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SZQHI v Minister for Immigration & Anor [2012] FMCA 72 (9 February 2012)
Last Updated: 10 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZQHI v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of decision of
Independent Merits Reviewer – procedural fairness – whether Reviewer
used a repeated
formula or template – where similarities and use of
template paragraphs – whether reasonable apprehension of bias. PRACTICE
AND PROCEDURE – Application for extension of time – granted. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Second Respondent:
|
STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS
REVIEWER |
|
Hearing date:
|
31 October 2011
|
|
Date of Last Submission:
|
31 October 2011
|
|
Delivered on:
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9 February 2012
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REPRESENTATION
Counsel for the
Applicant: |
Mr J Gormly
|
Solicitors for the Applicant: |
Koutzoumis Lawyers
|
Counsel for the Respondents: |
Ms R Francois
|
Solicitors for the Respondents: |
Australian Government Solicitor
|
THE COURT DECLARES
The Court declares that the 28 March 2011
recommendation of the second respondent that the applicant not be recognised as
a person
to whom Australia has protection obligations under the 1951 Convention
relating to the Status of Refugees as amended by the 1967
Protocol relating to
the Status of Refugees was not made in accordance with the law.
THE COURT ORDERS
(1) The time for filing an application under s.476
Migration Act be extended until 2 June 2011.
(2) The First Respondent pay the Applicant’s costs assessed in the sum of
$6,240.00.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 1121 of
2011
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
STEVE KARAS IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER
|
Second Respondent
REASONS FOR JUDGMENT
- The
applicant is an Hazara Shia male aged twenty-five who arrived in Australia by
boat at some time prior to 2 February 2010 when
he was detained at Christmas
Island. This is not the first time the applicant had sought refuge in a third
country. In 2008 he
travelled to the United Kingdom where his claims were
rejected and he was returned to Afghanistan. On 16 April 2010 he received
a
refugee status assessment which recommended that he not be recognised as a
refugee. He sought review of that assessment from an
Independent Merits
Reviewer[1]. The
relevant assessment was carried out by the second respondent in the presence of
the applicant and his agent by way of interview
on 8 February 2011. On 28
March 2011 the second respondent found that the applicant did not meet the
criterion for a protection
visa set out in s.36(2) of the Migration Act
1958, (Cth)[2] and
recommended to the Minister that he not be recognised as a person to whom
Australia has protection obligations under the 1951 Convention Relating to
the Status of Refugees as amended by the 1967 Protocol Relating to the
Status of Refugees. It is now accepted that an applicant is entitled to
seek judicial review of a decision of a Reviewer in this court consequent upon
the decision of the High Court in M61/2010E v Commonwealth of Australia;
Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133 and the
provisions of s.476 of the Act.
- At
[11] [CB 419] the Reviewer set out his understanding of the essence of the
applicant’s claims:
- “[11] The
claimant, in short, claimed he was fearful of being returned to Afghanistan
where he would face persecution in the
form of serious physical harm and
possible death at the hands of non-state agents in Afghanistan based on his
ethnicity as a “Hazara”,
membership of the following particular
social groups; Hazara, actual/perceived sympathizers or supporters of the
coalition forces
or foreign workers/NGO’s in Afghanistan; and/or returnees
from a Western country, failed asylum seekers returning from a Western
country,
actual and/or imputed political opinion-Anti-Taliban/Pashtun/Sunni and religion,
Shia Muslim.”
- The
applicant comes from Jaghori in Ghazni Province. He told that when he returned
from England he went to Kabul to get money from
the UNHCR and was caught and
searched by the Taliban. He was in a taxi with four to five Hazaras going from
Jaghori to Kabul. They
were stopped by the Taliban and manhandled but during
the course of the incident the Taliban received a telephone call and left
quickly.
The applicant was able to return to the taxi and continue his journey
to Kabul. He also told of another incident when he was twenty-three
years of
age. He was a passenger in a motor vehicle which the Taliban fired on from a
distance in the mountains. He had been going
to Ghazni for groceries for his
shop. No-one was hurt. He said these were the only two incidents involving
himself and the Taliban.
The applicant believed that he was unable to return to
Afghanistan as he was threatened with death because there had been many threats
made against him and his family after he came to Australia. He believed that
the Taliban would have been told of his travel here
because his mother had
killed a cow and used it to feed the villagers as an offering for his safe
journey. He believed a villager
may well have told the Taliban. The killing of
the cow took place in 2009. He said that the Taliban had personally delivered a
letter to his mother threatening him.
- The
Reviewer noted that the applicant agreed that he was able to practice his
religion in Jaghori where it was safe but that he was
required to pray
separately when he travelled outside that area. He told the Reviewer that he
had taken part in a protest demonstration
outside the detention centre on the
road to Darwin and a friend with a shop in Jaghori said that he had seen him on
the television.
Because of this he was unable to relocate in Afghanistan as he
was now “famous” and everybody knew about him and if
he travelled he
would be caught by the Taliban.
- “[14] He
said his village was surrounded by the Taliban and he cannot go out of Jaghori
although there are not Taliban in Jaghori.
However, he needs to travel out of
Jaghori to get goods and other things from Ghazni and Kabul and cannot do so
because of the Taliban.
He sold the shop he had before going to England one
month before leaving Afghanistan to come to Australia.”
[CB 424]
- The
Reviewer noted submissions made by the applicant’s advisors following the
interview.
- In
his decision record the applicant’s claims as shortly stated above are set
out in one section which is followed by a section
entitled “Independent
Evidence” which lists a large number of documents, reports and the like on
Afghanistan which the
Reviewer has consulted. [CB 427 – 430]. The
Reviewer then touches on some general country information before moving to the
situation of Hazaras, then a section on Ghazni Province and a section on the
return of refugees. The Reviewer’s findings and
reasons for his decision
commence at [54] [CB 440]. The Reviewer divides his decision between what can
be said to be a generic claim
by male Hazaras of a generalised well founded fear
which was dismissed on the basis of available and current authoritative
material:
- “The
Reviewer does not accept that the Taliban specifically targets Hazaras or Shias
differentially from the population at
large is not satisfied that Hazaras face a
real chance of harm amounting to persecution by non state actors i.e. Pashtuns
in general
and the Taliban in particular simply by reason of their ethnicity
and/or religion. The Reviewer does not accept that a person’s
identity as
a Hazara Shia of itself causes him or her to fall within the Refugee Convention
definition. Nor do the UNHCR guidelines
suggest that it should.”
