivan during which he was threatened, beaten stabbed in the buttock…
(CB 260)
Ms Graycar submits that this was not a rejection of the reason for the claim; that the Reviewer did not accept that the events happened which, consequently, means that the Reviewer did not consider why they happened. Ms Graycar contends that the applicant argued that it is not sufficient to refer to the evidence; rather, there must be some inference that regard was had to that evidence. Mr Graycar submits that regard was clearly had to that evidence and the Reviewer rejected the claimed events, and when the Reviewer found that this event did not happen, that is having regard to that evidence.
Ms Graycar referred the Court to the argument of the applicant that there was no regard to the evidence given in relation to the Lashkar Jangri group and its persecution of Shia Muslims in Afghanistan. A distinction was made between the Minister’s use of WAEE (supra) and arguing that was not relevant to a requirement to consider evidence but rather, it went to claims. There is no legal obligation on a Reviewer to make a finding on every matter that is raised in evidence. Ms Graycar argues that if this were the case the Findings and Reasons section of the Decision Record would be far more extensive.
The material in the decision where this matter is dealt with is at [75] (CB 239) and it shows why there was no need to make a decision made expressly because, as the transcript shows, the Reviewer questioned the applicant as to whether he made any specific claim himself, about the Lashkar Jangri group. At [76] of the Decision Record the applicant states why it was relevant to his circumstances:
76. I asked Mr [SZSHH] why he believed that is relevant to his circumstances. Mr [SZSHH] responded because it is about the future of Afghanistan. I asked Mr [SZSHH] if he had any tribal links anywhere, as he stated in his declaration dated 26 December 2010. Mr [SZSHH] responded he has no tribal links in Afghanistan, none of his tribe live anywhere.
(footnote omitted)(CB 239-240)
Ms Graycar argued that it is clear that the Reviewer considered it was not a specific claim in relation to his circumstances and in that regard there was no legal basis for a duty to make a finding about it. In relation to the claimed distinction between a claim by the adviser and the claim by the applicant, the applicant has a ground, that the Reviewer erred by referring to the uncorroborated assertion of the applicant as seen at [129]-[130] (CB 265):
129. Mr [SZSHH] has not made any claims about restrictions being placed upon him regarding his ability to practice Shia Islam, and whilst I have not accepted his claims of giving public speeches in three Mosques in and around his village after prayers, I note his overall evidence is that he had been free to follow without incident or harm his Shia faith, including his presence at Shia Mosques. I note there is nothing in Mr [SZSHH]’s personal circumstances upon which he could be perceived to have contravened Sharia law, and I have previously not accepted mere physical presence in Australia for the purpose of claiming refugee asylum leads to it is in any way referable to a perception that a person has renounced Islam and/or is an infidel. I note Mr [SZSHH]’s evidence at the IMR interview of attributing the motivation for the Taliban’s claimed visit to his house in September 2010 (which I have not accepted) to his claimed writing and preaching (which I have also not accepted), and not his Shia faith. There is no evidence before me that Mr [SZSHH] has experienced disadvantage or adverse treatment because of his Shia religion. I do not accept the advisor’s uncorroborated assertions that Mr [SZSHH] fears curtailment of his religious freedoms, religious violence, hardships threatening his capacity to subsist and/or serious harm by the Taliban because of his Shia religious faith. I find now and in the reasonable foreseeable future Mr [SZSHH] will not be persecuted by the Taliban or any other persons because of, or in relation to, his Shia religion.
130. I accept the independent information that since 2009 Taliban influence and insurgent violence has increased in Farah Province, as has the Afghan States’ presence and successful operation against insurgent activities including the opening of a coordination centre for ANSF agencies in Pusht Rod District in October 2011 and the arrest of a Taliban commander in Bala Bolok in December 2011. I note the independent information about targets of insurgent violence in Farah Province are police stations, convoys/checkpoints and leadership, and attacks against public places such as district centres and schools. I accept Mr [SZSHH] is of the Tajik ethnicity and Shia faith who has lived in Yazdeh village Farah Province throughout his adult life, and that whilst he disagrees with Taliban ideology and believes they are no good for Afghanistan, Mr [SZSHH]has not been associated or involved with any political group or organisation.
