The applicant alleges a reasonable apprehension of bias because of the Reviewer's application of a template or "sausage machine" approach. The applicant put in evidence reports and recommendations by the same Reviewer in nine other cases decided between 11 January 2011 and 29 March 2011. All of the cases involved Afghan Hazaras making similar claims to those of the applicant.
The decision in the present case comprises 90 paragraphs. An analysis of the decision with other decisions by the same Reviewer in relation to Hazara Shia claimants (which were tendered in evidence) and which pre-dated the present decision shows that the first 32 paragraphs of the decision are common in whole or part (and substantially in whole) to the earlier decisions of the Reviewer. The only real difference is that the Reviewer identifies the particular claims made by the applicant and submissions made by his representative. There follows a discussion of circumstances in Gazni province in Afghanistan and [45] through to [51] of the decision are effectively identical to the earlier decisions.
Under the heading "Findings and Reasons", [52] through to [59] are the same as in the earlier decisions. Those paragraphs deal with what might be described as the "generic claim" of the applicant that he should be recognised as a refugee because of his Hazara ethnicity and Shia religion. From [61] the Reviewer turned to the particular claims of the applicant. Those paragraphs follow a similar form to the earlier decisions and at [66] through to [77] reproduce substantially what the Reviewer had said in earlier decisions. Paragraphs [78] to [80] consider in more detail the particular claims of the applicant and [81] through to [86] reproduce very substantially the reasoning and reference material referred to by the Reviewer in the earlier decisions. Paragraph [87] refers to a particular claim by the applicant. The conclusions made by the Reviewer at [88] to [90] follow a template form but refer to the particular claims of the applicant.
Some standard paragraphs complained of consist of more than statements of law or summaries of the substance of country material allowed in ; at 122. The standard paragraphs also contain conclusions about the applicants' claims, unlike those standard paragraphs in which "did not concern assessment of the circumstances of the individual applicants: per Wilcox J at [52].
Lek v Minister for Immigration, Local Government and Ethnic Affairs
For example the decision at [53]-[60] includes conclusions on generic claims as well conclusions on country information. These and other paragraphs have been taken from previous IMR recommendations and used again in another set of recommendations, including the recommendation pertaining to the applicant.
The applicant complains that the use of these standard paragraphs in the reasoning of the Reviewer indicates an inflexible or mechanical mind such that a fair minded person might reasonably apprehend a mindset on the part of the Reviewer that was not impartial.
There is no general prohibition on the use of a template or standard paragraphs in a reviewer's decision. To use the words of Smith FM in S1527 of 2003 v Minister for Immigration[2005] FMCA 1846 at [17]:
That there was adoption of general findings on country information should not be surprising. The courts for many years have been aware that [decision makers] often adopt and apply a "boiler plate" analysis of the relevant law. This has not, of itself, provided ground for judicial review.
In the present case the Minister contends that it is clear that the Reviewer well understood the importance of assessing the applicant's claims individually[34]. In the Minister's submission, that did not prevent the Reviewer from assessing the more generic claims in a way that was the same or similar to other similar cases before him.
Paragraphs [53]-[59] contain the Reviewer's finding on a "generic" claim relating to the position of Hazaras in Afghanistan. These are identical to paragraphs in other reports, and much of the country information is identical across the reports. Further, there are statements of law which are identical across the reports. However, on the claims that are specific to the applicant, I accept that the Reviewer has turned his mind to the applicant's individual circumstances[35].
In Minister for Immigration v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey , McHugh and Gummow JJ the Court said:
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 Lek v Minister for Immigration, Local Government and Ethnic Affairs[1993] FCA 297; (1993) 43 FCR 100 where at 122 Wilcox J likewise observed:
...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 were 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 had 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. [emphasis added]
Lek was cited by Beazley J in Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 by Beazley J:
I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process. It follows that the appellant was denied procedural fairness by the second decision-maker.
However, the significance of evidence of a decision maker turning his or her mind to the particular facts was emphasised in Chu v Minister for Immigration(1997) 78 FCR 314 at 338C-339C per Carr and Sundberg JJ where some identical language was used by the Reviewer of an earlier decision maker, but the language was adopted and facts altered so as to correct earlier facts. This indicated that the decision maker had turned his mind to the new factual substratum.[36]
French J came to a similar conclusion in WAFK v Minister for Immigration[2003] FCA 1293; (2003) 133 FCR 209 at [38], [52], noting that "cut and pasting" of country information or even use of a common form text for credibility findings did not indicate that the applicant's claims had not been considered.
More recently, similar complaints were made in the same (IMR) context in SZQEL v Minister for Immigration & Anor(No.2)[2011] FMCA 582 (29 July 2011) per Raphael FM at [20] - [24].[37]
Here, as in SZQEL, the same or similar reasoning was used by the Reviewer in relation to the "generic" claims of the applicant. In SZQEL Raphael FM said:
I believe that it would be open for a court to find in cases where a number of decisions are published around the same time and where the same independent country information is utilised to substantiate (or disprove) a claim that there was nothing impermissible in utilising the same phraseology in reaching those conclusions.
The Court in SZQEL dismissed a similar ground of review to this ground, although in that case the Court did not have evidence of similar decisions made some two and a half months earlier.
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."
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.
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.
[2]
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.
21. 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].
22. The relevant predisposition which is apprehended as possible is the 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 at [20].