[60] [CB 441 – 442]
- The
Reviewer acknowledged that this finding did not mean that an Hazara Shia could
not be found to be a refugee on the basis of that
person’s own individual
circumstances and experiences to which his ethnicity or religion might be
relevant and turned to this
claimant’s particular experiences. Between
[74] and [77] the Reviewer comments upon what he describes as
“significant inconsistencies and the emergence of substantial new
information during the RSA process at the hearing interview
with himself which
caused him concern.” The Reviewer was not satisfied that these
difficulties were reasonably explicable or without significance for the
substance of
the applicant’s account and did not find him to be a
satisfactory witness:
- “[75] A
number of these difficulties, and the claimant’s generally unsatisfactory
explanations, are evident from the
omission regarding his alleged incidents with
the Taliban prior to his leaving Afghanistan for Australia in 2009. As well
there
was some plain contradictions in his evidence as reflected in his written
statements and evidence at the hearings or interviews like
that in Curtin where
he categorically denied being robbed by the Taliban although he admitted to
being subjected to robberies by
criminals as a regular occurrence in Afghanistan
and his written statements and earlier submissions by his advisers that he was
robbed
by the Taliban in the incident on the road when stopped by the armed
Taliban. The Reviewer notes that very relevant information
was not given
consistently through the process as the claimant said he was stressed a lot and
forgot.
- [76] The
way in which major new information regarding the claimant’s situation and
alleged happenings and incidents with the
Taliban and others even though he was
vague and confused as to the happenings and times emerged was somewhat
disturbing. Such major
and distinct information and details by the claimant
seems hard to overlook for such a time during the RSA process. After the entry
interview, the claimant had further opportunities during the RSA process and
with his legal advisers to raise these alleged crucial
matters – none of
which mentioned the significant information regarding his alleged Taliban and
media incidents in Kabul not
to mention the cow sacrifice by his mother and the
alleged results from that event. The reasons advance by the claimant for these
omissions and inconsistencies were unsatisfactory.
- [77] The
Reviewer is satisfied from the detailed contemporaneous note by the initial
interviewer that the claimant was asked directly
at the entry interview what his
reasons were for leaving Afghanistan and being unable to return there and if he
had any other events
or reasons involving the Taliban or others that would cause
him to leave and not want to return to Afghanistan. The Reviewer is
satisfied
that the claimant had been deliberately untruthful in this regard.
- [78] Although
the Reviewer felt the claimant had embellished and fabricated parts of his
story, nevertheless, the Reviewer is prepared
to accept that the claimant left
Afghanistan in 2009 and his family remains in Afghanistan unaccosted or harassed
by the Taliban
who allegedly have his details and who the claimant believes are
after him to kill him as evidence in apart from the copy letter
allegedly by the
Taliban produced at the Curtin hearing. However, the Reviewer has to assess
whether he has a well founded fear
of persecution for a Convention reason now
and into the reasonably foreseeable future.” [CB 447 –
448A]
- The
Reviewer also dealt with the applicant’s claim about his photo being seen
in Jaghori. He noted that no copy of the photo
had been produced and concluded
that because of the applicant’s lack of credibility that his assertion of
others seeing him
in the Darwin demonstration in Afghanistan was nothing more
than a self serving statement to give effect to a sur place claim. He
also dealt with an interview with a Hazara representative in Australia in
February 2011:
- “However,
the Reviewer does not place much weight on the interview with an advocate and
representative for the Hazara cause
as not presenting an unbiased or objective
view in the circumstances. As well much of what the claimant maintains in this
regard
especially about the Taliban and supporters in his local area is mere
conjecture and supposition.” [94] [CB 454]
- On
2 June 2011 the applicant filed an application with this court seeking review of
a decision of the second respondent. On 7 October
2011 an amended application
was filed. There were two grounds to that application but only the second
ground was proceeded with.
This is:
- “2. The
second respondent (the reviewer) did not afford procedural fairness to the
applicant for reasonable apprehension of
bias.
Particulars
- The reviewer
used a repeated formula or template for his recommendation;
- The formula or
template was applied inflexibly by the reviewer in relation to this review of
the applicant’s claims and the
claims of several other IMR
applicants;
- The IMR reviewer
had used the same formula or template as a precedent for recommendations in
relation to other IMR applications prior
to the applicant’s IMR’s
advisor’s submissions.”
The applicant also
sought an extension of time in respect of the filing of the application. He was
twenty-one days outside the thirty-five
day time limit set by s.477 of the
Act. The applicant claimed that it had been very difficult for him in
detention to obtain the necessary assistance to allow him to make
this
application. This is quite understandable and given the relatively short delay
I am minded to order that the applicant’s
time for filing an application
under s.476 of the Act be extended until 2 June 2011.
- It
will be seen that the sole ground of review is constituted by the use of
template paragraphs in a manner that would cause a fair
minded and informed
person to reasonably apprehend that the Reviewer might not have brought an
impartial mind to bear on the decision;
NADH of 2001 v Minister for
Immigration [2004] FCAFC 328; [2005] 214 ALR 264 at [14]. The Full Bench
described the apprehension at [17] as not of the fact or likelihood of a lack of
impartiality but of a possibility
(real and not remote) thereof. The applicant
brought evidence of a substantial number of other decisions of this Reviewer in
which
the template paragraphs have been used. These are in the form of both
annexures and exhibits. An analysis of these documents done
in chambers reveals
the following:
- A Summary
- All of the
reasons of the second respondent are divided into five broad sections: 1)
Recommendation of the Reviewer; 2) Statement
of Reasons; 3) Claims and Evidence;
4) Findings and Reasons; and 5) Recommendation. Of these, the sections
respectively entitled
Statement of Reasons, Claims and Evidence and Findings and
Reasons may be divided further.
