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DZAAZ v Minister for Immigration & Anor [2012] FMCA 39 (25 January 2012)

Last Updated: 27 January 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAZ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Independent merits review of refugee claim of offshore entry person – applicant Hazara Shia Afghani – citation of country information by reviewer not referred specifically to applicant – whether this amounts to denial of procedural fairness – whether reviewer failed to consider availability of state protection for applicant in Afghanistan – whether this claim amounted to persecution for Refugee Convention reason – was such a claim clearly articulated – whether reviewer acted unjudicially in asserting aspect of the applicant’s case was unsupported by evidence – whether such assertion was illogical or unreasonable – no error of law established – application dismissed.


Plaintiff M61/201E v Commonwealth [2010] HCA 41; (2010) 272 ALR 14
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
SZQHC v Minister for Immigration (2011) FMCA 851
Re Minister for Immigration & Multicultural Affairs Ex Parte Miah (2001) 206 CLR 57
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
SZQEK v Minister for Immigration & Citizenship [2011] FMCA 628
SZQNF v Minister for Immigration & Citizenship [2011[ FMCA 965
Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte applicants S134/202 [2003] HCA 1; (2003) 211 CLR 441
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs v Respondents S152/203 [2004] HCA 18; (2004) 222 CLR 1
Razai v Minister for Immigration & Citizenship [2011] FMCA 777
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 1918
Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Applicant:
DZAAZ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:
DNG 33 of 2011

Judgment of:
Brown FM

Hearing date:
14 December 2011

Date of Last Submission:
14 December 2011

Delivered at:
Adelaide

Delivered on:
25 January 2012

REPRESENTATION

Counsel for the Applicant:
Ms Karapanagiotidis

Solicitors for the Applicant:
Northern Territory Legal Aid

Counsel for the First Respondent:
Mr Anderson

Solicitors for the First Respondent:
Australian Government Solicitor

ORDERS

(1) The application filed 25 July 2011 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $5,850.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 33 of 2011

DZAAZ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. This is an application for the judicial review of a report and recommendation made by the second respondent, Mara Moustafine “the reviewer” regarding the applicant’s claim for protection in Australia, pursuant to the provisions of the Refugees Convention.[1]
  2. The applicant arrived by boat, at Christmas Island, on 26 February 2010. He did not have valid travel documents. As Christmas Island is excised from the Australian migration zone, he is to be regarded as an “offshore entry person” as defined by section 5 of the Migration Act (1958) (Cth) (hereinafter referred to as “the Act”).
  3. The applicant’s mode of arrival in Australia and his designation under the Act means that, for the purposes of section 46A of the Act, he is barred from making a valid application for a visa to remain in Australia.
  4. However, the first respondent (“the Minister”) has power to lift the bar under section 46A as, pursuant to the section, he has a discretion to grant an off-shore entry person a protection visa if he “thinks it is in the public interest to do so ...”.
  5. As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department, which was intended to provide specific advice to the Minister as to whether Australia’s protection obligations, under the Refugees Convention, were engaged in the case of each person who arrived in Australian territory at an excised offshore place (such as Christmas Island) and claimed to be a refugee.
  6. This protocol envisaged two distinct and independent steps. Firstly, each such arrival would be subject to a Refugee Status Assessment (“the RSA”) by officers of the Department. Secondly, there would be an Independent Merits Review (the “IMR”) of each such Refugee Status Assessment. The intention being that there would be an independent and arm’s length review of any decision made by Departmental officers, which was contrary to the applicant concerned.
  7. The purpose of the IMR was to make a recommendation, to the Minister, about whether Australia, which is a signatory to the Refugees Convention, had protection obligations to any persons claiming to be a refugee. If the reviewer concerned did conclude that Australia did owe a protection obligation to any such claimant, advice would be provided to the Minister in relevant terms so that the discretion arising under section 46A(2) could be properly exercised.
  8. As explained in Plaintiff M61/2010E v Commonwealth,[2] the procedures adopted by the Minister and his department in relation to off-shore entry persons arose as a consequence of the Minister having to consider whether to exercise his power under this provision. The court further held that the assessment and review to be undertaken, as part of these procedures, must be both procedurally fair and must address the relevant legal question or questions arising from the application for asylum. Otherwise the recommendation arising was liable to be set aside as a consequence of jurisdictional error.
  9. The RSA in respect of the applicant was concluded on 6 August 2010. It concluded that the applicant did not meet the definition of a refugee set out in the Refugees Convention. As a consequence of this decision, the applicant sought an IMR. The reviewer completed this IMR on 10 June 2011. The reviewer recommended to the Minister that he not recognise the applicant as a person to whom Australia owed protective obligations under the Refugees Convention.
  10. The applicant seeks a judicial review of this decision. Pursuant to section 476 of the Act, the Federal Magistrates Court has been conferred with the original jurisdiction of the High Court arising from paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which a write of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
  11. In his application filed on 25 July 2011, the applicant seeks an injunction restraining the Minister from relying upon the recommendation of the reviewer. He also seeks a declaration that the reviewer’s recommendation was not made in accordance with law.
  12. These proceedings are directed to this judicial review of the reviewer’s decision and recommendation. As such, it is the function of the court to consider whether the reviewer’s report reveals any error of law, including any denial of procedural fairness to the applicant, in its reasoning or in the procedures followed before its making. This function does not comprise any consideration of the merits of the applicant’s claim to be entitled to protection in Australia pursuant to the Refugees Convention.

