WZAQA v Minister for Immigration
[2013] FCCA 50
•23 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAQA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 50 |
| Catchwords: MIGRATION – Judicial review – decision of independent merits reviewer – gun battle on the Ghazni-Jaghori road in Afghanistan – whether well-founded fear of persecution – whether decision unreasonable – whether failure to afford procedural fairness – whether jurisdictional or other legal error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R, 476 |
| Cases Cited: Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303; [2010] FCAFC 51 Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 & Ors (2003) 77 ALJR 1165; [2003] HCA 30 SZJVD & Ors v Minister for Immigration & Anor [2007] FMCA 817 SZQFY v Minister for Immigration & Citizenship [2012] FCA 486 The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 233 CLR 1; [2006] HCA 60 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 |
| Aronson, Dyer and Groves, Judicial Review of Administrative Action, (3rd Edn) (Sydney: Thomson Lawbook Co, 2004) |
| Applicant: | WZAQA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 343 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 1 August 2012 |
| Date of Last Submission: | 1 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 23 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr M J Feutrill |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 343 of 2011
| WZAQA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application under s.476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of Peter Tyler, in his capacity as an independent merits reviewer,[3] finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 177-189.
[3] “IMR”.
[4] “Convention”.
The grounds of the application
There are three separate grounds for the application, each particularised, as amended by the applicant’s amended grounds filed on 21 June 2012. Each ground is dealt with separately below, but in summary they relate to:
a)the alleged failure by the IMR to apply the proper test with respect to a well-founded fear of persecution – ground 1;
b)the alleged irrationality, illogicality and unreasonableness of aspects of the IMR Recommendation – grounds 1 and 2; and
c)an alleged denial of procedural fairness – grounds 1, 2 and 3.
Relief sought
The applicant seeks the following relief:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the grounds of this application; and
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation.
Jurisdiction
The amended application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]
[5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.
Background facts
The background facts are as follows:
a)the applicant is a 31 year old Afghan national, who is a member of the Hazara ethnic minority, and the Shia Muslim minority religion. His native language is Hazaragi. He does not speak English and has little formal education;
b)the applicant, who was a taxi driver in Afghanistan, fled Afghanistan after an incident on the road from Ghazni to Jaghori, during which he assisted members of the Afghan national army to escape from a gun fight between the Afghan army and a Taliban force.[6] The applicant believed that the Taliban had photos of him and his taxi, were searching for him after the incident, and intended to kill him or otherwise cause him serious harm. The applicant believed the Taliban intended to cause him serious harm because he had rendered assistance to the Afghan army, and because he is an Hazara and Shia Muslim;
[6] “Road Incident”.
c)the applicant fled Afghanistan seven to ten days after the Road Incident, and went by air to Dubai and then Malaysia, and then by boat to Christmas Island, with the assistance of a smuggler; [7]
d)the applicant arrived at Christmas Island on 17 April 2010;
e)the applicant made a request for a Refugee Status Assessment[8] on 9 October 2010;
f)on 13 November 2010 the applicant was informed the RSA, determined by an officer of the Department of Immigration and Citizenship,[9] had determined that he was not a refugee as defined in the Convention;
g)on 24 December 2010 the applicant requested an independent merits review;
h)on 7 April 2011 the applicant’s migration agent provided the IMR, through the Department, with written submissions in support of the applicant’s request for an independent merits review;
i)on 14 April 2011 the IMR interviewed the applicant in the presence of his migration agent and an interpreter;[10]
j)on 27 September 2011 the IMR requested, through the Department, the applicant’s comment on certain country information;
k)on 7 October 2011 the applicant’s migration agent responded to the IMR, through the Department, with a further submission on the applicant’s behalf; and
l)on 17 October 2011 the Department notified the applicant that on 13 October 2011 the IMR had recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant was provided with a copy of the IMR Recommendation.[11]
[7] CB 181 at para.25.
[8] “RSA”.
[9] “Department”.
[10] “IMR Interview”.
[11] CB 178-184 and 187-176.
More detailed analysis of the materials before the IMR and considered in the IMR Recommendation appear below.
Ground 1
Ground 1 is as follows:
1. The second respondent’s determination of whether Australia has protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol as applied by the Migration Act 1958 was not made according to law in that:
(a) on the proper construction of sections 36(2) and 91R of the Migration Act:
(i) Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol to an applicant for a protection visa if the applicant’s fear of persecution for one or more of the reasons mentioned in Article 1.A of the Refugees Convention is well founded by reason that there is a real chance of such persecution occurring;
(ii) an applicant’s fear of persecution for convention reasons may be well founded if there is a real chance of persecution occurring for more than one or a combination of convention reasons;
(iii) a consideration of whether an applicant’s fear of persecution for convention reasons is well founded must be based on information available at the time the applicant applies for Australia’s protection as a refugee;
(iv) a consideration of whether an applicant’s fear of persecution for convention reasons is well founded must be based on findings of fact, made in accordance with law, that are relevant to the chance of such persecution occurring;
(b) the second respondent failed to consider if the applicant’s fear of persecution for convention reasons was well founded because there was a real chance of such persecution occurring, rather he considered if such persecution will occur;
(c) the second respondent failed to consider if the applicant’s fear of persecution for convention reasons was well founded as a result of more than one or a combination of convention reasons, rather the second respondent considered the facts and matters pertaining to each potential convention reason in isolation and did not consider if the cumulative and aggregate effect of those facts and matters as a whole resulted in a well founded fear of persecution for convention reasons;
(d) the second respondent took into account a finding to the effect that the Taliban would not regard the applicant as a sympathiser of or providing assistance to the Afghan government or its agencies that was not supported by any evidence or was otherwise, irrational, illogical or unreasonable on the material before the second respondent and, thereby the second respondent took into account a matter that was not relevant to the proper consideration of whether the applicant’s fear of persecution for a convention reason was well founded.