- B Statement
of Reasons
- This section
is commonly divided into the subheadings: “Details of review
request” and “Relevant law”. The
section is identical in all
of the IMRs in evidence.
- C Claims
and Evidence
- The Claims and
Evidence section takes the following form in each review of the second
respondent (the bracketed numbers correspond
to paragraphs in the IMR of
SZQHI):
- An
introductory paragraph [10], a summary of the claimant’s personal claims
[11], a summary of what may be drawn from earlier
interviews and assessments
[12], the summary of the interview with the Independent Merits Reviewer
([13]-[14]), indications at the
interview by the claimant’s adviser [15],
further submissions made by the Legal Adviser post-interview ([16]-[19]) and
Independent
Evidence (divided itself into the subheadings: “Country
Information”, “Hazaras”, “Ghazni”, “Jaghori
District” and “Return of Refugees”).
- Paragraphs
[10-13] have been identified as potential template paragraphs (see table below):
- Paragraph [10]
commonly states “The reviewer has before him:” and proceeds to list
the materials before the reviewer
relating to the particular claimant’s
claims and evidence.
- Paragraph
[11], commonly begins with the phrase: “The claimant, in short, claimed
he was fearful of being returned to Afghanistan...”. It continues
“...where he would face persecution in the form of serious physical
harm and possible death at the hands of non-state agents
in Afghanistan based
on...” (see Exhibits ZK-A, ZK-E, ZK-F, Annexures A, B and C). And it
commonly concludes with the statement that “His fear of persecution
will be dealt with more fully later in this assessment.”
- Paragraph [12]
commonly states, “From the earlier interviews and assessment in this
matter the Reviewer notes:” and then commonly sets out established
evidence in relation to the individual claimant in the following order:
- How and when
the claimant entered Australia.
- “The
claimant speaks Hazaragi and claims persecution from
Afghanistan.”
- Details of
entry interview.
- Details of
interview with an officer of RSA.
- Paragraph
[13], provides details of the IMR interview including place, date,
interpreter’s presence, agent’s and legal
adviser’s
presence.
- Paragraph [14]
has been identified in the table as a “unique” paragraph as it
contains the claimant’s individual
evidence, however, it commonly begins
with the phrase, “The claimant’s evidence may be summarized as
follows:”
- The section
entitled “Independent Evidence” does not contain a single paragraph
that does not exist in other IMRs of
the second respondent. It should be noted,
however, that some of the IMRs in evidence do contain additional paragraphs and
some are
missing those that are found in the IMR of SZQHI.
- D Findings
and Reasons
- The
“Findings and Reasons” section does not contain subheadings but a
common structure exists in each of the IMRs.
- The first nine
paragraphs are identical. The first 7 paragraphs relate to the applicants’
claims that Hazaras face persecution
generally in Afghanistan. The next two
paragraphs introduce the particular claims of the applicants.
- These nine
paragraphs are followed firstly by a paragraph that again summarises the
particular claims. It is followed by a paragraph
which summarises the
claimant’s life (marital status, age, origins, why the claimant left
Afghanistan and life since leaving).
This is followed by a paragraph dealing
with the claimant’s statutory declaration.
- After further
summarising, the reviewer contemplates those countries that the applicant has
been to after leaving Afghanistan and
whether rights of return exist. He then
states “I will assess his claims against Afghanistan as his country of
nationality”.
- The paragraph
following this statement [70] generally deals with the claimants’ fear of
the Taliban. However, in SZQHI’s
case, the conclusion is made:
- “Indeed,
the Reviewer does not accept that the Taliban are interested in the claimant as
alleged and his statements that he
is a marked man by the Taliban as evidenced
in the alleged letter from the Taliban and the letter from the village elders
dated in
January 2011 are self serving fabrications in the circumstances. The
Reviewer is not satisfied that the claimant was a witness of
truth and I am
satisfied that he has fabricated and embellished his position and situation as
he has gone along in this process and
he is not averse to telling untruths to
better his position for asylum. It is clear from the material before the
Reviewer that the
claimant was [particular to claimants untruthfulness]
... Although he had ample opportunity and was invited and asked by the
interviewees if he had any more to say or add during the process
as recorded, he
continually said no and [particular circumstances not brought up prior] although
given many opportunities to do so
”
- The other IMRs
do not universally include a conclusive statement at this point (except Exhibit
ZK-F, Annexure A and Annexure C).
Annexure C includes the similar
phrasing:
- “...Indeed,
the Reviewer does not accept that the Taliban are interested in the claimant as
alleged and his statements that
he was told by his fellow villagers in Pakistan
that they were are [sic] self serving fabrications in the circumstances.
The Reviewer is not satisfied that the claimant was a witness of truth and I am
satisfied
that he has fabricated and embellished his position and situation as
he has gone along in this process and he is not averse to telling
untruths to
better his position for asylum. It is clear from the material before the
Reviewer that the claimant was [particular to claimants untruthfulness]
... Although he had ample opportunity and was invited and asked by the
interviewees if he had any more to say or add during the process
as recorded, he
continually said no and [particular circumstances not brought up prior]
although again he had ample opportunities to do so.”
- Without citing
it at length, the same phrasing of reasons appears in exhibit ZK-F.
- The next three
paragraphs deal with the law on credibility. They are identical in each of the
IMRs.
- Paragraph [74]
is nearly identical to that in exhibit ZK-F and also Annexure C. It reads:
- “In
this instance there were significant inconsistencies and the emergence of
substantial new information during the RSA process and
at the hearing of this
matter in [place of interview] which caused the Reviewer concern. It was
not just a question of vagueness or inconsistencies in recounting peripheral
details [other reviews extend here depending on claim]. Having heard the
claimant’s evidence at the hearing [some say interview] and his
explanations the Reviewer was not satisfied that these difficulties are
reasonably explicable or without significance for
the substance of his account.