Background

  1. On his arrival in Australia the applicant indicated that he was born in Ghazni Province, in Afghanistan in 1976. He identified as a Shia Muslim by religion and an Hazara by ethnicity. He claimed to be a refugee because the Taliban would kill him as he was Hazara and Shia.
  2. The applicant’s claim for refugee status depends on him satisfying the definition of “refugee”, provided by Article 1A(2) of the Refugees Convention which provides that a “refugee” is a person who:
  3. Accordingly, the applicant claims Australia’s protection on the basis of his ethnicity and religion. In particular, in a statutory declaration completed by him on 8 May 2010, the applicant indicated that he was liable to be harmed by the Taliban because:
  4. In his statutory declaration, the applicant outlined his involvement with a particular Pashtun person, Mr Zarif, who it was claimed was associated with the Taliban. The applicant stated that he had been employed as a shop keeper. He had a grocery store in the Anghori markets. Mr Zarif was a customer, who owed him moneys for goods provided to him.
  5. The applicant attempted to recovery the moneys owed to him by Mr Zarif, who became very aggressive and abusive towards him. Subsquently Mr Zarif left the applicant’s locale because of instability there. However the issue of the money remained unresolved between the two men.
  6. Whilst on a buying trip to Ghazni city, the applicant met up with Mr Zarif and again requested payment of the moneys due to him. There was an argument between the two men but with the assistance of a local policeman the applicant successfully obtained the outstanding moneys.
  7. A few days later, Mr Zarif threatened to kill the applicant over the telephone. Whilst returning to his village from Ghazni, the applicant claims that Mr Zarif and another Taliban tried to stop his car and shot at it. However, the applicant was able to escape.
  8. A few days later, the applicant claimed that he received an envelope containing a letter purportedly written by the Taliban, whom he associated with Mr Zarif, asking to meet him at a designated time and place. The applicant interpreted this so-called “night letter” as a threat to do him harm or forcibly enlist him in the Taliban.
  9. Against this background, the applicant was fearful for his life and believed that it would be unsafe for him to travel to Ghazni to obtain stores for his shop or otherwise remain in business. Accordingly, he travelled to Kabul, where he made arrangements to depart Afghanistan and travel to Indonesia via Malaysia.
  10. Thereafter, a people smuggler arranged for him to travel from Indonesia to Christmas Island on a boat. Whilst at sea, he threw his passport and other documents overboard.
  11. The applicant claims that the Hazara community in Anghori and the surrounding locale is under constant threat from the Taliban, Pushtan and other insurgents there. He claimed that there are constant and daily killings of Hazara. The applicant also claimed that government authorities in his area are unable to protect him.
  12. In his statutory declaration, he claimed as follows, in regards to the assertion that the Afghan government is allegedly unable to protect him:
  13. On 13 May 2010, the applicant’s solicitors and migration agents, Vrachnas Lawyers, wrote to the Department of Immigration & Citizenship, in generic terms, regarding the situation of Hazaras, who had arrived at Christmas Island in circumstances similar to those of the applicant – that is as off-shore entry persons, claiming asylum on the basis of the persecutory situation for them in Afghanistan.[5]
  14. The purpose of the letter was to make the submission that country information prepared by the Department of Foreign Affairs & Trade “DFAT” regarding the situation of Hazaras in Afghanistan, as at February 2010, was no longer current, particularly in respect of any conclusion open to the Department and its officers that Hazaras were no longer at risk of persecution in Afghanistan.
  15. To the contrary, it was contended that there was increasing instability and violence in Afghanistan, particularly in the southern and central regions where Hazaras were concentrated, notwithstanding NATO attempts to counter the resurgent Taliban. It was also contended that the Taliban had a strong presence in virtually all areas where Hazaras were concentrated and the Taliban itself had a recent history of violent oppression of Hazaras.
  16. As previously indicated, the RSA was concluded on 6 August 2010. The assessor did not accept the applicant’s claims that he had experienced problems with Mr Zarif or had been detained during the Taliban invasion, as he had stated in interview with the assessor concerned. As such, the reviewer did not accept the applicant’s claims for refugee status.

