SZTGN v Minister for Immigration
[2014] FCCA 1467
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1467 |
| Catchwords: MIGRATION – Review of Independent Protection Assessment report and recommendation – applicant claiming a fear of harm by the Taliban in Afghanistan – applicant’s claims of past harm by the Taliban not believed – whether the Assessor overlooked part of the applicant’s claims or relevant material and whether the assessment was procedurally fair considered. |
| Legislation: |
Migration Act 1958 (Cth), ss.36, 46A, 91R, 368, 430, 477
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 | ||
| Applicant: | SZTGN | |
| First Respondent: | Minister for Immigration & Border Protection |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 2137 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 July 2014 |
| Date of Last Submission: | 15 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms D Dinnen |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court declares that the report and recommendation of the second respondent dated 17 October 2012 was not made according to law.
The first respondent is restrained by himself, or by his Departmental officers, delegates or agents from relying upon the report and recommendation of the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 2137 of 2013
| SZTGN |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACiTY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction and background
This is an application to review a report and recommendation of an Independent Protection Assessor (Assessor) dated 17 October 2012. The Assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant is a young Hazara man from Afghanistan and claimed to fear harm at the hands of the Taliban. The following statement of background facts relating to his claims and the findings of the Assessor is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan[1] who entered Australia as an irregular maritime arrival on 6 December 2011[2].
[1] Court Book (CB) 1
[2] CB 108
On 14 January 2012, an officer within the Minister’s Department conducted an entry interview with the applicant[3].
[3] CB 6-22
On 17 March 2012, the applicant made a request for a Protection Obligations Determination (POD)[4]. This resulted in a Protection Obligations Evaluation (POE). In support of his request, the applicant made a statutory declaration in which he set out his claims for protection[5].
[4] CB 26-62
[5] CB 64-67
On an unspecified date, the applicant’s then representatives provided written submissions to the Minister’s Department in support of the applicant’s POD request[6].
[6] CB 88-103
On 17 May 2012, the POE officer concluded that the applicant was not a person to whom Australia owed protection obligations[7]. In accordance with departmental policy, the applicant’s case was referred to the Independent Protection Assessment Office (IPAO) for an independent protection assessment (IPA)[8].
[7] CB 108-117
[8] CB 105-107, 117, 126-127
On 17 October 2012, the Assessor made a recommendation to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations[9]. The Assessor’s findings are considered in detail in the context of discussing the applicant’s grounds of review below.
[9] CB 130-155
In brief, the Assessor found that the applicant would not face a real risk of serious harm in Afghanistan simply because of his Hazara ethnicity, his Shia religion or any imputed anti-Taliban political belief. The Assessor found at [91][10] of her report that Hazaras do not face systemic violence or any “existential threat” and are not being persecuted on any consistent basis. While the applicant had spent most of his life outside of Afghanistan, he claimed to have returned there in 1997, and to have been captured by the Taliban and to have suffered harm at their hands, although he was ultimately released. The Assessor rejected this claim on credibility grounds. First, the Assessor found that it was implausible that a Hazara would return to Kabul at a time when Hazaras were being persecuted by the Taliban in Kabul[11]. The Assessor further found it implausible that Hazaras who were living in Kabul at that time would not be aware of how Hazaras were being treated by the Taliban and would advise the applicant (so he claimed) that it was a safe and secure place for Hazaras to live and work[12]. Thirdly, the Assessor was concerned at [99][13] as to why the applicant returned to Kabul. The Assessor found it inconsistent that at one point he claimed to have been ignorant and that at another point he claimed that he returned to Kabul because of his “stupidity”. The Assessor formed the view that the different explanations for his claimed return indicated that he was “simply fabricating his responses”. Fourthly, at [100][14] the Assessor found the claim that the Taliban were “merciful” towards him and released him implausible given that at the time the Taliban regime held anti-Shia attitudes and were committing atrocities against Hazaras who they considered “infidels”.
[10] CB 149
[11] see [97] at CB 150
[12] see [98] at CB 150
[13] CB 150
[14] CB 150-151
The Assessor found that the applicant would be able to find safety in his home province of Bamyan. At [100][15] the Assessor considered the applicant’s fear of travel on the roads into and out of Bamyan province. The Assessor stated:
I have considered that if the claimant returns to Afghanistan he will need to travel on the roads in order to get to Bamyan. As the claimant has tailoring skills and construction skills that he can utilise inside Bamyan I do not consider that he will need to travel in and out of the province in order to support himself or his family. I accept the advice provided by DFAT in October 2010 that travel to Bamyan can be dangerous and has become more challenging in the context of a broader deterioration in security in Afghanistan. I accept the advice that it is individuals associated with the Afghan Government and the International community who are at greater risk than others on the road. In June 2011 the head of Bamyan Provincial Councils was kidnapped by the Taliban on his way from Kabul to Bamyan in Ghorband valley Parwan. The claimant did not claim and there is no evidence to suggest he has any association with the Afghan Government or the International community. I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel to Bamyan.
[15] CB 152
The Assessor accepted that the applicant as a returnee to Afghanistan might be the victim of general insurgent violence or crime but rejected at [115][16] the assertion that he would be in any way targeted as a returnee.
[16] CB 154
For those reasons, the Assessor rejected the applicant’s claim to be a refugee.
In relation to the complementary protection criterion, at [120][17] the Assessor reiterated her rejection of the applicant’s claim of past harm at the hands of the Taliban. At [121][18] the Assessor otherwise dealt with the complementary protection criterion in the following terms:
The claimant who is a Hazara will be returning to his place of origin Bamyan province a Hazara majority province. I accept that there is no Taliban presence in Bamyan. I accept that Bamyan province is widely regarded as secure. I accept that there are not protection issues for returnees to Bamyan. I do not accept that because the claimant has lived in Quetta for most of his life has a different accent and has sought asylum in a western country there is a real risk he will suffer significant harm. I do not accept that because he has no contact with his relatives in Bamyan and has no accommodation or job in Bamyan there is a real risk he will face significant harm. I am not satisfied on the evidence before me that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal there is a real risk that the claimant will suffer significant harm as defined in s.5 and 36(2A). I am not satisfied that the claimant is a person to whom Australia has protection obligations under s.36(2)(aa).
[17] CB 154
[18] CB 155
The judicial review application
These proceedings began with a show cause application filed on 11 September 2013. That application has been amended several times since. The applicant ultimately relied upon a further amended application filed by leave after the trial of this matter on 16 July 2014. That further amended application contains the following particularised grounds:
1. That the Independent Protection Assessment was affected by legal error in that the Second Respondent assessor failed to address a basis for complementary protection such that the First Respondent Minister was not informed about a matter that bore upon the question whether Australia owed the Applicant protection obligations.
Particulars
i. The assessor did not consider whether the Applicant was owed complementary protection in respect of the danger of travel to Bamyan.
ii. The assessor accepted that the Applicant would be returning to Bamyan.
iii. The assessor also accepted country information that travel to Bamyan was dangerous.
iv. The assessor made no finding that the Applicant would not face danger travelling to Bamyan.
v. The assessor limited her consideration of the danger of travel to Bamyan to the refugee ground of whether the Applicant faced “a real chance of serious harm amounting to persecution for a Convention reason.”
2. That the Independent Protection Assessment was affected by legal error in that the Second Respondent assessor failed to take into account relevant considerations in making her decision.
Particulars
i. The Applicant’s submissions dated 21 June 2012 were not considered by the assessor;
ii. The country information materials referred to in the Applicant’s submissions dated 21 June 2012 were not considered by the assessor;
iii. The reasons provided by the Applicant for his release by the Taliban in 1997 were not considered by the assessor; and
iv. The statements by the Applicant in both his Statutory Declaration and the submissions dated 21 June 2012 to the effect that he would be denied employment, accommodation and government assistance in Bamyan were not considered by the assessor.
3. That the Independent Protection Assessment was affected by legal error in that the Second Respondent failed to afford the Applicant procedural fairness in:
a. failing to notify the Applicant adequately of the issues to which its reasoning process were directed; and
b. failing to provide the Applicant with an adequate opportunity to respond.
Particulars
i. The assessor’s findings at paragraph 93 that the Applicant was not “a satisfactory witness whose credibility could be relied on” and at paragraph 99 that the Applicant was “fabricating his responses”; and
ii. The assessor’s findings at paragraph 100 to 101 that she did not accept the Applicant’s claim that he returned to Afghanistan in 1997, was captured, detained and beaten by the Taliban, and was released.
In addition to the court book filed on 23 October 2013, I have before me as evidence three affidavits made by Michael Louis Freedman Levy on 10 February 2014, 11 April 2014 and 8 July 2014. The first affidavit annexes a number of documents including transcripts of interviews with the applicant on 14 January 2012, 21 March 2012 and 17 August 2012 as well as a submission made by his lawyers dated 21 June 2012. The second affidavit makes some corrections to the first affidavit in relation to the transcript of the interview on 17 August 2012. The third affidavit deals with the delay in instituting the judicial review proceedings following the report and recommendation of the Assessor. That affidavit bears on the Minister’s contention that, even if error is demonstrated, relief should be withheld in the exercise of discretion because of the applicant’s delay of some 11 months[19].
[19] In SZQDZ v Minister for Immigration [2012] FCAFC 26 a Full Federal Court found that proceedings seeking quia timet injunctions in respect of IMR recommendations were not subject to the time limitation provisions of s.477 of the Migration Act
The applicant and the Minister both made written and oral submissions, including post hearing submissions.
Consideration
Ground 1 – did the Assessor err in dealing with the complementary protection claim?
The applicant’s contentions
The applicant submits the IPA was affected by legal error in that the Assessor failed to address a basis for complementary protection, namely, whether the applicant was owed complementary protection in respect of the danger of travelling to Bamyan province (being the place the Assessor presumed the applicant would return to if his refugee application in Australia was rejected).
The Assessor considered whether the applicant satisfied s.36(2)(aa) of the Migration Act1958 (Cth) (Migration Act). This section provides that an applicant is entitled to a protection visa where:
the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
At [109] of her report, the Assessor considered a basis under which the applicant may satisfy the criterion in s.36(2)(a). The Assessor stated:
I have considered that if the claimant returns to Afghanistan he will need to travel on the roads in order to get to Bamyan. As the claimant has tailoring skills and construction skills that he can utilise inside Bamyan I do not consider that he will need to travel in and out of the province in order to support himself or his family.