(footnotes omitted) (CB 265)
Ms Graycar argues in respect of the first sentence in [129], there is no concern about that as a statement of fact based on the evidence referred to in the paragraph, that is, the applicant has not made claims about restrictions based on his religion. Ms Graycar submits that the argument the applicant appears to be forwarding is that the Reviewer did not deal with the claims, rather, his adviser’s claims and treated them as uncorroborated by the applicant. Ms Graycar argued that it is clear that the Reviewer was saying that there was no evidence of persecution on the basis of his Shia faith and that there is nothing specifically significant about the use of the word “uncorroborated” and “unsubstantiated” at [136] (CB 267). To suggest otherwise is to make the error referred to in Wu Shan Liang (supra).
Mr Graycar took the Court to the issue of the Reviewer’s duty to inquire and the suggestion by the applicant that the current case should be distinguished from both the decision in SZIAI (supra) and the decision of Griffiths J in SZRLY (supra) where his Honour dealt with an almost identical claim, where the Tribunal was asked to make inquiries about the cause of scars on the applicant’s body. The only distinction that Ms Graycar believes the applicant was drawing that would make that matter different from the current matter is that, in this case, the inquiry was a relatively simple one to make. Ms Graycar argues that there is no authority for any obligation on the Reviewer to seek medical evidence to investigate an injury and determine it cause. The Reviewer made it clear why he did not consider it would advance the inquiry to look at the scar, because he could not possibly know where such a scar could have come from.
Ms Graycar argued that if the applicant himself were minded to bring medical evidence to the Reviewer, to further his case, he was entitled to do so, however, the onus was on him: Abebe (supra). Ms Graycar argues that whilst strictly there is no onus, it is ultimately for an applicant to provide information in relation to his own review. There is no authority for a duty on a decision-maker to seek medical evidence to seek to explain something like a scar on the body.
Mr Graycar then took the Court to the issue of the Reviewer’s finding in respect of the applicant’s claim that he had spoken in mosques, both in his own village and in two other villages and that it constituted a basis for a claim of no evidence for such a finding. The evidence was that he had, on a number of occasions, indicated that he had written material which was published and circulated. What the Reviewer raised with him in the natural justice letter was the fact that on no prior occasion had he claimed that he had given speeches in mosques and particularly mosques in three different towns. Being that this was the matter that was the subject of the natural justice latter the Minister submits that it is not possible to say that there was no evidence for such a finding. The finding was based on the inference drawn by the Reviewer from the earlier statements about writing and publications, and then the later reference to making speeches, particularly in mosques. Because the applicant had not previously mentioned this, the Reviewer found that this was a later made claim and it was a claim that he did not accept. Ms Graycar submits that the applicant suggests that this was a failure to have proper regard to answers, which, it is argued, is ultimately disguised as a request for merits review.
Ms Graycar then took the Court to the issue that S395/2002 is distinguishable, because, in this case, the issue was a credibility finding that was irrational. Mr Graycar submits that the rationality problem is said to be by the Reviewer’s statement that the applicant’s behaviour was not rational. It is argued that the particular matter that the Reviewer was referring to when he suggested that it was not rational for the applicant to continue his activities after the two events, being; the alleged kidnapping and the attack on his house. This finding is as follows at [111] (CB 259) and [124]:
111. According, on the one hand Mr [SZSHH] refers to his life experiences of witnessing first hand, through the deaths of numerous family members since he was aged in his mid twenties, the Taliban’s past persecution of persons they have antipathy towards, including but not limited to Shias. He provides information of having been university educated, of his voluntary teaching of children in small groups in private homes in evenings and of approximately eighteen years of freelance writing for a daily Farah City based newspaper. On the other hand he recounts a narrative that in 2010, at the age of 54 years and with family and rural business responsibilities to maintain he embarks upon a concerted campaign, undeterred by three weeks of capture, beatings and extortion of 30 million toman by Taliban and a subsequent warning letter from his Province’s Security Office, of writing and distributing amongst 5,500 people his anti- Taliban writings, because he wanted to educate them about the Taliban and Afghan State foreign policies with Pakistan and Iran. Thus, despite his age and longstanding diabetes, and in the face of many past significant personal losses, direct experiences of serious harm and a present and persistent ongoing threat to his life (if his account is to be accepted), he doggedly pursues the very actions well known to himself which place his life in immediate and real danger of being brought to end, most likely by beheading which Mr [SZSHH] has indicated is a common killing technique of the Taliban. Thus, I have serious reservations as to the veracity if the account Mr [SZSHH] has provided of his one page writings on three topics and copying and distribution activities in and around Yazdeh and three other villages in 2010. On a minor point I also note the somewhat contradictory claim Mr [SZSHH] has made of ‘working independently” and od having two partners – [NAME] and his brother [NAME] assisting him in the printing and the distribution of his papers.
