WZARB v Minister for Immigration - [2013] FMCA 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZARB v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 93

MIGRATION – Review of conduct leading to recommendation of Independent Merits Reviewer – whether recommendation made according to law – whether the Reviewer failed to accord the Applicant procedural fairness – application dismissed.

Constitution, s.75
Migration Act 1958 (Cth), ss. 5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7

SZQXX v Minister for Immigration & Anor [2012] FMCA 415
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant:

WZARB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT PROTECTION ASSESSMENT REVIEWER PETER TYLER

File Number:

PEG 110 of 2012

Judgment of:

Emmett FM

Hearing date:

12 February 2013

Date of Last Submission:

12 February 2013

Delivered at:

Sydney

Delivered on:

15 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr G Antipas

Solicitors for the Applicant:

Phillip Yip & Associates

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The proceeding before this Court, commenced by way of application filed on 18 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,471.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PEG 110 of 2012

WZARB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT PROTECTION ASSESSMENT REVIEWER PETER TYLER

Second Respondent

REASONS FOR JUDGMENT

The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by Peter Tyler in his capacity as Independent Protection Assessment Reviewer (“the Reviewer”), dated 7 October 2011 and handed down on 10 October 2011, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Afghanistan and of Muslim Sunni faith and Pashton ethnicity (“the Applicant”).
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

Background

On 13 May 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 7 June 2010, an entry interview was conducted with the Applicant by an officer of the Department of Immigration and Citizenship.
On 15 October 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 17 November 2010, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 20 December 2010, the applicant applied for Independent Merits Review of the RSA.
On 7 October 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 18 May 2012, the applicant filed an application in this Court seeking judicial review of the Reviewer’s recommendation.

Legislative framework

The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The Applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1)     An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7)     The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3]     Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the Applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4]     M61 (2010) 243 CLR 319 at [70].
[5]     M61 (2010) 243 CLR 319 at [66].
[6]     M61 (2010) 243 CLR 319 at [67].
[7]     M61 (2010) 243 CLR 319 at [73].
[8]     M61 (2010) 243 CLR 319 at [76].
[9]     M61 (2010) 243 CLR 319 at [89].
[10]    M61 (2010) 243 CLR 319 at [78].
[11]    M61 (2010) 243 CLR 319 at [73].
[12]    M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14]    M61 (2010) 243 CLR 319 at [99]-[100]
[15]    Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16]    M61 (2010) 243 CLR 319 at 360-361 [101]-[104].

The applicant’s request for Refugee Status Assessment

On 15 October 2010, the applicant made a request for a Refugee Status Assessment.
At his entry interview on 7 June 2010, the applicant made the following claims:
a)He was asked, under threat of death, to leave his job with the government and join the Taliban.
b)He was scared because he knew of three or four other men who had been executed and “hung in the trees”.
c)A few days later, some Taliban men waved to him as he was walking to work and he was scared and ran home.
d)The Mullah later came to his house and told the Applicant’s mother that he could not keep hiding and that they would get him wherever he went in Afghanistan.
e)If returned to Afghanistan, he will be made to fight for the Taliban or be killed.
The applicant provided a statement in support of his request for a Refugee Status Assessment in which he stated:
a)He left Afghanistan because the Taliban had threatened his brother and had begun “asking for my whereabouts”.
b)His brother told him that the Taliban had demanded that he and his brother join them or suffer fatal consequences.
c)He had also been warned by his local Mullah to stop working for Amnesty International or be killed.
d)However, he had not taken the Mullah’s threat seriously and had continued working for Amnesty International.
e)He began hearing stories of people being tortured and killed by the Taliban because they were working for non-governmental organisations.
f)These killings became frequent and he began fearing for his life, especially after the Taliban had begun asking about him.
g)If returned to Afghanistan, he fears that he will be forced to join the Taliban or be killed.
h)The Afghanistan government will not protect him because the Taliban are extremely powerful and many members of the government support the Taliban.
On 17 November 2010, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.