The IMR

  1. Prior to the IMR, Vrachnas Lawyers made a written submission on behalf of the applicant. It was submitted that the RSA had under estimated the power which the Taliban currently wields throughout Afghanistan and accordingly the risk the Taliban represented for persons of Hazara ethnicity, such as the current applicant. In support of this application, the applicant’s solicitors provided information about Afghanistan from a variety of independent sources.
  2. In particular, reference was made to an article by Thomas Ruttig published on 18 June 2010, which made reference to Taliban Night Letters, which had declared roads between Ghazni city and Jaghori to be closed by order of the Taliban.[6] It was pointed out that the applicant comes from this area.
  3. As part of the IMR, the reviewer interviewed the applicant, in Darwin, on 14 March 2011. The applicant’s migration agent was present at this interview. It is the applicant’s contention that this interview could have been used to apprise the applicant of contemporary country information, regarding Afghanistan, available to the reviewer and elicit his response to it.
  4. It is common ground between the applicant and those representing the Minister that during this interview, the reviewer did not expressly refer to country information available to her, concerning Afghanistan, arising from the United Nations High Commission on Refugees (the UNHCR), particularly the Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Afghanistan (the UNHCR Eligibility Guidelines) published in December 2010. This is significant so far as the applicant’s first ground of appeal is concerned.
  5. In the decision, the reviewer quoted the following passage from the UNHCR Eligibility Guidelines:
  6. Although the reviewer did not specifically put this passage to the applicant, she did however put country information, regarding Afghanistan, to the applicant, in a generic sense. She said as follows:
  7. In her recommendation, the reviewer also had regard to a report emanating from the Department of Foreign Affairs and Trade (DFAT) in February 2010 entitled Afghanistan: Situation of the Hazara Minority (the Hazara Report). This report contained information pertaining to the security situation for Hazaras throughout Afghanistan.
  8. The Hazara Report provided generally positive information regarding the security situation in noting that there had been a decrease in hostility to Hazara by Sunnis. It did however report that “social discrimination against Shi’a Hazaras continued.”[9] It was further noted that the Hazara community in the Jaghori district had a “better security environment” and so more opportunities than Hazara in Pashtun-dominated areas of the country. The Hazara Report also alluded specifically to the UNHCR Eligibility Guidelines noting that they were to be up-dated in 2010.
  9. Again the Hazara Report was not specifically put to the applicant in interview with the reviewer. Nor was a copy sent to the applicant’s advisors at a latter stage prior to the completion of the IMR for possible comment. As appears later, the reviewer took the view that the security situation was improving in Afghanistan for Hazaras, particularly in the Jaghori District. This is not the applicant’s position. Accordingly this information was adverse to the applicant’s position.
  10. At interview, the reviewer also questioned the applicant regarding his claim of having received a night letter from the Taliban summonsing him to a meeting to which he was to bring his gun. The relevant portion of the interview reads as follows:
  11. Further on in the interview, the applicant said he knew the night letter was from the Taliban because it was stamped in “Emirate Islami Afghanistan”. He understood it to be a summons to join the Taliban compulsorily or suffer some form of harm. He did not respond to the letter, which he tore up.
  12. In her findings, the reviewer accepted that the applicant was a Hazara and a Shia Muslim. She accepted that Hazaras and Shias had been historically subjected to discrimination and violence because of their race and religion. In addition, she accepted that the Taliban had targeted Hazara during their period in power. As such, she did not specifically disbelieve the applicant’s claim that he had earlier been mistreated by the Taliban for shaving his beard.
  13. However, whilst she accepted that Hazaras might face social discrimination, within Afghanistan, because of their minority status in that country, this discrimination was not so severe as to amount to persecution for a Refugees Convention reason.[11]
  14. In particular, the reviewer did not accept that the Taliban currently specifically targeted Hazara Shias on a systematic and discriminatory basis, solely by virtue of their race and religion. She did however accept that individual Hazaras may have been targeted or otherwise harmed in the general insurgency, which the Taliban were orchestrating and in which non-Hazaras were also victimised.[12]
  15. The reviewer accepted that the general security situation in Afghanistan remained highly unstable with insurgent attacks against indiscriminate civilian targets, government representatives and international forces. However, on the basis of the country guidelines, including the UNHCR Eligibility Guidelines and the Hazara Report, she accepted that the main targets of this insurgency were not Hazaras per se but rather the situation was one of generalised violence against all ethnic groups in Afghanistan, particularly those who seemed to be in alliance with international forces or the Afghani government.[13]
  16. Although the reviewer accepted that Ghazni province was one of the most volatile in the country, she found that Jaghori, because of its almost exclusive Hazara population, was generally regarded as safe for Hazara.[14] This was an issue alluded to in the Hazara Report.
  17. On the basis of the information available to her, including the UNHCR Eligibility Guidelines and the Hazara Report the reviewer found that Hazaras and Shias did not face a real chance of harm arising from persecution by non-state actors, including Pashtuns in general and the Taliban in particular, simply by reason of their ethnicity or religion.[15]
  18. The reviewer did however accept that an individual Hazara Shia could be found to be a refugee and so entitled to Australia’s protection on the basis of that person’s individual circumstances and experience. On that basis, she turned to consider the specific claims made by the applicant himself and made the following findings:
  19. The reviewer found the applicant’s evidence, on a number of key issues, to be inconsistent with independent country information; implausible; unsupported; or based solely on his individual suppositions.
  20. These caused the reviewer to have “serious doubts” concerning the applicant’s credibility. She made the following specific findings:

Grounds for review

  1. By way of his amended application, filed on 29 November 2011 the applicant seeks a judicial review of Ms Moustafine’s decision on three discrete grounds as follows:

Ground One

  1. It is clear that the reviewer did consult the December 2010 UNHCR Eligibility Guidelines in making her findings. In addition, she also had regard to a DFAT report entitled “Afghanistan: situation of the Hazara minority” dated February 2010, which also alluded to the UNHCR Eligibility Guidelines, particularly that they would be updated in 2010.[17]
  2. It is also clear that these documents were not specifically put to the applicant in interview by Ms Moustafine. The issue arising under this ground is whether this omission represents a breach of procedural fairness.
  3. The starting point in this consideration is the seminal decision of Kioa v West[18] where Brennan J (as he then was) said as follows:

However, a rider was placed on this proposition. It was said that such a person did not have to be given an opportunity to comment on every adverse piece of information but rather some consideration must be had to the credibility, relevance or significance of the information concerned or otherwise the decision making process would be rendered unnecessarily protracted and cumbersome.