(the Internal Travel Finding)
The Assessor concluded that paragraph by stating that:
I am not satisfied that the Claimant faces a real chance of serious harm, amounting to persecution for any Convention related reason in relation to his travel to Bamyan.
(the Travel Conclusion)
The Internal Travel Finding was necessary to make the s.36(2)(a) Travel Conclusion as a result of the Assessor’s finding that the country information she had reviewed established that travel to and from Bamyan province was dangerous (extracted in at [26.c)] below).
However, the applicant contends that the Assessor did not consider the Internal Travel Finding in relation to the criterion required of s.36(2)(aa). The Assessor considered[20] whether s.36(2)(aa) of the Migration Act applied to the applicant as a result of:
a)the claim the applicant was detained and tortured when he returned to Afghanistan in 1997; and
b)the claim there was a real risk the applicant will suffer significant harm by reason of:
i)the conditions in Bamyan province;
ii)the applicant's different accent;
iii)the applicant's application for asylum in a western country;
iv)the applicant not having accommodation or employment; and
v)the applicant's lack of family support network in Bamyan province.
[20] at [120] and [121] of the report
The Assessor concluded the applicant did not satisfy s.36(2)(aa) in respect of the above two grounds. The Assessor is said to have failed to consider whether, pursuant to s.36(2)(aa), there was a real risk the applicant would suffer significant harm as a necessary consequence of having to initially travel to Bamyan province if returned to Afghanistan by the Australian Government.
The Travel Conclusion is said not to be a finding in relation to complementary protection under s.36(2)(aa) of the Migration Act for the following reasons:
a)the conclusion at [109] is contained within a paragraph in which the Assessor is dealing with a claim under s.36(2)(a) of the Migration Act. It was made in the context of the Internal Travel Finding and was directed at that issue only;
b)at [118] and [119] of the report, the Assessor concluded that all the claims previously raised do not meet the criterion in s.36(2)(a) of the Migration Act. At [120], the Assessor turned her attention to the “alternative criterion in s 36(2)(aa)”;
c)the Assessor did not raise the issue of traveling to Bamyan province at [120] and [121], which were the only paragraphs in which the Assessor specifically rejected the claims under s.36(2)(aa) identified at [19] above;
d)the wording used in the conclusion at [109] reflects the statutory definition of “persecution” for refugee claims in s.91R of the Migration Act;
e)the definition of “serious harm” under s.91R of the Migration Act is not to be equated with the “significant harm” defined in s.36(2A) of the Migration Act.
For those reasons, the applicant submits it is clear that the Assessor did not make a finding in relation to the basis for complementary protection identified above. A finding relating to “persecution for any Convention related reason” is not relevant to a finding required about a “real risk of significant harm”.
The applicant submits that the Assessor was required to consider this basis for complementary protection under s.36(2)(aa) for the following reasons:
a)the Assessor presumed[21] the applicant would return to Bamyan province if his application was rejected;
b)the Assessor accepted[22] that “if the claimant returns to Afghanistan he will need to travel on the roads in order to get to Bamyan”;
c)the Assessor accepted[23] the country information she had reviewed established that travel to Bamyan province was dangerous. The Assessor states:
I accept the advice provided by DFAT in October 2010 that travel to Bamyan can be dangerous and has become more challenging in the context of a broader deterioration in security in Afghanistan.
[21] at [102] and [121]
[22] at [109]
[23] at [109]
Because the Assessor accepted:
a)country information that travel on the road to Bamyan province was dangerous, and
b)did not find that the applicant would not face any harm on the road,
the applicant submits that this claim was “live” for consideration as a complementary protection claim. That is to say it was a “relevant consideration” for complementary protection. What the High Court said of refugee claims in Plaintiff M61/2010E v Commonwealth of Australia[24] applies equally to complementary protection claims:
failing to address one of the claim bases for the plaintiff's fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.
[24] (2010) 243 CLR 319
In light of the information before the Assessor and her findings in the report, the applicant submits the Assessor was required to consider whether the applicant's initial travel into Bamyan province posed a “real risk of significant harm” to the applicant. No finding was made in this regard in relation to s 36(2)(aa) of the Migration Act.
Significance of the error
The applicant submits the Assessor’s factual findings provide a strong basis to support a conclusion that travelling to Bamyan province posed a real risk of “significant harm” to the applicant as required by s.36(2)(aa) of the Migration Act. Failure to consider this basis for complementary protection means that the Minister was not informed about a matter which bore upon the question of whether Australia owed the applicant protection obligations.
The High Court has found that the offshore entrant assessment process must be procedurally fair and must address the relevant legal questions[25]. Failure to address one of the claimed bases for complementary protection is a denial of procedural fairness and amounts to an error of law.
[25] Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [77]
The significance of the error is said to be that, if the Assessor had considered her factual findings against the complementary protection requirement of “significant harm”, she may have come to a different conclusion and the applicant would, therefore, have been granted the complementary protection visa.
Additional asserted problems with the Internal Travel Finding
In making the Internal Travel Finding, the Assessor relied on the following four factual findings:
a)the applicant is a tailor;
b)the applicant had established two businesses while living in Quetta, Pakistan, namely opening a tailor's shop and buying a vegetable cart which he placed outside his tailor's shop selling fruit and vegetables;
c)the applicant was a tiler;
d)Bamyan province has limited economic opportunities but there are improving levels of investment in the province and several major infrastructure projects planned.
The third of these findings is said to be erroneous. The applicant's evidence in this respect was that he had travelled to Iran because his businesses in Pakistan were not doing well and, after not being able to find a tailoring job, obtained work for four months in the construction industry as a general, unskilled labourer preparing materials for tiling[26]. The applicant complains that the truth of the position does not support the Assessor’s statement that the applicant has “construction skills” and/or was a tiler.
[26] pages 21-23 of the IPA interview
The fourth of the findings at [32] above is said to overlook the “vast majority” of the evidence referred to and accepted by the Assessor, in favour of speculative, even illusory, possibilities for Bamyan province.
The Assessor made the following findings[27]:
I accept that Hazaras in Bamyan are frustrated by the slow pace of development and resentful of their perceived economic neglect by the central government. I accept that it is the limited economic opportunities within Bamyan that is inhibiting Hazaras returning to the province.
[27] at [106] of the report
The Assessor also referred[28] to a report from the Department of Foreign Affairs and Trade in October 2010. At [109], the Assessor relied on that report in relation to the dangers of travelling to Bamyan. Also contained in that report[29] is the following statement:
But progress is occurring from a low base, and Bamyan continues to face significant challenges. Infrastructure (including roads, electricity and potable water) and access to services is limited. Like other relatively peaceful central highlands provinces, Bamyan has received less of the development assistance which has flowed into insecure southern provinces, and also remains underdeveloped compared to the Northern provinces. Hazaras in Bamyan are frustrated by the slow pace of development, and resentful of their perceived economic neglect and political marginalisation by the central government. Limited economic opportunities within Bamyan are encouraging outward migration, and inhibiting the number of returning refugees. Returns, predominantly from Iran and Pakistan, have been on the decline since 2005, with most opting to live in cities outside the province.
[28] at [68]
[29] and extracted at [68]
The Assessor referred to and extracted[30] an article in Stars and Stripes in September 2011 which, among other things, stated:
By other measures, Bamiyan's problems still glare through the thin skin of progress. Ten years after the war began, it remains one of the nation's poorest regions. The capital is without electricity, and few households in the province have access to clean drinking water.
[30] at [70]
The applicant submits that the evidence accepted by the Assessor established that circumstances are so dire in Bamyan province that, notwithstanding the Assessor’s finding that it was the safest province, Hazaras are refusing to return and Hazaras that live there are moving away to find employment elsewhere. The applicant notes that Hazaras have been consistently in danger of attack for over a century and are still living in a country populated by the majority population that put them in that danger. This is said to be directly inconsistent with the Internal Travel Finding.
The applicant submits that, notwithstanding the applicant’s experience as a tailor and the establishment of two “businesses” in Pakistan, there was overwhelming evidence that the applicant would face persecution in seeking to obtain employment and government services (which the applicant returns to later in his submissions).
The Minister’s contentions
The Minister contends that the alleged claim was not clearly articulated[31] by the applicant at any time during the POD and IPA processes. There was no reference to such a claim in the applicant’s entry interview, his statutory declaration, his undated written submissions to the POD officer, his written submissions dated 21 June 2012, or his oral submissions to the Assessor. Indeed, during his IPA interview, when informed by the Assessor of country information regarding travel in and out of Bamyan, the applicant “responded that he did not have any specific information about travelling”[32].
[31] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
[32] CB 140 [55]
Nor, in the Minister’s submission, did the asserted complementary protection claim arise clearly or squarely on the material before the Assessor. It is not sufficient for the applicant to point to country information[33] which touches upon the issue of travel in and out of Bamyan and to say that the Assessor was required to distil a complementary protection claim from that material. The applicant was represented by professional advisers during the POD and IPA processes. At no time did they “articulat[e] the case which is later said not to have been dealt with by the [Assessor]”[34]. Nor did they put forward material in their undated and 21 June 2012 written submissions from which the asserted claim could be said to arise clearly[35].
[33] for example, that which is set out at CB 144 [68]
[34] SZSHK v Minister for Immigration (2013) 138 ALD 26 at 35 [37] per Robertson, Griffiths and Perry JJ
[35] See, for example, CB 135 [23] (third-last dot point); pages 60-65 of the 21 June 2012 submissions (being Annexure H to the Affidavit of Michael Levy affirmed on 10 February 2014)
The Minister submits, in the alternative, that in the event that the Court were to hold that the asserted claim was raised, the Assessor considered, and made findings in relation to, it. When read together, the Assessor’s findings at [109][36] and [121][37] are said to have been sufficient impliedly to reject the claim. Those findings were as follows:
a)those individuals who are associated with the government of Afghanistan and the international community are at greater risk than others on the road[38]: The applicant did not claim, and there was no evidence to suggest, that he had any such associations[39];
b)the applicant will need to travel on the roads to reach Bamyan[40] and he will be returning to that place[41]. Further, there is no Taliban presence in Bamyan, it is widely regarded as a secure place, and there are no “protection issues” for “returnees to [that place]”[42];
c)there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia[43].
[36] CB 152
[37] CB 155
[38] CB 152 [109]. (See also CB 144 [68])
[39] CB 152 [109]
[40] CB 152 [109]
[41] CB 155 [121]
[42] CB 155 [121]
[43] CB 155 [121]
The Minister submits that, quite apart from her findings at [121][44], the Assessor’s findings at [109][45] themselves foreclosed the possibility of acceptance of the asserted claim in the complementary protection context.[46] Contrary to the applicant’s submissions, the fact that the final sentence of [109] is couched in Refugees Convention language is not to the point in the light of the Assessor’s earlier finding that those with particular profiles (which did not include the applicant) were at greater risk of harm than others on the roads.