Independent Merits Review and conduct leading to recommendation

On 24 December 2010, the applicant lodged an application for review of the RSA finding by the Reviewer.
The applicant provided further documents in support of his review application.
On 13 April 2011 the applicant was interviewed by the Reviewer.
The Reviewer noted that it had before it the Department’s file and other materials available to it from a range of sources.
In his Statement of Reasons, the Reviewer found that the applicant’s evidence was “inconsistent and lacked plausibility”.
The Reviewer found that the applicant was not a credible witness and that his claims in relation to harm from the Taliban for reasons of his employment “were contrived for the purpose of his refugee status assessment”.
The Reviewer noted that whilst the applicant was in the position to know the name of the organisation for which he worked, the applicant was recorded as “using a number of names to describe his employer in Kandahar”.
The Reviewer further did “not accept as plausible” the applicant’s statement that 7 people worked at the organisation for which he worked and that “6 or 7 people worked in the kitchen”. The Reviewer found that “at best the claimant told a confusing story about the subject”.
The Reviewer noted that there was a significant discrepancy between the versions of events given by the applicant in relation to alleged threats towards the applicant and his mother. The Reviewer found the “versions of events to be so different that they appear to have been fabricated”. Further the Reviewer did “not accept that any such threats were made to the claimant”.
The Reviewer found that the applicant “has not suffered serious harm in the past and that there is not a real chance that he will suffer serious harm in the future”.
Accordingly, the Reviewer found that the applicant was not a person to whom Australia owes protection obligations under the Refugees Convention and made the recommendation to the Minister to that effect.

The proceeding before this Court

The applicant was represented before this Court by Mr Gregory Antipas, of counsel.
At the commencement of the hearing, counsel for the applicant confirmed sought leave to file in Court and rely upon an amended application. Leave was not opposed by the first respondent and was duly given. The grounds of the amended application are as follows:
“1. The hearing conducted by the Independent Merits Reviewer involved a denial of procedural fairness to the Applicant:
(a) in that it was affected by error of interpretation which were significant and involved a standard of interpretation which was inadequate.
(b) The second respondent made representations to the applicant that he would adopt a procedure whereby he would take into account or consider the documents held at the detention centre including the work identification card and contrary to those representations, he did not take into account or consider the documents which were relevant considerations.
(c) Further and in that alternative to (b), the second respondent represented that if he had any concerns about the documents held at the detention centre he would give the applicant a further opportunity to be heard on those issues and contrary to those representations, he gave the applicant no opportunity to be heard on any issues which led him to disregard the documents.
2. Further the Second Respondent erred by failing to consider an integer of the applicant’s claim, namely his fear of persecution by the Taliban due to his work for an NGO identified as working for the Government.”
Counsel for the applicant read the affidavit of Freid Popal, affirmed 17 August 2012, purporting to annex a copy of a transcript of the applicant’s interview with the Reviewer. The transcript contained various boldings and underlinings, none of which were explained by the deponent. Counsel for the first respondent, Mr Martin Smith, objected to the affidavit, however, the affidavit was read without further objection.
During the course of the hearing, counsel for the applicant withdrew reliance on ground 1(a) and ground 2.

Grounds 1(b) and (c)

