SZSRB v Minister for Immigration & Anor

[2013] FCCA 1382

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1382

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal made findings without evidence – whether the Refugee Review Tribunal rejected an aspect of the applicant’s evidence before the delegate without giving applicant notice – whether such failure constituted a breach of s.425 of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to consider a claim or integer of claim – whether Refugee Review Tribunal failed to consider whether applicant had a well-founded fear of persecution in the reasonably foreseeable future.

Legislation:

Migration Act 1958 (Cth), s.425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural Affairs(2004) 144 FCR 1
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

Applicant: SZSRB

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 535 of 2013

Judgment of: Judge Manousaridis

Hearing date: 6 August 2013

Delivered at: Sydney

Delivered on: 20 September 2013

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Fragomen

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The decision of the second respondent dated 18 February 2013 is quashed.

2. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of the delegate of the first respondent dated 12 October 2012.

3. The first respondent pay the applicant’s costs, as agreed or taxed.

4. The name of the first respondent recorded in the application be amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 535 of 2013

SZSRB

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Afghanistan, claimed before the second respondent (Tribunal) that he feared persecution if he returned to Logar Province, Afghanistan. He feared he would be persecuted because he is an ethnic Tajik, a Shiite Muslim, and a member of a particular social group, namely, returning asylum seekers.

2. Although the Tribunal found the applicant was generally a credible witness, and thus had a genuine fear of persecution if he returned to Afghanistan, it concluded the applicant’s fear was not well founded. It found that neither Shiite Muslims nor the Tajik in Logar Province were targeted with violence. It accepted that in the Parachinar area of Pakistan, where the applicant was born and from which he fled, the Pakistan Taliban and other Sunni extremist groups have been conducting a war against Shiite Muslims. The Tribunal found, however, that the Afghanistan Taliban, unlike the Pakistan Taliban, did not target the Shia population; and there was no country information to suggest the Pakistan Taliban may enter Afghanistan and seek to harm individuals. The Tribunal further found the applicant had no well-founded fear of persecution as a returnee. The Tribunal, therefore, rejected the applicant’s claim for a protection visa and affirmed the decision of the delegate of the first respondent (Minister) not to grant a protection visa to the applicant.

3. The applicant claims that in affirming the delegate’s decision the Tribunal made four jurisdictional errors:

   a)the Tribunal made two findings which were unsupported by evidence;

   b)the Tribunal breached s.425 of the Migration Act 1958 (Cth) (Act) by rejecting an aspect of the applicant’s evidence without first giving the applicant notice it might reject that evidence;

   c)the Tribunal did not consider one, or an integer of one, of the applicant’s claims for a protection visa, namely, the worsening security situation in Afghanistan; and

   d)the Tribunal did not consider whether the applicant had a real chance of being persecuted “within the reasonably foreseeable future”,[1] and thus misconstrued and misapplied the meaning of “refugee” as defined in the Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugee Convention).

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 at 279

4. The determination of these claims requires me to first review in some detail the claims for a protection visa the applicant made before the delegate, the delegate’s reasons for refusing to grant the applicant a protection visa, the applicant’s claims before the Tribunal, and the country information to which the Tribunal referred.

The applicant before the delegate

1. The applicant supported his claim before the delegate with a statutory declaration in which he said the following:[2]

   a)He was born in Parachinar Kurram Agency in Pakistan; he was born there because his parents fled Afghanistan due to the Soviet invasion of Afghanistan.

   b)He travelled once to the Logar Region of Afghanistan to obtain a “Taskera”.[3] While in Afghanistan, everyone he had spoken to asked him where he was from because he had a Pakistani Dari accent. For that reason, he had to do whatever he could to avoid any Pashtun or Taliban who might take advantage of him if they found out he was a Tajik Shia Muslim. He was afraid to use his last name because it could easily expose him as a Shiite Muslim. He was also afraid that scars on his back from self-beating would identify him and get him into trouble.

   c)In about April 2007, conflict broke out between the Shia and Sunni people in Parachinar, and the applicant was harassed to join a Shia group to fight in the conflict, although the applicant refused to join the group. That led the applicant to flee Pakistan.

   d)He feared that if he returns to Afghanistan he will be killed by the Taliban or by Pashtuns. For this reason, he would feel compelled to flee Pakistan where he may also be killed or forced to join the conflict between Shia and Sunni in the Motem Khana area. He fears that he would be killed or harmed because of his religion and his ethnicity.

   [2] CB25-28

   [3] A “Taskera” is an official identification document issued by government authorities in Afghanistan.

2. In addition to his statutory declaration, the applicant attended and provided information at a protection visa interview on 15 August 2012.[4] That included the following:[5]

   The applicant claims the only time he has ever travelled to Afghanistan was to obtain a Taskera in 2010. He did not know the way and had difficulty locating his village. The applicant claims his village is located very close to Pashtun areas.

   [4] CB83

   [5] CB83

3. The delegate found the applicant “to be a generally credible witness” who “consistently maintained his claims in relation to his identity, his migration history and the reasons he claims to fear harm if he were to return to Afghanistan”.[6] The delegate further found that the applicant genuinely held a subjective fear that he would be harmed if he were to return to Afghanistan.[7] The delegate said:

   In summary, on the basis of the applicant’s consistent and plausible testimony and the absence of any evidence on the contrary, I will accept the applicant’s material claims as summarised above.