  1. In this particular case, it seems clear that the reviewer made specific reference to the UNHCR Eligibility Guidelines for December 2010, directly [at paragraph 85] and this information was, at the very least inferentially significant in her reaching the conclusion that the Taliban no longer systematically and discriminatorily target Hazaras by reason of their race and religion alone.
  2. She also later said [at paragraph 93] that the UNHCR Eligibility Guidelines indicated that the main targets for the insurgency were persons who were seen to be in league with the international alliance or the government rather than specific ethnic groups. I accept that the acceptance of this state of affairs was central to the reviewer’s ultimate recommendation to the Minister.
  3. It is also clear that this specific document was not expressly put to the applicant for his comment and it was potentially adverse to his central contention in support of his claim for refugee status that Hazaras, in a generic sense, were subject to persecution in his region of Afghanistan because of their religion and ethnicity.
  4. The DFAT Hazara Report falls into the same category. The reviewer made reference to it [at paragraph 92] when she noted that it indicated that the discrimination against Hazaras had significantly diminished since 2001, the date on which the Taliban fell from power. This contention was markedly at odds with the submission made by the applicant’s advisers in September of 2010 which was of a deteriorating security situation. Obviously this submission post dated the Hazara Report.
  5. However, it is the case that the reviewer did put to the applicant, in interview, her general perception of the Afghanistan country information, which indicated that the security situation in Afghanistan was deteriorating but this was “generalised violence that affects all Afghans, not just Hazaras.”[19]
  6. Furthermore, it is clear from the submission of Vachnas Lawyers to the reviewer of 30 September 2010 that the applicant’s legal advisors had a different view of the situation in Afghanistan, particularly that the RSA had under estimated the strength of the Taliban in Afghanistan and the risk that this represented for people of Hazara ethnicity. In this submission, a bleak picture was painted of the situation in Afghanistan generally and Ghazni Province in particular.
  7. It is the submission of the applicant’s counsel, Ms Karapanagiotidis that the reviewer has clearly relied on the December 2010 UNHCR guidelines and given their status as “the most recent and authoritative reports on Afghanistan” it was clearly incumbent on Ms Moustafine to invite the applicant to comment on the information contained in those guidelines, presumably the view advocated that any Taliban insurgency was a generalised one.
  8. Smith FM has considered the issue of whether a failure to allow an offshore entry person to comment on adverse country information can amount to a breach of procedural fairness in a number of cases. In SZQHC v Minister for Immigration[20] he summarised a number of significant High Court judgments dealing with the issue in matters originating with the RRT, particularly Re Minister for Immigration & Multicultural Affairs Ex Parte Miah[21] and Muin v Refugee Review Tribunal[22].
  9. In discussing Miah Smith FM referred to statements of principle propounded by Gaudron J, who said that the “basic principle with respect of 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.”
  10. Reference was also made to statements of McHugh J who indicated that “the rules of natural justice are flexible and adaptable to the particular circumstances of each case.” Reference was also made to comments of Kirby J, who extrapolated that an applicant for refugee status should not be taken by surprise by matters which affected his interest. His Honour concluding that “the greater the significance of the information, the more pressing ... the necessity to disclose it to the prosecutor for his submission or comment.”
  11. In summary of these various principles regarding the obligation to disclose country information, particularly evolving or new country information, Smith FM said as follows:
  12. Muin was also a case dealing with the issue as to whether an obligation arises on a decision maker to invite comment on pieces of general information, which have not been cited by or to the applicant in the course of a person’s refugee status hearing. However, there was not a clear consensus from the court in regards this specific issue.
  13. Again, Smith FM summarised the various judgments in the case as follows:
  14. Smith FM has applied these various principles, with different results, in a number of recent cases. The various outcomes concerned depending on the circumstances of the case involved, particularly the provenance and nature of the country information material in question.
  15. SZQEK v Minister for Immigration & Citizenship[25] involved similar circumstances to the present case. The reviewer in question conducted an interview with the relevant applicant, who was in detention, on 11 February 2011. The reviewer did not put to the applicant the relatively new UNHCR eligibility guidelines (the same guidelines as germane in the present case) which had been published in 2010, to the applicant concerned. The applicant and his advisors did however have access to earlier guidelines, which dealt with the situation in Afghanistan at the time of their publication.
  16. In the case Smith FM considered that the publication of the guidelines “provided an important new element of information” to what was described as a “very fluid situation” in Afghanistan. The information was held to be relevant to the reviewer’s assessment of the applicant’s personal security in Afghanistan.
  17. In these circumstances, Smith FM accepted that the failure of the reviewer to raise the issue of the applicable guidelines with the applicant in question did constitute a breach of procedural fairness sufficient to vitiate the ultimate decision and recommendation of the reviewer. It being said that the reviewer’s decision “turned as much upon the timing and dating of the guidelines, as upon any changes to their contents.”[26]
  18. It is the submission of the applicant’s counsel in this case that SZQEK is on all squares with the current situation. In contrast, counsel for the respondent indicates that by the time Ms Moustafine interviewed the current applicant, in March of 2011, approximately three months after the 2010 UNHCR Eligibility Guidelines had been published, it was “inconceivable that the applicant’s solicitors were not familiar with them”, particularly given that earlier guidelines had been referred to in the RSA process.