[44] CB 155
[45] CB 152
[46] Cf Minister for Immigration v Yusuf (2001) 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ; SZSHK v Minister for Immigration (2013) 138 ALD 26 at 34 [32] per Robertson, Griffiths and Perry JJ
Resolution
I accept the Minister’s contention that the asserted claim was not clearly articulated by the applicant but I reject his contention that the claim did not clearly arise on the material before the Assessor. As is noted in the applicant’s submissions, the Assessor had before her, and referred to, country information that travel on the roads to Bamyan province was dangerous. The Assessor assumed that the applicant would return to Bamyan and must be taken to have accepted that he would need to travel on a dangerous road to get there. The Assessor reasoned, as noted in the applicant’s submissions, that while the applicant would face dangers in transit to Bamyan, he would not be targeted for any Refugees Convention reason. As the Assessor notes at [55] of her report[47] she herself put to the applicant information about travel in and out of Bamyan. She put to the applicant that travel in and out of Bamyan can be dangerous and has become more challenging with the overall deterioration of the security situation. She put to the applicant information about the classes of people who are most at risk on the road. She records that the applicant was not able to contribute anything to that information. The finding by the Assessor at [109] of her report is critical[48]:
I have considered that if the claimant returns to Afghanistan he will need to travel on the roads in order to get to Bamyan. As the claimant has tailoring skills and construction skills that he can utilise inside Bamyan I do not consider that he will need to travel in and out of the province in order to support himself or his family. I accept the advice provided by DFAT in October 2010 that travel to Bamyan can be dangerous and has become more challenging in the context of a broader deterioration in security in Afghanistan. I accept the advice that it is individuals associated with the Afghan Government and the International community who are at greater risk than others on the road. In June 2011 the head of Bamyan Provincial Councils was kidnapped by the Taliban on his way from Kabul to Bamyan in Ghorband valley Parwan. The claimant did not claim and there is no evidence to suggest he has any association with the Afghan Government or the International community. I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel to Bamyan.
[47] CB140
[48] CB 152
In my view, that finding can only be read as a finding that the applicant would not face a real risk of serious harm for any Refugees Convention reason in relation to his travel to Bamyan. Having herself raised and dealt with that issue in relation to the applicant’s refugee claims, the Assessor needed to consider the issue in relation to the complementary protection criterion. She did not do so expressly. The question is whether her findings at [109] can be taken to have dealt with the issue also for the purposes of the complementary protection criterion.
I accept that there are circumstances where a conclusion in relation to a refugee claim is so comprehensive that it can also dispose of a claim for complementary protection based upon the same facts. For example, if the factual basis for the claim is rejected, then it may be rejected for all purposes. Further, if a conclusion is that there is no real risk of any harm, that may also be sufficient for all purposes. Here, however, the Assessor recognised that there was a risk of harm on the roads to Bamyan which may be taken to have been a real risk. The Assessor reasoned that the applicant would not be targeted for any reason bearing upon a connection to the Refugees Convention. This is not a finding so comprehensive as to relieve the Assessor from the need to consider the facts and circumstances in relation to complementary protection.
The difficulty I have with the Minister’s alternative submissions on this issue is that they call for an effective re-writing of the report to fill in the gaps left by the Assessor. They invite the Court to accept that there was some implicit consideration not only of s.36(2)(aa) of the Migration Act in relation to the travel issue but also implicit consideration of s.36(2B)(c) of the Migration Act. That is, in my view, a bridge too far. The consideration should have been express on an issue which is one of importance and cannot be found implicitly in the Assessor’s report at [109].
I find that the applicant has established that the Assessor fell into reviewable legal error in respect of Ground 1. In so finding, I place no significance on the asserted “additional problems” with the Internal Travel Finding. Those asserted problems go to the merits of the Assessor’s report.
Ground 2 – did the Assessor fail to take into account relevant considerations (or overlook relevant material)?
The applicant’s contentions
The applicant submits the IPA was affected by legal error in that the Assessor failed to take into account relevant considerations in making her decision, namely, the lengthy submissions provided on behalf of the applicant on 21 June 2012 and the additional reports and other documentary material provided with the 21 June 2012 submissions (June Submission). The applicant also submits that the Assessor failed to take into account the reasons provided by the applicant for his release by the Taliban in 1997.
The Assessor was obligated to consider all submissions of substance. The failure of a decision maker to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case, is an error of law[49].
[49] see, for instance Comcare Australia v Rowe [2002] FCA 1034 at [12], Australian Postal Corporation v Hughes [2009] FCA 1057 at [60] per Flick J, Australian Postal Corporation v Sellick [2008] FCA 236 at [35] per Bennett J
The June Submission and associated material
The June Submission included the following:
a)an expanded explanation of the reasons and basis for the applicant's fears of persecution, both as a Hazara and as an individual (which can be contrasted to the brief and general statements made in the Undated Submission);
b)a response to the findings made by the primary decision maker;
c)reports relating to the security and development in the Hazara-dominated regions of Afghanistan:
i)Suboot News Agency, “Taliban rebels block Jaghori-Quarabagh road”, 19 April 2011;
ii)Gordon M and Jackson A, The Age online, “Asylum harder for Afghans”, 29 May 2010;
iii)Hekmat, A K, The Australian online, “Hazaras' cry from the heart”, 1 June 2010;
iv)Wahidi, M and Maier, R, Kabul Press online, “Hillary Clinton, Barack Obama throwing democracy's best friends in Afghanistan under the bus”, 25 May 2010; and
v)Phillips, D, PhD Candidate, University of New England, “Hazaras’ Persecution Worsens: Will the New Government show Leadership by lifting the Suspension on Afghani Asylum Claims?”, August 2010.
d)reports including additional country information:
i)Sara S, Afghanistan correspondent, ABC News online, “No safety guarantee for returned Afghans”;
ii)Maley, Professor W, comments on returnees to Afghanistan, 2005;
iii)Rutig, T, Foreign Policy, “A New, New Taliban Front?”, 21 June 2010;
iv)IPS Correspondents, Inter Press Service News Agency, “Afghanistan: Unable to Cope With Returning Refugees”, 4 March 2008;
v)CNN online, “Deadly explosions rattle Kabul”, 26 February 2010;
vi)Maier, R, Kabul Press online, “Afghan police shooting to kill ethnic minority in Kabul”, 13 August 2010;
vii)Reuters, Haaretz online, “Suicide bomber launches attack in Kabul as violence in Afghanistan escalates”, 14 February 2011;
viii)Dutch News, Hazara People International Network online, “Failed asylum seeker killed in Afghanistan”, 24 February 2011;
ix)CTV.ca News Staff, CTV News, “Kabul struggling with influx of returning Afghans”, 22 March 2008;
x)Sharifi, U, AFP Reporter, ninemsn, “Ten die in Taliban attack on Kabul hotel”, 29 June 2011;
xi)Farmer, B, The Telegraph online, “Taliban helicopter attack kills 30 US troops”, 6 August 2011;
xii)US Department of State, “2009 Country Report on Human Rights Practices Afghanistan”, 11 March 2010;
xiii)Overseas Security Advisory Council, “Afghanistan Crime & Safety Report 2010”, 2 April 2010;
xiv)UN Security Council, “The Situation in Afghanistan and its Implications for the International Peace and Security - Report of the Secretary-General”, 10 March 2010;
xv)UN Security Council, “Report of the Secretary-General Pursuant to Paragraph 40 of the Resolution 1917 (2010)”; 16 June 2010;
xvi)Jordans, F, The Associated Press, “UN refugee chief: Security worse in Afghanistan”, 5 May 2010;
xvii)Hodge, A, The Australian online, “Sri Lanka evolves, Afghanistan teeters”, 10 April 2010;
xviii)Nicholson, B, The Australian online, “Afghan outlook worsens”, 17 April 2010;
xix)Human Rights Watch, “World Report 2010 - Events of 2009”;
xx)Amnesty International, “Amnesty International Report 2010 - The State of the World's Human Rights”, 27 May 2010;
xxi)Rubin A, The New York Times online, “Taliban kill 9 members of minority in ambush”, 25 June 2010;
xxii)Home Office, UK Border Agency, “Country of Origin Information Report – Afghanistan”, 8 April 2010;
xxiii)UK Border Agency, Home Office, “Country of Origin Information Report – Afghanistan”, 8 April 2010; and
xxiv)Glendenning, P, Hazara People International Network online, “Returning asylum seekers to Afghanistan will place them in grave jeopardy”, 19 January 2011.
e)in addition to the articles listed in sub-paragraph (c) and (d) above, the June Submission extracted specific information from the following further reports and articles:
i)Kazem, H, Researcher Amnesty International, Presentation 8 October 2010;
ii)US Department of State, “2010 Country Report on Human Rights Practices Afghanistan”, 8 April 2011;
iii)Maley, Professor W, “On the Position of the Hazara Minority in Afghanistan”, 7 December 2011; and
iv)UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, July 2009 and December 2010.
The applicant submits that the Assessor did not consider the June Submission and relies on the following in support:
a)there is no mention of the June Submission in the Assessor’s report;
b)there is no mention of the June Submission in the interview conducted by the Assessor on 17 August 2012 (IPA interview);
c)the Assessor referred to and summarised[50] an earlier, undated submission (Undated Submission) provided prior to the POE);
d)the Assessor does not refer to a number of submissions made in the June Submission, whereas the Assessor refers to and responds[51] to each of the submissions made in the Undated Submission;
e)the Assessor states at [65] that she “considered information from the following reports and documents” and proceeds to list a considerable number of reports and documents. Only four of the 33 reports referred to in the June Submission are listed in that paragraph.
[50] at [23]
[51] at [59]-[63]
For these reasons the applicant submits that the content of the June Submission, or the material provided with those submissions, were not taken into account by the Assessor when preparing her report.
Significance of the error
This error is said to have been significant because, apart from evidencing the Assessor’s failure to afford procedural fairness, the June Submission contain a number of submissions that are not in the Undated Submission and are considerably more detailed, including an expanded explanation of the reasons and basis for the applicant's fears of persecution, both as a Hazara and as an individual. In circumstances where the Assessor is not satisfied with the applicant’s reasons and explanation provided in the Undated Submissions, this additional detail may have resulted in the Assessor forming different conclusions.