   [6] CB84

   [7] CB84

4. The delegate found, however, that the applicant’s fears of harm were not well founded, and therefore refused to grant the applicant a protection visa.

The applicant before the Tribunal

1. The applicant provided to the Tribunal a detailed written submission in which he addressed in detail whether his fear of persecution was well founded. And he did this largely by referring to country information from a variety of sources.

Country information referred to in applicant’s written submission

1. The applicant referred to the following information:

   a)An article published in The Economist on 6 March 2004 titled “Why the Aggravation? The History of Shia Muslims” for the proposition that a schism exists between Sunni and Shia Muslims, and that the Taliban’s adoption of Wahabbism provides a credible basis for concluding that Shia Muslims, and accordingly the applicant, are targeted by the Taliban for reasons of their religion.[8]

   b)An article published by The Economist on 5 October 1996 titled “The Road to Koranistan” for the proposition that the fundamental enmity held by the Taliban towards Shia Muslims has led both sides to conclude there is no room for “inter Muslim Tolerance”.[9]

   c)An article published by the United States Department of State, 2011 Country reports on Human Rights Practices – Afghanistan for the propositions that the enmity between Shia and Sunni has led to the development of “Islamocide” in Afghanistan where Muslim groups engage in brutal acts of violence against each other in the name of their indigenous breed of ideology; and that this “Islamocide” continues to this day where the Taliban still acts with impunity, killing innocent civilians through acts of suicide bombings, including the killing of 47 Shia Muslims while partaking in the annual Ashura festival.[10]

   d)An article published in the New York Times on 24 September 2011 for the proposition that members of the Haqqani network will execute people at a checkpoint, and if they discover a person is connected with the government, such persons will turn up in the morgue.[11]

   e)An article from the International Crisis Group titled The Insurgency in Afghanistan’s Heartland published on 27 June 2011 for the propositions that insurgents have a stronger hold over Logar, Wardak and Ghanzi than other provinces neighbouring the capital, that the Taliban is tightening its grip through shadow governments and a campaign of intimidation and assassination, and the Taliban maintains the largest presence in all three provinces, with the Haqqani network following closely behind in Logar.[12]

   f)An article published in the Global Post on 26 November 2012 titled “Afghanistan: Another Province goes to the Taliban” for the propositions that the Taliban’s strength has grown in the Logar province using tactics such as suicide attacks, assassinations and kidnappings, as well as operating an informal judicial system.[13]

   [8] CB118-119 [32]

   [9] CB119 [33]

   [10] CB119 [34]

   [11] CB119-120 [35]

   [12] CB120 [38]

   [13] CB120-121 [39]

2. The applicant’s submission also referred to country information which he contended showed a real chance of harm to the applicant because of his membership of particular social groups.

The applicant’s evidence before the Tribunal

1. The applicant also appeared before the Tribunal and gave evidence. He said that his trip to Afghanistan, which was to Khoshi, lasted five days;[14] he was very frightened because he travelled through an area surrounded by Pashtun men, with long beards, turbans, and traditional clothing, and the applicant looked  different, and stood out because of his different clothing, absence of beard, Tajik name, and Dari accent;[15] while in Khoshi the applicant stayed with his sister who lived there;[16] the applicant accepted as true country information the Tribunal put to him that suggested that the Khoshi district was a valley predominantly made up of Tajik people, including many Tajik Shia, although the applicant said there were quite a few Pashtun and Sunni people living around his sister;[17] the applicant received his Taskera in a short time, and returned to his family in Pakistan without incident;[18] the applicant, although experiencing fear in Afghanistan, did not experience violence;[19] the applicant was aware that people who had worked with American soldiers, such as interpreters, had been killed by the Taliban for working for the foreigners and strangers, and that the applicant would be considered  an agent working for a foreign government;[20] the applicant said that the Taliban in Afghanistan was the same as the Taliban in Pakistan, and he was aware of many violent acts by the Sunnis against Shia people, including the killing of eleven people in Paktia Province;[21] and while in Pakistan, violence occurred between the Sunni and Shia since 2007, and the applicant was pressured to join a Shia extremist group known as Takia Khana.[22]

   [14] CB138 [26]

   [15] CB138 [26]

   [16] CB138 [27]

   [17] CB138 [27]

   [18] CB138 [27]

   [19] CB138 [28]

   [20] CB139 [28]

   [21] CB139 [29]

   [22] CB139 [31]

Country information referred to by Tribunal

1. The Tribunal referred to country information on a range of subjects. The first subject was “the current security conditions in Afghanistan”.[23] Here, the Tribunal referred to a report titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan” dated 17 December 2010. The Tribunal quoted a passage which identified eleven groups of individuals which required “a particularly careful examination of possible risks”. Three of the groups the report identifies are “[i]ndividuals associated with, or perceived as supportive of, the Afghan Government and the international community”, “members of minority religious groups and persons perceived as contravening Sharia law”, and “members of (minority) ethic groups”.[24] The Tribunal referred to a further paragraph from the UNHCR report on the first of these three groups.[25]

   [23] CB140 [34]

   [24] CB140 [34]

   [25] CB140 [35]