(footnotes omitted) (CB 259)
The applicant raised the issue concerning this group at his initial interview which is acknowledged by the Reviewer in the Decision Record, but besides the reference to the recent killings by this group in another part of the country, no specific claim was advanced by the applicant that this particular group would, in the foreseeable future, be a direct threat to him, rather, he advanced the view that the existence of this group may be the source of problems to the general development of Afghanistan. I am not satisfied any claim in respect of the operation of Lashkar Jangri as a group persecuting Shia Muslims in the applicant’s area has not been properly considered by the Reviewer. Accordingly, this claim cannot be sustained and should be dismissed.
I now turn to the first of two specific complaints raised in the submissions, which are raised concerning a statement made by the Reviewer in the Decision Record at [129] where he states:
There is no evidence before me that Mr [SZSHH] has experienced disadvantage or adverse treatment because of his Shia religion. I do not accept the advisors uncorroborated assertion that Mr [SZSHH] fears curtailment of his religious freedoms, religious violence, hardship threatening his capacity to subsist and/or serious harm by the Taliban because of his Shia religious faith.
(CB 265)
The argument advanced on behalf of the applicant was that he was entitled to make claims through his adviser and the Reviewer failed to accept these submissions, which amounts to a denial of procedural fairness. This complaint of failure by the Review to accept submissions made by the applicant’s adviser also applies to the following issue:
a)At [124] of the Decision Record the Reviewer states:
I do not accept that the advisor’s assertion that Mr [SZSHH] has been “openly vocal” or that he has undertaken any activity able to characterised as “strident opposition to the Taliban philosophies”.
(CB 263)
b)At [133] of the Decision Record the Reviewer states:
In written submissions dated 27 July 2011 the adviser asserts that Afghan State “is unwilling to provide protection to Mr [SZSHH] for a Convention reason”, being “the persuasive and endemic discrimination Shia Muslims face in Afghanistan at the hands of the state authorities”.
(CB 266)
c)At [136] of the Decision Record the Reviewer states:
I consider implausibly and thus do not accept the advisor’s unsubstantiated assertion that the authorities (either in Farah or anywhere else in Afghanistan) are or would be unwilling to provide protection to Mr [SZSHH] for the Convention reason of his Shia Muslim religion.
(CB 267)
I agree with the approach advanced by Ms Graycar on behalf of the Minister, who relies on the decision in Minister for Immigration and Citizenship v SZJSS (supra) where the High Court in reviewing the unsuccessful Protection visa application of a Nepalese citizen “SZJSS” to the Refugee Review Tribunal (“RRT”) where the RRT chose to give “no weight” to certain letters provided by SZJSS which appear to corroborate some of the assertions made by him in support of his application. An application by SZJSS and his wife for judicial review of the decision was dismissed by the Federal Magistrates Court on 11 September 2009. However, the Federal Court allowed an appeal from that decision and quashed the decision of the RRT. It was found that the RRT had fallen into jurisdictional error by failing to give “proper, genuine and realistic consideration” to the letters. The High Court unanimously upheld an appeal by the Minister against the decision of the Federal Court. It found that the weight to be placed on the letters was a matter on which reasonable minds might come to different conclusions, and that the RRT’s preference for other evidence could not be said to entail a jurisdictional error.
The High Court stated in SZJSS at [32]-[34]:
32. The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of "proper, genuine and realistic consideration" to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS[34].
33. The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal[35].
34. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it[36]. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
The applicant’s submissions are (a proposition that I am not satisfied is abundantly clear) that the Reviewer dealt with the submissions made by the adviser as uncorroborated because they were not made by the applicant personally or with a clear personal endorsement. I take a differing view in that I believe that the Reviewer was saying that there was no evidence of persecution of the applicant on the basis of his Shia faith. Nor do I accept that there is significance in respect to the use of the words “uncorroborated” and “unsubstantiated” because to do so would invoke the wrong approach as outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) to construe the Reviewer as adopting an approach of using a fine tooth comb to look at the adjective and compare its use resulting in an impermissible way approaching what are otherwise quite detailed and comprehensive reasons for decision. The analysis of the reasons for the decision of an administrative decision maker to adopt the use of a fine tooth comb designed to detect any loose language or inept phrasing is not a useful tool to bring to such a task. It is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error.