  19. In SZQHC v Minister for Immigration & Citizenship, where the recommendation concerned was made on 11 January 2011, after an IMR interview in mid-December 2010, it was clear from email correspondence exchanged between the reviewer and the relevant applicant’s advisor that the latter was aware of the December 2010 UNHCR Eligibility Guidelines.
  20. Smith FM said as follows:
  21. Accordingly, in that case, Smith FM concluded that there had been no procedural unfairness accorded to the applicant concerned. In SZQEK Smith FM was unconcerned about whether there was any material difference between the 2010 guidelines and earlier ones published by the UNHCR. Rather, he considered it to be procedurally fair for the applicant to have access to the latter guidelines because of the implicit level of authoritativeness such guidelines carry because of there provenance. This distinction seems less clear cut in SZQHC.
  22. SZQNF v Minister for Immigration & Citizenship,[28] another decision of Smith FM, again concerning an off-shore entry Hazara Shia and the relevance of the December 2010 UNHCR Eligibility Guidelines was determined in early December 2011, only a few days prior to the hearing in the matter, the applicable IMR procedure having been concluded in mid-July 2011. It is also noteworthy that the applicant concerned was represented by the same migration lawyers as in the present case.
  23. In SZQNF Smith FM distinguished the circumstances of the case from that which had prevailed in SZQEK on that the basis that the latter case had been determined “not long after the new guidelines were published.” Accordingly time was a relevant consideration.
  24. In this regard, I note that the Hazara Report from DFAT was published in February 2010. This report indicated that the UNHCR Eligibility Guidelines, which I think, by necessary implication, were viewed in it as being authoritative, would be up-dated later in 2010. Accordingly the relevance of the UNHCR Eligibility Guidelines to the reviewer’s determination is in my view more central to the outcome of the case. Certainly this was the approach of the applicant’s counsel in the case.
  25. In SZQNF Smith FM was not prepared to conclude that there had been a breach of procedural fairness because of a failure to expressly seek the applicant’s comments in respect of the December 2010 guidelines. He said as follows:
  26. What is clear, I think, from cases such as Miah and Muin is that the rules of procedural fairness are not immutable but require a common sense approach as regards there application, depending on the circumstances prevailing. The central question being whether the applicant concerned was given a reasonable opportunity to be heard and put his case and respond to issues of concern to the decision maker in appropriate circumstances.
  27. In determining whether there is an obligation to invite comment, from an applicant, on country information identified as relevant by a decision maker in a refugee case, the factual issues arising in the review, and the novelty, credibility and materiality of the information concerned all need to be considered before a conclusion is reached that there has been a breach of procedural fairness.
  28. In this case, I am satisfied that the substance of the information arising from the February 2010 Hazara Report and the December 2010 UNHCR Eligibility Guidelines – namely the insurgency in Afghanistan was not specifically directed at Hazara – was put to the applicant, in interview, for his comment. As such, I do not think it can be said that the applicant has been the subject of any injustice or unfairness in a practical sense.
  29. Further, and more importantly, neither the Hazara Report nor the UNHCR Eligibility Guidelines, by the time of the IMR process in this case, could not be considered novel. Rather, the situation which prevailed in the current case is analogous to that which prevailed in SZQNF.
  30. It is clear from the letter which the applicant’s solicitors wrote on 13 May 2010 that they acted on behalf of many Hazara off-shore entry persons in their various applications for refugee status. As such, it seems implausible to conclude that they would not be aware of changing country information regarding the evolving situation in Afghanistan, particularly that the UNHCR had updated their eligibility criteria so far as potential refugees from Afghanistan were concerned.
  31. In the present case, the IMR report was completed in June 2010, after interview conducted on 14 March 2011. Country information was raised at that interview, particularly concerning the reviewer’s view of the evolving situation in Afghanistan. In such circumstances, it seems to me that the applicant, through his representatives, had an ample opportunity to raise any salient matters arising from the December 2010 UNCHCR Eligibility Guidelines and it is inconceivable that they did not know of them, given their wide ranging experience and understanding of the area of law concerned.
  32. As indicated earlier, in my view the Hazara Report, being earlier in time and deferential to material emanating from the UNHCR was less central to the reviewer’s determination. Its views were also rebutted by the submissions from the applicant’s advisers made in September 2010. In such circumstances, it seems to me that there was no “practical injustice” inflicted upon the applicant in the failure to seek his specific comments in respect of the DFAT report.[30] Nothing would have been achieved by submitting the specific report to the applicant given that it was, in any event, superseded by the later UNCHCR Eligibility Guidelines.
  33. For all these reasons, I have come to the view that the ratio arising from SZQNF is more applicable to the circumstances arising in this case than that which arises from SZQEK. Neither the Hazara Report nor the UNCHCR Eligibility Guidelines could be considered novel documents, arising from a fluid security situation in Afghanistan, given the dates of their respective production in relation to the IMR interview process.
  34. The position of the applicant, as best exemplified by the submissions of his advisors, was clear to the reviewer thorough out – he regarded the security situation for Hazaras prevailing throughout Afghanistan to be deteriorating. The country information before the December 2010 UNHCR Eligibility Guidelines indicated otherwise. The applicant, through his advisors, was well aware of this controversy, which was also put to the applicant in interview, albeit in a generic sense. The more recent guidelines did not markedly effect this controversy.
  35. As such, I am satisfied that the applicant was given an ample opportunity to make comment on matters in the relevant guidelines, which were potentially adverse to his interests and, as such, there has been no substantive breach of procedural fairness. Accordingly, I find that this ground of review has not been established.