Counsel for the applicant made submissions in support of grounds 1(b) and (c) together. At the heart of the complaint in grounds 1(b) and (c) is the following statement by the Reviewer made at the conclusion of the interview with the applicant:
“If I have any query about documents and so I think what we will do is have another talk about it, we will continue hearing or we another hearing just to talk about those particular issues because your adviser and I am here and all this week and we’ll get you back if we need to talk to you about it.”
Counsel for the applicant submitted that the authenticity of the applicant’s identification card was core to the applicant’s claims and was a matter that should have been considered and determined by the Reviewer. Counsel for the applicant submitted that the Reviewer’s statement above amounted to a representation to the applicant that the applicant would have a further opportunity to address the authenticity of his identification card if it remained an issue for the Reviewer. Counsel for the applicant submitted that by failing to give the applicant that further opportunity, the Reviewer committed jurisdictional error. He said that the Reviewer had access to the identity card and should have made a finding that the applicant was employed by the International Legal Foundation, being the name identified on the identification card. Counsel for the applicant also submitted that the Reviewer should have investigated who was the International Legal Foundation and raised any concerns about the identification card with the applicant. Counsel for the applicant submitted that the identification card proved that the applicant work for the International Legal Foundation and that he had told the Reviewer that the name of his employer was on his identification card.
The difficulty for the applicant in these submissions is that at no stage did the applicant claim to have been employed by the International Legal Foundation. True it is that he suggested during his interview with the Reviewer that his identification card had the name of the organisation for which he worked.
However, in context, that identification of his employer by the applicant was one of many answers given by the applicant in response to questions about the identity of his employer, both by the RSA officer and the Reviewer.
On 7 June 2010, the applicant had an entry interview that commenced at 8:55am and finished at 13:55pm. The substance of that interview is recorded a document forming part of the Court Book, marked Exhibit 1A. In his employment history, the applicant is recorded as having been employed as a cook between 2003 to 2009 by the Afghan Government Human Rights Department. The applicant is also recorded as having said that he did not work anywhere else.
The record of the applicant’s entry interview contained the following exchanges:
“Q: Why did you leave your country of nationality (Country of residence)?
A: because of the Taliban I fled the country because I was working for the government. I worked discreetly for some time.
Q: So why did you leave?
A: I worked discreetly for some time then Mullah Shah Mohammad from Kandahar, and one of the Taliban, spoke to the Mullah of the mosque and asked him to give me a message to leave my job with the government and come and join us and fight for us. If you don’t comply we won’t let you live. I was very scared because three or four other men had been taken and executed and hung in the trees. I continued my job and kept a low profile...”
Later in the interview, the applicant is again recorded as saying that because he worked for the government, he either had to join the Taliban and fight for them or be killed.
In a statutory declaration declared by the applicant on 15 October 2010, the applicant stated as follows:
“Also, because I worked for Amnesty Afghanistan I was warned by our local Mullah to stop working for them and cease my association with this NGO immediately or be killed…
I believe that they will kill me because I worked for an NGO and ignored the warning of the local Mullah…
I will not stand a chance even though I am Pashtun because I worked for a NGO and because I will refuse to join them...
I understand that a person who intentionally makes a false statutory declaration is guilty off an offence under s.11 of the Statutory Declarations Act 1959 and I believe that the statements in this declaration are true in every particular.”
The statutory declaration accompanied the applicant’s Personal Particulars for Character Assessment, dated 15 October 2010, and his appointment of a Migration Agent. These documents were lodged in support of the applicant’s request for Refugee Status Assessment.
In refusing the applicant a protection visa, the RSA officer, inter alia, stated as follows:
“He was asked who issued the ID card at folio 33. He said while he was working for the Amnesty office. The cards are issued every year and are valid for one year. He was asked when the card was issued and it was put to him that the card had the appearance of being brand new. He said that the expiry date should be mentioned on the card. It was put to him that he was asked when it was issued. He said that probably the expiry date could be the beginning of 2010, January or February. He was asked who issued the card. He said the office where he was working issued the card. He was asked again who he was working for. He said that the Manager of the office issued him the card. He was asked again who he was employed by. He asked what I meant. I said that I am asking who issued the card. He was again asked what was the name of the organisation who employed him. He said Afghan Amnesty office in Kandahar. He was asked whether he meant Amnesty International. He said his job was cooking and that it was just Amnesty office. He was asked to confirm whether he was saying that he was employed as a cook by the Amnesty International office in Kandahar. He said that his job was different to the office. He was again asked who employed him, and it was put to him that if he had been employed continuously for a period of time, then surely he would know the name of his employer. He responded by saying Mohammed something. He said that the person who was paying him was named Mohammed and he has a boss, a lady, who the claimant had not seen. He was asked why he could answer the question he was being asked. He said that someone else introduced him to this person, so his job was to cook and at 3pm he finished. He worked there for 15 to 18 months. It was his first job as a cook. It was put to him that at his entry interview he said he worked for the Afghan government human rights department from 2003 to 2009 [4.1, 23]. He said that he told them at entry interview that he worked for 18 months and that his first card had expired and he got another card. It was put to him that his RSA statement says he worked for Amnesty International [4.1, 85]. He was asked why there was so much difficulty in ascertaining with him who employed him and how long he worked there. He then said that the office where he worked was the Human Rights Afghanistan, located in district 2 close to Shanriz hotel. It was put to him that we had three different versions of who he worked for, and we have a card issued by the International Legal Foundation [ILF]. He said again that it was the Human Rights Office and that this was the second card he had been issued. It was put to him that on the basis of his evidence it may be concluded that he has never worked for a human rights organisation.”
In support of his request for Independent Merits Review, the applicant’s Migration Agent provided a submission that, inter alia, stated as follows:
“The applicant states that he worked for a Non-Government Organisation in Amnesty International and claims that he was asked by the Mullah to quit his government job and join the Taliban…
The applicant confirms that he worked for 1.5 years in the HR office of Amnesty International in Kandahar…
The applicant instructs that he worked for Amnesty International and was warned by the local Mullah to cease his association with Amnesty or be killed. The applicant claims he ignored the warning and continued to work for Amnesty until he heard news that people who were working for Non-Government Organisations were actually killed by the Taliban.
We submit given our clients involvement with a Non-Government Organisation in Amnesty International that the penalty he will suffer at the hands of the Taliban is quite ruthless and severe…”
Nowhere in the Migration Agent’s submission is there any attempt to address with the Reviewer the RSA officer’s conclusion that the applicant’s identification card, stating the name of his employer, was provided to the applicant for the sole purpose of bolstering his case and that the card had never been previously in his possession.
At his interview with the Reviewer, the applicant was unable to provide information about the organisation which he claimed employed him. He said the organisation belonged to foreigners and not the Afghan government, although he did not see any foreigners working there even when he delivered tea to the workers. He told the Reviewer that seven people plus himself worked at the organisation and that he cooked meals for seven people. The Reviewer asked him how many people worked at the organisation if he knew nothing about the organisation. The Reviewer noted the applicant’s response that he did not know how many people worked at the organisation but he cooked for seven people.