The Assessor has also, by not considering the June Submission, said to have failed to take into account the applicant’s specific responses to the findings made at the POE. It is a fundamental tenet of procedural fairness that a person is allowed the opportunity to respond to adverse findings. In circumstances where that response is not considered or taken into account by the Assessor, it cannot be said that procedural fairness was afforded. The Assessor stated at [87] and [88] that:
The claimant's adviser has submitted that Hazaras continue to be targeted by the Taliban in Afghanistan because of their race and religion. The claimant's adviser has relied on the opinion of Professor William Maley.
I have carefully considered information opinions and advice from a number of sources. I prefer the cumulative evidence before me from a wide range of authoritative sources rather than relying of the opinions of individual academics or researchers.
Professor Maley's report is contained in both the Undated Submission and the June Submission. As outlined above, the June Submission referred to a significant number of reports from inter-governmental and non-governmental organisations, research papers and newspaper articles that are not referred to in the Undated Submission. By comparison, the Undated Submission refers to significantly less country information.
The applicant submits that the statement at [88] about “relying [on] the opinions of individual academics or researchers” supports the inference that the Assessor only considered the Undated Submission. It also supports a conclusion that had the Assessor considered the additional material, reports and articles included in the June Submission, she may have come to a different conclusion as a result of the “cumulative evidence” before her.
The significance of this error of law is also said to be demonstrated by the fact that had the Assessor considered the June Submission and the additional material provided with them, the Assessor could or would have formed a different conclusion regarding the applicant’s claims. The question for the Court on the review of the Assessor’s report in relation to a failure to consider relevant material or submissions is whether the content of that material (had it been taken into account by the Assessor) would or could have resulted in the possibility of a different outcome for the applicant, or whether the Assessor did all that she was required to do in considering the application[52].
[52] see for example, Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46] - [47]; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 generally regarding the error of law
In the circumstances, the applicant submits that, if it is found that the Assessor did not consider the June Submission or the material provided with them, a significant error of law affecting the outcome for the applicant will have been demonstrated.
The applicant’s reasons for his release by the Taliban
The applicant further submits that the Assessor also failed to consider his explanation for why he was released by the Taliban after being captured in 1997.
In the IPA interview, the following exchange between the Assessor and the applicant took place:
ASSESSOR: And why did the Taliban release you?
INTERPRETER: I begged them a lot, perhaps they showed some mercy.
ASSESSOR: That would be unlikely wouldn’t it?
INTERPRETER: Sorry?
ASSESSOR: You do not hear of Taliban being described as merciful.
INTERPRETER: I was also small. It was just the help of god that helped and the kindness of the god, that helped.
ASSESSOR: So what did they say when they released you?
INTERPRETER: Didn’t say anything.
ASSESSOR: They didn’t say anything?
INTERPRETER: They told me that, they just told me to go home and ah, go to Madrassah, which is a religious school.
ASSESSOR: Where to?
INTERPRETER: Go to Madrassah. Basically it was… go to school and they told me that, go to Madrassah and let your beard grow.
ASSESSOR: Did they let anyone else go at the same time?
INTERPRETER: No, I was let go alone.
In 1997 the applicant was 17 years old. His evidence to the Assessor as to why the Taliban released him was that the Taliban showed him mercy (or pity) because he “was small”, and that on his release they told him to go to religious school and grow a beard. The applicant submits that there is no indication that the Assessor took this explanation into account, or considered the plausibility or otherwise of this explanation as a reason for his release.
Failure to consider this explanation as a submission as to why he was released by the Taliban is said to be significant because it provides a plausible explanation for the applicant’s release in the context of the Assessor’s conclusions that the Taliban were unlikely to be “merciful” and release anyone captured by them. The provision of a plausible explanation was a relevant consideration for the Assessor to take into account in determining the veracity of the applicant’s claims in his application.
In the circumstances, the applicant submits that the Assessor’s failure to consider his explanation for his release by the Taliban amounts to an error of law.
The Minister’s contentions
The starting point for the purpose of addressing this ground is that it is for the applicant to prove that the Assessor failed to consider the June Submission and not for the Minister to prove that they were considered[53]. The fact that a particular document has not been mentioned in the Assessor’s reasons “does not mean that [it] … was not considered.”[54] Further, merely to ignore relevant material will not, without more, amount to jurisdictional error[55].
[53] Cf Minister for Immigration v SZGUR (2011) 241 CLR 594 at 615 [64] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J; Minister for Immigration v MZYTS (2013) 136 ALD 547 at [53] per Kenny, Griffiths and Mortimer JJ
[54] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605-606 [31] per French CJ and Kiefel J; Minister for Immigration v SZSRS [2014] FCAFC 16 at [34] per Katzmann, Griffiths and Wigney JJ
[55] Minister for Immigration v SZRKT (2013) 212 FCR 99 at 127 [97], 132 [122] per Robertson J
The June Submission was sent to the IPAO by e-mail on 2 July 2012[56]. They were attached to the applicant’s file and a copy was forwarded to the Assessor on 3 July 2012[57]. They were, therefore, before the Assessor.
[56] See Annexure E to the Affidavit of Michael Levy affirmed on 10 February 2014
[57] See Annexure F to the Affidavit of Michael Levy affirmed on 10 February 2014
Although the June Submission was not referred to in the Assessor’s report by date, the Minister submits that the following factors provide a sufficient basis for inferring that they were considered:
a)the applicant claimed in the June Submission that he was owed protection on the basis of his Hazara race, Shia religion, membership of the particular social groups comprising “a physically identifiable Hazara”, “having lived outside of Afghanistan for a significant period of his life”, and “a failed asylum seeker and returnee from a western country”, and an anti-Taliban or pro-government imputed political opinion.[58] The Assessor noted these claims (some of which had been raised for the first time in the June Submission)[59] at [83][60];
b)the Assessor considered, and made findings in relation to, these claims at [84]-[92][61] (race, religion) and [102]-[107][62] (race), [108] (religion), [110]-[111] (no family support, land or contacts), [112] (resided in Quetta, Pakistan for most of his life; different appearance and accent), [113] (harm at the hands of political parties in Bamyan), [114]-[115] (particular social groups; imputed political opinion);
c)at [65][63], the Assessor referred to some of the reports that were discussed in the June Submission, namely[64]:
i)W Maley, “On the Position of the Hazara Minority in Afghanistan”, 7 December 2011;
ii)H Kazem, Researcher Amnesty International, Presentation, 8 October 2010;
iii)US State Department, “2010 Country Report on Human Rights Practices Afghanistan”, 8 April 2011;
iv)UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seeker from Afghanistan, July 2009 and December 2010.
d)the Assessor said that she “read the material provided by the [applicant’s] adviser in the submissions”[65]. In circumstances where the June Submission was before the Assessor and considered by her, there is no basis for reading down these words such that they refer only to the applicant’s undated written submissions.
[58] See pp 1-4 and 25-26 of the June Submission (being Annexure H to the Affidavit of Michael Levy affirmed on 10 February 2014)
[59] Thus, the applicant’s claims for protection in his statutory declaration made on 17 March 2012 were restricted to his Hazara race, Shia religion, and that he had not lived in Afghanistan for a long time and had no family protection: CB 65. In his undated written submissions, the applicant said that his claims for protection were set out in his statutory declaration: CB 88, 89
[60] CB 148
[61] CB 148-149
[62] CB 151-154
[63] CB 142
[64] See also CB 147 [76], 148 [80], 149 [87], [89], 151 [102] and 152 [108], where the Assessor expressly considered reports referred to in the June Submission
[65] CB 142 [65]
Further, the Minister submits that, contrary to the applicant’s submissions, the fact that the Assessor did not refer to every item of country information referred to, or every argument advanced in, the June Submission does not mean that they were overlooked. Sections 368 and 430 of the Migration Act having no application to the IPA, the Assessor was not under an obligation to give reasons for her recommendation[66]. In the absence of a duty to provide reasons, the Court cannot infer that material not set out in the Assessor’s statement of reasons was not considered by her[67]. It may be that there were reasons supporting the Assessor’s recommendation that she did not state[68], for example, that she preferred the country information to which she referred in her statement of reasons to that which the applicant’s representatives relied upon in the June Submission. To the extent that the Assessor took this course[69], it was open to her to do so[70].
[66] Cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662-663, 666-667 per Gibbs CJ. Osmond is still good law in Australia: Minister for Immigration v Tavelli (1990) 23 FCR 162 at 177 per French J (as his Honour then was), 186 per Hill J; Re Minister for Immigration; Ex parte Applicant S190 of 2002 (2002) 191 ALR 569 at 575 [21] per Kirby J; Tuncok v Minister for Immigration [2003] FCA 1069 at [54] per Hely J; Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 394 [106] per Basten JA; Commissioner of Police v Ryan (2007) 70 NSWLR 73 at 83 [38] per Basten JA (with whom Spigelman CJ and Santow JA agreed)
[67] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[32] per French CJ and Kiefel J, 616-617 [69]-[70] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J. See also Vishnumolakala v Minister for Immigration [2007] FCA 248 at [9]-[16] per Finn J; Vishnumolakala v Minister for Immigration (No 2) [2007] FCA 594 at [3] per Finn J
[68] Cf Hu v Minister for Immigration [2004] FCAFC 63 at [13], [18] per Hill and Marshall JJ
[69] see CB 149 [88]
[70] VQAB v Minister for Immigration [2004] FCAFC 104 at [26], [32] per Beaumont, Weinberg and Crennan JJ; VWFW v Minister for Immigration [2006] FCAFC 29 at [63] per Lander J (with whom Gray J and Kiefel J, in separate reasons, agreed)
In any event, the Minister submits that it is not an error of law for a finder of fact not to comment on every item of country information[71], or not to address every submission[72], advanced by an applicant.
[71] NAHI v Minister for Immigration [2004] FCAFC 10 at [14] per Gray, Tamberlin and Lander JJ.
[72] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [46] per French, Sackville and Hely JJ
The Minister also submits that the Assessor had regard to the applicant’s reasons for his release by the Taliban in 1997. The Assessor summarised her discussion with the applicant on this issue at [31]-[32][73]. At [38]-[39][74], the Assessor noted her difficulties with the applicant’s claim that he returned to Afghanistan in 1997 and that he would have been released by the Taliban if captured. Also at [39][75], the Assessor noted the applicant’s suggestion that he was released because he had begged the Taliban to do so. At [95]-[101][76], the Assessor returned to the issue and made findings adverse to the applicant. Contrary to the applicant’s submissions, those findings included a consideration of the reasons as to why the applicant says he was released by the Taliban (that he begged them and that they were merciful towards him)[77].