2. The second subject on which the Tribunal referred to country information was “Logar Province”. The Tribunal noted that a number of reports indicate that Sunni insurgent groups, particularly the Haqqani network (a group allied with the Taliban) and Hizb-e Islami Gulbuddin Hekmatyar (HIG) are active in the Logar Province. These insurgents primarily targeted government institutions and military personnel and were mainly concentrated around the provincial capital and in the western district of Baraki Barak.[26]

   [26] CB140-141 [37]

3. The third subject was “Security in Logar province”. The Tribunal recorded that Logar continues to be a focus point of activity by armed opposition groups and in particular the Haqqani network and HIG,[27] and that the Taliban is in control of the province.[28]The Tribunal referred to a number of articles which reported on the levels and extent of insurgent activity, as well as local uprisings against Taliban control.[29]

   [27] CB141 [38]

   [28] CB141 [39]-[40]

   [29] CB141-143

4. The fourth subject on which the Tribunal referred to country information was “Security incidents in Logar province since January 2012”. Here the Tribunal refers to reports which indicate that attacks have primarily targeted government institutions and military personnel, and were mainly concentrated around the provincial capital and in the western district of Baraki Barak.[30]

   [30] CB143-145 [46]

5. The fifth subject was “General security in the eastern region”, where the Tribunal referred to reports which assess the ability of the Afghan National Army to deal with the insurgency in the provinces of Zabul, Wardak, and Logar.[31]

   [31] CB145-147 [47]-[50]

6. The sixth subject was “Tajik ethnic group”. The Tribunal referred to the Tajiks being the second largest ethnic group in Afghanistan and the Pashtuns’ most serious rival for political and economic power, and also their making up the majority of Afghanistan’s ruling elite, and occupying prominent positions in the military and security services.[32] The Tribunal referred to the Tajiks in the Logar region, noting that Logar province is primarily Sunni with some Shia Muslims,[33] that a 1989 report noted that the Khoshi district is divided into two main areas called the Khoshi and Dubandi, with the people of Dubandi being Pashtun speakers while the people of Khoshi are Tajik who speak Dari,[34] and that a 2002 UNHCR District Profile stating that the Tajiks of Logar accounted for 65% of the province.[35]

   [32] CB147 [51]

   [33] CB148 [56]

   [34] CB148-149 [57]

   [35] CB149 [57]

7. The seventh subject was “Tajik Shias”. The Tribunal said that no “information was located that indicated Shia Tajiks are being specifically targeted or mistreated by the Taliban in Logar province or more generally in Afghanistan”.[36] The Tribunal located reports which describe a historically hostile relationship between Tajiks and Pashtuns which “suggest this relationship may be a growing cause for concern in present-day Afghanistan”.[37] The Tribunal identified and referred to a number of articles and reports, one referring to an attack on Shiite worshippers in Kabul on 6 December 2011,[38] another, dated 12 May 2011, referring to a rift between Pashtun and Tajiks,[39] the third, dated September 2011, reporting on ethnic relations in Logar province between Pashtuns and Tajiks being peaceful,[40] a fourth, dated 21 April 2011, referring to private Tajik and Uzbek militias having been formed in response to the flare up in the Taliban insurgency, and their mistreating Pashtuns,[41] and a fifth, dated 16 December 2010, reporting to the same effect.[42]

   [36] CB149 [59]

   [37] CB149 [59]

   [38] CB149 [60]

   [39] CB149 [61]

   [40] CB150 [62]

   [41] CB150 [63]

   [42] CB150[64]

8. The eighth subject is “Attacks on Shias”. The Tribunal referred to reports concerning the December 2011 Ashura bombings, one report issued by the United States Department of State noting that a group called the Lashkar-e-Jhangvi, a Pakistan-based military group with links to al-Qaeda and the Pakistan Taliban, claiming responsibility,[43] a second report, issued by Amnesty International, referring to the Ashura attacks as a serious escalation of previously rare sectarian violence,[44] a third report, published in the Los Angeles Times on 7 December 2011, noting that the Kabul and Mazar-e Sharif attacks as a rare outbreak of sectarian violence,[45] and a fourth report, published by the Christian Science Monitor published on 7 December 2011, noting that recent attacks show no pattern of growing tensions between Sunnis and Shiites.[46]

   [43] CB151 [67]

   [44] CB151 [68]

   [45] CB151 [68]

   [46] CB151 [68]

9. In addition, the Tribunal referred to two other reports. Because the applicant attached importance to the Tribunal referring to these two reports, I will quote what the Tribunal said:[47]

   In 2012, two reports were located in which Shia Muslims were clearly identified as the target of a Taliban attack. A report from Pajhwok Afghan News, published on 24 June 2012, referred to the arrest of a Taliban shadow district chief, Mullaqh Abdul Kabir, in Bamyan province. Kabir stated that he had been given money by the Quetta Shura and “been asked to go to Bamyan province and destroy red-light areas, kill Shiites and increase Taliban’s activities there. A January 2012 Fox News report stated that “[e]xtremist Sunni groups cross the Pakistani border to kill Afghan Shiite children and women”.