The applicant then provided a description of the building where he worked and the Reviewer expressed to the applicant the difficulty he had with his description of a building with three rooms, one of which was used by some of the seven staff as accommodation and the other two rooms used for the workers.
The Reviewer noted that it asked the applicant if he was sure of the name of the organisation and noted the applicant’s response that it was “Human Rights” and that its name was on his identification card. In light of the RSA officer’s findings about the applicant’s identification card and that it had been produced to bolster his claims and had not previously been in his possession, the applicant’s assertion that the name of the organisation on the identification card was Human Rights is not correct. Any inspection of the identification card would have only reinforced that error.
The Reviewer explored with the applicant its concern about his evidence that he cooked only for seven people and why an organisation of that size would need a cook.
The Reviewer noted it asked the applicant why he left Afghanistan and noted the applicant’s response that he was told not to work at the Non Government Organisation (“NGO”). He said that he did not know how it was known that he was working at the NGO and that people wanted to recruit him. He said that his mother received a threat that if he continued to work at the NGO he would be killed.
The Reviewer asked the applicant why he did not seek the assistance of his employer given the nature of their work, and noted the applicant’s response that the government could not help or protect him. The Reviewer noted that it repeated the question and noted the applicant’s response that he had never seen the organisation assist someone in his situation who had been threatened by the Taliban. The Reviewer noted that he again said that it did not make sense to him that the applicant did not tell the organisation or seek help from it. The Reviewer noted the applicant’s response that the organisation could have helped in respect of claims against the government but not the Taliban and that the organisation worked for and helped poor people.
The Reviewer then put to the applicant concerns it had about his evidence and credibility. The first concern related to the applicant’s reference at his entry interview to his employer as Amnesty International and on other occasions that he worked for the Afghan Government Human Rights Department, being a different organisation. The Reviewer noted the applicant’s response that he had always claimed he was working for Human Rights and never used the other name and that it could have been a problem with interpreting. However, the applicant’s statutory declaration stated that he worked for Amnesty Afghanistan.
The Reviewer also put to the applicant concerns it had about the duration of the applicant’s employment, noting that he had told the Reviewer that he worked for the organisation for about 20 months, but at his entry interview said that he worked for the organisation from 2003 to 2009. The applicant denied having said he worked between 2003 and 2009.
The Reviewer also put to the applicant concerns it had about the threats he said he received from the Taliban and the discrepancy in his statutory declaration stating that his brother told him of the threat. The Reviewer put to the applicant that he had not given that information to the Reviewer. Ultimately, the Reviewer found those claims to have been fabricated and did not accept that any such threats were made to the applicant.
The Reviewer also put to the applicant concerns it had about the various names used by the applicant for his boss, which the applicant again put down to an interpreting mistake.
The Reviewer noted that the applicant said that if he carried his employment card and the Taliban caught him he would be killed. The Reviewer noted that he said that he wanted to see the documents held at the detention centre and that he accepted that government workers were targeted by the Taliban.
Ultimately, as stated above, the Reviewer found the applicant to lack credibility and found his evidence to be inconsistent and to lack plausibility. In support of its adverse credibility findings, the Reviewer referred to the number of names used by the applicant to describe his employer, including his claims to have worked for the Afghan government, an NGO and Human Rights.
In particular, the Reviewer noted that at his entry interview, the applicant’s only employment is recorded as being with the Afghan government. However, the applicant told the Reviewer that his only employment was with an NGO and that prior to that he had been unemployed. The Reviewer noted that it questioned the applicant later in the interview why he had not mentioned that he had worked with his brother in a clothing store prior to the NGO position, as he had told the RSA officer.
The Reviewer also referred to the applicant’s inconsistent evidence of the duration of his employment and his lack of knowledge of the office in which he claimed to work.
The Reviewer found that the applicant was in a position to know the name of the organisation for which he worked. The Reviewer noted that, despite the fact he initially claimed to be illiterate, the applicant’s Migration Agent clearly stated that he could read to some extent. The Reviewer noted that when he asked the applicant how he was able to tell the Reviewer the name of his employer he said it was written on his employment card.
The Reviewer noted that it considered that the changes in the applicant’s evidence concerning the names of his employer were caused by interpreting problems. In relation to that issue the Reviewer made the following finding:
“I note that he has had a number of interpreters assisting in his interviews and in the preparation of his statutory declaration and I do not consider it likely that they would have all made mistakes in respect of the name.
Additionally, although he used a variety of names to describe his employer he was able to state the type of work undertaken by the organisation.
I do not accept it as plausible that there 7 people working in the organisation and that 6 or 7 people worked in the kitchen. During the interview I went to some lengths to clarify the situation and at best the claimant told a confusing story about the subject. His responses ranged from 6 or 7 people worked in the kitchen; 7 people plus himself worked at the organisation; he cooked meals for 7 people and he had no idea how many people worked there.
…
Throughout the assessment process, the claimant has stated that he fled Afghanistan because of the threats issued directly to him and his mother by a mullah. However, in his statutory declaration he claims that he was told of the threats by his brother. When I asked him to explain the significant discrepancy he said he was unable to do so. I regard these versions of events to be so different that they appear to have been fabricated and I am not satisfied that either of them is true. Accordingly, I do not accept that any such threats were made to the claimant.”
Ground 1(c) is a complaint that the Reviewer represented that if he had any concerns about the documents held at the detention centre he would give the applicant a further opportunity to be heard on those issues. That is not an accurate reflection of the words used by the Reviewer as identified in the transcript and quoted at paragraph 33 above. Further, in its decision record the Reviewer did no more than note that it wished to see the documents held at the detention centre.
A fair reading of the Reviewer’s decision record makes clear that the Reviewer understood that the applicant was claiming at one point that the name of his employer was on his identification card. However, given the inconsistent evidence of the applicant, both in written documents and in interviews as to the name of his employer, it was open to the Reviewer to conclude that it was not satisfied that the applicant worked for a government organisation or NGO with names similar to Amnesty International or Human Rights Afghanistan.
The fact that the Reviewer said that he wished to see the documents held at the detention centre, which included the applicant’s identification card, did not impose any obligation on the Reviewer to look at them. This is particularly so where the applicant did not suggest to the Reviewer that the identification card had the name of yet another employer, being the International Legal Foundation. At no stage at either interview has the applicant ever asserted that he was ever employed by the International Legal Foundation. In those circumstances, there was nothing about the applicant’s claims that would have compelled the Reviewer to look at the applicant’s identification card when it was not a document before him and in respect of which the applicant’s evidence was clear that the name of the employer on the identification card was “Human Rights”. As stated above, that claim is not consistent with the RSA officer’s finding that the name of the employer on the identification card is International Legal Foundation.

