Consideration
26 It seems clear that the appellant's life in the relatively short period of his return to Afghanistan between 2008 and 2010 was very difficult. For example, the appellant swore that his five young daughters were sexually harassed and molested by four men of Kuchi ethnicity. This violence occurred in public while the girls were in the company of the appellant and his wife. The appellant attempted to defend his daughters but was attacked and beaten badly by half of the assailants, while the others continued to molest them. The assaults were only stopped when they attracted the attention of passers by. The Reviewer accepted that this incident occurred, although she did not relate it to the appellant's Hazara ethnicity or his Shi'a faith. She treated the assaults as "opportunistic" or "indiscriminate" sexual harassment, and the assault on the appellant as a furtherance of that harassment.
27 The appellant also swore that shortly before he left Afghanistan he had worked as a welder with his cousin in a business that made doors. His cousin was beaten and shot dead when, in attempting to obtain payment of a business debt, he went with some Pashtun customers to a neighbouring province. The appellant knew these customers and had been asked to go with his cousin at the time but did not do so. The appellant said that the customers were Taliban, that they had refused to pay in full because his cousin was an Hazara, and in effect that his cousin was killed because he was an Hazara who pursued the payment. The cousin was not robbed of his valuable items, which led the appellant to believe that his cousin was not killed for money. It seems the murder was never solved and the murderers not apprehended. Again, the Reviewer accepted that this murder occurred. However, she rejected the suggestion that the killers were Taliban and treated the murder as a criminal act which was not motivated by any reason covered by the Refugee Convention.
28 The Reviewer's findings in this regard are not part of the appeal. I set these facts out as they illustrate the harshness of the appellant's life in Afghanistan and the difference between this and the life we expect in Australia. It is the life to which the appellant will be returned if his application to be treated as a refugee is unsuccessful. That is not to say that his appeal ought not be rejected if he cannot establish jurisdictional error, but rather that he is entitled to a proper consideration of his claims.
29 There can be no argument, and the Minister concedes, that a failure to deal with an integer of a claim for refugee status can constitute a jurisdictional error. The Minister's case is that no jurisdictional error occurred as the Reviewer properly considered and rejected the Returnee from Iran Claim.
30 As is clear from the heading to paragraphs [40] to [42] of the reasons (see [15] above) the Reviewer grouped together the claims relating to political opinion of returnees, westernisation of returnees and returnees who were asylum seekers. The Minister argues that there is no relevant distinction to be made between an Afghan returnee from Iran and Afghans who have been "westernised" or who are failed asylum seekers and are then forced to return to Afghanistan. The Minister submits:
The appellant's fear was from the Taliban and associated groups. The appellant's submissions concentrated on the risk he claimed to face as a result of a perception he would be seen as pro-western and/or returned from a western country. It is also of significance in this context that the Reviewer rejected the appellant's claim to fear [of] persecution from the Taliban for reasons of the imputation to him of an adverse or anti-Taliban political opinion.
31 I do not agree. The appellant has lived a large part of his life in Iran and claims that this experience sets him apart from those who have lived only in Afghanistan, and from those who have only been away from Afghanistan for a short period. The appellant claims that he stands out because of his lengthy period in Iran and that he faces a real risk of persecution as a result. The appellant's submissions in the March 2011 RILC letter (as set out at [12] above) made clear his claim that he was culturally or socially changed by his long stay in an urban environment in Iran, and likely to stand out. The submissions in the June 2011 RILC letter as to the view of Professor Farooqi of Kabul University (set out at [13] above) indicated his claim that, amongst other things, the accent acquired by an Afghan who had lived for a long time in Iran was likely to expose such a person to degrading conduct.
32 This was not a claim by reference to "westernisation", as it could not be contended that Iran is a western country. Nor was it a claim to having an imputed affiliation with certain political ideas or foreign interests. This integer of the Returnee from Iran Claim could stand alone, that is, even if the appellant made no claim by reference to his Shi'a religion or Hazara heritage, Australian asylum claim or any imputed political affiliation.