   [47] CB151-152 [69]

10. The ninth subject on which the Tribunal referred to country information was “Returnees”. The Tribunal referred to a Department of Immigration and Citizenship (DIAC) Country Information Service for 2012 stating there were no significant protection issues for Hazara returnees,[48] the same DIAC Information Service quoting a Foreign Office official at the Kabul British embassy that he had not received any reports from those who have returned from the United Kingdom that they have been targeted on their return because they had sought asylum oversees,[49] a 2010 Department of Foreign Affairs and Trade (DFAT) advice that none of its contacts considered there were significant protection issues for refugees,[50] and a 2009 DFAT advice that returnees who had lived for some time in Western countries could also face difficulties in traditional rural areas.[51]

    [48] CB152 [71]

    [49] CB152 [72]

    [50] CB152 [73]

    [51] CB152 [74]

1. The tenth subject was “Returnees from Iran/Pakistan”. The Tribunal referred to an Outlook Afghanistan report published on 1 November 2011 noting the number of refugees who had returned to Afghanistan;[52] a paper issued in July 2009 from the Afghanistan noting negative attitudes shown towards some returnees;[53] and a report from Tolo News of 22 July 2012 noting, among other things, Afghanistan’s Ministry for Refugees and Repatriates asking that Afghan refugees in Pakistan be allowed to stay another three years.[54]

   [52] CB153 [76]

   [53] CB153 [77]

   [54] CB154 [78]

2. The eleventh subject on which the Tribunal referred to country information was “Outlook for the security situation in Afghanistan”. In this section, the Tribunal identifies sources which provide “some commentary on how the conflict in Afghanistan may play out in the future”, noting, however, that “it remains difficult to predict the eventual political security outcome in the country”.[55] The Tribunal refers to a collection of essays published on the Foreign Affairs website;[56] a report issued by the European Union Institute for Security Studies and Carnegie Endowment for International Peace Joint report noting the need for structural reforms of various institutions if some stability is to be maintained in Afghanistan;[57] an article in the Washington Post dated 23 September 2011 stating the Afghanistan government is not in a position to survive without a continued presence by the United States and foreign aid;[58] an article by Professor Saikal of the Australian National University suggesting that the Taliban had good reason to be optimistic about the prospects of taking power from the current government, which could lead to broader ethnic conflict and civil war;[59] assessments carried out by the National Counterterrorism Centre, the United States Department of Defence, and International Security Assistance Force, that levels of violence in Afghanistan have declined;[60] although the Tribunal, in a footnote, also referred to a report published in 2012 by the Centre for Strategic and International Studies titled Afghanistan: The Failed Metrics of Ten Years of War, which claims that the levels of violence have risen over 2011;[61] a report from the Afghanistan NGP Safety Office, 2012 noting that attacks had declined over the first six months of 2012, although also noting that this de-escalation may be a tactical response to the anticipated withdrawal of US forces in 2014;[62] a report of a United Nations Resolution reducing bans on Taliban leaders so they can travel to peace talks;[63] an article from Aljazeera noting challenges for the security of Afghanistan, although also noting a level of confidence;[64] articles from The Canberra Times and CNN referring to the Australian Government’s position in relation to the withdrawal of forces from Afghanistan;[65] and an article from the United Kingdom concerning investment levels in Afghanistan after 2014.[66]

   [55] CB154 [79]

   [56] CB154 [80]

   [57] CB155 [81]

   [58] CB155 [82]

   [59] CB155 [84]

   [60] CB156 [85]

   [61] CB156 [85] fn. 93

   [62] CB156 [86]

   [63] CB157 [88]

   [64] CB157-159 [89]

   [65] CB160-161 [90]-[91]

   [66] CB161 [92]

3. The final subject on which the Tribunal referred to country information was “State Protection”. Here the Tribunal noted that the UNHCR has stated that state protection is generally not available in Afghanistan.[67]

   [67] CB161 [93]

The no evidence claim

1. The applicant claims the Tribunal made two findings without evidence. The first finding (First Claimed Finding) is one the applicant submits is conveyed by the following passage from the Tribunal’s reasons for decision:[68]

   There is no country information to indicate that the Pakistani Taliban and other anti-government organizations have been entering Afghanistan to seek to harm individuals.

   [68] CB163 [105]

2. The applicant submits this finding was not based on any evidence because there was before the Tribunal country information that indicated the Pakistani Taliban and other anti-government organizations have been entering Afghanistan to seek to harm individuals. That information is contained in the Fox News article to which the Tribunal referred in paragraph 69 of its reasons for decision, and which I have set out in paragraph 21 of these reasons. The entire article is in evidence, and counsel for the applicant directed my attention to the following passage:[69]

   Extremist Sunni groups cross the Pakistani border to kill Afghan Shiite children and women. The carnage last month in Kabul at a Shiite mosque killed eighty people and was a new height in religious sectarian violence for Afghanistan. It won’t be long before Iran recruits a group to bomb a Sunni mosque.

   [69] Annexure “A” (page 3) to affidavit of F Varess made 23 July 2013

3. The Minister submits the applicant misinterprets this passage. The Minister submits that, on the proper construction of the passage, the subject about which the Tribunal found there was no country information was the Pakistani Taliban and other anti-government forces entering Afghanistan to harm individuals in their capacity as individuals, as opposed to the Pakistani Taliban and other anti-government forces entering Afghanistan to harm individuals in their capacity as members of an ethnic or religious group. There was no country information about the former subject; but there was country information about the latter subject.