Applicant’s submissions
The applicant’s submissions are as follows:
a)on the proper construction of ss.36(2) and 91R of the Migration Act, Australia has protection obligations under the Convention to an applicant for a protection visa if the applicant’s fear of persecution for one or more of the reasons mentioned in Article 1A of the Convention is well-founded;
b)a fear is well-founded when there is a real substantial basis for it. A substantial basis may exist even though there is a far less than 50% chance that the object of the fear will eventuate. That is, there is a real chance that the person who seeks the protection of Australia will suffer persecution if he returns to his country of origin; in contradistinction to a far-fetched or fanciful risk;[12]
c)in determining if a fear of persecution is well-founded the decision-maker must consider if there is a “real chance” of such persecution occurring for more than one or a combination of the reasons referred to in Article 1.A(2) of the Convention;[13]
d)determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most, cases determining what is likely to occur in the future will require findings as to what has occurred in the past, as what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are found about past events;[14]
e)the decision-maker is required to take into account the chance that an event, although found not to have occurred on the balance of probabilities, nonetheless occurred when determining if the fear is well-founded. The decision-maker may only ignore the event if there is no real doubt that the findings are correct;[15]
f)it may be a question of whether the decision-maker truly applied the correct test (something less than a 50% chance) or approached the matter as if it were a balance of probabilities test (something more than a 50% chance);[16]
g)the IMR did not address himself to the correct question, namely, whether there was a real chance that the Taliban would cause serious harm to the applicant because he assisted the Afghan Army, and because he was a member of the Hazara racial or ethnic group and Shia religion;
h)first, the IMR erred in law because he dealt with each of the Convention reasons for the applicant’s fear of persecution separately and did not consider them in combination or their cumulative significance as the IMR dealt with the question of the applicant’s ethnic and religious membership separately, and as a question of whether persecution would occur within Afghanistan on those grounds alone.[17] The IMR then addressed only the question of political opinion by reference to the incident on the Ghazni-Jaghori road;[18]
i)second, the IMR considered whether the applicant will be seen by the Taliban as a sympathiser of, or providing assistance to, the government or its agencies.[19] The IMR erred in law because he should have considered whether there was a real chance that the applicant would be so regarded;
j)third, the IMR considered whether the applicant will suffer serious harm in the future.[20] The IMR erred in law because he should have considered whether there was a real chance that the applicant would suffer serious harm in the future; and
k)for each of the above reasons the IMR failed to apply the correct legal principle. That is, the IMR failed to consider whether he was satisfied that the applicant’s fear of persecution by the Taliban was well-founded in that there was a real chance that the Taliban would kill or cause serious harm to the applicant for one or more Convention reasons.
[12] Chan Yee Kin & Ors v The Minister for Immigration& Ethnic Affairs (1989) 169 CLR 379 at 388-389 per Mason CJ and 429 per McHugh J; Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (“Guo”).
[13] Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263 at 272 per Finkelstein J; [2001] FCA 865 at paras.47 and 48 per Finkelstein J (“Jegatheeswaran”).
[14] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[15] Minister for Immigration & Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220 at 238-241 per Sackville J; [1999] FCA 719 at paras.55-67 per Sackville J.
[16] Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 at 413 per Sackville J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 281 and 282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[17] CB 184 at paras.42-45; CB 185 at paras.48-51.
[18] CB 186-188 at paras.57-68.
[19] CB 188 at para.65.
[20] CB 188 at para.68.
Minister’s submissions
The Minister submits as follows:
a)first, it is suggested that the IMR did not apply the real chance test. The IMR notes, however, the definition of a refugee,[21] and that this must be applied in accordance with decided cases.[22] The IMR concluded that the applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future.[23] This is the correct test.[24] Having correctly stated the test it should not be inferred that some other test was in fact applied by the IMR;[25]
b)secondly, it is suggested that the IMR failed to consider whether the applicant’s fears were well-founded on a cumulative basis. This is not a fair reading of the IMR Recommendation, contrary to Wu Shan Liang.[26] The basis of the complaint appears to be that the IMR first considered whether the applicant feared harm as an Hazara and a Shia, before turning to his specific claims. However, as pointed out in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 & Ors,[27] expression of conclusions in a particular sequence does not indicate a failure to consider the evidence as a whole. Moreover, the IMR makes clear that the IMR Recommendation is based on all the claims asserted by the applicant, both as an Hazara and a Shia and those particular to him;[28] and
c)thirdly, it is suggested that the IMR Recommendation indicates that the real chance test was not applied.[29] This assertion, however, is contrary to the plain words of the IMR’s conclusion.[30] Plainly, if the IMR finds that something “will not” happen then there cannot be a real chance of it occurring. This complaint is again not a fair reading of the IMR Recommendation.
Consideration of ground 1
[21] CB 178 at para.6.
[22] CB 178 at para.8.
[23] CB 188 at para.69.
[24] Guo at 572-573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[25] Wu Shan Liang at 271 and 279-280 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[26] Wu Shan Liang at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[27] (2003) 77 ALJR 1165 at 1169 per Gleeson CJ; [2003] HCA 30 at para.14 per Gleeson CJ (“Applicant S20”).
[28] CB 188 at paras.68-69.
[29] CB 188 at paras.65 and 68.
[30] CB 188 at para.69.
Part 1 – whether well-founded fear of persecution test properly considered by the IMR
In Guo, in relation to the predictability of future events which might give rise to a real chance of serious harm, the High Court observed that there would be cases where “the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.”[31] That determination requires an estimation of the likelihood that an event will give rise to the occurrence of conduct causing serious harm, and in that respect, regard must be had to what has occurred in the past as a guide to what might happen in the future.[32]
[31] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[32] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
In SZJVD & Ors v Minister for Immigration & Anor[33] an attack on the applicant and his wife because they were in the wrong place at the wrong time was held by the Federal Magistrates Court of Australia[34] to be a random chance, but the treatment that they suffered was held to be not random, but specifically directed to the applicant by his attackers who were his political opponents. The FMCA considered that, contrary to what was found by the Refugee Review Tribunal,[35] the conduct in question was systematic and discriminatory for the purposes of s.91R(1)(c) of the Migration Act.[36]
[33] [2007] FMCA 817 (“SZJVD”).
[34] “FMCA”.
[35] “Tribunal”.
[36] SZJVD at para.18 per Cameron FM.