33 In my view the Reviewer's consideration of the Returnee from Iran Claim in paragraph 40 of her reasons (set out at [15] above) did not deal with the integer of that claim relating to the cultural and social changes that the appellant underwent while in Iran, which made him identifiable and liable to be targeted for persecution. The Reviewer considered only that integer of the claim relating to imputed political ideology or western affiliations and sympathies.
34 The Reviewer's consideration of the Returnee from Iran Claim in paragraph 41 of her reasons (also at [15] above) again did not deal with the integer of that claim relating to the cultural and social changes in the appellant while in Iran. The Reviewer considered only whether the appellant would be imputed with particular political opinions and western affiliations, or would be imputed to have wealth.
35 In paragraph 42 of her reasons (at [15] above) the Reviewer dealt only with the first two integers of the Returnee from Iran Claim. In relation to this paragraph of the reasons the learned Federal Magistrate focussed on the word "also", and considered that the second sentence added findings to the paragraphs that precede it. I respectfully disagree. In my view the word "also" in the second sentence of the paragraph, when read in context, is a reiteration of the findings that it refers to. The first sentence of paragraph 42 is a finding with respect to the claim that the appellant would suffer persecution on the basis that he was a returnee from Australia or a returned asylum seeker. The second sentence is a reiteration of the Reviewer's rejection in paragraph 40 of the integer of the appellant's claim relating to imputed political opinion or sympathies and membership of particular postulated social groups.
36 Then the Minister argues that the appellant seeks to scrutinise the reasons in a way which is overly critical. In this regard the Minister relies on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu Shan Liang") where Brennan CJ, Toohey, McHugh and Gummow JJ explain at 271-272:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
37 Kirby J also explained in Wu Shan Liang at 291:
(1) The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.(Collector of Customs v Pozzolanic);
(2) This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others.(Brimbella Pty Ltd v Mosman municipal Council (1985) 79 LGERA 367 at 368; cf Collector of Customs v Pozzolanic [other citations omitted].
38 However, the rule that administrative decisions should be given a beneficial construction is not always an answer to a claim that a person making administrative decisions has failed to do so accordingly to law. I respectfully agree with the view expressed by Stone J in SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26], where her Honour said:
The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked.
See also SZQJH v Minister for Immigration and Citizenship [2012] FCA 297 at [36] per Rares J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [37] per Jagot J.
39 The Returnee from Iran Claim had three important integers. A distinction was drawn between the claims with respect to "living abroad" and "westernisation". The appellant's submissions concentrated more on integers of the claim based on his ethnicity, his religion and imputed political opinions or sympathies rather than the social and cultural changes undergone by the appellant while in Iran. Even so, one of his contentions was that as a result of his spending 22 years of his life in urban Iran he was culturally and socially changed such that he was likely to stand out and face persecution. For example, Professor Farooqi's view that cultural and social changes could be indicated by his accent and would expose him to degrading conduct should have been considered. This integer of the appellant's claim was not required to be accepted by the Reviewer, but it was required to be considered.
40 In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] the Full Court per Black CJ, French and Selway JJ explained:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 to 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
41 The relevant integer of the Returnee from Iran Claim was raised squarely on the material available to the Reviewer, and any even if not seen as raised squarely, must have been apparent on the face of the material. It was incumbent upon the Reviewer to consider and make a decision with respect to it. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 ("Applicant WAEE") at [45] the Full Court, per French, Sackville and Hely JJ, explained:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the [Reviewer] will have failed in the discharge of its duty.
42 I have kept in mind that the IMR is not a court and the Reviewer is operating in an environment which requires the expeditious determination of a large number of claims for refugee status. The inference that the Reviewer has failed to consider an issue is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified. As the Full Court in Applicant WAEE said at [47]:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
43 In the present case the reasons were otherwise comprehensive, but the Reviewer does not identify this integer of the Returnee from Iran Claim. In my view a finding on this integer is not subsumed in the other findings made. The Reviewer did not expressly deal with the claim that the appellant was culturally or socially changed by his 22 years living in urban Iran, and would therefore stand out so as to possibly be a target for persecution, and I infer that she did not consider it. In failing to deal with this claim the Reviewer did not accord the appellant procedural fairness and fell into jurisdictional error.
44 I order that the appeal be allowed and the Minister pay the appellant's costs including the costs of the proceedings before the Federal Magistrates Court.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy J.