The second of these two specific issues concerns the Reviewer’s duty to inquire about a critical fact, the existence of which is easily ascertained. The issue that is being attempted to be drawn in to this requirement was the request by the applicant for the Reviewer to view the scar on his buttocks that is alleged to be the result of the stabbing during his incarceration for the 19 days by the Taliban. It is argued on behalf of the applicant that this was an obvious inquiry that could have been undertaken. It is claimed that this could have been performed as a medical examination by a qualified practitioner.
Counsel for the applicant referred the Court to the High Court decision in Minister for Immigration and Citizenship v SZIAI (supra) which imposed upon the Tribunal by the provisions of the Migration Act as part of the duty to review, to inquire about a critical fact with the existence of which is easily ascertained (see [30] above). Similarly, in the Federal Court decision of SZRLY v Minister for Immigration and Citizenship (supra) the complaint was that the RRT had failed to make necessary and relevant enquiries under ss.424 and 427 of the Migration Act regarding the source of the applicant’s scars. In the initial hearings before her Honour Federal Magistrate Emmett (as she was then) she found that there was no legal obligation on the RRT to consider whether it should exercise its permissive powers under the statutory provisions. Her Honour carefully reviewed the relevant authorities and concluded that there was no request made under ss424 or 427, other than for the RRT to look at the applicant’s scars which the RRT declined to do so. Her Honour concluded that this did not raise any jurisdictional error.
His Honour Griffiths J made the following findings in SZRLY at [42]:
42 Her Honour found at [82] that the RRT accepted the appellant’s evidence that she had scars on her body, but it was not satisfied as to the source of the scars. There was no material before the RRT to suggest that any particular investigation or medical examination would have established the origin of the appellant’s scars. Significantly, her Honour found that the appellant had not made any request under ss 424 or 427 of the Act. Her request was merely that the RRT look at her scars, which the RRT declined to do. I respectfully agree with Emmett FM’s finding that, to the extent that such a request is capable of constituting a request under the relevant provisions, the RRT’s decision to take no further action does not reveal a jurisdictional error where there was no material to suggest that any particular investigation would have established the origin of the scars (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
During the IMR interview conducted on 19 January 2012 at Scherger Immigration Detention Centre the following exchange occurred which constitutes the invitation to the Reviewer to inspect the applicant’s scar on his buttocks:
SZSHH: It was on the 19th- night of the 19th day, they stabbed me with a knife. I can show you the scar or the spot where I was stabbed.
Reviewer: That’s not necessary for you to show me, for two reasons, because you could have that injury from any source. I don’t know where an injury comes from. And also this is only very small part of all of your circumstances. So it’s not important for me to see. OK.
(Corby Affidavit, p.28)
The applicant’s argument was that the stab wound was a critical fact and its existence could be easily ascertained and the applicant clearly expressed a willingness to show the scar to confirm the claimed stabbing. The examination could have been performed by a medical practitioner as a question of scarring and/ or infection was critical in assessing the objective plausibility of the applicant’s account.
I agree with the submissions made by Ms Graycar above. The inspection of the scar would not establish the providence of the scars and therefore provide a sufficient link to the events at the village of Shivan. In support of the suggestion that the Reviewer should have investigated the applicant’s scar, s.427(1)(d) of the Migration Act provides the Reviewer with the power to order an investigation or a medical examination, but does not require it to exercise that power. Circumstances may arise in a particular case by reason of which the Reviewer has to make particular inquiries (a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome of the review to constitute a failure to review: Minister for Immigration and Citizenship v SZIAI (supra) at [25]). The respondent takes no issue with that statement of principle. The statement by the Reviewer, extracted above, clearly indicated to the applicant that an examination of a scar would not necessarily provide any support for the significant claim of incarceration for 19 days and then being seriously assaulted with a knife, causing a severe injury, resulting in a severe loss of blood, unconsciousness and subsequent hospitalisation. The existence of the scar does not provide that link, as it could have resulted from some form of accident as the applicant was involved in farming activities utilising a degree of mechanisation. Alternatively, it could be the result of a surgical procedure or any number of other circumstances.