Ground 2(iv)
[73] CB 136-137
[74] CB 137-138
[75] CB 138
[76] CB 150-151
[77] see CB 150-151 [95] (final sentence), [100]
The applicant’s contentions
The applicant had originally advanced this claim as a separate ground of review but it now forms a particular to Ground 2.
The applicant submits the IPA was affected by legal error in that the Assessor failed to consider a claim made by the applicant.
The applicant claimed the Afghanistan government “does not provide assistance to Hazaras to meet their basic needs” (the applicant's statutory declaration dated 17 March 2012, extracted at [22] of the report). The applicant also claimed “he does not have a place to stay or any work” in Afghanistan.
The Assessor referred to these claims in the third and fourth sentence of [110]. The Assessor stated:
I have considered the claimant's claim about his future living and economic conditions if he returns to Afghanistan. The claimant claims that he doesn't have any family support, land or contacts in Afghanistan. He claims he does not have a place to stay or any work. He claims the government does not provide assistance to Hazaras to meet their basic needs.
However, in the second last sentence of that paragraph, the Assessor also says the following:
The claimant did not claim and there is no evidence to suggest he would be denied employment, accommodation or government assistance in Bamyan for any Convention related reason. I do not accept that the limited economic opportunities in Bamyan or the fact that the claimant has no land, house, contacts or job in the province provides the claimant with a well-founded fear of persecution for any Convention reason.
There allegedly was a claim and evidence
The applicant contends that the statement “the claimant did not claim” directly contradicts the claim the applicant did, in fact, make in his statutory declaration, namely that he would not receive government assistance.
In the June Submission, the applicant also submitted that the country information referred to “highlighted the extreme danger faced by Hazaras who have not lived in Afghanistan for some time”. It was further submitted in those submissions that:
…if the Applicant were returned, he will potentially be subject to treatment as an 'outsider', even among other Hazaras, having been in Australia since departing Pakistan. Additionally, the Applicant has resided outside of Afghanistan for 27 years, with his one attempt at relocation resulting in his being detained and tortured. Collectively, this will place him at higher risk of persecution, and will reduce his ability to fit in and assimilate with other Afghan citizens.
Further, there was indeed evidence contained in the June Submission to suggest that the applicant would be denied government assistance. There was also evidence extracted by the Assessor in the IPA that the applicant would be discriminated against in relation to employment opportunities. In particular, the applicant refers to:
a)Kazem H, Researcher Amnesty International, Presentation 8 October 2010 (Kazem Report); and
b)Department of Foreign Affairs and Trade (DFAT), Afghanistan: Hazara Community Update, 19 March 2012.
The Assessor stated[78] that she had considered information from the Kazem Report. However, the Assessor’s statement that there “there is no evidence to suggest that he would be denied employment, accommodation or government assistance”, supports the inference that the Reviewer did not consider a part of the Kazem Report extracted in the June Submission, which stated:
Hazaras who have lived in Quetta, for many years or all their lives have a distinct accent (partly Pakistani, partly Pashtun), which would make them easily identifiable should they return to Afghanistan. Dialect differences of returnees can lead to denial of government services, attacks and murders.
[78] at [65]
The Assessor also accepted and relied on a report from DFAT in March 2012. The following was extracted in her report at [66]:
Overall, the challenges facing the Hazara community were economic rather than security related. Discrimination against Hazaras tended to come in the form of nepotism within ethnic and tribal communities. This made advancement difficult and limited educational, professional and economic opportunities for Hazaras, particularly when competing for government jobs.
This claim must also be considered in the context of the numerous reports referred to in the June Submission that record the abuse and oppression of minority groups, based on religion and ethnicity, and the government officials' impunity and lack of accountability, which remain significant concerns across Afghanistan. Those reports are said to establish the widespread nature of the discrimination and persecution that the applicant said he would face.
The applicant complains that the statement that “there is no evidence to suggest” is palpably wrong. As appears in the immediately preceding paragraphs, there was indeed evidence.
The Assessor’s finding in relation to the applicant's claim
The applicant further contends that the Assessor’s finding that she “did not accept that the limited economic opportunities in Bamyan or the fact that the claimant has no land, house, contacts or job in the province provides the claimant with a well-founded fear of persecution for any Convention reason” misses the applicant's claim entirely.
It is said to be clear that the Assessor’s concluding statement is directed at a more generalised claim, one about lack of economic opportunity. It does not deal with the applicant's claim that he would be “denied employment, accommodation or government assistance in Bamyan”. It is said to be clear that this was not considered because the Assessor erroneously stated “the claimant did not claim and there is no evidence to suggest” that such a claim could be made.
Further, in the circumstances, the applicant's claim that he would be persecuted by reason of his status as an outsider Hazara needed to be considered together with the claim regarding the applicant's economic circumstances and future opportunity.
The country information accepted by the Assessor referred to Bamyan province as one of the least developed and poorest regions in Afghanistan[79]. As a result, information about government persecution and lack of economic opportunity applies even more forcefully in Bamyan province which has far greater economic challenges.
[79] [68] and [70] of the report
Other reports referred to in the June Submission and relied upon in the IPA evidence the lack of government facilities available in Bamyan Province. The country information in this respect speaks to the fact that the economic development and opportunity in Bamyan province is so low that Hazaras are leaving Bamyan to find work in other areas of the country, notwithstanding the Assessor’s finding that Bamyan is the safest province for Hazaras to live. The severely low level of economic development and government assistance is compounded by the likelihood that the applicant will be discriminated against in accessing what little assistance is available.
Significance of the error
The applicant made a claim that he would suffer serious harm (pursuant to s.36(2)(a) of the Migration Act) as a result of significant economic hardship and denial of access to basic services that threatened his capacity to subsist. His claim was that he would suffer this harm as a result of his status as either a Hazara generally or as belonging to a sub-group, being an outsider Hazara (a Hazara who had effectively never lived in Afghanistan). Such a claim, if established, would satisfy s.36(2)(a) of the Migration Act and entitle the applicant to protection.
The applicant contends that the Assessor failed to consider that claim. The Assessor said that the applicant did not make the claim. This is said to be an error of law in the sense referred to by the High Court in Plaintiff M61/2010E v Commonwealth of Australia[80]:
failing to address one of the claim bases for the plaintiff's fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.
[80] (2010) 243 CLR 319. See also Dranichnikov v Minister for Immigration [2003] HCA 26 at [87] and [88] (Kirby J)
Further and in the alternative, the applicant contends that the Assessor’s failure to take into account the circumstances outlined above was a failure to take into account a relevant consideration[81].
[81] Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 (Mason J)
Not only did the applicant make a claim that he would be denied access to basic services and would suffer significant economic hardship, the applicant also provided material in support of that claim (the Kazem Report). The Kazem Report provides evidence that, if it had been considered, should and would have affected the Assessor’s findings regarding significant economic hardship on the basis of his status as an outsider Hazara. It is said to be false to say that “there is no evidence” in relation to that claim.
Finally, the applicant notes the statement that “there is no evidence to suggest that [he] would be denied employment, accommodation or government assistance in Bamyan for any Convention related reason” supports the submission that the June Submission was not considered by the Assessor.
The Minister’s contentions
The Minister’s short response to this particular is that the asserted claims (that the government “does not provide assistance to Hazaras to meet their basic needs” and that the applicant “does not have a place to stay or any work in Afghanistan”) were expressly considered at [110][82] of the report. The Assessor concluded that neither the limited economic opportunities in Bamyan, nor the fact that the applicant had no land, house, contacts or job in that place, showed that the applicant had a well-founded fear of persecution for Refugees Convention reasons[83].
[82] CB 152-153
[83] CB 153 [110]
It was never a part of the applicant’s case that he would be denied employment, accommodation or government assistance in Bamyan for Refugees Convention reasons, noting that he had not lived in Bamyan since 1985. What the applicant said in his statutory declaration was that “[t]he government does not provide assistance for ordinary Hazara people to meet their basic needs”[84]. That claim, which was couched in general terms, was considered and the Assessor was of the view that the applicant’s entrepreneurial skills and employment history outweighed his concerns.
[84] CB 65
Nor was there any independent country information to suggest that the applicant would be denied employment, accommodation or government assistance in Bamyan for Refugees Convention reasons. Nothing in the country information set out at [67]-[73][85] detracts from this proposition. The applicant’s submissions cavil with the Assessor’s choice of country information, which is not a basis for impugning her recommendation, even if the Court formed a different view of that material[86].
[85] CB 144-146
[86] Cf NAHI v Minister for Immigration [2004] FCAFC 10 at [11], [13] per Gray, Tamberlin and Lander JJ
Resolution
The applicant’s claim is clearly arguable that the Assessor failed to take into account the June Submission. It is surprising that the Assessor made no express reference in her report to the very substantial June Submission while dealing at some length with much less weighty earlier submissions. The evidence establishes that the June Submission was before the Assessor and she must have been aware of it. While the Court should be slow to draw an inference from silence that the June Submission was not considered, there are circumstances where a court can infer from the way in which submissions are described in a report that particular submissions were overlooked. For example, in SZRBA v Minister for Immigration[87] the Full Federal Court found that an Independent Merits Reviewer, by following a process of cutting and pasting from his earlier decisions, had overlooked a substantive submission made to him.
[87] [2014] FCAFC 81
This case is different. There is no allegation that the Assessor was cutting and pasting from earlier decisions. The allegation is that the Assessor focussed upon earlier and insubstantial submissions and overlooked the more substantial June Submission. While the applicant may be aggrieved that his substantial June Submission was not given any express consideration, I am not persuaded that the Assessor failed to consider it. First, and importantly, as is conceded in the applicant’s submissions, the Assessor did refer to four of the 33 reports referred to in the June Submission at [65] of her report[88]. Secondly, as is noted in the Minister’s submissions at [67] above, claims by the applicant which were specific to the June Submission were noted by the Assessor in her report at [83]. Thirdly, the Assessor considered and made findings in relation to those claims at [84]-[92], [102]-[107], [108], [110]-[111], [112], [113] and [114]-[115]. While the applicant was probably entitled to expect that the effort put into the June Submission warranted at least some express mention of that submission, the applicant’s assertion of legal error in this ground fails.