4. I accept the Minister’s submission. The subject about which the Tribunal found there was no country information was whether or not the Pakistan Taliban and other anti-government forces were entering Afghanistan to seek to harm individuals in their capacity as individuals. That is apparent when the passage which the applicant submits conveys the First Claimed Finding is read together with the two sentences which precede it:[70]

   The country information does not support the applicant’s claims of their being frequent violent attacks by Sunni against Shia in Afghanistan, rather that the violence has been limited to limited incidents perpetrated by these outside forces. The applicant may fear that these armed groups from Pakistan may enter Afghanistan and seek to harm him. There is no country information to indicate that the Pakistani Taliban and other anti-government organisations have been entering Afghanistan to seek to harm individuals. [Emphasis added].

   [70] CB163 [105]

5. The reference to “these outside forces” can only reasonably be interpreted as a reference to the country information the Tribunal identified in paragraph 69 of its reasons, the text of which I have set out in paragraph 21 of these reasons. That country information deals with the targeting of Shiite Muslims and Afghan Shiite children and women by outside forces. The Tribunal found that such violence was “limited to limited incidents”. The words “seek to harm him” that appear in the next sentence, on the other hand, can only reasonably be read as dealing with the targeting by outside forces of something other than the limited incidents of violence perpetrated on Shiite Muslims by outside forces referred to in the previous sentence. That something is the applicant as an individual, and individuals in general other than as members of the Shiite faith.

6. So construed, the Tribunal’s finding there was no country information to indicate that the Pakistani Taliban and other anti-government organizations have been entering Afghanistan to seek to harm individuals was not made in the absence of evidence. There was no such country information before the Tribunal. This part of the applicant’s claim, therefore, fails.

7. The second finding the applicant claims the Tribunal made without evidence (Second Claimed Finding) is that conveyed by the emphasised portion of the following passage:

   [T]he violence that has occurred between Sunni and Shia has been limited to a small number of incidents, and as discussed above, the significant attacks of 2011 have been claimed to be the work of non-Afghan extremists groups seeking to destabilise the relationships between Sunni and Shia in Afghanistan. . . . The country information does not support the applicant’s claims of their being frequent violent attacks by Sunni against Shia in Afghanistan, rather that the violence has been limited to limited incidents perpetrated by these outside forces.

8. The applicant contends there was country information that violence was not limited to incidents perpetrated by outside forces. That information is contained in the article from Pajhwok Afghan News to which the Tribunal referred in paragraph 69 of its reasons for decision, and which I have set out in paragraph 21 of these reasons. That article too is in evidence, and counsel for the applicant directed my attention to the following passage:[71]

   Kabir, who belongs to Kafsh Khel area of Saighan district, has completed his religious primary education in his home town and then went to Pakistan, where he spent three years learning religious education in the Ashadul Tawhid Seminary in Peshawar, the capital of northwestern Khyber Pakhtunkhwa province.

   The rebel leader had received military training at the seminary and was appointed as Taliban-designated district chief for Saighan two months ago.

   [71] Annexure “A” (page 5) to affidavit of F Varess made 23 July 2013.

9. The Minister submits that this finding cannot be characterised as a finding for which there was no evidence. It was a finding that it was reasonably open to the Tribunal to make on the basis of the article from Pajhwok Afghan. I agree.

10. As submitted by the Minister, the Tribunal referred to Pajhwok Afghan News article about Mr Kabir; and there is nothing to suggest it did not have that article in mind when it made the Second Claimed Finding. The article referred to Mr Kabir’s receiving military training at a seminary in Pakistan. From that information, it was reasonably open to the Tribunal to characterise the violence the article reported Mr Kabir perpetrated as having been perpetrated by outside forces. And that, in my opinion, is what the Tribunal did. It interpreted the Pajhwok Afghan article as stating that the violence Mr Kabir perpetrated was perpetrated by outside forces, namely, by those in Pakistan who afforded Mr Kabir military training.

11. Accordingly, this part of the applicant’s claims also fails.

The failure to comply with s.425 claim

1. The applicant’s second claim of jurisdictional error is that the Tribunal failed to give the applicant notice that it might not accept an aspect of the applicant’s account which the delegate had accepted.

2. The aspect of the applicant’s account the applicant claims the delegate accepted, but which the Tribunal ought to have notified the applicant the Tribunal might not accept, is the highlighted portion of the following passage from paragraph 126 of the Tribunal’s reasons:[72]

   The applicant stated he kept a low profile in the area. The Tribunal does not accept that the applicant did this, he deliberately entered Afghanistan with the intent on procuring identity documentation and passed through Afghanistan to his home region without incident. The Tribunal does not consider that the applicant kept a low profile, but that he had no profile that would have drawn attention to himself for any adverse treatment.