Nevertheless, it is for the applicant to advance whatever evidence or argument he wishes the Reviewer to consider: Abebe v Commonwealth (supra) at [187]. In this case the applicant had a scar on his buttocks which he was apparently quite willing to expose for examination, but he provided no evidence to suggest that it was the result of a stabbing assault as opposed to any other scar that may have resulted from a surgical procedure. The other concern of the Reviewer was the existence of the scar however obtained, did not corroborate the substantial claim of incarceration and mistreatment at the hands of the Taliban.
Ground 2
In this Ground it is claimed that there was a failure to afford the applicant procedural fairness which is set out in the written submissions submitted by Mr Broadbent and are further supported by oral submissions summarised above. However, it is acknowledged by Mr Broadbent that the “no evidence” element of this ground cannot be sustained and accepts the argument advanced by Ms Graycar in her written submissions. I am satisfied that the “no evidence” element of this Ground has been adequately addressed and requires no further discussion.
I believe that the key to this claim is correctly addressed by Ms Graycar in her written produced at [70]-[71] above.
As stated in the Decision Record, under the subheading IMR Interview – 9 January 2012
Mr [SZSHH] was interviewed at Scherger IDC on 9 January 2012 and with the assistance of an interpreter in the Dari and English languages and in the presence of his adviser he provided the following information.
(CB 233)
From the information provided in the Court Book the applicant’s adviser is identified at Mr Jeremy Ryder, Migration Agent, MARN 0901646 working for Australian Migration Options Pty Ltd (CB 208). The date on which this particular adviser became involved is not clear, however, when the applicant sought an Independent Merits Review, submissions were prepared on his behalf by Australian Migration Options Pty Ltd on 27 July 2011. The submissions were prepared by a J. Murphy being a solicitor and registered Migration Agent associated with Australian Migration Options Pty Ltd. During the IMR interview on 9 January 2012, Mr Ryder was present and responded to the IPAO Nature Justice Letter issued by the Independent Protection Assessment Officer on 9 January 2012. Mr Ryder responded on 24 February 2012. In these circumstances the claim that the Reviewer had failed to re-put a question to the applicant, which the applicant had not properly understood cannot be sustained. In fact that issue arose in the presence of the applicant’s adviser who subsequently received the IPOA Natural Justice letter and assisted in preparing the applicant’s response.
The IPOA Natural Justice letter expresses the question as follows:
In considering the range of evidence provided by you in support of your claim for refugee status, the reviewer has invited you, if you wish to do so, to comment upon the following matters:
(1) There is not record of your claim prior to the IMR interview that you conducted talks to worshippers at Yazdeh, Nowbahar and Darabad village mosques.
The above matters may lead the Reviewer to conclude some or all of your account of your past experiences lacks consistency and/or credibility, and that your fear of persecution now and in the reasonably foreseeable future for the reason of your political opinion is not well founded.
(CB 190-191)
In the reply supplied by Australian Migration Options Pty Ltd to the IPAO Nature Justice Letter, question one is repeated and the following appears:
Mr [SZSHH’s] response:
I did mention this, even in the RSA I mention this. No one asked me the name of the towns. Whatever questions I was asked I answered, if I wasn’t asked the questions then I didn’t answer it.
Submission
In the Statement of Claim (SOC) dated 26 December 2010 Mr [SZSHH] makes reference to writings he was producing and distributing against the Taliban. The SOC has details mainly around the incident during which he was abducted and tortured by the Taliban and the night the Taliban came to [SZSHH’s] house. There is no specific reference to talks he conducted with worshippers at Yazdeh, Nowbahar and Darabad village mosque.
Mr [SZSHH] does, however, make reference to speaking to worshippers in village mosques on the sixth page of [SZSHH] DIAC interview with the DIAC officer Ms Sonja Valcic on 28 December 2010.
…
DIAC Interview on 28 December 2010:
Why did you leave Afghanistan? I was the educated person. I was the only person who understood the atrocities of Taliban. I was distributing my own writing to educated people.
So you were distributing your own work? I was writing and copying and distributing amongst educated youth. I was writing speeches as well.
Where were you doing this? In other villages and sometimes the[y] came to my home and sometimes in the village mosques.
In his DIAC interview on 28 December 2010 Mr [SZSHH] clearly makes reference to “writing speeches” when asked where he was doing this Mr [SZSHH] includes “village mosques”. The line of questioning in this DIAC interview does not specifically ask Mr [SZSHH] for the precise locations or the names of the villages at which he spoke in the mosques. He DIAC officer does not ask how frequently he spoke at the mosque either and so this information is not provided. Instead the line of questioning inquires as to the content of Mr [SZSHH’s] writings/speeches after Mr [SZSHH] mentions the word “hijab”.