In SZJVD the FMCA went on to find that there was a consequential conclusion by the Tribunal that it was not satisfied that the applicant had a real chance of suffering similar harm in the reasonably foreseeable future. That was a finding which was held to be open to the Tribunal on the material before it, and a finding of fact unaffected by jurisdictional error and not susceptible to judicial review by the FMCA.[37] Although not adverted to in submissions by either party, SZJVD was appealed, unsuccessfully.[38] The Federal Court concluded that there was no error in the FMCA findings concerning the Tribunal’s consequential conclusion that it was not satisfied that there was a real chance of the applicant in those proceedings suffering similar harm in the reasonably foreseeable future, and that there was evidence to support that finding by the Tribunal.[39] The Federal Court concluded that:
Therefore, in regard to both the 1999 rickshaw incident and the 1996 attack, even if there was an error by the Tribunal in connection with its understanding of the word “systematic and discriminatory”, this did not affect its independent view, clearly open on the evidence, that there was no real chance that the conduct in question would occur in the future.[40]
[37] SZJVD at paras.19-21 per Cameron FM.
[38] SZJVD v Minister for Immigration & Citizenship [2007] FCA 1302 (“SZJVD Appeal”). An application for special leave to appeal to the High Court was dismissed: SZJVD & Ors v Minister for Immigration & Citizenship & Anor [2008] HCASL 62 at paras.5 and 6 per Kirby and Heydon JJ.
[39] SZJVD Appeal at paras.29, 31 and 33 per Middleton J.
[40] SZJVD Appeal at para.34 per Middleton J.
In determining whether or not there was a well-founded fear of persecution the IMR was obliged to look to see whether or not there was a current or prospective threat to the applicant on a Convention-related ground.[41]
[41] VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 233 CLR 1; [2006] HCA 60.
The IMR determined that:
a)the Road Incident occurred,[42] but no photos showing the applicant assisting the government forces were taken by the Taliban on that day at any of the times and places variously suggested by the applicant;[43]
b)the applicant was of no interest to the Taliban, it being obvious that what was done by the applicant by way of returning injured government or army officers to Ghazni after the Road Incident was something done “at the point of a gun”, and, therefore, the applicant would not have been seen as a sympathiser of, or as providing assistance to the government or its agencies;[44]
c)the threats from the brother of the passenger in the applicant’s taxi who was killed as a consequence of the Road Incident were not threats which were Convention related;[45]
d)the applicant was harassed periodically on the Ghazni-Jaghori road, but overall he had had exceptionally few problems, particularly given that he drove the road four times per week, and the problems that he had were not sufficient to deter him from driving four times a week on the Ghazni-Jaghori road;[46]
e)the applicant was not beaten on the occasions when he was harassed periodically on the Ghazni-Jaghori road;[47] and
f)the applicant did not face persecution simply as a consequence of his being an Hazara or a Shia Muslim, a finding based on a review of credible and authoritative country information, and which was therefore open to be found by the IMR, but which, in any event, was otherwise not a finding that was attacked by the applicant.[48]
[42] CB 188 at para.67.
[43] CB 187 at paras.60 and 62.
[44] CB 181 at para.27; CB 188 at para.65.
[45] CB 188 at para.66.
[46] CB 187 at para.63.
[47] CB 187 at para.63.
[48] The finding is at CB 186 at para.51; the reasoning with respect to the country information is at CB 184-186 at paras.40-50; and an outline of the country information to which regard was had, or not had, as the case may be, is at CB 183-184 at paras.35-39. And see also the country information set out at CB 182-183 at paras.32-34.
The IMR went on to conclude, therefore, that:
68. For the reasons set out above I am not satisfied that the claimant suffered such harm that would amount to persecution when he was stopped from time to time on the road; that the Taliban had photos of him assisting the government forces; that the Taliban has any interest in him as a person seen to be assisting the government; or for being an Hazara and a Shia Muslim or for being both Hazara and Shia, or for any other Convention reason, or that the person whose brother was injured during the incident on the road has an interest in him for a Convention Reason. On the basis of these findings I am satisfied that the claimant will not suffer serious harm on the same basis now or in the reasonably foreseeable future.
69. Having found that the claimant has not suffered serious harm in the past and on the basis of the country information discussed in paragraphs 47 to 50, I find that the claimant does not have a well-founded fear of persecution and if he returned to Afghanistan now or in the reasonably foreseeable future he would not face persecution for a Convention reason.[49]
[49] CB 188 at paras.68-69.
In Guo the High Court indicated that substituting the “real chance” test for the Convention term “well-founded fear” was “to invite error.”[50] A well-founded fear is one with a “real substantial basis for it”, which “may exist even though there is far less than a 50% chance that the object of the fear will eventuate.”[51] Critically, in Guo the High Court then went on to say as follows:
But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.[52]
[50] Guo at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[51] Guo at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[52] Guo at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
This was not a case which manifests any significant doubt on the part of the IMR as to the facts found and findings made. Those findings were in emphatic terms having regard for the facts as found, namely that the applicant “will not suffer serious harm…now or in the reasonably foreseeable future”[53] and that the applicant “does not have a well-founded fear of persecution and if he returned to Afghanistan now or in the reasonably foreseeable future he would not face persecution for a Convention reason.”[54]
[53] CB 188 at para.68 cited at para.15 above.
[54] CB 188 at para.69 cited at para.15 above.
In those circumstances where there was in the IMR’s mind “no real doubt that its findings both as to the past and the future were correct”[55] there was no basis for the IMR to consider whether or not its findings were wrong, and in those circumstances, there was no misapplication of the relevant test. Indeed, the contrary is true, that is, that the IMR applied the relevant test, and made conclusory findings, having proper regard to his factual findings in relation to the individual case before him.
[55] Guo at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
It is also suggested that the IMR failed to consider the applicant’s fears cumulatively. Having regard for the course of reasoning in the IMR Recommendation it can be seen that the IMR did consider whether or not the applicant would face persecution as an Hazara and a Shia, and found that he would not.[56] The IMR then went on to consider whether the Road Incident might give rise to a well-founded fear of persecution on the part of the applicant, and found that it did not, and in particular that the applicant would not be seen as a government sympathiser or a person assisting the government in Afghanistan.[57] It is also apparent from the overall conclusion of the IMR that he did consider cumulatively the question of whether or not the applicant might have a well-founded fear by reason of being an Hazara, a Shia and because of the Road Incident, the latter being caught within the phrase “or for any other Convention reason”, namely the imputed political opinion now said to arise from the Road Incident.[58] Moreover, there is no reason to doubt the IMR’s assertion that he considered afresh “all claims” as they relate to the Convention.[59] Furthermore, the use of the ordinary disjunctive “or” in the relevant parts of the IMR’s conclusions does not reveal a failure to consider the applicant’s claims cumulatively. IMR Recommendations are written (often by lay persons), not as statutes or judgments but administrative recommendations, and ought to be construed accordingly. To read the IMR Recommendation otherwise in this case is to not read it in its totality, and would be to dissect it in a manner contrary to the principles set out by the High Court in Wu Shan Liang.[60]
[56] CB 186 at para.51.