Further, I accept the submission of counsel for the first respondent that the Reviewer did not suggest that the review was incomplete and that the applicant would benefit in having a further opportunity to answer questions about his employment opportunity (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1). The Reviewer did no more than indicate to the applicant that he wanted to look at the applicant’s identity card and that if he had any query or needed to talk to the applicant about it, he would do so.
I accept counsel for the first respondent’s submission that even if the Reviewer’s comments could be construed as a representation that a further hearing may take place following inspection of the identification card, it is necessary for the applicant to demonstrate some unfairness and not merely departure from the representation (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [34] and [37] per Gleeson CJ).
It is difficult to see what procedural unfairness could possibly have flowed to the applicant by any failure of the Reviewer to look at his identification card, given that it appears to identify an organisation never adopted by the applicant as his employer. I accept the written submission of counsel for the first respondent that the applicant had maintained that the name of the organisation for which he worked was set out on the identity card, yet he provided several different names for the organisation with whom he claimed to be employed.
In the circumstances, there was no lost opportunity on the part of the applicant to make submissions about the identity card and whether the Reviewer should accept it as proof of the fact that the applicant had worked for that organisation.
Accordingly, there was no unfairness suffered by the applicant as a result of the Reviewer’s conduct in indicating that it wished to look at the identity card and would get back to the applicant if he needed to talk about it.
Despite counsel for the applicant’s submissions to the contrary, the complaints about the Reviewer’s rejection of the applicant’s claim to have been employed by a government organisation or NGO, suggest a disagreement with the Reviewer’s findings to that effect. Such a disagreement invites merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
In the circumstances, the Reviewer’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. The Reviewer’s decision is not affected by jurisdictional error and the grounds of the amended application are not made out.

The proceeding should be dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 15 February 2013