MZYOD v Minister for Immigration & Anor [2012] FMCA 4 (30 January 2012)

Last Updated: 31 January 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYOD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 4

MIGRATION – Application for judicial review of Independent Merits Review decision – failure by Reviewer to alert applicant to issue dispositive of one aspect of the applicant’s case – whether failure to give applicant natural justice – jurisdictional error found.

Migration Act 1958 (Cth)

Plaintiff M61/201E v Commonwealth of Australia [2010] FCA 41 Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Applicant:

MZYOD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LES BLACKLOW IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 1079 of 2011

Judgment of:

Burchardt FM

Hearing date:

23 November 2011

Date of Last Submission:

23 November 2011

Delivered at:

Melbourne

Delivered on:

30 January 2012

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr. D. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

THE COURT DECLARES THAT:

(1) The recommendation of the Second Respondent dated 23 June 2011 that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention was not made in accordance with the law.

AND THE COURT ORDERS THAT:

(2) The First Respondent pay the Applicant’s costs fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1079 of 2011

MZYOD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LES BLACKLOW IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks judicial review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 23 June 2011. The Reviewer found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
2. The applicant advances two grounds (one of which has two parts) upon which it is asserted that the Reviewer fell into jurisdictional error. He submits that the Reviewer denied him procedural fairness by failing to put to him country information in the form of a DFAT report of September 2010, which he submits was dispositive of a part of his application. He further submits that the Reviewer denied him procedural fairness by failing to identify to him two issues under review. First, safe travel on the roads and the availability of safe alternative routes, and secondly, whether the applicant’s factual account of an incident in December 2009 was under challenge.
3. For the reasons that follow, I think the applicant’s first ground is made out, but the other is not. It follows that the applicant should have the relief he seeks.
4. Both parties proceeded on the footing that notwithstanding the different statutory scheme under which the Reviewer operated, the Court could and should proceed on the basis identified in Plaintiff M61/201E v Commonwealth of Australia [2010] FCA 41, that the applicant is entitled to procedural fairness and the correct application of applicable legal principles.

The Factual Background

5. The applicant is a Hazara Shia from the Jaghori District of Afghanistan. He claimed to fear persecution because of his Hazara ethnicity and Shia religion and because his experience of an incident in December 2009 when he said the Taliban had forced him to sign an undertaking not to travel over the roads again. After being released by the Taliban on that occasion, he went to Kabul and then to Australia.
6. The applicant came to Australia without a visa and was interviewed at Christmas Island, subsequently in a Refugee Status Assessment (“RSA”) interview and ultimately by the Reviewer.
7. The transcript of the proceeding before the Reviewer is before the Court, and the Court Book includes extensive written submissions advanced by the applicant’s advisers who made copious reference to country information.
8. It should be noted that the applicant was represented by his adviser at the hearing before the Reviewer and that the Reviewer gave the representative an opportunity to file submissions, an opportunity which was not taken up.