The Reviewer did not find the claimant to be a satisfactory witness in this
regard.”
- It is noted
that in other IMRs, the claimants were found to be reliable, or partly reliable
in the equivalent paragraphs to [74].
- After this
section on credibility, which in SZQHI’s IMR extends to paragraph [78] (in
which some parts of the claimant’s
story are accepted), come seven
identical paragraphs summarising Australian law. In summary they deal with the
concept of well-founded
fear as interpreted in Australia, including a discussion
of its dual subjective and objective nature (Chan). They also deal with
the concept of persecution in Australian law.
- The Reviewer
then deals with the particular claims in one paragraph [87]. Although dealing
with particular claims, the paragraph
has features common to other IMRs
(Annexure A and C, Exhibits ZK-F in particular).
- It begins:
- “The
reviewer notes that the claimant stated [then claims of prior incidents with
Taliban/persecutors].”
- This
introductory phrase is common to all the IMRs on the record. And continues:
- “The
claimant also relies on general reported happenings and incidents in Afghanistan
by the Taliban as indicating, in part, that he
believes that he as a Shia and
Hazara who allegedly [particular claims related to Taliban: is being sought/
escaped from the Taliban etc.] would be a target for the Taliban and as such
he would suffer severe harm and persecution from the Taliban if he were to
return to
Afghanistan [note lack of full stop common to SZQHI, Annexure A,
Annexure C] The adviser also referred to a number of RRT decisions
in support
of the claimant’s claims for asylum, however, the Reviewer finds that
those cases were decided on their own facts
and circumstances. The Reviewer
does not accept in the circumstances of this case that there is a real chance
that the claimant whose
family remains in Afghanistan [without incident /or
contact] with the Taliban would suffer persecution now or in the foreseeable
future for a Convention reason. Indeed I do not accept that the
Taliban are
personally interested in him as alleged and claimed and for the reasons put
forward by the claimant. As well, the harm
claimed does not appear to differ in
some degree from the generalized type of violence that is reported from time to
time in Afghanistan.”
- Note: Annexure
B is quite different, where the applicant had not claimed former involvement
with the Taliban. Exhibit ZK-F does not
include the claims made by an adviser in
relation to RRT decisions. Exhibit ZK-E is also quite different but includes
some of the
common phrases. Exhibit ZK-A is again quite different but the
paragraph is identifiable (see para 77). ZK-B has three paragraphs
dealing with
this issue and few similarities to the SZQHI IMR. ZK-C is also markedly
different.
- This section
is followed by two paragraphs that feature identically in the other IMRs [88 and
89]. They respectively deal with prior
persecution of Hazaras by the Taliban
generally, continuing fear and with the fact that a general lack of safety in
Afghanistan does
not support a claim for refugee status. (Note some IMRs expand
upon paragraph [89] which in the SZQHI decision is only one sentence)
- The next
paragraph [90] includes the Reviewer’s overall finding. It commonly
states:
- “Overall,
based on all the information available to me including the available evidence
about his [and his family’s] experiences and the fact that it
was [person’s] decision to leave Afghanistan to seek protection in
Australia, I am not satisfied that the claimant has a well-founded fear of
persecution [recounts individual claims] now or in the reasonably
foreseeable future. Indeed, given the circumstances of this case, the claimant
may have been affected in
part by the incidents of an armed insurgency in terms
of general insecurity and hardships, but this does not amount separately or
cumulatively to a well-founded fear of persecution for a Convention reason. It
is accepted that the Convention definition does not
generally encompass those
fleeing generalized violence, internal turmoil or civil war (see MIMA v Haji
Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at 141). Further, as noted by Professor Hathaway, a
person affected by generalized phenomena is not ordinarily entitled to
protection
on that basis alone. In his well known tome, The Law of Refugee
Status, 1991, Professor Hathaway records that” ....refugee
law is
concerned only with protection from serious harm tied to a claimant’s
civil or political status, persons who fear harm
as the result of a
non-selective phenomenon are excluded. Those impacted by natural calamities,
weak economies, civil unrest, war
and even generalized failure to adhere to
basic standards of human rights are not ,therefore, entitled to refugee status
on that
basis alone”. (p93)
- This is
followed by an identical paragraph dealing with the UNHCR Handbook.
- Paragraphs
[92] and [93] contain the Reviewer’s reasons in relation to the
applicant’s claim that he will be persecuted
as a returnee from a Western
country. Paragraph [92] is repeated in near identical from in Annexure
“A” at (87) Annexure
“C” at (88) and a similar paragraph
appears in Exhibit “ZK-A” at (82), in “ZK-B” at (85) and
in Annexure “B” at (75). Indeed, apart from the introductory
sentence, the paragraphs are nearly identical. The first
sentence only varies in
accordance with who made the claim, be it the adviser, the applicant or both.
The remainder of paragraph
[92] dismisses this claim through reference to
independent evidence. However, paragraph [92] is also different to other
decisions
in that reference is made to letters that the applicant had submitted
as evidence to support his claim. It states “The Reviewer does not
accept that the claimant would face a real chance of persecution for that
reason even though he has furnished copies of letters allegedly from the
Taliban and his village elders sent to him by email.” Whereas, other
reviews on the record do not include this statement or replace it with evidence
submitted by the applicant
concerned. Likewise, in the following sentence, the
Reviewer states “As well, the Reviewer does not accept that the
claimant would be readily identified as a person returning from a Western
country or
that he had converted to Christianity or developed anti-Islamic
ways from people around him in Australia without more than his assertion of
this especially given the porous borders and what appears to be a mobile
workforce from Afghanistan
travelling to and from neighbouring and other
countries.” [Only the sections highlighted in bold above do not appear
in other reviews on the record.]
- Paragraph [93]
features identically in other reviews.