[57] CB 188 at para.65.
[58] CB 188 at para.68 set out at para.15 above.
[59] CB 178 at para.4.
[60] Wu Shan Liang at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In all the circumstances, the applicant’s claim that the IMR did not properly apply the test with respect to whether the applicant had a well-founded fear of persecution fails. Ground 1(a) to (c) is not made out.
Part 2 – whether irrational, illogical or unreasonable determination by the IMR
This issue, raised in ground 1(d), is also raised in ground 2, and is considered under that ground below.
Part 3 – whether irrelevant consideration taken into account
This issue, also raised in ground 1(d), is also considered below in relation to ground 2.
Ground 2
Ground 2 is as follows:
2. The second respondent’s determination of whether Australia has protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol as applied by the Migration Act 1958 was not made according to law in that:
(a) the second respondent took into account a finding to the effect that the Taliban would not regard the applicant as a sympathiser of or providing assistance to the Afghan government or its agencies that was not supported by any evidence or was otherwise, irrational, illogical or unreasonable on the material before the second respondent and, thereby the second respondent’s determination was founded on an error of law;
(b) the second respondent’s determination that the applicant’s fear of persecution for convention reasons was not well founded was not a decision that any reasonable decision-maker, properly applying the law, could reasonably have made on the evidence and materials before the second respondent.
Ground 1(d), which is to be considered in conjunction with ground 2, is as follows:
(d) the second respondent took into account a finding to the effect that the Taliban would not regard the applicant as a sympathiser of or providing assistance to the Afghan government or its agencies that was not supported by any evidence or was otherwise, irrational, illogical or unreasonable on the material before the second respondent and, thereby the second respondent took into account a matter that was not relevant to the proper consideration of whether the applicant’s fear of persecution for a convention reason was well founded.
Applicant’s submissions
The applicant submits as follows:
a)irrationality, illogicality and unreasonableness describe two related, but different concepts. First, it may be implicit that a legislative power must be exercised rationally, logically and reasonably. Second, a decision that is irrational, illogical or unreasonable on the basis of all the material before the decision-maker, may infer that the decision-maker misunderstood the legal principles or mis-applied those principles. In either case, the decision is susceptible to judicial review;[61]
[61] See generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd Edn) (Sydney:Thomson Lawbook Co, 2004), pp.334-343 and 245-251.
b)in the first case, irrationality or illogicality means the decision to which the decision-maker came is one at which no rational or logical decision-maker could arrive on the same evidence. A decision under section 36(2) of the Migration Act that a protection visa applicant’s fear of persecution is not well-founded is susceptible to judicial review on this ground;[62]
[62] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 624-625 per Gummow ACJ and Kiefel J and 644-648 per Crennan and Bell JJ; [2010] HCA 16 at paras.37-40 per Gummow ACJ and Kiefel J and paras.121-131 per Crennan and Bell JJ (“SZMDS”); Minister for Immigration & Citizenship v SZLSP & Ors (2010) 187 FCR 362 at 375-376 per Kenny J and 384-385 per Rares J; [2010] FCAFC 108 at para.40 per Kenny J and para.72 per Rares J; SZOOR v Minister for Immigration & Citizenship & Anor (2012) 202 FCR 1 at 22-23 per McKerracher J; [2012] FCAFC 58 at paras.82-85 per McKerracher J (“SZOOR”).
c)if not an implied element of the exercise of legislative power, an obligation to act rationally, logically and reasonably is, in any event, an aspect of an obligation to act judicially and to observe procedural fairness;[63]
[63] Applicant S20 ALJR at 1168 per Gleeson CJ, 1175 per McHugh and Gummow JJ, 1184-1185 and 1193 per Kirby J; HCA at para.9 per Gleeson CJ, para.54 per McHugh and Gummow JJ and paras.116, 127 and 170 per Kirby J; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 367 per Deane J (“Bond”); Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 per Gummow and Hayne JJ; [2004] HCA 32 at paras.37-38 per Gummow and Hayne JJ (“SGLB”); SZMDS CLR at 620, 621 and 624-625 per Gummow A-CJ and Kiefel J and 638-639 and 644-648 per Crennan and Bell JJ; HCA at paras.23, 24 and 37-40 per Gummow A-CJ and Kiefel J and paras.102-105 and 121-131 per Crennan and Bell JJ.
d)in the second case, a conclusion a decision-maker has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some legal misconception. If the result appears unreasonable on the supposition that the right question was addressed, the rules of law were correctly applied, and all relevant considerations and no irrelevant considerations were taken into account, it may be a proper inference that the supposition is false;[64]
[64] Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; Applicant S20 ALJR at 1168 per Gleeson CJ; HCA at paras.8-9 per Gleeson CJ.
e)further, while insufficiency of evidence (as opposed to no evidence, which is dealt with below) is not in itself a ground for judicial review, it may be a circumstance which supports the inference that the decision-maker has applied the wrong test or is not in reality satisfied of the required matters;[65]
[65] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring and Co Pty Ltd (1953) 88 CLR 100; 119-120 per Dixon CJ, Williams, Webb and Fullaghar JJ; Applicant S20 ALJR at 1172 per McHugh and Gummow JJ; HCA at paras.36 and 37 per McHugh and Gummow JJ; SGLB ALJR at 998 per Gummow and Hayne JJ; HCA at paras.37-38 per Gummow and Hayne JJ; SZMDS CLR at 620, 621 and 624-625 per Gummow ACJ and Kiefel J, 638-639 and 644-648 per Crennan and Bell JJ; HCA at paras.23, 24 and 37-40 per Gummow ACJ and Kiefel J and paras.102-105 and 121-131 per Crennan and Bell JJ.
f)a decision is susceptible to judicial review where it is based upon a conclusion for which there is no evidence or a critical (intermediate) fact for which there is no evidence;[66]
[66] Jegatheeswaran ALR at 273 per Finkelstein J; FCA at paras.50-60 per Finkelstein J; Bond at 340-341 and 355 per Mason CJ and 367 per Deane J.
g)the “no evidence” rule is closely linked to the obligation not to act arbitrarily, irrationally, illogically or unreasonably.[67] It may also be considered as an aspect of the obligation to observe procedural fairness;[68]
[67] SZMDS CLR at 645-646 per Crennan and Bell JJ; HCA at para.124 per Crennan and Bell JJ.