Interviews will differ in style; interviews will also differ in length. Different questions asked will open up different lines of inquiry and receive different responses. It is a distinct possibility that long interviews and detailed questioning may reveal new (more) details that previously were not provided.
I therefore submit that it should not detract from Mr [SZSHH’s] credibility in any way that he spoke about details he did not mention in interviews prior to the IPA interview, specifically information relating to name of the locations, when and how many people Mr [SZSHH] spoke to about his anti-Taliban political beliefs. Mr [SZSHH] has stated that he answered the villages at which he spoke. Mr [SZSHH] did mention prior to the IPA interview that he had written speeches and spoken in village mosques, however, this information was not explored in the manner it was in the IPA interview. The reviewer specifically asked Mr [SZSHH] provided these answers whereas these questions were not sked of Mr [SZSHH] in previous interviews.
(CB 195-196)
The circumstances are that the questions relating to the asking of and responding to the Reviewer’s questions did not occur when the applicant was unrepresented and there was the added complication of dealing with an interpreter who may not have understood the nature of the questions asked. Rather, the Reviewer has identified an aspect of the applicant’s evidence which had not been adequately responded to during the interview. Consequently, the IPOA Natural Justice letter was prepared and forwarded to the applicant. The response to that inquiry was prepared by a qualified Migration Agent who had sufficient time to raise the issue with the applicant and prepare the response. That response contains a clear statement that the villages of Yazdeh, Nowbahar and Darabad were not contained in the Statement of Claim and were initially identified during the IMR Interview of 9 January 2012. What was discussed at the IMR Interview which was recorded under Claims and Evidence at [53]-[55] (CB 235).
I agree with the approach advanced by Ms Graycar that to establish a breach of the common law rule of procedural fairness the applicant needed to show that there was a breach of the obligation to provide him with notice of any critical issue that would lead to an adverse decision, and therefore failing to afford him an opportunity to respond to such information. The applicant was afforded this opportunity and this was given to the applicant under the circumstances where he was fully assisted by a qualified migration agent who was in the position to explain to the applicant the significance of the question being raised and to advise of the appropriate response. Within that response is a clear admission that the applicant did not raise the name of these villages prior to the IMR Interview.
The Full Federal Court in Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (supra) at 591-592 stated:
Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interest. That entitlement extends to the right to rebut or qualify by further information and comment by way of submissions, upon adverse material from other sources which was put before the decision maker. It also extends to require the decision maker to identify to the person affected any issues critical to the decision which is not necessarily from its nature or terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material…
The High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 also referred to the passage in Alphaone where the Full Federal Court had stated that a fundamental aspect of the opportunity to be heard is that it would, at [32]:
…ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material…
In Kioa v West (supra) Mason J (as he was then) stated at [34] and [40]:
34. …The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?...
…
40. In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.
The purpose of the IPOA Natural Justice letter was to bring to the applicant’s attention that the first apparent mention of the villages of Yazdeh, Nowbahar and Darabad did not occur until the interview on 9 January 2012 which led to the Reviewer arranging for this question to be put to the applicant and to provide time for a response.
It is for an applicant to advance whatever argument he wishes to advance in support of his claims. The Reviewer must then decide whether such a claim is made out: Abebe v Commonwealth (supra). The function of the Reviewer is to respond to the claims that the applicant advances. The Reviewer is not required to consider a case that is not expressly made or does not arise clearly from the material before it. It was for the applicant to put forward information and materials on which he relied in support of his claims. Insofar as he did this, the Reviewer considered such claims. The Reviewer is not in the position of a contradictor. The Reviewer is not required to accept uncritically any claim or allegation made by the applicant.
The argument advanced on behalf of the applicant that the giving of speeches at mosques is a new claim raised during the IMR Interview on 9 January 2012 stems from a fundamental misunderstanding about the question put to the applicant in the legal review letter and an unduly narrow construction of earlier responses was due to not having proper regard to the answers that had been given by the applicant. Further, the claim that the Reviewer had failed to have regard to individual pieces of information given at various stages of the review, in order to draw an inference that the delivery of speeches in certain village mosques could be drawn cannot be sustained.
Consequently, this Ground should be dismissed.