[88] CB 142
I accept the Minister’s submission at [70] above that the Assessor did have regard to the applicant’s reasons for his release by the Taliban in 1997. As is noted in those submissions, the Assessor summarised her discussion with the applicant on the issue at [31]-[32] of her report and also noted in her report her difficulties with the claim of return to Afghanistan in 1997 and his capture and release by the Taliban. The applicant’s explanation for his release by the Taliban is also noted by the Assessor at [39] of her report. The Assessor made findings in relation to the applicant’s claim at [95]-[101] of her report.
I also reject the applicant’s claim that the Assessor failed to consider his claim bearing upon his capacity to subsist in Bamyan province. In my view, the applicant’s contentions go to the merits of the Assessor’s consideration of that claim rather than the absence of such consideration. I agree with the Minister’s submission that the applicant’s claim was considered at [110] of the Assessor’s report where the Assessor stated[89]:
I have considered the claimant’s claims about his future living and economic conditions if he returns to Afghanistan. The claimant claims that he doesn’t have any family support, land or contacts in Afghanistan. He claims he does not have a place to stay or any work. He claims the government does not provide assistance to Hazaras to meet their basic needs. The claimant is a tailor. He has also demonstrated entrepreneurial skills and the resilience and flexibility to resettle in a foreign country and acquire new skills. In Pakistan the claimant opened his own tailor’s shop and employed other people to work in his shop. In 2005 the claimant established another business in Quetta. He bought a cart which he placed outside his tailor shop and sold fruit and vegetables. In 2007 the claimant travelled to Iran and obtained work in the construction industry as a tiler. I accept that Bamyan province has limited economic opportunities but there are improving levels of investment in the province and several major infrastructure projects planned. The claimant did not claim and there is no evidence to suggest he would be denied employment, accommodation or government assistance in Bamyan for any Convention related reason. I do not accept that the limited economic opportunities in Bamyan or the fact that the claimant has no land, house, contacts or job in the province provides the claimant with a well founded fear of persecution for any Convention reason.
[89] CB 152-153
I reject Ground 2 in the application.
Ground 3 - was the assessment procedurally unfair?
The applicant’s contentions
The applicant submits that the IPA was affected by legal error in that the Assessor failed to afford the applicant procedural fairness in:
a)failing to notify the applicant adequately of the issues to which her reasoning process was directed; and
b)failing to provide the applicant with an adequate opportunity to respond.
The applicant submits that he was not afforded procedural fairness in respect of the following relevant findings:
a)the Assessor “did not find the claimant to be a satisfactory witness whose credibility could be relied on” (Overall Credibility Finding)[90]; and
b)the Assessor found that, in relation to the applicant's return to Kabul and subsequent capture, torture and release by the Taliban in 1997 (the 1997 Incident), “the different explanations the claimant provided indicated he was simply fabricating his responses”[91].
[90] at [93]
[91] at [99]
In contrast, in the POE dated 17 May 2012, the POE officer found that the applicant was a “generally credible and cooperative witness”, and that she accepted his evidence. In particular, the POE officer made the following finding in relation to the 1997 Incident:
Though I have some reservations about the claimant's explanation that the Taliban released him from detention because they felt pity on him, I am willing to give him the benefit of the doubt on the basis that he was a credible witness in all other respects, and accept that he was detained and beaten by the Taliban for 15 to 20 days when he returned to Kabul in 1997.
The applicant submits that the Overall Credibility Finding and the adverse finding in relation to the 1997 Incident were not open to the Assessor for the reasons given below. Those submissions add additional content to the Assessor’s obligations in respect to procedural fairness in the circumstances.
Each of these findings are said to be a denial of procedural fairness because the applicant was arguably not put on notice that the Assessor was considering adverse findings which had previously been found in the applicant’s favour by the primary decision maker[92].
[92] see, for example, SZBEL v Minister for Immigration (2006) 228 CLR 152
The Assessor’s findings on these matters were so sharply in contrast to the POE's findings and the evidence given by the applicant in the IPA interview that the Assessor had an obligation to squarely confront the applicant (by notifying him of the issues to which her reasoning process was directed) and provide him with an opportunity to respond.
Overall Credibility Finding
The IPA interview was conducted in two parts with a break in the middle. In the second part of the IPA interview, the applicant was questioned at length in relation to the country information that the Assessor had considered.
The applicant openly, repeatedly and consistently conceded that he knew very little about the circumstances in Afghanistan. The applicant admitted that he had effectively never lived in Afghanistan, having left there when he was about six years old. He conceded that the only information he had was through reports from his father, his friends, some news sources he had read and his one experience in Kabul in 1997, which resulted in his detention and torture.
The applicant refers to the following statements in the IPA interview that he made in response to questioning about country information considered by the Assessor:
a)“Well, with respect to these issues and these things, I do not know exactly and don't know very much about Afghanistan. I was only 6 years old when I left Afghanistan.”[93];
[93] page 26 of the transcript
b)“Well I don't agree with that view that it is a safe and that the Hazaras are enjoying a relatively good life in Afghanistan and that they share power. I would disagree. I don't know very much. I don't have a lot of information, however I do think that there might be only certain cases of the people of the higher classes, the people with power, they may be enjoying a good life, but for people like me - I don't think so.”[94];
[94] page 29
c)“I don’t have a lot of education. I am not highly educated, for this information. This information that you say that they have said, it might be correct, but I don't think so.”[95];
d)“Previously I also said, previously, that I am just a general labourer and I do not follow the news and politics and I have not been involved with them, just that I can say that, it is just the Taliban that continue to target the people in Quetta and they are doing it by a different name, by a different name, by Sahaba, which are basically the Taliban. They are the same people who are in Afghanistan, the Taliban - the same people.”[96]
e)“You mentioned that the Taliban have not and they, the Hazaras, are there. Well I don't have a lot of information, but I just know the Taliban are there, the Pashtuns are there and then the other difficulty for me would be that the people would ask me, where have you come from?”[97];
f)“My view is that, what you said, that might be correct, but I think that it is - I don’t think it is the way you said.”[98];
g)“I don't have this specific information.”[99];
h)“That's right, people are in constant moving on both sides of the border, coming and going. However, for me, problem is that I can't remember being there - it is like I have never been there and if I go back over there and they ask me where I have come from, I say Pakistan. People indicated hatred toward Pakistan.”[100];
i)“That is right about the people being peaceful, loving and so on. I can't comment anything because I don't have a lot of information but as I said previously that ah, people going from Pakistan over there and being people through there is picking a particular accent, they are beheaded over there because the people over there think that it is the Pakistanis that have come to Afghanistan and have destroyed and damaged our country.”[101];
j)“So, my apology, I do not have a lot information about that area and about the people over there.”[102];
k)“Well what can I say? I do not have specific information about this.”[103]; and
l)“Ah you asked me about Afghanistan. The truth is that I really do not know. I do not have a lot of information about Afghanistan because I have not been. The one time that I was though, it was when I was deported from Iran and went to Afghanistan. And the other time that I went, so I should say that it was just to make stupidity that I went to Afghanistan during the time of Taliban. And the other information that I have collected and I have, they come from the people I have talked to and also from the news sources that I listen to. I have spent my whole life in Pakistan, tailoring. And some of the information that I have provided about Afghanistan either to you or to the previous officers, it might be different, they might not be the same and that it is because I do not know very much about Afghanistan.”[104].
[95] page 30
[96] page 31
[97] page 32
[98] page 34
[99] page 35
[100] page 36
[101] page 36
[102] page 37
[103] page 39
[104] page 41
The applicant contends that, as submitted in the following paragraphs, the Overall Credibility Finding by the Assessor was not open in light of the POE's findings and the applicant's responses in the IPA interview. Moreover, the applicant contends that he was not notified of the possibility of that finding and not given the opportunity to respond.
The Overall Credibility Finding was expressed at [93] of the report. In support of that finding the Assessor stated:
a)the applicant made a number of claims about the general situation for Hazaras that were not consistent with the country information;
b)his claims about the situation in Bamyan province appeared to be based on information he had obtained from his father who had left the province in the early 1980s and from friends; and
c)many of his claims appeared to be purely speculative.
As the applicant had effectively never lived in Afghanistan, the questioning conducted by the Assessor in putting a great deal of country information to him for his comment was necessarily asking him to speculate. It is little wonder in those circumstances that the applicant’s responses appeared to the Assessor to be purely speculative.
The applicant could not be said to be anything but appropriately deferential to the Assessor’s questioning. Examples of the applicant's concessions are outlined at [109] above. All claims made by the applicant were expressly and, in the rare circumstance where it was not express, impliedly conditioned by his admission that he had little direct information about Afghanistan and was largely relying on what people had told him.
To find, as the Assessor did, that the applicant was being purely speculative (and that his claims were inconsistent with the country information) was only to identify what the applicant had told the Assessor and, in no way, a basis for criticism.
For the reasons above, the applicant submits that the Overall Credibility Finding was not available to any reasonable person in the position of the Assessor.
Further, the Assessor did not indicate at any time that the applicant's responses to the country information that she was putting to him would lead her to question his credibility. The applicant submits that the Assessor was required to do so in the circumstances.
The 1997 Incident
The applicant was questioned in relation to the 1997 Incident in the first and second parts of the IPA interview. The applicant submits that the questioning in the first part of the interview could not be regarded as notifying the applicant that the Assessor may not accept that the 1997 Incident did not occur.
The applicant also submits that the Assessor’s questioning in the second part of the IPA interview was insufficient to afford the applicant procedural fairness. The applicant has extracted below the entirety of the Assessor’s questioning in relation to the 1997 Incident in the second part of the IPA interview:
ASSESSORUm, you came, you returned to Afghanistan 15 years ago, when the Taliban were in power, in order to set up a business in Kabul?
INTERPRETER Yes.
ASSESSORUm, the difficulty I have with this claim .. there are two difficulties. Why would a Hazara return to Afghanistan to set up a business when the Taliban were in power, knowing the Taliban attitude toward Hazaras?
INTERPRETER Well as I said, my father strongly opposed this and, ah, the business was not doing well and our financial situation at home, our family was not OK. My mother was also sick so I did that and you can say that this was just solely ignorance
ASSESSORI have difficulty with that because you indicate that you are in contact with people coming to Quetta from Afghanistan. You said, you know, you had friends coming over the border, you know, they would be telling you what was going on. So that makes it even more unlikely that you would return, because when Hazaras come across from Kabul, they would tell you stories of what the Taliban were doing towards Hazaras, so it makes me doubt your claim that you would return knowing what the Taliban were doing to Hazaras.
INTERPRETER Well I can only say that it was because of my Nardunee,
ah this word has different connotations. It means stupidity as well that we use in our common language, stupidity. The other connotation is that not knowing and lack of information and being ignorant.