   [72] CB167

3. The applicant submits the Tribunal was obliged to give the applicant notice that it might not accept this part of the applicant’s account because the applicant was entitled to assume that no part of his evidence would be an issue before the Tribunal; and he was entitled to so assume because the delegate had accepted the applicant’s evidence. For this reason, the applicant submits, the Tribunal made a jurisdictional error of the sort the High Court found the Tribunal made in SZBEL v Minister for Immigration and Multicultural Affairs.[73]

   [73] (2006) 228 CLR 152

4. A preliminary point that needs to be clarified is one that arises from the Tribunal’s saying the “applicant stated he kept a low profile in the area”. The applicant made no such statement, either to the delegate or to the Tribunal. In my opinion, however, it is reasonably clear that the Tribunal used the words “[t]he applicant stated he kept a low profile in the area” to refer to that part of the evidence the applicant gave about doing everything he could when he visited Afghanistan to avoid any Pashtun or Taliban. That evidence is contained in paragraph 9 of the statutory declaration the applicant submitted with his application for a protection visa:[74]

   When I was there, everyone I spoke to asked about where I am from because I had a Pakistani Dari accent and for this reason I had to do what I could to avoid any Pashtun or Taliban who may take advantage of me if they find out that I am a Tajik Shia Muslim. I was also afraid to use my last name because I can also be easily identified as a Shia Muslim and also the scars on my back from self-beatings will identify me and get me into trouble. [Emphasis added]

   [74] CB26

5. The Minister makes two submissions. First, the Tribunal did not, in paragraph 126 of its reasons, reject any aspect of the applicant’s evidence. What the Tribunal rejected was a particular characterisation of that evidence, namely, that the applicant kept a low profile in the area he visited. In other words, the Minister submits the Tribunal rejected a characterisation based on evidence which it accepted; it did not reject the applicant’s evidence. In any event, and this is the Minister’s second submission, the Tribunal did give the applicant sufficient notice that this aspect of his account might be an issue.

Did the Tribunal reject the applicant’s evidence?

1. I cannot accept the Minister’s submission the Tribunal rejected, not the applicant’s evidence, but a particular characterisation of the applicant’s evidence. First, the plain meaning of the language the Tribunal used is against the submission. The Tribunal said it “did not accept that the applicant did this”. The words “did this” is a reference to what in the preceding sentence the Tribunal said the applicant stated he did, namely, that he “kept a low profile in the area”. In my opinion, what the Tribunal did not accept was what, in paragraph 9 of his statutory declaration, the applicant stated he did when he visited Afghanistan, namely, doing “what I could to avoid any Pashtun or Taliban who may take advantage of me if they find out that I am a Tajik Shia Muslim”.

2. Second, the distinction between, on the one hand, rejecting evidence and, on the other, accepting evidence but rejecting a particular characterisation of the evidence, is impossible to draw unless the decision maker in terms draws that distinction. The Tribunal did not do that in paragraph 126 or in any other paragraph of its reasons.

3. In any event, in my opinion, no legal significance can be attached to the distinction the Minister draws. The correct characterisation of evidence can be as contestable as whether evidence is to be accepted or rejected. A delegate accepting a particular characterisation based on evidence the delegate has accepted entitles an applicant for review to assume that, unless notified otherwise, the Tribunal will share both the delegate’s acceptance of the evidence and the delegate’s characterisation of that evidence. Assuming, therefore, that, as the Minister submits, the Tribunal did not reject the applicant’s evidence, but rejected a particular characterisation of it, the Tribunal was bound to inform the applicant that, although it accepted the applicant’s evidence, it might not characterise it in the manner the applicant himself appeared to characterise it.

4. This, then, leads me to consider whether, as the applicant contends, the Tribunal was obliged, under the principles identified by the High Court in SZBEL, to give the applicant notice that it may not accept the applicant’s account (or characterisation of that account) referred to in paragraph 126 of the Tribunal’s reasons and, if so, whether the Tribunal did give adequate notice. That requires me to first consider SZBEL.

SZBEL

1. In SZBEL, the High Court held that, in the circumstances of that case, the Tribunal failed to accord the applicant procedural fairness, as required by s.425 of the Act, because the Tribunal failed to notify the applicant that it might not accept aspects of the applicant’s evidence which the delegate did not deal with or otherwise reject. The Court articulated the following principles in the course of arriving at that conclusion:

   a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks; and to rebut or qualify by submitting further information and comment and submission in relation to material that is adverse to the person.

   b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms under which it is made”, and advising the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[75]

   c)Section 425 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[76] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.[77]

   d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”[78]

   e)There may be cases where the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

   That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. . . . But where . . . there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.[79]

   [75] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [76] SZBEL at [33]

   [77] SZBEL at [34]

   [78] SZBEL at [35]

   [79] SZBEL at [47]

2. These principles may be reduced to the following propositions:

   a)Subject to b), the only issues that will be before the Tribunal on an application for review of a delegate’s decision will be those which the delegate regarded as dispositive of the applicant’s claim for a protection visa.

   b)The Tribunal, however, is not bound to decide an application of review by reference to the issues the delegate considered dispositive; subject to c), the Tribunal is free to identify additional or different issues which it may consider to be dispositive or potentially dispositive of the applicant’s claim for a protection visa.

   c)The Tribunal can dispose of an application for review on the basis of additional or different issues only if the Tribunal has sufficiently alerted the applicant that the Tribunal may decide the application for review on the basis of the additional or different issues, and has provided the applicant an opportunity “to give evidence and present arguments relating to the issues arising”.[80]

   d)What the Tribunal must do to adequately alert the applicant that it may decide the application for review on the basis of additional or different issues will depend on the circumstances of the case. Where the additional or different issues on which the Tribunal may decide an application for review is the Tribunal’s not accepting all or part of the applicant’s account which the delegate accepted, “the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”.[81]

   [80] Section 425 of the Act

   [81] SZBEL at [47]

1. The application of these propositions to this part of the applicant’s claim requires me to address two questions. The first is whether the Tribunal’s not accepting the applicant’s account that he kept a low profile was an issue on which the Tribunal relied in affirming the delegate’s decision. The second is, assuming it was an issue on which it relied, whether the Tribunal adequately alerted the applicant that it was an issue on which the Tribunal might dispose of the application.