- Paragraph [94]
deals with the applicant’s participation in protests at his detention
centre in Darwin. A similar claim is dealt
with in “ZK-B”,
“ZK-C”, “ZK-D” and “ZK-F” in the paragraphs
that follow on from those
corresponding to paragraph [93] (of SZQHI’s IMR
decision). Although the individual claims are referred to, the conclusion to
this paragraph is identical to that in “ZK-F”, “ZK-C”
and “ZK-D” and also in “ZK-B”
(with the exception of an
orthographical correction [the addition of a comma after the words ‘In
the circumstances’]). It reads:
- “...In
the circumstances the Reviewer was not satisfied without evidence to the
contrary that material that appeared in the Media in Australia
has been produced
so pervasively in Afghanistan that local district Taliban who interacted
with the claimant’s family by producing the alleged letter calling for the
death of the claimant and that of
the village elders has it in their hands.
Indeed, it is highly improbable and implausible that the Taliban (locally or
otherwise) would be able to identify the claimant from
such footage without
more given his reported incidents with the Taliban involving him before he left
and came to Australia. The Reviewer is satisfied that given the
circumstances of this case that any participation by the claimant in the Darwin
demonstration
will not give rise to a real chance of serious harm in the
reasonably foreseeable future. The issue of persecution on the basis of
being in
Australia and having sought asylum has already been addressed.” [Again
the emboldened sections are particular to SZQHI’s IMR
decision]
- Paragraph
[95], like paragraph [90] above, gives an overall conclusion to the reasons. It
has features similar to all other decisions
on the record.
- Paragraph [96]
details the Reviewer’s finding.
- Paragraph [97]
details the Reviewer’s recommendation, it is identical in each of the
reviews.”
|
Recommendation of the Reviewer/ Recommendation (total number)
|
Details of review request/ Relevant law (total number)
|
Claims and Evidence
(interview/submission by legal adviser/Independent
evidence etc.) (total number)
|
Findings and Reasons (total number)
|
|
Paragraphs which appear identically in other IMRs (some with changed names,
place names and dates) (69 of 97 paras):
|
1-2, 97 (3)
|
3-9 (7)
|
20-53 (34)
|
54-62, 71-73, 79-86, 88, 89, 91,
92, 93 (24)
|
|
Paragraphs that appear to be templates (same structure and introductory or
concluding statements). (14 of 97)
|
|
|
10-13 (4)
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63, 64, 69, 70, 78, 87, 90, , 94 (due to later review including protest
claim), 95 (very similar, western spy), 96. (11)
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Unique Paragraphs (14 of 97)
|
|
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14-19 relating to the claimant’s evidence and submissions. (6)
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65-68, 74-77 (8)
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Note: Emboldened paragraphs represent those that are replicated
identically.
Numbers in brackets are total numbers of
paragraphs.
- Can
it be said that these similarities and use of template paragraphs allows for the
apprehension of a predisposition of the Reviewer
towards a result other than a
result reached by an evaluation of the material before him in a fair way with a
mind that was open
to persuasion in favour of the person in question? NADH
supra. This must be looked at in the context of existing decisions on
similar circumstances.
- In
Lek v Minister for Immigration & Anor [1993] FCA 297; [1993] 43 FCR 100 Wilcox J
dealt with an application for judicial review of decisions of delegates of the
Minister who made a series of decisions relating
to applications for refugee
status of 52 Cambodian boat arrivals. It is important to remember that this
decision was made under
the legislation then existing, although it did have some
similarities with the current system in use for offshore arrivals. The
applications for review were brought under s.5 of the Administrative
Decisions (Judicial Review) Act
1977[3] and not
under the Migration Act. One of the grounds of review was that:
- “The
decisions to refuse refugee status were made pursuant to a rule or policy of
refusing all applications regardless of merit.
The rule or policy was
manifested by the creation of standard paragraphs intended to facilitate
rejection of particular convention
claims.” [at 118.2]
- Evidence
had been brought of the way in which the delegates were instructed to prepare
their reports including the provision to them
of standard template paragraphs
and an analysis of their use had been done by the solicitors for the applicants.
Some standard paragraphs
were used in many of the decisions. Wilcox J discusses
these at [121 –122] before saying:
- “I agree
with Counsel that the use by decision makers of reasons devised by others is a
matter that should excite concern about
the possibility that individual
decisions were taken in accordance with an overriding rule or policy or at the
direction or behest
of others but if an inference is to be drawn from standard
provisions it is not enough to point to mere use. It is necessary to
consider
the content of the adopted provisions. The standard provisions widely used in
this case are either statements of law or
summaries of the substance of
documentary material concerning conditions in Cambodia. The full documentary
material was before each
delegate. He or she have to decide whether or not to
accept it. It seems to me that delegates who chose to accept that material
could adopt already formulated summaries of its relevant content without
exposing themselves to the reproach of having surrendered
their independence of
judgment. It is significant that Ms Kikirekova’s analysis does not
suggest that the delegates relied
on standard paragraphs in connection with
claims relating to applicant’s personal experience or circumstances. It
was by reference
to these factors that the few who were granted refugee status
achieved success.”
- Huluba
v Minister for Immigration & Anor [1995] 59 FCR 518 was another decision
under the ADJR Act by Beazley J as she then was. In that case the department
had provided the applicant with
an internal review of the initial decision but
it was alleged that the second decision maker had not applied an independent
mind
to the review but merely repeated the assessment of the first delegate. At
page 525 her Honour set out a series of passages from
both reports which
continued to page 527. At page 529 her Honour noted that procedural fairness
required a decision maker to apply
an independent mind to the application but
was entitled to have regard to the research and investigations carried out by
others as
well as to assessments and reports and recommendations prepared by
others in the course of the administrative process:
- “A
decision-maker may have regard to and adopt, if thought appropriate, the
reasoning of some other person involved in the
administrative process. Thus a
decision-maker could accept the reasoning of an officer whose function it had
been to provide a recommendation
and could adopt verbatim, such report or
recommendation, provided at all times that the decision was the independent
decision of
the decision-maker. This case is different. The second
decision-maker's task was to make a new determination. In doing so there would
have been no breach of the rules of procedural fairness for the second
decision-maker to read and consider the findings of the first
decision-maker.