So it was just Nardunee and then secondly, I was not mature enough, I was only fourteen or fifteen years old when I made this decision was the reason that I returned to Afghanistan, ah, was because the business was not doing well in Quetta and I just went over there seeking to improve the financial situation for my family and help my family.
ASSESSORUm, my other difficulty with the claim that you went over there at that particular time is also that the Taliban released you when you begged them to. Um, that’s, um, you know. I am really struggling with the concept that the Taliban showed mercy to you and released you. I have great difficulty with the credibility of that claim.
INTERPRETER God knows exactly as to why they released me. I don't know it myself as well. So, I begged them being with them for 15 to 20 days. I don't know myself why they released me however they have done it with many other people as well, they have released many other Hazaras as well.
On the basis of this exchange (and the answers provided to the questions on this topic in the first part of the interview), the Assessor did not accept the applicant's claim about the 1997 Incident. The Assessor gave the following reasons:
a)it was implausible that a Hazara would return to Kabul at a time when Hazaras were being persecuted by the Taliban in Kabul;
b)it was implausible that Hazaras who were living in Kabul at that time would advise the applicant that it was a safe and secure place for Hazaras to live and work;
c)it was implausible that the Taliban would be merciful towards the applicant and release him;
d)the applicant had changed his story as to why he returned to Kabul and provided a number of “different explanations”.
The first and second "implausibilities"
The Assessor stated that it was implausible that a Hazara would return to Kabul at a time when Hazaras were being persecuted by the Taliban in Kabul.
The Assessor also stated that it was implausible that Hazaras who were living in Kabul at that time would advise the applicant that it was a safe and secure place for Hazaras to live and work.
These implausibilities are said to rest on sweeping and unreasonable assumptions. For example, it is wholly unreasonable to rely on reports about the atrocities committed on Hazaras by the Taliban (which were prepared long after those atrocities were committed) to assume that all Hazaras would be keenly aware at that time of the atrocities being committed.
The applicant points out that an important feature of many persecutory and genocidal regimes has been the fact that those being targeted do not become aware of all the killings and torture until after they have been committed. If a large minority population is informed that they are being systematically murdered, it prevents the murderers from carrying out their plans[105].
[105] This of course depends upon what the plan of the persecutors is, as recent events in Iraq and Syria have shown
Further, a great number of Hazaras were living (and survived) in Kabul throughout the Taliban’s rule.
The Assessor’s question in relation to this was as follows:
ASSESSORI have difficulty with that because you indicate that you are in contact with people coming to Quetta from Afghanistan. You said, you know, you had friends coming over the border, you know, they would be telling you what was going on. So that makes it even more unlikely that you would return, because when Hazaras come across from Kabul, they would tell you stories of what the Taliban were doing towards Hazaras, so it makes me doubt your claim that you would return knowing what the Taliban were doing to Hazaras.
In that question, the Assessor is putting that Hazaras from Kabul “would tell [the applicant] stories of what the Taliban were doing towards Hazaras”. This question assumes that all Hazaras living in Kabul would consider that Kabul was not a safe and secure place for any Hazara. The applicant was entitled to respond to any adverse conclusions drawn by the Assessor on information supplied by the applicant which is not an obvious or natural evaluation of that information[106].
[106] Minister for Immigration v Kumar (unreported, Full Court of the Federal Court of Australia, 31 May 1990); Kioa v West (1985) 159 CLR 550 at 573, 588 and 634 (Mason J); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 at [28] (Northrop, Miles and French JJ)
The applicant submits that these assumptions were directly contradictory to the evidence given by the applicant that he was told by Hazaras who travelled between Kabul and Pakistan for work that the applicant could start a tailor’s business. If the Assessor’s assumption (that a Hazara would not return to Kabul) was correct, the applicant's evidence in this regard would have to be rejected.
In circumstances where broad-ranging assumptions are being made, the applicant submits the Assessor was required to:
a)explore the process of reasoning that lead to those assumptions;
b)notify the applicant of at least the fundamental aspects of that process of reasoning; and
c)seek the applicant's responses.
Failure to do so is said to be a denial of procedural fairness.
The third "implausibility"
The Assessor stated that it was implausible that the Taliban would be merciful towards the applicant and release him.
This was the first time that a finding was made that the claimed incident of kidnapping and torture of the applicant by the Taliban in Afghanistan in 1997 did not occur. In the POE, the applicant’s credibility was found to support this incident, irrespective of the “reservations about the claimant’s explanation that the Taliban released him from detention because they felt pity on him”. In the report, the Assessor’s negative view of the applicant’s credibility resulted in her finding that the incident did not occur.
The Assessor did raise this issue with the applicant in interview on 17 August 2012. She said:
ASSESSOR: And why did the Taliban release you?
INTERPRETER: I begged them a lot, perhaps they showed some mercy.
ASSESSOR: That would be unlikely wouldn’t it?
INTERPRETER: Sorry?
ASSESSOR: You do not hear of Taliban being described as merciful.
INTERPRETER: I was also small. It was just the help of god that helped and the kindness of the god, that helped.
ASSESSOR: So what did they say when they released you?
INTERPRETER: Didn’t say anything.
ASSESSOR: They didn’t say anything?
INTERPRETER: They told me that, they just told me to go home and ah, go to Madrassah, which is a religious school.
ASSESSOR: Where to?
INTERPRETER: Go to Madrassah. Basically it was… go to school and they told me that, go to Madrassah and let your beard grow.
ASSESSOR: Did they let anyone else go at the same time?
INTERPRETER: No, I was let go alone.
The Assessor gave no indication that the applicant’s evidence was being disbelieved once he provided an explanation of why he was let go. The applicant submits that, to afford procedural fairness, the Assessor should have allowed him an opportunity to respond to an adverse finding regarding his release by the Taliban.
Further, the applicant was unlikely to be able to provide a convincing explanation for why the Taliban released him because he was being asked to speculate as to the Taliban's reasoning process. Nonetheless, the applicant's response to the Assessor’s question on this issue is clear. It removes any basis for relying on abstract and misguided reasoning. The applicant's response was:
INTERPRETER God knows exactly as to why they released me. I don't know it myself as well. So, I begged them being with them for 15 to 20 days. I don't know myself why they released me however they have done it with many other people as well, they have released many other Hazaras as well.
The applicant submits that there is no real basis for the finding that it was implausible that the Taliban released the applicant following his detention and torture and, importantly for the purposes of this ground of the application, no real opportunity was provided for the applicant to respond to this finding.
The Assessor based her finding that the applicant’s release was “implausible” on an assumption that “you do not hear of the Taliban being described as merciful”, but did not provide the applicant with any basis for that statement. In circumstances where assumptions are being made by the Assessor to support findings adverse to the applicant that are not an obvious and natural evaluation of the evidence, the applicant submits that the Assessor was required to:
a)explore the process of reasoning or provide evidence that supports those assumptions;
b)notify the applicant of at least the fundamental aspects of that process of reasoning; and
c)seek the applicants' responses.
This is said to be especially so in circumstances where the Assessor made findings directly contrasting those of the primary decision maker. Failure to provide such notice and adequate opportunity to respond amounted to a denial of procedural fairness.
Different explanations
The applicant submits that the Assessor did not notify the applicant that she considered the applicant had provided “different explanations” in relation to why he had returned to Kabul in 1997. The Assessor did not raise this with the applicant in the IPA interview and the applicant was not given the opportunity to respond.
The applicant submits that the Assessor was required to notify the applicant of the possibility of a finding that the applicant had provided “different explanations” as to why the applicant had returned to Kabul. This is for the following reasons:
a)the POE officer accepted the applicant's claim about the 1997 Incident;
b)the applicant did not, in fact, provide “different explanations” (the Assessor was mistaken in this regard for reasons outlined in the paragraphs that follow); and
c)on the basis of the finding that the applicant provided “different explanations”, the Assessor found that the applicant was “fabricating his responses” in relation to the 1997 Incident.
At [99] of the report, the Assessor said the following in relation to the finding that the applicant provided “different explanations”:
Thirdly, there were changes to the claimant's story as to why he had returned to Kabul. When I put to the claimant that I had difficulty with his claim that he had returned to Kabul when Taliban were in power he initially claimed he returned because he was in a poor financial situation and was ignorant of what was happening in Kabul. When I put to him that he had earlier claimed that he was in contact with other Hazaras who were living in Kabul who would have told him what the Taliban were doing in Kabul he then claimed that he had returned to Kabul because of his “stupidity”. I am of the view that the different explanations the claimant provided indicated he was simply fabricating his responses.
In the first part of the IPA interview, the applicant was questioned about his reason for returning to Kabul as follows:
ASSESSOR And why did you decide to return?
INTERPRETER Because our life was not good in Quetta and I was also telling my father that we go back to Afghanistan because people said that the Taliban have made Afghanistan a safe and secure place and I told my father that we go back over there to my uncles, where they had the farmland and my father strongly opposed it and said no way and I said we go back to Afghanistan because the Taliban have made it safe now - that was what the people were saying.
ASSESSOR People were saying the Taliban had made is safe?
INTERPRETER Yes. Yes, that’s how the people say it.
ASSESSORSo the Hazara that were living in Quetta were telling you that the Taliban had made it safe in Afghanistan?
INTERPRETER Yes, some of them. They were saying that the Taliban have now made good rules and laws in place.
ASSESSORBut your father didn't want to go back?
INTERPRETER No.
ASSESSORSo why did you want to go back?
INTERPRETER Because back then the business, my business, was not doing very well in Pakistan, in Quetta, and I thought we may go over there and we may have a good business.
ASSESSORSo the business, your tailoring business, wasn't going well in Quetta and you thought you may be able to do a better business in Afghanistan?
INTERPRETER I was, I was working as a worker in Quetta and I thought that going to Afghanistan, over there it might be better for me to start my own business, opening a shop.
ASSESSORSo you thought it would be better to start your own business? Where were you going to open your shop and start your own business?
INTERPRETER Kabul.
ASSESSORSo you thought it would be better to open your own shop in Kabul, rather than work as a worker in Quetta?
INTERPRETER Yes. So I also had in mind, the intention of going to Bamyan to see my old place, but I did not have that opportunity. So the time for visiting Bamyan never came.
ASSESSOR Did you have any family in Kabul?
INTERPRETER No.
ASSESSOR Did you have any accommodation in Kabul?
INTERPRETER No.
ASSESSORSo you had no family in Kabul, no accommodation in Kabul, the Taliban were in power, yet you thought you would be better setting up a business in Kabul, rather than living, rather than working in Quetta?