Ground two

  1. The applicant asserts that the reviewer has failed to deal with an essential integer or component of his claim for protection in Australia namely that the state based agencies of the Afghani government would not be able to protect him from harm in the event of his return to Afghanistan.
  2. This aspect of the case relates to the applicant’s accounts of his dealings with Mr Zarif and the assertion made by him in his originating statutory declaration that the authorities in his area of Afghanistan were “scared to get involved” and the national government itself was “inept” and “unable to control the Taliban ... and their constant activities against the Hazara.”[31]
  3. The reviewer accepted that the applicant had had an acrimonious dispute with Mr Zarif over a commercial transaction. It was also accepted as being plausible that Mr Zarif had threatened to take revenge against the applicant and to kill him. However, the reviewer found that Mr Zarif was not a member of the Taliban and his threats were an act of “ordinary criminality”, which were not done for a convention reason.
  4. It is submitted on behalf of the applicant that the reviewer found that the applicant had been threatened with actions, which were capable of constituting serious harm. Thereafter, although the threats were found to be non-convention related, the reviewer was then required to consider whether the Afghanistani state would adequately protect the applicant from this harm in the event of his return to Afghanistan and, if not, whether this state protection was withheld because of the applicant’s Hazara ethnicity.
  5. It is submitted that the statements made by the applicant either expressly or impliedly articulate this ground and accordingly the reviewer was required to give it active consideration. As she has not done so, it is asserted that she has failed to exercise the jurisdiction conferred upon her.
  6. On the other hand, it is the contention of counsel for the Minister that no such ground was squarely or clearly articulated by the applicant and, as such, it was not necessary for the reviewer to consider it.
  7. It is also the Minister’s position that the issue of state protection does not arise in this matter because the reviewer found that there was not a real chance of the applicant suffering harm, in the event of his return to Afghanistan and therefore it was unnecessary for the reviewer to have any consideration of the ability of the Afghani state to protect the applicant.
  8. In my view, the issues arising under this ground of appeal can be summarised as follows:
  9. The High Court has held that it is a jurisdictional error for a decision maker to misconstrue or overlook a visa criteria arising under the Act. In particular, “a decision maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.”[32]
  10. Allsop J in Htun v Minister for Immigration & Multicultural Affairs [33] described the review function as follows:
  11. The reviewer found that Mr Zarif did not threaten violence against the applicant, in the context of a religious or sectarian conflict between the two.[34] She also found that the applicant had been able to recoup his debt from Mr Zarif with the help of a policeman.[35] It is also clear that Mr Zarif himself was found to be neither an agent of the official Afghani state nor the Taliban.
  12. Accordingly, it seems to me that, at its highest, the applicant’s claim was that he feared a risk of harm from actions of Mr Zarif and other individuals associated with him. Further, it is asserted that he alleged that the Afghani police and other state based agencies were too inept to protect him from this harm.
  13. The reviewer, as she was entitled to do, found that Mr Zarif was not associated with the Taliban. Accordingly, I do not think that it can be said that her finding that the applicant’s alleged fear of Mr Zarif was not based on a convention reason was in any way an illogical or irrational one. In my view there was evidence available to her to support such a conclusion.
  14. In Minister for Immigration & Multicultural Affairs v Respondents S152/203[36] McHugh J discussed the issue of the absence of state protection from acts of violence from individuals, in the refugee context as follows:
  15. In S152/2003 the applicant concerned was a Ukranian national, who was a Jehovah's Witness. He claimed to fear serious harm in the Ukraine because of his religion. In particular, he claimed to have been assaulted and to have had damage caused to his property in the past. More relevantly to the present consideration, he claimed to have attended at a police station, where the police officers concerned refused to take a statement from him.
  16. At first instance, it was found by the decision maker concerned that the acts of violence complained of by the applicant were individual and random incidents of harm, which did not amount to persecution for a convention reason. This finding was upheld by the High Court.
  17. In the case, the majority of the High Court (Gleeson CJ, Hayne & Heydon JJ) concluded that the willingness and the ability of the state to discharge its obligation to protect its citizens may be relevant to the inquiry as to whether a person satisfied the various criteria raised by article 1A(2) of the Refugees Convention. However, in determining whether that was so, it was necessary to look at the case which the applicant concerned had raised.
  18. In S152/2003 the case raised by the applicant was that certain organs of the Ukranian state positively encouraged unlawful violence against Jehovah's Witnesses. It was not the case put by the applicant that the country lacked the power to deal with such violence, even if it wanted to do so. In this context, the majority of the High Court said as follows:
  19. In Razai v Minister for Immigration & Citizenship[38] Nicholls FM in consideration of this issue of state protection, said as follows:
  20. In my view, the case put by the applicant was that he was fearful of Mr Zarif because of the conflict between the two arising over the debt and because Mr Zarif, as a member of the Taliban, had the capacity to impose retribution on him. This latter aspect of the case was rejected, by the reviewer, on credibility grounds. The main thrust of the applicant’s case however, was that Hazaras and Shias were at risk of persecution by the Taliban, who were predominantly Pashtun and Suni. This aspect of the claim was also rejected because the reviewer did not accept that Hazaras were currently the specific target of the Taliban insurgency in Afghanistan.
  21. It was in the context of the applicant’s purported fear of being persecuted by the fundamentalist Taliban because of his Hazara ethnicity and Shia religion that the applicant raised the issue of the availability of state protection for him.
  22. He asserted that the Karzai Government was inept and unable to control the Taliban. He did not specifically assert that the authorities in Afghanistan would refuse to protect him because of his ethnicity or religion. Indeed, on the applicant’s own case, a police officer had assisted him in his dispute with Mr Zarif.
  23. In my view, on a fair reading of the reviewer’s decision, her relevant findings were that, as a Shia Hazara, there was no real risk of serious harm befalling the applicant, if he was to return to his previous home in Afghanistan, as a result of specific persecution by the Taliban.