[68] Bond at 367 per Deane J.
h)in any case, the question of whether there is any evidence of particular fact is a question of law. Likewise, the question of whether a particular inference can be drawn from facts found is a question of law. In the context of judicial review, the making of findings and drawing of inferences in the absence of evidence is an error of law;[69]
[69] Bond at 340-341 and 355 per Mason CJ.
i)the IMR found that the Taliban would not regard the applicant as a sympathiser of, or as providing assistance to, the government or its agencies. That finding was based on a finding that it was not plausible that the Taliban would consider that the applicant had assisted government personnel because “it would have been obvious that he did as instructed by the government personnel and that he did so under duress”;[70]
[70] CB 188 at para.65.
j)the finding that it would have been obvious that the applicant did as instructed and under duress could only have been made as an inference drawn from findings of primary fact. That inference was not capable of being drawn from the primary findings of fact the IMR made in this case;
k)further, there was no material before the IMR from which it could have been inferred that the Taliban had observed that the applicant was following the instructions of government forces at the point of a gun. There was no material before the IMR as to the position of the Taliban forces relative to the applicant and his motor vehicle at the time he stopped and began rendering assistance to the Afghan Army. There was no material addressing the question of what could or could not have been observed by members of the Taliban force during the heat of a gun battle;
l)equally importantly, none of the questions the IMR put to the applicant during the IMR Interview, or at any other time, were directed to ascertaining the extent to which the applicant had been, or could have been, observed by members of the Taliban force during the fire fight. Indeed, none of the questions the IMR put to the applicant, at any time, addressed the plausibility or otherwise of the Taliban inferring from the assistance the applicant rendered to the Afghan Army, that the applicant was or would be perceived to be a sympathiser of, or to providing assistance to, the Afghan Government and its agencies;[71]
m)in short, there was no evidence to support the IMR’s findings in the IMR Recommendation.[72] As these findings were critical to his conclusion that the applicant’s fear of persecution was not well-founded, the IMR Recommendation was not made in accordance with law;
n)further, and in any event, even if members of the Taliban forces had made observations from which it could have been inferred that the applicant’s assistance to the Afghan Government was under duress, there was no material before the IMR from which an inference could then be drawn that the Taliban would, therefore, not attribute culpability to the applicant or consider that he was a sympathiser of or providing assistance to the Afghan Government and its agencies;
o)on the contrary, the material before the IMR indicated that members of the Taliban do not act logically or rationally, and habitually kill or cause serious harm to people who have, or are perceived to have, provided assistance to the Afghan Government for any reason;[73]
p)further, the inference the IMR drew in this respect is inconsistent with his findings to the effect that when Hazaras come to the adverse attention of the Taliban or for some other reason the chance and extent of harm faced is exacerbated by reason of their ethnicity and Shia religion.[74] Further, the Taliban have a predisposition to perceive Hazaras as potential political opponents;
q)the IMR’s findings were to the effect that the applicant travelled the relevant road frequently over a period of four years. During that time he was regularly stopped and harassed by members of the Taliban forces. It is plain from these facts that the applicant was a person whose appearance and motor vehicle was known and recognisable by Taliban forces operating in that area;
r)on the material before the IMR his conclusions that the applicant will not suffer serious harm for a Convention reason (in effect the risk is far-fetched or fanciful) is irrational, illogical or unreasonable. Hence, it must be inferred that the IMR has not applied the correct legal principles. In particular, the IMR must not have considered whether there is a real chance that the applicant will suffer persecution for a Convention reason;
s)put another way, in the face of this material, no rational, logical or reasonable decision-maker could not have been satisfied that there was a real chance that because the applicant had rendered assistance to the Afghan Army, and he was a member of the Hazara minority, and he was a Shia Muslim, the Taliban would want to kill or otherwise cause serious harm to the applicant; and
t)on any view, the IMR Recommendation was not, or could not have been, made in accordance with law by application of the correct legal principles.
[71] Affidavit of Tannaz Pasha, affirmed 15 June 2012, Annexure “A” (“Ms Pasha’s Affidavit”); CB 146-149.
[72] CB 188 at para.65.
[73] Affidavit of Shayla Strapps, affirmed 20 June 2012, Annexures “E” at pp.42, 46-48 and 50; “L” at p.182; “S” at pp.304-306; “U” at pp.313, 314, 323, 324, 330, 333, 334, 335, 336 and 337; “Z” at pp.385-386; “DD” at pp.420, 421, 444 and 445 (“Ms Strapps’ Affidavit”).
[74] CB 185 at para.47.
Minister’s submissions
The Minister submits as follows:
a)Grounds 1(d) and 2 claim that the IMR Recommendation was unsupported by evidence and was illogical and unreasonable. The applicant’s submissions on this ground argue with the merits of the IMR’s reasoning. It is trite law that there is no error of law in the IMR making a wrong finding of fact,[75] and that the Court cannot review the merits of the IMR Recommendation.[76] Nor is unsound reasoning by the IMR an error of law;[77]
b)the applicant’s submissions appear to claim that there was no evidence at all for the IMR’s conclusion.[78] The conclusion, however, is an available inference from the applicant’s own account.[79] Whether the inference is right or wrong, there is no error of law established. This ground merely complains of factual error or seeks merits review in the guise of an error of law; and
c)the applicant’s submissions also appear to claim that the IMR’s reasoning is illogical or irrational. Again, the arguments in support are no more than a veiled attempt at merits review. The IMR having rejected the applicant’s claim that he was photographed by the Taliban or told he had to join them,[80] the applicant’s claims to have come to the specific attention of the Taliban rest on the Road Incident which the IMR reasoned would not have led the Taliban to infer that the applicant was assisting the government. As reasonable minds could differ about the IMR’s reasoning it cannot be said to be illogical or unreasonable.[81]
[75] Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J; The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 per Gummow and Hayne JJ; [1999] HCA 14 at para.137 per Gummow and Hayne JJ.