Ground 1 – Procedural fairness, the alleged failure to put country information

9. As already noted, the applicant’s advisers had submitted considerable tranches of country information in their written submissions forwarded to the Reviewer. The materials to which the applicant’s advisers referred included a Country Guidance Note dated November 2010 from the Department of Immigration and Citizenship. That document, a copy of which has been provided to the Court, runs to some 48 pages. It is a detailed analysis.
10. One of the issues raised by the application was the question of safety in travelling on the roads in Afghanistan. Relevantly, the Reviewer found at paragraph 50 (CB157):
    • “... The claimant has stated that the Taliban control the roads and the reviewer accepted this as a legitimate issue leaving aside the inconsistent evidence the claimant has given concerning his return to his village after the incident. The most recent authoritative report on the different routes in and out of Jaghori is contained in the DFAT report of September 2010:
      • In Ghazni ... travel is dangerous for all ethnic groups and Pashtuns and Hazaras are both limited in their ability to move through districts dominated by the other. ... Access to Jaghori has become more difficult. There are three routes connecting Jaghori to Ghazni city. The most frequently used road passes through Nawur district, and is considered secure. Another route through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. The third route through Qarabagh District is very insecure.
    • 51. The reviewer concluded that infrequent use of an alternative route, one which has been assessed as relatively safe, as mentioned above, suggests that there is no real chance of serious harm as required by the convention. It was accepted that there would be some restrictions on the roads the claimant could travel in the future, albeit infrequently according to his evidence, but such restrictions and consequent inconvenience in such travel would not amount to persecution in itself. The reviewer was satisfied that there is the possibility of a relatively safe route regularly used from Jaghori through Nawur and Jaghatu (which both are Hazara districts) to Ghazni city and hence to Kabul were the applicant required to use it on an occasional basis. ...”
11. The Reviewer went on to find in the next paragraph of the decision that the applicant had occasionally travelled to Kabul.
12. I accept the submission of the applicant’s counsel that the availability of this safer alternative route was dispositive of this aspect of the proceeding. It seems to me that on a fair reading of the Reviewer’s decision, he was satisfied that a necessity to travel over unsafe routes to Ghazni city was, in fact, capable of constituting a real risk of harm for a Convention reason in the circumstances in which the applicant found himself.
13. Accordingly, the question that arises is whether, in the circumstances, it was or was not incumbent upon the Reviewer to draw the attention of the applicant and his advisers specifically to this aspect of the DFAT September 2010 report.
14. Both parties agreed that the notion of procedural fairness was a flexible one to be adapted to the circumstances of the particular case. That position accords with the observation of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [585], where his Honour said in a migration context:
    • “In this respect, the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate to adapt into the circumstances of the particular case.”
15. The first respondent’s written submissions (paragraph 35) assert that:
    • “The country information extract complained about by the Applicant at para 37 of his contentions was reproduced verbatim in the Department of Immigration and Citizenship Country Guidance Note of November 2010, a document that the applicant referred to extensively in his own pre-hearing submissions.”
16. The written submissions go on to assert that as a result, the Reviewer knew that the applicant’s representative was fully familiar with the Country Guidance Note which detailed the relevant information about roads between Jaghori and Ghazni city.
17. As already stated, I have been provided with a copy of the Country Guidance Note of November 2010 from the Department of Immigration and Citizenship. It is true that the passage referred to appears at page 27 of the Country Guidance Note in identical terms to those referred to by the Reviewer. That, however, in my view is not the end of the matter.
18. When one looks at the transcript of the proceeding before the Reviewer, it is certainly the case that the Reviewer and the applicant’s adviser communicated with one another in terms that made it clear that the Reviewer was aware of a detailed background understanding on the part of the adviser. Nonetheless, the only passages that I can find that refer to the issue of safety on the roads appear to occur in the context of the particular incident in December 2009 (P7-P9). The Reviewer did not, as far as I can see, at any stage refer in terms to the question of the risk that might obtain to the applicant as a result of Taliban control of the roads.
19. What the Reviewer did put was that there was country information available which indicated that Hazaras generally are not necessarily targeted as a complete group of people. At P9, the Reviewer said:
    • “Well, some of these reports are prepared by the UN, by the United Nations Human Rights Commissioner, and the UNHCR has actually issued guidelines on how to consider refugee claims, and there are also reports by the Australian Department of Foreign Affairs and Trade about circumstances in Afghanistan. So there are some authoritative sources which comment on what they believe to be the general circumstances in Afghanistan.”
20. At P14, the Reviewer said:
    • “There is country information available which does suggest that Jaghori is a relatively safe place for Hazara. These reports will be known by your advisor, but I will draw his attention again and you will have an opportunity to respond.”
21. The Reviewer then asked the adviser if he wanted to make any final oral submissions, and the Reviewer very properly gave the adviser time to consider his position. At line 44 on P14, the adviser said:

“Yes. I guess you’re referring – Mr ... – referring a lot to the February 2010 DFAT report.”