  24. She did not dismiss out of hand the applicant’s claims regarding his previous involvement with Mr Zarif, including finding that he may have threatened to kill the applicant. The applicant, in my view, never specifically raised any concern that the Afghani state would either actively consort with Mr Zarif against him or would refuse to protect him from Mr Zarif or persons involved with him.
  25. In those circumstances, it seems that the applicant is mounting a significantly different case to that which Ms Moustafine had to respond. The reviewer also found that the applicant had “embellished his claims” regarding Mr Zarif “to enhance his protection claims”.[40]
  26. I agree with the proposition advanced by Nicholls FM that it is the circumstances of each particular case, which must dictate whether the issue of state protection needs to be dealt with, either at an earlier or later stage, or not at all. In my view, on a fair reading of the reviewer’s decision, on the basis of the case presented to her, it was not necessary for her to deal with the issue at all.
  27. As such, I am satisfied that the applicant’s case falls into the category of cases described by McHugh J above, namely the applicant is a person who has not established a well-founded fear of persecution in Afghanistan and accordingly it was not necessary for the reviewer to consider state protection for the applicant.
  28. Recently, the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZONJ [41] has had cause to consider the issue of a claimant for refugee status claiming that she was at risk of suffering serious harm from a non-state agent and the relevant state concerned was unable to protect her from that harm.
  29. The Court accepted that there was no question that persecution, for the purposes of the Refugees Convention could be made out if a state was itself the persecuting agent. It also accepted that persecution by a third party could also satisfy the requirements of Article 1A(2).
  30. The applicant in the case was a Fijian national, of whom it was accepted that she had suffered serious domestic violence at the hands of her husband. It could not be said that this behaviour was motivated by a reason falling within the Convention – that the woman in question was being persecuted by her husband for a reason related to ethnicity, religion or one of the other applicable criteria.
  31. However it was further asserted on her behalf that the Fijian authorities were either unable or unwilling to provide protection to her because of her membership of a particular social group, namely Fijian women, who had either left their husbands or who refused to comply with the social norms of Fijian society.
  32. Evidence was provided that the Fijian Government had passed legislation which was ostensibly addressed toward ameliorating the situation for the victims of domestic violence in Fiji. It was also submitted on behalf of the applicant that Fijian Society was patriarchal in nature and its police and courts favoured men over women in their investigation of such matters, to the effect that no effective action was ever taken against her husband on her behalf. Essentially the Fijian State was unable to protect her. Thus it was said she was entitled to protection within Australia.
  33. The Full Court dealt with the distinction between situations where the state concerned was unable to protect one of its citizens, from criminal activity, originating from another citizen, through inability alone or arose because the state either condoned or tolerated such criminal activity for reasons delineated in Article 1A(2). The Court said as follows:
  34. Ms Moustafine accepted that the applicant had experienced problems with Mr Zarif and indeed he may have threatened to kill the applicant. However, she went onto to find that this threat did not arise for a Convention Reason, but should be regarded as [an act] of ordinary criminality.
  35. The issue of the availability or otherwise of state protection must depend on the circumstance of each case. It must be considered only when there is some nexus between the well-founded fear that is said to arise from the absence of such state protection and an element of persecution arising from the Convention.
  36. The reviewer found that Mr Zarif was not connected with the Taliban – a finding which is not challenged in these proceedings. She did not rule out the possibility that Mr Zarif would harm the applicant in future. However she did not believe that this possibility arose for a reason ascribed in the Refugees Convention.
  37. In this case the applicant was critical of state based authorities in Afghanistan. He accused them of ineptitude and of being intimidated by the Taliban. He did not assert that the authorities would not assist him because he was Hazara. In addition, his complaints in this regard are generic and unrelated to any fear or concern connected with Mr Zarif. Indeed, as previously indicated a policeman had on a past occasion helped him to recover the money owed to him by Mr Zarif.
  38. At its highest the applicant asserts that agents of the Afghani State have an inability to protect him. His claim was not that these persons would either condone or tolerate an act of persecution against him. In all these circumstances I do not think, it can said that Ms Moustafine’s reasoning exhibits any error of principle sufficient to found an error of jurisdiction.
  39. In any event and in addition, I accept the respondent’s submission that the applicant did not clearly or squarely articulate a claim based on a well-founded fear of him suffering harm from Mr Zarif acting alone and the unavailability of the state based authorities in Afghanistan to protect from this specific level of threat. Certainly, I accept that such a claim, at best, can only arise by way of application from what the applicant said in his statutory declaration completed after his arrival at Christmas Island.
  40. The applicable principles which apply to cases where it is asserted a jurisdictional error arise because it is said an administrative tribunal has failed to deal with an aspect of a claim which is said to be impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[43] as follows:
  41. In my view, the reviewer in the current case, closely considered the various contentions of the applicant. As I have already indicated, I am concerned that his advisors are attempting to reformulate the case, at a later level of decision making, in a manner which is different from the case which was propounded before both the RSA and the IMR. In my view, Ms Moustafine considered the various contentions advanced by the applicant. In particular, she turned her mind to the evidence regarding the applicant’s relationship with Mr Zarif; his alleged involvement with the Taliban; and more generally the situation of Hazara Shias in Afghanistan at the time of the review.
  42. In my view, it cannot be said that the applicant “squarely” raised the issue of the absence or otherwise of state based protection for any reason relating to the applicant’s religion or ethnicity through a process of unacceptable creativity in the sense that the applicant’s statements, in his statutory declaration, must be taken entirely out of their context.
  43. In this context, it is apposite to have regard to the off cited monitory principles set out in paragraph in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[44] namely:
  44. For all these reasons, I am not satisfied that ground two is made out.