However, procedural fairness required that she reach an independent decision in
the matter.
- It is obvious
from the passages set out above that the second decision-maker used substantial
portions of the report of the first
decision-maker. The coincidence of the
language makes any other conclusion improbable. Those passages contain critical
findings.
The question arises, therefore, whether this coincidence of language
demonstrates a failure by the second decision-maker to bring
an independent mind
to the determination of the application.”
Her Honour
distinguished Lek on the basis that in the case before her:
“The second decision-maker used material from the first decision-maker's
report which was specific to the applicant. They
contained the decision-maker's
findings as to whether the applicant's alleged activities were presently grounds
for persecution in
Romania and as to the applicant's credibility, both critical
factors in the decision of both decision-makers.”
Her
Honour concluded that by adopting the reasoning of another without applying an
independent mind to the matter a breach of procedural
fairness had occurred.
- In
Wu Shan Liang v Minister for Immigration & Anor [1994] FCA 926 Wilcox
J again considered the effect of the use of standard paragraphs. He also
analysed those claims over several pages looking
at the manner in which several
of the delegates dealt with a batch of claims all represented by the same agents
before concluding
at [52]:
- “The
summary I have set out demonstrates, I think, that none of the so-called
"standard paragraphs" concerns assessment of
the circumstances of individual
applicants. Indeed, little of the adopted material contains expressions of
personal opinion. In the
cases where personal opinions are expressed, other
delegates have chosen not to adopt the material. It is obvious that delegates
felt free to choose whether or not to adopt the previously-prepared material.
Where they did adopt it, they seem to have been ready
to vary its basic form so
as to make it more accurately reflect their own views. Despite the concern which
the use of "standard paragraphs"
should always evoke, I see no reason to doubt
that the delegates who refused the subject applications ultimately expressed
their
own views in their own way.”
- Lek,
Huluba and Wu Shan Liang are all cases where it was being said that
use of identical material indicated that the decision maker did not bring an
independent
mind to the decision making process and in all of them the decision
turned upon whether the templates were used in respect of the
applicant’s
particular claims as opposed to their use to describe general country
information or legal principles in migration
matters. In Chu v Minister for
Immigration & Anor [1997] 78 FCR 314 the Full Bench Carr, Kiefel and
Sundberg JJ considered a case in which an allegation of apprehended bias was
raised arising out of
the use of similar paragraphs. This is the nature of the
claim in the instant case. At [p.338] the court opined:
- “The
delegate in the present case was obliged to accord procedural fairness to the
appellant. Accordingly, she would be disqualified
from deciding his claim if the
Court thought that, in all the circumstances, a fair-minded observer might have
a reasonable apprehension
that the delegate would or might not bring an
impartial and unprejudiced mind to the question to be decided. One of the
circumstances
for the Court to take into account is that the decision-making
process is not held in public — a factor that may increase the
likelihood
of apprehension. Another is that the process in which the delegate is engaged is
administrative, and that the standard
which a fair-minded observer will expect
of a delegate discharging an administrative function may not be as high as that
expected
of, say, a judge or a formally constituted tribunal such as the
Broadcasting Tribunal or the Industrial Relations Commission.
- The primary
judge's conclusion that there was a reasonable apprehension of bias was based on
the cumulative effect of the four considerations
we have mentioned. As to the
first, the mere coincidence of language between the reports adopted by a second
and first decision-maker
would not in our view of itself lead a fair-minded
observer to entertain a reasonable apprehension that the second decision-maker
might not have brought an impartial and unprejudiced mind to the matter. Though
he did not put it in quite this way, his Honour seems
to have been of this
opinion. What appears to have caused him to have concluded that the high
coincidence of language between the
1992 Departmental report and the 1994
Departmental report was significant was that the reference in the former report
to 16 years
having elapsed since the appellant's last conviction had not been
converted to 18 years in the latter report. This his Honour described
as
"supportive of an inference being drawn from the identity of language in this
case because it demonstrates a lack of proper consideration".
The person who
prepared the 1994 Departmental report was careless in not adjusting the number
of years from 16 to 18. But we do not
regard that lapse as suggesting the
appearance of bias on the part of the delegate, or as suggesting that a
fair-minded observer
might reasonably have apprehended that the delegate may not
have brought an impartial and unprejudiced mind to the task before her.
It is to
be noted that his Honour did not conclude that it was. Rather he said that the
identity of language coupled with the oversight
justified the inference that the
delegate did not apply an independent mind to the decision-making process. That
is a different issue
from the apprehended bias
question.”
The Full Bench also noted that the
appellant could derive no assistance on the apprehended bias issue from
Huluba.
- WAFK
v Minister for Immigration & Anor [2003] FCA 1293; [2003] 133 FCR 209 was another case in
which it was alleged that because the findings of a second Tribunal followed a
formula or common formula that
could be traced in earlier decisions the Tribunal
had failed to apply itself to the appellant’s particular circumstances.
French J considering that claim stated at [38]:
- “The
coincidence in the text, so far as it related to independent country
information, does not support the inference that
the Tribunal took its text from
the particular earlier Tribunal decisions which were referred to by counsel. It
may be that in similar
cases, eg, cases involving persons of Arab ethnicity
coming from Iran, there will be a good deal of commonality in the independent
country information referred to by various tribunals and that similar citations
will be made. It may be the case that Tribunal members
are using similar surveys
of relevant country information in similar cases and adopting a "cut and paste"
technique to incorporate
those in their judgments. This does not, in my opinion,
demonstrate, as a matter of fact, that a tribunal so doing fails to consider
the
country information for itself. In the case under appeal I do not consider that,
even if a cut and paste technique were adopted,
as seems likely, that this is
indicative of a failure by the Tribunal to carry out its statutory function. No
doubt it could be said
that at [96] of its reasons the Tribunal goes beyond the
mere recitation of independent country information to a conclusionary statement
which is word for word the same as a conclusionary statement made in another
Tribunal decision involving a person of Arab ethnicity
from Iran. While I think
it would be preferable for Tribunal members in drafting their reasons to express
their conclusions in their
own words rather than those of another decision by
another member, failure to do so does not indicate that the Tribunal member has
not applied his or her mind to the facts or that the Tribunal member does not in
fact hold the view expressed in the reasons given.”