Did the Tribunal rely on its not accepting the applicant “kept a low profile”?

1. The answer to this question depends on the context in which the Tribunal said it did not accept the applicant did not keep a low profile. That occurred in paragraph 126 of the Tribunal’s reasons for decision which deals with the applicant’s claim that he faces a real risk of significant harm if he returns to Afghanistan because he is not experienced in Afghanistan, having grown up and lived in Pakistan for the majority of his life. That claim was viewed by the Tribunal as having been made in support of the applicant’s claim for protection on the basis of the complementary protection provisions of the Act.

2. The Tribunal rejected this claim in paragraph 126 of its reasons. The Tribunal sets out a number of reasons for rejecting the claim. One of those reasons is the Tribunal’s non-acceptance of the applicant’s account. This reason appears to be the basis of the other, or at least most of the other, reasons the Tribunal gives in that paragraph for rejecting the claim. Thus, the Tribunal’s not accepting the applicant kept a low profile constituted the determination by the Tribunal of an issue adversely to the applicant and on which the Tribunal relied to affirm the delegate’s decision.

3. Given that the delegate accepted the applicant’s account, the delegate obviously did not treat as dispositive the non-acceptance of the applicant’s account that he kept a low profile in Afghanistan. From this it follows that the Tribunal was obliged to alert the applicant that whether or not, as the applicant claimed, he kept a low profile in Afghanistan was an issue before the Tribunal, and was obliged to invite the applicant “to give evidence and present arguments relating” to that issue.[82]

   [82] Section 425 of the Act

Did the Tribunal adequately alert the applicant of the issue?

1. The Minister submits the Tribunal sufficiently alerted the applicant to the issue. The Minister refers to the Tribunal having asked the applicant questions about his visit to Afghanistan and having asked him to expand on his account. And the Minister submits the Tribunal was not required to express scepticism about each aspect of the applicant’s account or provide a running commentary about what it thought of the applicant’s account.

2. The Tribunal did ask the applicant questions about his visit to Afghanistan.[83] And the Minister is of course correct that the Tribunal was not required to express scepticism about each aspect of the applicant’s account or provide a running commentary about what it thought of the applicant’s account. But where, as I have found is the case here, the Tribunal considered there may be an issue about whether to accept an aspect of the applicant’s account, the Tribunal was not only required to ask the applicant to expand on that aspect of the applicant’s account; it was also required to “ask the applicant to explain why the account should be accepted”.[84]

   [83] Pages 9-14 of the transcript annexed to the affidavit of J Falconer affirmed on 6 June 2013.

   [84] SZBEL at [47]

3. In my opinion, the transcript of the hearing before the Tribunal does not reveal the applicant was asked to expand on the statements he made in paragraph 9 of his statutory declaration. The Tribunal did not ask the applicant about his being asked by everyone he spoke to about where he was from because he had a Pakistani Dari accent. It did not ask the applicant what he did to avoid any Pashtun or Taliban. It did not ask the applicant what he did to maintain a low profile. And the Tribunal did not ask the applicant to explain why it should accept any part of his account. In my opinion, therefore, the Tribunal did not bring to the attention of the applicant the possibility that the Tribunal might not accept an aspect of his account, and consequently did not invite the applicant to give evidence and present arguments relating to that subject.

4. Additionally, if, contrary to what I have held, the Tribunal did not reject the applicant’s evidence, but instead rejected a characterisation of the evidence, I am of the opinion the Tribunal was bound to alert the applicant that the correct characterisation of the applicant’s evidence might be an issue, and invite the applicant to make submissions about why the characterisation the applicant sought to place on his evidence is one which the Tribunal should accept. That did not occur.

5. For these reasons, the Tribunal did not comply with s.425 of the Act and, therefore, made a jurisdictional error.

Failure to consider claim

1. The third jurisdictional error the applicant claims the Tribunal made is that the Tribunal failed to consider a claim, or a component integer of a claim, raised by the applicant or which was squarely raised in the material before the Tribunal. That claim, or component integer of the claim, was the deterioration in the security situation in Afghanistan that will arise after foreign troops withdraw from Afghanistan.

2. The applicant relies on a number of authorities for this claim.[85] It is sufficient if I refer to the following passage from NABE v Minister for Immigration and Multicultural Affairs:[86]

   The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). . . . It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

   [85] Applicant’s written submissions, [23]

   [86] (2004) 144 FCR 1 at 18 ([58]) (Black CJ, French and Selway JJ)

3. The Minister submits that an assertion of a well-founded fear of persecution based on an asserted future deterioration of the security situation in Afghanistan cannot constitute a separate claim. The Minister submits the question the Tribunal had to consider was whether the applicant’s claimed fear of persecution was well founded, and the question of the future security situation in Afghanistan, if relevant at all, can only have been relevant to the Tribunal’s determining that question.