Ground three

  1. The applicant asserts that the reviewer was not “acting judicially,” when she reached the conclusion that the applicant’s claim to be summonsed by letter to appear at a designated place, with a gun, by the Taliban was “unsupported by evidence”.[45] This is the so-called night letter issue.
  2. In WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs[46] Lee & Moore JJ described the concept of acting “judicially” and according to law as involving the decision maker concerned conducting its function “rationally and reasonably and not arbitrarily.” In this case, it is essentially asserted that the reviewer has not reached her conclusion in respect of the alleged “night letter” in such a rational manner and as such has fallen into legal error.
  3. In her recommendations to the Minister, the reviewer made reference to UK Home Office country information, which described the traditional practice of night letters in Afghanistan. This information described night letters as being printed or hand-written pages, which are delivered to individuals.[47] More importantly, this information disclosed that the Taliban utilised such letters to deliver threats to individuals and generate fear in a particular area.
  4. Accordingly, it is said that the reviewer’s finding that the applicant’s assertion that he had received such a letter was not unsupported by evidence. To the contrary, there was evidence, available to the reviewer, in the form of the UK Home Office information, which was corroborative of the applicant’s claims of having received a letter from the Taliban, which caused him to be fearful.
  5. In QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs[48] Collier J formulated the following proposition, based on the relevant authorities, in respect of the distinction between a decision which is characterised as having resulted from no evidence and one which is against the weight of evidence:
  6. Counsel for the Minister points to the fact that the helpful information, so far as the applicnat’s case was concerned, regarding the involvement of the Taliban with night letters in Afghanistan, was initiated solely by the reviewer herself. Accordingly, it was information she must be taken to have had regard to in her ultimate decision.
  7. It is further submitted that, although the reviewer accepted the practice of night letters in a generic sense, she rejected the applicant’s assertion of having received one himself essentially on credibility grounds. The reviewer made a general finding, concerning the applicant’s credibility, in her recommendation as follows:
  8. In these circumstances, the Minister contends that a fair reading of the reviewer’s entire decision demonstrates that she was unable to find that the applicant’s specific claim to having received a night letter was supported by credible evidence emanating from him. As such it is argued that it cannot be said that the reviewer’s decision arising in respect of the applicant having either received or not received a night letter was one which was based on no evidence and was therefore one which was jurisdictionally invalid.
  9. It is further asserted that it was the reviewer’s domain alone to make findings regarding the applicant’s credibility. In support of this submission, reliance is placed on the often quoted comment of McHugh J in Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [50] that findings on credibility are a function of the primary decision maker “par excellence” and that such a decision maker need not give detailed reasons as to why a particular witness was not believed.
  10. In this particular case, a fair reading of the decision of the reviewer indicates that she did not believe that the applicant had ever received a night letter from the Taliban, not that she disbelieved that such things existed or that they were ever used as an instrument of intimidation or terror by the Taliban.
  11. In my view, this was a finding, which was open to her and she was not required to go further.
  12. Further, it could not be said that the reviewer’s reasons were either “unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision.”[51]
  13. For these reasons, I do not accept that the reviewer has reached a decision either in the absence of evidence or that her reasoning can be characterised as being the product of illogicality, irrationality or unreasonableness. She decided that that applicant had not received such a night letter because she did not believe much of his evidence.
  14. It must follow from these conclusions that the application herein should be dismissed. It further follows that the applicant should pay the first respondent’s costs, which I assess at five thousand eight hundred and fifty dollars ($5,850.00).
  15. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding 146146one hundred146146forty-sixeighty-threeone hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Brown FM


Date:

[1] The Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, herein referred to as “the Refugees Convention” or “the Convention”.
[2] See Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 272 ALR 14
[3] See casebook at page 47
[4] See casebook at page 47
[5] See casebook at page 49
[6] See casebook at page 85
[7] See casebook at page 110
[8] See transcript of IMR interview at pages 56-57
[9] See casebook at page 106
[10] See transcript of IMR interview at pages 39 & 40
[11] See casebook at page 112 paragraph [92]
[12] See casebook at page 111 paragraph [91]
[13] See casebook at page 112 paragraph [93]
[14] See casebook at page 112 paragraph [95]
[15] See casebook at page 112 [paragraph[97]
[16] See casebook at paragraphs [109] and [112]
[17] See casebook at page 106 at paragraphs [77]
[18] See Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628
[19] See transcript at page 56
[20] See SZQHC v Minister for Immigration (2011) FMCA 851
[21] See Re Minister for Immigration & Multicultural Affairs Ex Parte Miah (2001) 206 CLR 57
[22] See Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
[23] Ibid at paragraph 31
[24] Ibid at paragraph 39
[25] See SZQEK v Minister for Immigration & Citizenship [2011] FMCA 628
[26] Ibid at paragraph 44
[27] Ibid at paragraph 63
[28] See SZQNF v Minister for Immigration & Citizenship [2011[ FMCA 965
[29] Ibid at paragraph 60

[30] See Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 at [37] where Gleeson CJ said as follows: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”


[31] See casebook at page 47
[32] See Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte applicants S134/202 [2003] HCA 1; (2003) 211 CLR 441 at [85]
[33] Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42]
[34] See casebook at page 115 [111]
[35] See casebook at page 114 [104]
[36] See Minister for Immigration & Multicultural Affairs v Respondents S152/203 [2004] HCA 18; (2004) 222 CLR 1 at 14
[37] Ibid at page 6
[38] See Razai v Minister for Immigration & Citizenship [2011] FMCA 777
[39] Ibid at paragraph 41 & 48
[40] See casebook at page 115 paragraph [112]]
[41] Minister for Immigration & Citizenship v SZONJ (2011) FCR 1
[42] Minister for Immigration & Citizenship v SZONJ (supra) at page 10
[43] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]
[44] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272
[45] See casebook at page 114 at paragraph [109]
[46] See WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at paragraph 21
[47] See casebook at page 110 at paragraph [84]
[48] See QAAA of 2004 v Minister for Immigration & multicultural & Indigenous Affairs [2007] FCA 1918 at paragraph 22
[49] See casebook at paragraph 103
[50] See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]
[51] See Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 650 per Crennan & Bell JJ

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