- Federal
Magistrate Smith followed the views of French J in WAFK in S1527 of
2003 v Minister for Immigration & Anor [2005] FMCA 1846. Whilst he
found that significant copying had happened he:
- “...would
not use that word with any disparaging or critical connotations. Comparing the
three sets of reasons, it is clear
that the first two shared or provided
"template" decisions which the present member has used. This included the
adoption by the present
member of the wording of some significant general
findings about relevant country information in both sections of the
Tribunal’s
reasons. [16]
- ...
- “That
there was adoption of general findings on country information should not be
surprising. The courts for many years have
been aware that Tribunal members
often adopt and apply a "boiler plate" analysis of the relevant law. This has
not, of itself, provided
ground for judicial review.” [17]
- His
Honour at [18] made reference to the High Court decision in Wu Shan Liang
[1996] HCA 6; [1996] 185 CLR 259 at [266] per Brennan CJ, Toohey, McHugh and Gummow
JJ:
- “A
statement of reasons for a decision reviewable under the AD(JR) Act is not
invalid merely because it employs a verbal formula
that is routinely used by
persons making similar decisions. If the formula is used to guide the steps in
making the decision and
reveals no legal error, the use of the formula will not
invalidate the decision. On the other hand, if a decision-maker uses the
formula
to cloak the decision with the appearance of conformity with the law when the
decision is infected by one of the grounds
of invalidity prescribed by the Act,
the incantation of the formula will not save the decision from invalidity. In
such a case, the
use of the formula may even be evidence of an actionable abuse
of power by the decision-maker.”
At [20] his Honour
delivered his findings:
“I consider that the adoption by a Tribunal member of phrases taken from
previous Tribunal decisions, whether written by a
different member or by himself
or herself, cannot of itself amount to jurisdictional error. Jurisdictional
error might be found where
the adoption of findings appears to the court to have
led to a failure by the member constituting the Tribunal to address the
particular
review with an unbiased and open mind, or a failure actually to
perform the Tribunal’s review duty in relation to the particular
application for review which is required by ss.414
and 415
of the Migration
Act. However, even the adoption of text which makes findings specific to
the credibility of an individual applicant might not suggest
a failure to
exercise jurisdiction. As French J said in WAFK v Minister for Immigration &
Multicultural & Indigenous Affairs
[2003] FCA 1293: |
[52] It appears clear that the Tribunal has borrowed from the text of earlier
Tribunal decisions or from some common source which
is used in cases of this
kind. While each case must turn upon its own circumstances, I am not satisfied
that the mere fact of the
use of common form text in relation to statements of
general principle, general conclusions about country information and even
findings
of credibility in similar cases is necessarily indicative of
jurisdictional error. It is, of course, in the latter area, that is
to say
findings of credibility in the particular case, that the Tribunal should be at
pains to make it clear that it has given careful
consideration to the detail of
the application which it is required by the Act to review. I do not consider
that resort by the Tribunal
to common form texts for the purpose of findings of
credibility in respect of a particular applicant is desirable. However, in this
case the use of that text was sufficiently modified by reference to the
particular circumstances of the appellant’s claims
to indicate that the
Tribunal was giving consideration to the appellant’s
case.”
- The
claims made against the Reviewer in the instant case were considered by Driver
FM in SZQHH v Minister for Immigration & Anor [2011] FMCA 740. His
Honour’s reasoning and finding as to the apprehended bias claim is set out
in full below:
- [80] As in
Wu Shan Liang, Chu, WAFK, Lek and SZQEL the
applicant’s complaint, to the extent that it is based on the use of common
language in the reasons concerning country information
and in its statements
concerning the applicable law, does not indicate that the reviewer has not
considered the country information
for himself or failed to consider the
applicant’s individual circumstances. As Smith FM observed in Alami v
Minister for Immigration & Anor [2011] FMCA 623 at [31],
there is no serious doubt that the Reviewer’s “report might not
genuinely record his own careful and thorough consideration
of [the
applicant’s] claims in the light of relevant country information, nor that
it might not provide his own carefully considered
reasons for the recommendation
he made to the Minister and his Department.”
- [81] However,
the complaint here extends to the detail of the reasoning process itself. It
might be argued that a reviewer is entitled
to apply a template decision to a
template claim by an applicant. Hazara Shias commonly claim a well-founded fear
of persecution
as a class claim, namely that by reason simply of their ethnicity
and religion, they should be recognised as refugees. This draws
upon the history
of the Hazara minority in Afghanistan and the continuing threat posed by the
Taliban and the broader Pashtun population.
Given the history of the Hazara
minority, such a claim cannot and should not be lightly dismissed. While a
template claim, it was
part of this applicant’s claims and needed to be
considered. It is a concern that the consideration given to that claim by
the
Reviewer was in identical terms to the consideration of the template claims by
earlier Hazara applicants dealt with by the same
Reviewer. This is particularly
so in circumstances where the applicant’s advisor had made detailed
submissions bearing on this
aspect of the applicant’s claims.