Ground 3
The basis of this Ground is that the Reviewer applied the incorrect test for state protection. In general terms the test for state protection is that an individual may seek asylum on the basis on a well-founded fear of persecution if they are unable, or owing to their fear unwilling, to avail themselves of protection of their home state. The argument advanced by the applicant is that to correctly apply the test, an assessment of the state’s inability to protect the applicant should be considered separately from the state’s willingness to protect. The applicant’s claim is that the Reviewer failed to consider whether Afghanistan would be unable to provide protection. By adopting this approach the Reviewer misapplied the test of whether the applicant is unable or, owing to his fear of persecution, is unwilling to avail himself of the protection of the state, by only considering the unwillingness limb of the test, and not addressing the ability to provide protection limb.
The contrary position of the Minister is that there is no authority for the proposition that the aspects of unwillingness and inability are separate mandatory considerations, failure to consider one limb constitutes a legal error on the part of the decision-maker.
However, importantly the parties acknowledge that this ground falls away if the claim is not accepted that there is a real chance that the applicant be persecuted for any Convention reason.
In respect to the matter before this Court, I believe that there are two significant cases that are key to its resolution. Firstly, the decision in Khawar (supra) establishes the elements of the test. Secondly, the decision in SZONJ that specifically addresses the application of the test to the particular facts of this matter.
The applicant relies on the High Court decision in Minister for Immigration and Multicultural Affairs v Khawar & Ors (supra) at [29]-[30], where Gleeson CJ held:
29. If there is a persecutor of a person or a group of people, who is a "non-state agent of persecution", then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
30. The references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation. In Ex parte Shah[13], Lord Hoffmann, in giving the example of the Jewish shopkeeper set upon with impunity by business rivals in Nazi Germany, referred to the failure of the authorities to provide protection, based upon race, as an "element in the persecution"[14]. The same expression was used by Lord Hope of Craighead in the passage from Horvath quoted above.
13. R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629
14. R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 at 654
(emphasis added)
In Minster for Immigration and Citizenship v SZONJ (supra) their Honours Emmett, Rares and Perram JJ were required to determine whether mere inability of the state to protect a visa applicant satisfied the principle in Minister for Immigration and Multicultural Affairs v Khawar & Ors (supra). The question was whether a state’s failure to protect the visa applicant from persecution arose for a Convention reason. The Court held that the inability may be relevant to the existence of a well-founded fear, but that the toleration or condonation was a requirement to make out a nexus with a Convention reason. Their Honours made the following observations:
31… The Chief Justice cautioned that an Australian court or tribunal would need to be well informed about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitude of the authorities to the behaviour of private individuals ([26]). Gleeson CJ observed that, if there is a non-state persecutor of a person or group of people, then the failure of the state to intervene to protect the victim may be relevant to whether the victim’s fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability of the state to do anything about it ([29]). Gleeson CJ then went on to observe ([31]) that, where persecution consists of two elements, being the criminal conduct of private citizens, together with the tolerance or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection that the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
32.… The first observation is directed to the question of whether or not there is a well-founded fear. The second is concerned with criminal conduct by private citizens that is tolerated or condoned by the state or agents of the state. When the question is whether there is a well-founded fear, it is relevant that the failure of the state to do anything about the relevant conduct is the result of inability, as well as tolerance or condonation. However, when the question concerns whether a Convention nexus has been established, there is no suggestion by Gleeson CJ that mere inability on the part of the state to prevent persecution is sufficient. Rather, it must be shown that the failure on the part of the state or state agents to prevent the relevant conduct is the result of toleration or condonation, not simply inability to prevent the conduct.
33. Thus, where there is persecution by a non-state agent for a reason that has no Convention nexus, and that conduct is condoned or tolerated by the state for a Convention reason, the victim may be a refugee within the meaning of the Convention. However, where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied…
In the proceedings before this Court, the Reviewer made its findings in respect of state protection at [133]-[138] of the Decision Record (CB 266-268).
At [133]-[134] the Reviewer drew distinctions between the circumstances of the RRT Decision relied on by the applicant and the applicant himself. In this respect, the Reviewer found the RRT Decision had been made in respect of a Shia Muslim of Hazara ethnicity and the applicant in this proceeding was a Shia Muslim of Tajik ethnicity. It further found decisions of the RRT were not binding on other statutory decision makers. At [135] the Reviewer discussed the situation in general in Afghanistan for Shia Muslims and the security situation.