INTERPRETER Yes. But perhaps that was ignorant for not knowing.
ASSESSORUm, how did you travel from Quetta to Kabul?
INTERPRETER By taxi.
ASSESSOR And what did you do when you arrived in Kabul?
INTERPRETER In Kabul I was searching for the addresses of my friends, my friends from Quetta.
ASSESSOROh, so you had friends in Kabul?
INTERPRETER Yes, some people who were working with me in Quetta, some of them they had left.
ASSESSORSo people that you were working with in Quetta, had already gone to Kabul?
INTERPRETER Some of them, most of them, they had, they were living in Kabul but were coming to Quetta only for working, so they had their families there. So they were telling me that you go to Kabul and you open establish your own business and it will do well.
ASSESSORSo you had friends, who had families in Quetta but they were working in Kabul?
INTERPRETER No…Families (are) in Kabul, friend's friends that have families in Kabul but they have come over to Pakistan, only for working.
ASSESSORSo they had come from Kabul to Quetta to work and they told you to go to Kabul to work and you would better to set up a business there.
INTERPRETER They were the people who were working Quetta in coal mines, so they were friends of my boss as well and they were coming ...and..
ASSESSOR…and they told you you could set up a business in Kabul.
INTERPRETER …yeah, when they were talking about this and they were telling, ah, you go to Kabul and this business would do well in Kabul.
In the second part of the IPA interview, the Assessor returned to this aspect of the claim:
REVIEWERI have difficulty with that because you indicate that you are in contact with people coming to Quetta from Afghanistan. You said, you know, you had friends coming over the border, you know, they would be telling you what was going on. So that makes it even more unlikely that you would return, because when Hazaras come across from Kabul, they would tell you stories of what the Taliban were doing towards Hazaras, so it makes me doubt your claim that you would return knowing what the Taliban were doing to Hazaras.
INTERPRETER Well I can only say that it was because of my Nardunee,
ah this word has different connotations. It means stupidity as well that we use in our common language, stupidity. The other connotation is that not knowing and lack of information and being ignorant.
So it was just Nardunee and then secondly, I was not mature enough, I was only fourteen or fifteen years old when I made this decision was the reason that I returned to Afghanistan, ah, was because the business was not doing well in Quetta and I just went over there seeking to improve the financial situation for my family and help my family.
The applicant submits that it is clear from the above that the applicant may not have intended to use the connotation “stupidity” by the use of the word “nardunee” but may have, indeed, intended “ignorance”.
As a consequence of the Assessor’s failure to notify the applicant that she considered the applicant had provided “different explanations”, the applicant was not given the opportunity to clarify the meaning of the word “nardunee”. Had the applicant been given that opportunity, the Reviewer should and, in all likelihood, would have been bound to form the view that “different explanations” had not been given and accepted the applicant's claim about the 1997 Incident. The relevant test was outlined by Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala[107].
[107] (2000) 204 CLR 82, at [3]-[4]
In the POE, the POE officer found that the applicant was a “generally credible and cooperative witness”, and that consequently she accepted his evidence. In contrast, the Assessor made adverse findings regarding his credibility at [93] and [99] of the report, including that “the different explanations the claimant provided indicated he was simply fabricating his responses”.
At no time was the applicant put on notice by the Assessor that his credibility was in issue because of the “different explanations” provided by him. The applicant submits that, to afford procedural fairness, the Assessor should have indicated to the applicant in some way that his credibility was now under question because of the “different explanations” and should have allowed the applicant an opportunity to respond.
Failure to do so amounted to a denial of procedural fairness.
The Minister’s contentions
The Minister submits that the Assessor’s findings at [93][108] and [99]-[101][109], with which the applicant takes issue in the particulars to this ground of review, were conclusions open to the Assessor to make on the material before her. At the IPA hearing, the Assessor discussed, at length, the situation in Bamyan, the applicant’s reasons for returning to Afghanistan in 1997, events relating to his alleged capture and assault, and his release. The Assessor also put to the applicant the fact that she had difficulties with his evidence (including in relation to the general situation for Hazaras, his asserted fear of harm at the hands of criminal gangs or political parties, and the reasons for leaving Afghanistan), questioned the veracity of his reasons for returning to Afghanistan, put to him that she “doubt[ed] [his] claim that [he] would return knowing what the Taliban were doing to Hazaras”, put to him that she was “struggling with the concept that the Taliban showed mercy to [him] and released [him]”, and said that she had “great difficulty with the credibility of that claim.”
[108] CB 149
[109] CB 150-151
The Minister contends that the applicant was on notice of the fact that the Assessor doubted his credibility as a witness, the truthfulness of his claim to have returned to Afghanistan in 1997, and that he was arrested, beaten, then released, by the Taliban. The Assessor’s conclusions were a natural evaluation of the applicant’s evidence; they were “obviously … open on the known material.”[110] The Assessor was not required to put her proposed findings to the applicant for his comment.[111] In these circumstances, there was, in the Minister’s submission, no denial of procedural fairness.
[110] Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592A per Northrop, Miles and French JJ. See also Minister for Immigration v SZGUR (2011) 241 CLR 594 at 599 [9] per French CJ and Kiefel J
[111] Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592B per Northrop, Miles and French JJ; SZBEL v Minister for Immigration (2006) 228 CLR 152 at 166 [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Resolution
The Assessor had good reason to question the applicant’s claim that he returned to Afghanistan to open a business in 1997. He had lived outside of Afghanistan from the age of six and it seemed improbable that he returned there in 1997 during the rule of the Taliban. There is a certain Kafka-esque quality to the Assessor’s reasoning in that she reasoned that it was too dangerous for the applicant to go to Kabul in 1997 because of the persecution of Hazaras there by the Taliban and so his claim of experiencing past harm in Afghanistan at that time was untrue. The question is, however, whether the process followed by the Assessor was procedurally fair in putting her doubts to the applicant and in determining his credibility.
I prefer the Minister’s submissions in part on the first question. I accept from the transcript that during the course of the interview conducted by the Assessor she put to the applicant her doubts about the plausibility of his claim to have returned to Kabul in 1997. In particular, the Assessor put to the applicant her concern that it seemed implausible that the applicant would go to Kabul to start a business there when he had a job in Pakistan, based upon the bland assurances of some friends or associates that he could do well in Kabul financially. The applicant’s problem, of course, was that he had lived outside of Afghanistan almost his whole life and unless he could place himself in Afghanistan at some recent time, he was unable to point to any incidents of past harm there to support his claim for protection. In my view, the Assessor did enough at the interview to put the applicant on notice that his claim of past harm was open to question and his credibility would be an issue of significance in the IPA.
The applicant is critical of the Assessor’s questioning of him concerning his explanation for his release by the Taliban. As I noted in oral argument, the applicant’s explanation for that release was not necessarily implausible. It was consistent with a scenario whereby the Taliban formed a view that because the applicant was young and malleable, he was capable of redemption to become, in the view of the Taliban, a “good Muslim” if he attended a Madrassa and adopted a physical appearance acceptable to the Taliban. That simply shows, however, that a different Assessor might have reached a different conclusion based upon the same explanation. It was open to the Assessor to reach the conclusion she reached about the plausibility of the applicant’s explanation based upon the material before her.
In my view, there is, nevertheless, a fatal flaw in the Assessor’s report concerning what are described as “different explanations” for the applicant’s alleged return to Afghanistan in 1997. In my view, the Assessor’s reasons at [99][112] reflect a fundamental misunderstanding. I find from the transcript that there was in fact no inconsistency in the applicant’s responses. He was giving his evidence in the Hazaragi language. Either he or the interpreter explained to the Assessor that in using the word “nardunee” the applicant was using a word with different connotations. It could mean stupidity or ignorance. Because the applicant was using a word in his own language with two meanings and the subtlety of the language was expressly explained to her, it was not open to the Assessor to find that the applicant had given inconsistent explanations by reference to English translations of the Hazaragi word. At a minimum, the Assessor needed to explain to the applicant that she was minded to draw such a conclusion and she did not do so. Her failure to do so and to give the applicant an opportunity to further explain what should have been already readily apparent was, in my view, procedurally unfair. To that extent, I accept that Ground 3 has been made out. Indeed, I would go further and put the view that the credibility finding by the Assessor based upon the supposed inconsistent statements was not open to the Assessor on the material before her.
[112] extracted above at [140]
Should relief be withheld in the exercise of discretion?
In his written submissions, the Minister submitted that I should withhold relief because of the delay of some eleven months between the outcome of the IPA and the judicial review application. As I have already noted above, at footnote 19, the limitation imposed by s.477(1) of the Migration Act has no application to applications of this nature. I do not consider that the circumstances warrant the exercise of discretion against the applicant. I accept, from the third affidavit of Mr Levy, that the applicant has advanced a reasonable explanation for his delay. Secondly, the interests of the administration of justice require the provision of relief given the significant legal errors identified in the report and the process followed by the Assessor. In any event, counsel for the Minister conceded in oral argument that the submission would not be pressed in the light of Mr Levy’s affidavit.
Conclusion
The applicant has demonstrated that the Assessor fell into reviewable legal error in preparing her report. I will grant the relief sought in the application.
I will hear the parties as to costs.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2014
CORRECTIONS
Cover sheet and orders, page 3 – delete “Rodgers”, insert “Rogers”
Paragraph 15, line 2 - delete “Lewis”, insert “Louis”
Paragraph 15, line 11 – delete “bears on”, insert “was prepared in response to”
Paragraph 15, line 11 – insert “in written submissions” after the word “contention”
Paragraph 154, line 1 – insert “In his written submissions” before the word “The”
Paragraph 154, line 1 – delete “submits”, insert “submitted”
Paragraph 154, line 3 – delete “I am not aware of such a proposition being advanced previously in relation to judicial review proceedings concerning IPA reports.”
Paragraph 154, line 7 – delete “Further, it is important that the Minister should act consistently in this class of cases. No such submission was made by the Minister in SZTNR v Minister for Immigration & Anor[113] in which I handed down judgment at the same time as this matter and where the delay was considerably longer than in this case. In any event,”
[113] [2014] FCCA 1981
Paragraph 154, line 18 – insert “In any event, counsel for” before “The”.
Paragraph 154, line 18 – delete “needs to be properly informed of the issues bearing upon the possible exercise of his discretion pursuant to s.46A of the Migration Act.”, insert “conceded in oral argument that the submission would not be pressed in the light of Mr Levy’s affidavit.”
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