- [82] Further,
the elimination of the template claim that the applicant should be recognised as
a refugee because of his ethnicity
and religion may have infected the
Reviewer’s consideration of the applicant’s particular
circumstances. In concluding
at [58] in identical terms to the previous
decisions that the Reviewer did not accept that the Taliban specifically targets
Hazaras
or Shias differentially from the population at large and that he was not
satisfied that Hazaras face a real chance of harm amounting
to persecution by
non state actors (Pashtuns in general and the Taliban in particular) simply by
reason of their ethnicity and religion,
the Reviewer placed a heavy onus on the
applicant to satisfy him that his particular circumstances gave rise to a
well-founded fear
of persecution (which in order to have a Convention nexus in
his case must be linked to his ethnicity or religion) and which, in
order to
satisfy the requirements of s.91R
of the Migration
Act, must be systematic. Plainly, if a reviewer excludes the possibility
of a well-founded fear of harm of the class of Hazara Shia applicants
by reason
of their ethnicity and religion, it is very difficult for an individual
applicant to establish such a fear based upon systematic
persecution. It is
difficult to argue why the Taliban and Pashtuns would target individuals
systematically by references to their
ethnicity or religion if they do not
target the ethnic and religious class to whom an applicant belongs
systematically. It may reasonably
be argued, therefore, that the
Reviewer’s approach to the determination of the generic claim
pre-determined the outcome of
the specific claims of the applicant.
- [83] The
Reviewer’s approach to the generic claim was so apparently inflexible or
mechanical that a fair-minded and informed
person might reasonably apprehend
that the Reviewer might not have brought an impartial mind to bear on the
decision: NADH of 2001 v Minister for Immigration [2004] FCAFC 328; 214 ALR 264 at [14].
The apprehension itself is not of the fact or likelihood of a lack of
impartiality, but of a possibility (real and not remote) thereof:
NADH at
[17].”
- I
think there is much force in the argument put by Driver FM as to the attitude
that might be taken by a fair minded observer. But
that is not the full test.
The observer is not only to be fair minded but to be informed; Webb v The
Queen [1994] HCA 30; [1994] 181 CLR 41 per Dean J at [76]. “Informed” in this
context means being aware of the structures under which decisions of this nature
are made including the fact that there exists a very large amount of independent
country information which is referred to in similar
terms by advocates acting on
behalf of asylum seekers. The observer will be informed that this information
will have been read by
the Reviewers together with other information provided to
them by the department and from their own researches. The generic claims
being
made by these applicants are just that; “generic”. They are not
claims arising out of their particular circumstances.
I cannot see any vice in
Reviewers both setting out those claims and their refutation of them in standard
form and I do not think,
contrary to the views expressed by Driver FM, for whom
I have the greatest respect, that doing this infects the way in which the
informed observer would view the Reviewer’s decision making in regard to
the particular claims. I believe that the view is
one that has the support of
the authorities rehearsed above.
- On
the other hand I do not feel similarly sanguine about the way in which the
observer would view the treatment of the particular
claims. The decision upon
them is made in one paragraph [87] [CB 450]:
- “[87] The
Reviewer notes that the claimant stated he had been involved in 2 incidents with
the Taliban since being deported
back to Afghanistan from the UK for being
Hazara/Shia. The claimant expresses a fear of the Taliban who want to kill him
for being
Hazara/Shia, for being suspected of supporting the Americans and
denying him the right and capacity to earn a livelihood. The claimant
also
relies on general reported happenings and incidents in Afghanistan by the
Taliban as indicating, in part, that he believes that
he as a Shia and Hazara
who allegedly is being sought by the Taliban who have his details as reflected
in the alleged letter given
to his mother by the Taliban and that he would be a
target for the Taliban and as such he would suffer severe harm and persecution
from the Taliban if he were to return to Afghanistan. The adviser also referred
to a number of RRT decisions in support of the claimant’s
claims for
asylum, however, the Reviewer finds that those cases were decided on their own
facts and circumstances. The Reviewer
does not accept in the circumstances of
this case that there is a real chance that the claimant whose family remains in
Afghanistan
without incident with the Taliban would suffer persecution now or in
the foreseeable future for a Convention reason. Indeed, I do
not accept that
the Taliban are personally interested in him as alleged and claimed and for the
reasons put forward by the claimant.
As well, the harm claimed does not appear
to differ in some degree from the generalized type of violence that is reported
from time
to time in Afghanistan.”
- That
paragraph has been shown in the analysis to be very similar to paragraphs in
other decisions where only the different factual
circumstances have been
inserted. In other words the decision upon those facts is in all cases
identical even though the facts are
different. That to my mind does raise the
apprehension that the Reviewer has not brought an impartial mind to the
process to the process (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001)
179 ALR 425 at [27], NADH of 2001 v Minister for Immigration [2004] FCAFC 328; (2005) 214
ALR 264) and raises the apprehension that he wishes to fit this applicant into
the template he has previously prepared. That this may not
be case is not to
the point. As the Full Bench said in Chu:
- “One of
the circumstances for the court to take into account is that the decision making
process is not held in public –
a factor that may increase the likelihood
of apprehension.” [At 338C]
- I
acknowledge that at [74 – 77], see [7] of these reasons, the Reviewer
makes some important and unique findings in relation
to the credibility of the
applicant. But in the way in which the reasons are structured those findings do
not appear to be tied
into the substantive finding at [87]. In [87] he makes
reference to the two incidents which it is reasonably clear from [74 –
77]
he does not believe occurred but he does not say so and this raises the
impression, even in the mind of an informed observer,
that the Reviewer was more
intent on fitting the case into the pre-existing template than ensuring
comprehensible reasoning. That
would indicate a predisposition to a particular
outcome and exhibit the symptoms of jurisdictional error.
- Whilst
it has been necessary to look at the Reviewer’s decision in some detail
and to compare it critically with the other decisions
tendered, this has not
been done with a mind attuned to the establishment of error. I am of the view
that the applicant has made
out his case, that this decision record, when
compared with others handed down by this Reviewer, would lead the fair minded
informed
lay observer to the view that the Reviewer might not bring an impartial
and unprejudiced mind to the question to be decided. I shall
therefore make the
declarations sought by the applicant and order that the First Respondent pay the
Applicant’s costs assessed
in the sum of $6,240.00.
I
certify that the preceding twenty-five (25) paragraphs are a true copy of the
reasons for judgment of Raphael FM
Date: 9 February 2012
[1]
“Reviewer”
[2]
“Act”
[3]
“ADJR Act”
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