At [136]-[137] the Reviewer stated:
136. I consider implausible and thus do not accept the advisor’s unsubstantiated assertion that the authorities (either in Farah or anywhere else in Afghanistan) are or would be unwilling to provide protection to [SZSHH] for the Convention reason of his Shia Muslim religion. The documents [SZSHH] has provided contradict any assertion that the authorities in and around Farah are disinterested in [SZSHH’s] well being. I do not accept [SZSHH], anymore than all citizens who have limited or no access to protection by the authorities, will be denied what assistance is available to be provided by the authorities, for reasons personal to himself. I reject the advisor’s unsubstantiated claim that lack of State protection for [SZSHH] against any harm is linked to his religion. If [SZSHH] experiences harm from random insurgent violence or non Convention based criminal activity, as all citizens are at risk in Afghanistan, he may not be able to access the protection of the State. However, I find that State protection would not be withheld from [SZSHH] because of his race, religion, political opinion or for any other Convention reason.
137. For the above reasons I find there is not a real chance now or in the reasonably foreseeable future [SZSHH] will be persecuted in Afghanistan for reasons of, considered separately and cumulatively, his Tajik race, his Shia Muslim religion, his negative views of the Taliban and/or a political opinion. …
(CB 267-268)
It follows from the above finding that the Reviewer found there was not a real chance the applicant would face persecution now or in the reasonably foreseeable future for any Convention reason.
The test, alleged to have been misapplied in these proceedings, is made in circumstances where the decision-maker has found there is a real chance of the applicant being persecuted for a Convention reason. In those circumstances it would follow that the decision-maker would then apply the test in respect of state protection to the applicant’s particular circumstances. In this proceeding the Reviewer found, at [136] and [137], there was not a real chance of persecution of the applicant for a Convention reason and, accordingly, did not apply (or misapply) the state protection test. The authority of SZONJ (supra) noted at [180] above makes clear the first element to be satisfied is that there is a well-founded fear of persecution. The Reviewer found there was not and, consequently, was not bound to apply the second element of the test.
His Honour Judge Raphael stated in SZSME (Child) By His Litigation Guardian SZNEH (Father) v Minister for Immigration & Anor [2014] FCCA 443 at [10]:
10. As this court has said in SZOYZ v Minister for Immigration [2011] FMCA 201 at [78] and as the Federal Court has confirmed SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841, there is only a necessity to consider State protection when a Tribunal has found that an applicant is likely to suffer harm of some sort. …
His Honour Nicholls FM (as he then was) stated in SZOYZ v Minister for Immigration [2011] FMCA 201 at [78]:
78. The Tribunal found that the applicants did not have a well-founded fear of persecution because it rejected the truth of the applicant’s factual claims said to give rise to a fear of harm if she were to return to Fiji. In these circumstances there was no obligation on the Tribunal to consider whether state protection was available or adequate (SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841).
In respect of these proceedings, the Reviewer did make some comments about state protection in Afghanistan, however, there was no misapplication of the test. The Reviewer addressed a number of the applicant’s claims and submissions, referred to independent country information, and ultimately found he did not have a well-founded fear of persecution. There was no obligation then for the Reviewer to apply the state protection test and, as a result, it was not misapplied as submitted by the applicant.
Particular (f) of this ground alleges the Reviewer took into account irrelevant considerations when making findings in respect of the applicant’s claimed activities while in Afghanistan. The applicant cites two specific references contained in the Decision Record contained at [111] and [124].
In Peko-Wallsend (supra) his Honour Mason J stated at 40:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statue confers a discretion in its terms is unconfined, the factors that may be taken into account are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
The findings of the Decision Reviewer that are the subject of the applicant’s complaint are findings of fact made on the basis of the applicant’s credibility. I accept the Minister’s submissions that it is not correct to draw an analogy between the findings of the High Court in Application S395/2002 (supra). In this matter the Reviewer found the applicant was not credible and set out at [106]-[124] the reasons for so finding.
As his Honour Kirby J stated in Wu Shan Liang (supra) “[t]he reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”.
In my view, the same approach must be taken in respect of these proceedings. Read as a whole, the Reviewer’s findings were open to it on the evidence and reasons given for those findings. To engage in any more detailed analysis of those findings would lead the Court to engage in impermissible merits review.
Accordingly, this Ground cannot be sustained and should be dismissed.
Conclusion
None of the grounds of review contained in the Amended Application can be sustained. Further, a fair reading of the evidence before the Court reveals no other error on the part of the Reviewer. Consequently, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 14 July 2014
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