[76] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J; [1999] HCA 21 at para.56 per Gleeson CJ and McHugh J.
[77] Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303 at 307-308 per North and Lander JJ; [2010] FCAFC 51 at para.20 per North and Lander JJ, and cases there cited.
[78] CB 188 at para.65.
[79] CB 51 and 181 at para.20.
[80] CB 187 at paras.62-63.
[81] SZMDS CLR at 632 per Heydon J and 647-648 per Crennan and Bell JJ; HCA at para.78 per Heydon J and paras.130-131 per Crennan and Bell JJ; SZOOR FCR at 7 per Rares J and 23 per McKerracher J; FCAFC at para.15 per Rares J and para.85 per McKerracher J.
Conclusion on ground 2
In the High Court in SZMDS the plurality majority Justices accepted a submission that:
…not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.[82]
[82] SZMDS CLR at 643 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ.
Those plurality Justices went on to say that:
…illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.[83]
[83] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
Importantly, the above observations were caveated by the following observation of the same plurality Justices:
…a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[84]
[84] SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ.
The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of a tribunal may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.
In SZOOR it was observed that:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.[85]
and further that:
… Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….[86]
[85] SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J.
[86] SZOOR FCR at 23 per McKerracher J; FCAFC at para.85 per McKerracher J.
The parties are not in dispute about the finding that Hazaras who come to the adverse attention of the Taliban, including for a reason such as imputed political opinion in support of the government, suffer from an exacerbation of the chance and extent of harm by reason of their Hazara ethnicity and Shia religion, and the IMR so found.[87]
[87] CB 185 at para.47.
The IMR went on to find that the applicant did not face persecution, and was not without protection in Afghanistan, simply because he was an Hazara and a Shia.[88]
[88] CB 186 at para.51.
The IMR goes on to identify the fact that it is necessary for an applicant to supply the relevant facts of the individual case, and it is not for the IMR to make out the applicant’s case, or to accept uncritically any or all of the allegations made by a claimant.[89]
[89] CB 186 at para.54, citing, amongst others Guo at 596 per Kirby J.
Having regard to the Road Incident, and in the context of the above findings and principles, the question arises as to whether the applicant, as an Hazara Shia, came to the adverse attention of the Taliban, including by reason of an imputed political opinion in support of the Afghan government, as a consequence of the Road Incident.
The IMR indicates in the IMR Recommendation that:
I asked him why the Taliban would bother to track him down in Kabul when he had only done what the army told him to do at the point of a gun. He said that the Taliban is against people connected with or assisting the army.[90]
[90] CB 181 at para.27.
The matter was put to the applicant during the IMR Interview, as follows:
[IMR] So what you think is that because you think the Taliban have your photo, that they are – you think that because some army people stopped you with guns and made you drive away with them, that the Taliban are going to spend all that time and effort to track you down in Kabul?
[Applicant] Taliban people like they are against those people like you’re helping or cooperating with armies or doing any kind of help, that’s why they kind of think like I was connected with the army because I was helping them during that incident, so that’s why they are not sparing anyone who helped the Government or Army officials, because it’s totally against their belief.[91]
[91] Ms Pasha’s Affidavit, Annexure A, page 18.
There can be few more significant indicators of duress than being required to act at the “point of a gun”. That is precisely the sort of pressure which constitutes duress by an overbearing of the exercise of the free will of the person subjected to the duress.[92] It is significant that the applicant did not say that this would not have been obvious to the Taliban, and thereby perhaps negative duress, but rather said that the Taliban were against people connected with or assisting the army. There was no denial of the suggestion that what occurred by way of the applicant assisting the government or Army officers, occurred “at the point of a gun”.
[92] Barton v Armstrong [1976] AC 104.
In all of the above circumstances, there is no foundation for the suggestion that the IMR did not put this issue to the applicant. Not only was the issue put, but the applicant responded to it, in his terms, which did not involve any denial of the suggestion inherent in the question that he acted under duress.
As indicated above, it is then a reasonable inference for the IMR to draw from those facts that:
a)the Taliban were aware of what had occurred; and
b)the applicant acted under duress.
Those were findings open to the IMR, and on that basis not to be controverted on judicial review by this Court, even if there were competing findings available. This Court cannot substitute its findings of fact for those of the IMR. To do so is to engage in impermissible merits review.[93]
[93] Zentai v O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 585 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The IMR then goes on to find that the applicant would not be seen as a sympathiser of, or as providing assistance to, the government or its agencies. This has to be read in context, and the paragraph in which it appears is as follows:
65. The claimant said that the reason for the Taliban’s interest in him was because he had helped the government forces. I do not accept it is plausible that this would be the case because it would have been obvious that he did as instructed by the government personnel and that he did so under duress. This would have been plain to see as the Taliban were shooting at the car when it sped off. There is nothing in the evidence to suggest that the claimant was acting against the Taliban but rather that he had no choice than to follow the instructions of the government forces at the point of a gun. I do not accept that the claimant will be seen as a sympathiser of or providing assistance to the government or its agencies.[94]
The paragraph cited above has to be read in the context also of the IMR’s finding that there were no photos taken showing the applicant assisting the government. The applicant’s claim with respect to the photos was rejected on the basis of various inconsistencies in the applicant’s evidence as to when and how, and in what circumstances, the alleged photos were taken.[95] The IMR’s finding as to the lack of photos was a finding open on the evidence, and again, a matter of fact not controvertible on judicial review by this Court.
[94] CB 188 at para.65.
[95] CB 187 at para.62.