23. I find that this ground of review has been established.
24. I will grant relief in the form of a declaration and an injunction.
25. I will hear the parties as to costs.
[3]
I certify that the preceding eight-seven (87) paragraphs are a true copy of the reasons for judgment of Driver FM
[4]
[9] The applicant's submissions refer to a "sausage machine approach".
[5]
[10] Cf. VEAL vMinister for Immigration[2005] HCA 72; (2005) 225 CLR 88at [8] "Because the parties identified the critical question in the way they did - what did common law principles of procedural fairness require in this case? - much of the argument was directed to examining how judicial statements of general principle should be applied to the way in which the Tribunal had conducted its review of the refusal to grant the appellant a protection visa. Before embarking upon an examination of the application of general principles it is as well to identify the premises from which the parties' arguments about the application of those principles proceeded. In particular, it is necessary to begin from an explicit recognition of the fact that the Tribunal was exercising powers and performing functions specified by the Act." Here the Reviewer was not performing function under a procedural code in the Act.
[6]
[11] This submission was not be taken to amount to a concession that the applicant was not put on notice of the adverse information during the IMR process. It was simply to submit that it was sufficient that the RSA decision referred to the substance of the adverse information in order for procedural fairness to have been afforded.
[25] This issue in relation to the same Christian Science Monitor article was considered by Smith FM in SZQEK v Minister for Immigration & Anor[2011] FMCA 628. He did not definitely conclude the matter but said he was unpersuaded that the information in the article was not sufficiently raised in the RSA in that case through the same February 2010 DFAT cable: at [53]-[54]. In SZQEK the RSA had more fully quoted the DFAT cable including that "the reporting cable of 21/2/2010 advises that while unofficial discrimination of Hazaras still persists..." at Schedule 1.
[11]
[32] CB 103. Applicant's submissions quoting a report by Professor Maley dated 20 May 2010.
[37] The Minister does not understand the meaning of the submission about SZQEL in the applicant's written submissions at [42] in that the relevance of the timing of previous decisions by the same Reviewer is not understood.
Parties
Applicant/Plaintiff:
SZQHH
Respondent/Defendant:
Minister for Immigration & Anor [2011] FMCA 740
Cases Cited (33)
SZQHH v Minister for Immigration & Anor [2011] FMCA 740 (30 November 2011)
I received as evidence the book of relevant documents filed on 4 July 2011. I also received the affidavit of Sue Archer made on 11 July 2011 to which is annexed a transcript of the hearing conducted by the Reviewer at the Curtin Detention Centre and the affidavit of Gary Koutzoumis made on 9 September 2011 to which is exhibited a bundle of other decisions made by the Reviewer.
The applicant contends that there were failures by the Reviewer to afford procedural fairness to the applicant in two respects. First, he contends that the Reviewer failed to put credible, relevant and significant country information to him during the course of the review. Secondly, the applicant contends that the application of a template to the preparation of the Reviewer's reasons gives rise to a reasonable apprehension of bias[9].
The Minister submits that there was no want of procedural fairness in this case because the issue to which the document referred (namely the proposition that the situation in Afghanistan had improved for Hazaras) was an issue which the applicant (and his adviser) were acutely aware of and of which he had a fair opportunity to comment and make submissions. The Minister concedes that the Reviewer did not provide the applicant with a copy of the Christian Science Monitor article which was relied upon by the Reviewer in his report and recommendation but the Minister submits that procedural fairness only requires that the substance or gist of the adverse information be put to the applicant for comment. The Minister contends that the substance of the impugned information in the Christian Science Monitor article was put to the applicant during the RSA and independent merit review processes.
To the extent that the applicant says that what was put to the applicant through the RSA process needed to be directly put once again during the IMR hearing itself, this, in the Minister's submission, would be misconceived. It is well accepted that where there are multiple stages of a decision making process, that process should be considered in its entirety to determine what procedural fairness entails: Haoucher v Minister of State for Immigration and Ethnic Affairs[1990] HCA 22; (1990) 169 CLR 648 at 660 - 662; State of South Australia v O'Shea[1987] HCA 39; at 31. As the RSA and IMR processes are recommendations going to the decision making process of the Minister, and the applicant was put on notice of the country information at the RSA stage, the Reviewer was, in the Minister's submission, not required to put adverse information to the applicant again: see also at , [106]-[111].
Finally, to the extent that the applicant contends that the Reviewer was required to put to the applicant or his advisor the specific or actual content of the Christian Science Monitor article by giving a copy of it to him at the interview, this too is, in the Minister's submission, misconceived. While the Reviewer did not provide the applicant a copy of the Christian Science Monitor article, procedural fairness only requires that the substance or "gist" of the adverse information be put to the applicant for comment: Plaintiff M61 v Commonwealth of Australia[2010] HCA 41; (2010) 272 ALR 14 at [91]; VEAL vMinister for Immigration[2005] HCA 72; (2005) 225 CLR 88 at [29], Minister for Immigration v Kumar[2009] HCA 10; (2009) 238 CLR 448 at [31]- [35]. The Minister submits that the information in the DFAT report was more comprehensive. To this end, the substance of the impugned information in the Christian Science Monitor article was, in the Minister's submission, put to the applicant during the RSA and IMR processes. The substance of the impugned information was a reason given by the RSA for rejecting the applicant's claims to be a refugee at the RSA level[12]. The substance of the information in the Christian Science Monitor was also said to be contained in the DFAT report which was given to the applicant's advisor during the IMR process[13].
In relation to the second ground, the Minister contends the Court should not conclude that the use of a template or parts of the Reviewer's decision gives rise to an apprehension of bias.