4. I accept the Minister’s submission. The applicant did not make a claim he had a well-founded fear of persecution for the reason that the security position in Afghanistan was likely to deteriorate. The applicant claimed he has a well-founded fear of persecution on account of his being a Tajik, a Shiite Muslim, and a member of a particular class, namely, returnees to Afghanistan. Whether or not the security situation in Afghanistan was likely to deteriorate can only have been relevant to that claim. It was potentially relevant to that claim because, in determining whether an applicant falls within the definition of a “refugee” contained in the Refugee Convention, the Tribunal had to be satisfied there was a real chance the applicant “would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future”.[87] And the only way the future deteriorating security position in Afghanistan could have been relevant to the applicant’s claim is if there was material on the basis of which it would have been reasonably open to the Tribunal to find that the future deteriorating security situation in Afghanistan would take place “within the reasonably foreseeable future”, and that this would impact on its assessment of the probabilities of the applicant being persecuted for the reasons he claimed he feared persecution, namely, his being a Tajik, a Shitte Muslim, or a returnee.

   [87] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279

5. It is possible to characterise the applicant’s assertion that the security position in Afghanistan was likely to deteriorate in the future as a component integer of the applicant’s claim he had a well-founded fear of persecution. Whether or not, however, the Tribunal considered that component of the applicant’s claim is squarely raised by the applicant’s fourth ground of review, and I consider that question in the next section of these reasons. For the reasons set out below, however, I am of the opinion the Tribunal did consider this aspect of the applicant’s claim.

6. Accordingly, the applicant’s third ground of review fails.

The failure to consider future deteriorating security position in Afghanistan

1. The fourth jurisdictional error the applicant claims the Tribunal made is that it failed to consider whether the applicant had a well-founded fear of being persecuted within the reasonably foreseeable future.

2. The applicant submits there was available to the Tribunal material relevant to that issue, but the Tribunal did not consider it. The relevant material is that which the Tribunal included in its reasons for decision under the heading “Outlook for the security situation in Afghanistan” (Security Outlook Material), which I have summarised in paragraph 24 of these reasons. And the basis on which the applicant submits the Tribunal did not consider that material is that the Tribunal did not discuss or otherwise refer to that material in the section of its reasons headed “Findings and Reasons” (Findings Section).

3. The success of the applicant’s claim depends on whether it should be inferred from the Tribunal’s not considering the Security Outlook Material in the Findings Section that the Tribunal did not consider that material. In my opinion, no such inference can, or should, be drawn.

4. First, as submitted by the Minister, the Tribunal included the Security Outlook Material in over seven pages of its reasons for decision. It is difficult to infer that the Tribunal did not consider seven pages of material which it took the trouble to include in its reasons for decision.

5. Secondly, an alternative explanation is available for the Tribunal not discussing the Security Outlook Material in the Findings Section: the Tribunal concluded the Security Outlook Material was not relevant to whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future. The basis of this explanation would be that, although the Security Outlook Material refers to the security position in Afghanistan, it does not contain information which addresses whether that position will or may result in harm or other detriment to Tajiks, or to Shitte Muslims, or to returnees. Stated another way, the content of the Security Outlook Material was such that it was reasonably open to the Tribunal to decide that the Security Outlook Material had no or had only marginal relevance, and that the Tribunal manifested its decision by not considering the Material in the Findings Section.

6. It is noteworthy that the applicant has not articulated the reasoning by which he submits it was open to the Tribunal to infer from the fact that in the reasonably foreseeable future there will be a deteriorating security position in Afghanistan to the conclusion that the applicant will have a well-founded fear of being persecuted on account of his being a Tajik, a Shiite Muslim, or a returnee in the reasonably foreseeable future. The applicant instead appears to assume the deteriorating security position was relevant to that issue and, perhaps, also assumes the Tribunal was bound to consider the deteriorating position to be relevant to that issue. In my opinion, these assumptions would not be warranted.

7. I am satisfied the Tribunal did not fail to consider whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future. In my opinion, therefore, the fourth ground of the application for review fails.

Conclusion and disposition

1. The Tribunal did not accept an aspect of the applicant’s evidence, namely, when the applicant visited Afghanistan, he kept a low profile in the area he visited; and it relied on the non-acceptance of the applicant’s evidence in deciding to affirm the delegate’s decision. Because the delegate had accepted the applicant’s evidence, the Tribunal ought to have given, but it did not give, the applicant notice that it might not accept this part of the applicant’s evidence. Alternatively, to the extent the Tribunal did accept the applicant’s evidence, but rejected his characterisation of that evidence, the Tribunal was obliged to inform the applicant that the correct characterisation of that evidence was an issue, but that it failed to do so. The Tribunal, therefore, did not comply with s.425 of the Act and has made a jurisdiction error in affirming the delegate’s decision.

2. Accordingly, I propose to order that the Tribunal decision be quashed and also to order that a writ of mandamus be directed to the Tribunal to determine the applicant’s application for review according to law.

3. As requested by the Minister, I also propose to order that his name as recorded in the application be amended to “Minister for Immigration and Border Protection”.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  20 September 2013