In the absence of photos, for the Taliban to be able to identify the applicant they would have had to have known who he was. It is suggested that it is illogical or irrational to conclude that the Taliban did not know who the applicant was because he was a person who regularly travelled the Ghazni-Jaghori road, and was regularly stopped and harassed by the Taliban in his taxi, which was a Toyota mini bus or mini van. There is no specific finding by the IMR that the Taliban did or did not specifically identify the applicant. The IMR finds that it “would have been obvious” that the applicant was acting under duress, and that this “would have been plain to see” as the Taliban shot at his taxi as it sped off from the scene of the gun fight on the Ghazni-Jaghori road.[96] But the IMR Recommendation does not go so far as to indicate that the Taliban actually identified the applicant, and, once the rejected evidence concerning the taking of photos is excluded, there is no evidence that the applicant was identified by the Taliban as the driver of the vehicle which sped away from the Road Incident. There is, therefore, no evidence that at or about the time of the Road Incident the Taliban identified the applicant. There is no evidence as to anything that would make the applicant’s Toyota mini bus taxi distinguishable from any other like vehicle. There is no evidence as to how close the Taliban were to the applicant and his taxi when he was instructed, at gun point (a matter about which there is no dispute), to return to Ghazni with the injured army officers on board. Given the circumstances, of early morning half-light, a vehicle on fire, and a gun fight on a mountain road, it is not inconceivable that a different person might reasonably arrive at the view that it would not have been possible for the Taliban to identify the applicant during the Road Incident.
[96] CB 188 at para.65.
The point of the above exposition is this: there is evidence which might allow a person objectively reviewing the evidence to conclude that the Taliban may not have been able to identify the applicant. In those circumstances, albeit on different, differently expressed, or more specific grounds, another IMR might have arrived at the same decision on the available evidence because of the possibility that the Taliban may not have been able to identify the applicant. In those circumstances, no illogicality or irrationality arises.[97] On the same basis, it would therefore not be a decision which could be viewed as being unreasonable in all the circumstances, or one in relation to which regard was had to irrelevant considerations.
[97] SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J.
Whilst there was evidence before the IMR that the Taliban attacked civilians associated with the government,[98] the lack of evidence that the applicant was identified by the Taliban in the course of the Road Incident and its aftermath, means that that evidence is of no assistance in the resolution of this matter, because a person could logically, rationally and reasonably have found, on the evidence, that the applicant was not identified by the Taliban, and therefore was not as a consequence of the Road Incident and its aftermath, a target of the Taliban.
[98] See Ms Strapps’ Affidavit as referred to at fn.73 above.
The applicant is not assisted by the fact that he was a person whose vehicle was regularly stopped by members of the Taliban on the Ghazni-Jaghori road. The country information indicates that this is a not infrequent occurrence for any frequent traveller on the Ghazni-Jaghori road, and does not arise from a targeting of Hazaras, but rather a targeting of civilians generally, and of government or army personnel, and international aid workers.[99] But again, the applicant’s case was that he was able to be identified by the photos taken, which the IMR found were not taken, and the issue does not therefore arise.
[99] See Ms Strapps’ Affidavit, Annexure S (DFAT Country Information Report 3 February 2009 at page 304-305), and Annexure AA (DFAT Country Information Report 29 September 2010 at page 391).
Finally, this is not a case in which there is no evidence to support the conclusion reached by the IMR. The conclusion reached by the IMR in relation to the issue of duress and non-acceptance of the applicant’s claim that he would be seen to be assisting the government is an inference which is open on the evidence led by the applicant himself, and in particular the circumstances of the Road Incident itself, as well as the evidence which indicates that the Taliban may not have been able to identify the applicant personally.
In all of the above circumstances, ground 2 and ground 1(d) are not made out as the decision in the IMR Recommendation is not one which is illogical, irrational or unreasonable, or which has regard for an irrelevant consideration, for the reasons set out above.
Ground 3
Ground 3 is as follows:
3. The second respondent failed to afford the applicant procedural fairness in the determination of whether Australia has protection obligations to the applicant in that:
(a) the second respondent made findings to the effect that it was not plausible that the Taliban would have an interest in the applicant because he had helped the Afghan government forces as it would have been obvious to the Taliban that the applicant did as instructed by the government personnel and the [sic] he did so under duress:
(i) without giving the applicant an opportunity or a fair opportunity to provide evidence or information or make submissions directed to that issue;
(ii) without giving any, or any adequate, reasons for reaching that conclusion;
(b) the second respondent failed to consider the substance of the applicant’s submission, namely that he had a well founded fear that the Taliban would persecute him by reason of his race or social group, religion and perceived political opinion because there was a real chance that the Taliban would regard him as in collaboration with the Afghan government due to his actions, ethnic origin and religion.
Applicant’s submissions
The applicant submits as follows:
a)procedural fairness requires that any decision must be based on material before the decision-maker and the decision-maker must act logically, rationally and reasonably in reaching his decision;
b)there was no material from which it could be inferred that it would have been obvious to the Taliban that the applicant did as instructed by government personnel and that he did so under duress. The IMR’s failure to make a finding based upon the material before him was a failure to afford the applicant procedural fairness;
c)alternatively, as noted above, the IMR’s finding that the applicant would not have been seen as a sympathiser of, or providing assistance to, the Afghan Government or its agencies was not a finding that any rational, logical and reasonable decision-maker could have made on the material before him. The failure to act rationally, logically or reasonably was also a failure to afford the applicant procedural fairness;
d)procedural fairness requires that the decision-maker put before the person seeking Australia’s protection the substance of all matters of which the decision-maker is aware that the decision-maker considers may bear upon whether to accept the person’s claims;[100]
e)on the critical finding that it would have been obvious that the applicant did as instructed by the Afghan government personnel and that he did so under duress, the IMR failed to make the applicant aware that this was an important issue. Accordingly, the applicant was denied the opportunity to make submissions and give further evidence concerning the ability of Taliban members involved in the Road Incident to have been in a position to make observations from which the inferences that the IMR attributed to the Taliban in the IMR Recommendation could have been drawn;
f)it follows that, the IMR failed to afford the applicant procedural fairness in that he failed to give the applicant a reasonable opportunity to be heard on the critical issue upon which the IMR’s finding against the applicant was based;
g)procedural fairness requires the decision-maker to address all of the claimed bases of fear of persecution advanced by the person seeking Australia’s protection;[101]
h)procedural fairness also requires that the decision-maker have regard to the applicant’s case as a whole and that consideration be given to the totality of the various claims. A failure to do so is also an error of law;[102]
i)as noted above, the substance of the applicant’s submission was that the Taliban would perceive him to hold a political opinion in favour of the Afghan Government or of antipathy towards the Taliban, because he rendered assistance to the Afghan Army and because he is a member of the Hazara ethnic group and the Shia religion;
j)as also noted above, the IMR failed to address the substance of the applicant’s submission or turn his mind to the question of whether the applicant’s fear of persecution was well-founded because of a combination of his actions, his ethnic or racial origin and his religion;
k)the IMR did not address the question of whether the Road Incident was of more significance because it was the applicant who had rendered assistance to the government (under duress or otherwise) and the applicant was an Hazara and a Shia Muslim; and
l)the IMR failed to afford the applicant procedural fairness because he failed to give consideration to the substance of the applicant’s case. That is, the IMR failed to give the applicant a fair hearing.