22. As far as I can see, the adviser, clearly apprehending that the Reviewer would rely upon a February 2010 DFAT report, did not refer to the later September 2010 report described by the Reviewer as “the most recent authoritative report”.
23. It is possible that the applicant’s adviser knew of this report. He certainly knew or reasonably ought to have known of some of the matters contained in it. What he did not know was that the Reviewer was going to treat that aspect of the DFAT September 2010 report as dispositive of an issue which appears to me to have been one where the Reviewer identified a risk of convention harm, namely travel by the applicant on the roads in Afghanistan.
24. I am keenly conscious that the reasons of the Reviewer should not be picked over with an eye overly keenly attuned to the perception of error. I am also conscious of the difficulties that must arise where a Reviewer and an adviser are together for relatively extended periods of time (as is clear from the transcript was the case here) and the very easy way in which that gives rise to reasonable unspoken assumptions.
25. Nonetheless, the Reviewer made a finding on this issue, namely that because of the September 2010 DFAT report it was reasonable to find that the applicant did not face risk of harm (and persecution) by travel on the roads by reference to a particular route which had not been identified to the applicant and upon which he had had no opportunity to comment. This finding was also made without the applicant being alerted to the September 2010 DFAT report and its potential significance. I think that the Reviewer failed to alert the applicant to the September 2010 report and the aspects of it that were likely to be dispositive of the outcome of the application. In these particular circumstances, this failure constituted a denial of natural justice to the applicant and, in the circumstances of this case, constitutes jurisdictional error.
26. Accordingly, in my view, the applicant should succeed on this point.

Ground 2

27. This ground has two subsets, namely the failure to identify as a live issue:
    • (a) The issue of safe travel on the roads and the availability of safe alternative routes, and
    • (b) Whether the applicant’s factual account of the December 2009 incident was under challenge.

The issue of safe travel on the road and the availability of safe alternative routes

28. Counsel for the first respondent expressly accepted that the issue of safe roads was not put directly to the applicant. I agree that that is so.
29. The applicant had raised the question of safe travel on the roads at his entry interview (CB19) and he asserted that:

“Roads are controlled by the Taliban.”

30. The RSA review report had noted that the most unsafe section of the highway to Kabul was the distance between Ghazni City and Qarabagh, but that this section could be avoided by detour. That report had been provided to the applicant and his adviser who had therefore been made aware of the availability of an alternative route.
31. The applicant’s adviser’s pre-hearing written submissions addressed the difficulties experienced by Hazaras on the road between Kabul and Jaghori (CB109). Furthermore, the applicant’s adviser’s extensive references to the Department of Immigration and Citizenship Country Guidance Note of November 2010 would indicate that the applicant’s adviser was well aware of the travel difficulties.
32. In my view, this issue was well and truly before the Reviewer and had indeed been raised by the applicant. Any failure by the Reviewer to expressly advert to it with the applicant was, in my view, immaterial in the circumstances where he had himself directly raised it.

The December 2009 incident

33. The Reviewer put squarely to the applicant at the interview various inconsistencies in the accounts that he had given from time-to-time of the incident in December 2009 and the applicant responded to these matters directly also.
34. Put shortly, I accept the submission of the first respondent that the Reviewer was not obliged to tell the applicant that he had doubts about the applicant’s account. I accept the submission put by the first respondent that the nature of the Reviewer’s questions put to the applicant on this issue was sufficient to put him on notice that his account was in issue. In the circumstances of the case as a whole, the proposition that the Reviewer’s questions would not reasonably have alerted the applicant to the fact that this critical issue was of some significance (a matter that in my view would have been blindingly apparent in any event) cannot be made out. The applicant was not denied procedural fairness.

Conclusion

35. For the reasons given, I have upheld the applicant’s case on one of the two grounds he has raised. The other, in my view, has no merit. In the circumstances, the applicant is entitled to the relief he seeks and there will be orders accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 30 January 2012