[100] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162, 163 and 164-165 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at paras.32, 36, 38 and 41-44 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
[101] Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[102] Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370 at 374-375 and 377 per Gray J; [2001] FCA 1579 at paras.16, 17, 18 and 22 per Gray J.
Minister’s submissions
The Minister submits as follows:
a)the third ground claims that the IMR denied the applicant procedural fairness. The first complaint appears to be that the IMR did not tell the applicant that he might not accept that the Taliban were specifically interested in him, or set out his ultimate reasoning to this effect for the applicant’s consideration during the interview or subsequently. It is well established, however, that the IMR was not obliged to give the applicant his preliminary reasons or a running commentary on what he thought of the applicant’s evidence to comply with procedural fairness.[103] The RSA had found that the applicant did not have a profile that would warrant him being targeted by the Taliban,[104] and nothing said by the IMR during the IMR Interview indicated that he in fact accepted that the applicant was of specific interest to the Taliban. There is no breach of procedural fairness; and
b)this ground also claims that the IMR did not address the applicant’s claims because he did not address the significance of the applicant being an Hazara and a Shia on his specific claims. This is a variant of ground 1, and fails for the same reasons. Plainly the IMR was aware that the applicant was an Hazara and a Shia when considering the applicant’s specific claims.
[103] Citing Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.31 per Gleeson CJ and Hayne J (“Miah”); Muin & Anor v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at 659-660 per Hayne J; [2002] HCA 30 at paras.265-266 per Hayne J (“Muin”); Re Minister of Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918 per Gummow and Heydon JJ ; [2003] HCA 60 at para.54 per Gummow and Heydon JJ; SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[104] CB 88.
Conclusion on ground 3
There is no doubt that the common law rules with respect to procedural fairness apply to the hearing and determination resulting in the IMR Recommendation.[105] In Plaintiff M61 the High Court said, in respect of the requirement to provide procedural fairness, there in relation to country information, that:
… procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.[106]
[105] Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[106] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
The use of the phrase “procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims” suggests that it is those matters which “bear upon whether to accept the plaintiff’s claims”, that is, which are likely to be adverse to a plaintiff’s claims, which need to be put. That suggests, that in the current case, the IMR only needed to put those matters which were adverse to the applicant’s claim to the applicant for comment.
The obligation to disclose and invite comment in relation to information relied upon to support an adverse refugee determination was referred to in Miah as follows:
99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.[107]
[107] Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J.
What was required of the IMR was to give the applicant a reasonable opportunity to present his case and to answer any material that the IMR had which ran contrary to his case, and for the IMR to then determine the applicant’s case in the particular circumstances of the case. That required that the applicant be afforded the opportunity to deal with adverse information which the IMR proposed to take into account. In cases such as Miah and Muin the Tribunal failed to afford an opportunity to deal with new information on fundamental matters adversely affecting the outcome sought by the applicant in each case.[108]
[108] Miah CLR at 80 and 86 per Gaudron J; HCA at paras.77 and para.99 per Gaudron J; Muin ALR at 634 per Brennan J; HCA at para.137 per Brennan J.
The basic rule as set out above with respect to procedural fairness applies. In light of the High Court’s judgment in Plaintiff M61 it is apparent that it is information which may bear upon an independent merits reviewer’s decision whether to accept the applicant’s claims which must be put to the applicant.
For reasons set out in relation to ground 1 above it cannot be said that the IMR did not address:
a)the applicant’s alleged well-founded fear of persecution on the basis of ethnicity, religion and imputed political opinion, the latter arising from his actions in the Road Incident; and
b)whether the Road Incident was of more significance because the applicant had rendered assistance to the government forces, and was both an Hazara and a Shia Muslim.
For reasons set out above in relation to ground 2 the allegations that there was:
a)a want of procedural fairness by reason of illogicality, irrationality or unreasonableness in the IMR Recommendation; and
b)no material from which it might be inferred that the applicant acted under duress at the behest of government officers,
cannot be sustained.
Otherwise, a proper reading of the IMR Interview shows that those matters which were the subject of decision in the IMR Recommendation were put to the applicant sufficiently by the IMR, and that the question of the applicant’s profile with the Taliban, and whether it resulted in him being targeted, was in issue having been commented upon by the RSA, and the applicant consequently must have known that it was in issue. Procedural fairness does not require that the applicant have put to him matters of which he was already on notice.[109] Further, the IMR specifically and quite extensively in the IMR Interview dealt with the circumstances in and around the Road Incident such that the applicant had every opportunity to put any matter in support of his version of events.
[109] Minister for Immigration & Citizenship v SZQHH & Anor (2012) 200 FCR 223 at 234 per Rares and Jagot JJ; [2012] FCAFC 45 para.30 per Rares and Jagot JJ; followed in SZQFY v Minister for Immigration & Citizenship [2012] FCA 486 at para.60 per Siopis J, and see also para.61 per Siopis J.
Finally, it must also be remembered that the case was that the applicant had been photographed by the Taliban, and that that was the Taliban’s means of identifying him. Once the IMR found that there were no photos, there was no factual foundation for the applicant’s actual claim.
In all of the above circumstances, it cannot be said that there was any practical injustice which affected the applicant’s case,[110] and the Court is of the view that the applicant was afforded procedural fairness by the IMR. Ground 3 is not made out.
[110] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ.
Conclusions and orders
The Court has concluded that none of the grounds of the application have been made out. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 23 April 2013
0
44
0