SZQVI v Minister for Immigration & Citizenship

Federal Court of Australia|2012-09-20|Before: Gilmour J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Smith delivered on 8 March 2012. In that decision, his Honour dismissed an application for judicial review of a recommendation of the second respondent (the Reviewer) dated 25 October 2011. The Reviewer had recommended to the first respondent (the Minister) that the appellant 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 (collectively, the Convention).

Background 2 The appellant arrived in Australia on 24 April 2010. On 9 October 2010, the appellant requested a refugee status assessment. On 10 November 2010, a delegate of the Minister found that the appellant did not meet the definition under the Convention. 3 On 24 December 2010, the appellant requested an Independent Merits Review of the delegate's assessment. The Reviewer concluded the review on 25 October 2011. 4 As explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [38]-[52] and [73], such review process is part of a process conducted under administrative arrangements established by the Minister's Department. 5 Independent Merits Reviewers are appointed by the Minister. Their function includes reporting their assessment and recommendation to the Minister for his consideration. The Minister is not obliged to take a Reviewer's assessment or recommendation into account by virtue of s 46A(7) of the Migration Act 1958 (Cth) (the Act). Whilst that recommendation is not an administrative decision the assessment and review must be procedurally fair and must address the relevant legal question or questions: Plaintiff M61/2010E at [77]. 6 The appellant claimed he was born in Afghanistan, was an Afghani citizen, but had lived in Iran since he was a young child. He was a Hazara and a Shia Muslim. He faced persecution in Afghanistan on this basis, and claimed to have been deported on several occasions to Afghanistan. It was claimed that in 2009 when the appellant returned to Afghanistan, he had been beaten and sexually abused by a Pashtun man while in Kandahar due to the fact that he was a Hazara. The appellant believes that he was targeted because of his ethnicity and religion. It was further claimed that the appellant's father had returned to Afghanistan to sell their land in 2002 and was killed. However, the appellant did not know who killed him. 7 The appellant claimed that he could not live in Afghanistan. In particular, he claimed that he could not relocate to a large city because he grew up in Iran and would be treated like a stranger; he would be recognised as an Iranian in Afghanistan; that he was not familiar with Afghan society; and among other things, that he did not have a taskera. The appellant claimed that he would face discrimination for being perceived to be an Iranian and a spy, and if he were to return to Iran, life would be difficult without identification documents. 8 The appellant claimed that his fear of persecution was based on his Hazara ethnicity and Shia Muslim religion.

The Reviewer's Decision 9 The Reviewer accepted that the appellant was an Afghani national, a Hazara and a Shia Muslim. The Reviewer was not satisfied that the attack that was alleged to have occurred was motivated by race and/or religion, finding that it had been for a criminal purpose rather than a Convention reason. The Reviewer did not consider that Hazaras and Shias, as groups, were generally subjected to persecution for reasons of their ethnicity and religion. The Reviewer found that such harm, as was indicated by country information, being the need for Hazaras to pay additional bribes at border crossings, was of a minor pecuniary nature and would not affect the claimant's livelihood in any material way. 10 In short, the Reviewer "did not accept that a person's identity as an Hazara/Shia of itself causes him or her to fall within the Refugee Convention definition". However, the Reviewer emphasised that it was possible for a Hazara Shia to "be found to be a refugee on the basis of that person's own individual circumstances and experiences (to which his or her ethnicity or religion may be relevant)". 11 Even so, the Reviewer did not consider that the appellant would face persecution in his individual circumstances. In particular, he would not be persecuted because he had a different accent and would be seen to be Iranian, as there was a cohesive Hazara community in Kabul, where the appellant could relocate. There was no evidence to indicate that the appellant would be perceived to be a spy. 12 The Reviewer dealt with a claim by the appellant as to a taskera, or identification document at [54]: The claimant said that one of the reasons why he could not return to Afghanistan was that he did not have a taskera. He did not elaborate as to the harm he might suffer for this reason. A taskera is the primary identification document in Afghanistan and as the claimant's nationality is Afghani, I am satisfied that he will, upon application, be granted a taskera and therefore I do not consider there is a real chance of him suffering persecution for this reason.

Proceedings in the Federal Magistrates Court 13 By an amended application filed on 13 February 2012, the appellant advanced the following grounds of appeal in the Federal Magistrates Court: 1. The second respondent found that the applicant would be able to obtain a taskera (Afghan identification document) upon return to Afghanistan in the absence of evidence in respect of same, thereby breaching the no evidence rule ("the breach"). 2. As a result of the breach, the recommendation of the second respondent is affected by legal error. 14 During oral argument before the Federal Magistrate, the appellant sought leave to argue that, as summarised by the Federal Magistrate at [45]: [The appellant] was denied procedural fairness by not being given an opportunity to consider the information upon which Mr Tyler based the conclusion that the [appellant] would be granted a taskera upon application by him if he returned to Afghanistan. 15 In his decision, the Federal Magistrate outlined that he could not engage in an impermissible merits review of the appellant's claims. 16 The Federal Magistrate held: [38] … There are two reasons why I am not satisfied that Mr Tyler's conclusion that the applicant "will, upon application, be granted a taskera", was not open on evidence available to the Tribunal. [39] The first is that I accept the submission of the Minister's representative that it was open to Mr Tyler to have concluded that a 'primary identification document' showing the applicant's Afghani citizenship was likely to have been made available to a person who was permitted to return to his country of nationality, upon establishment of his nationality before his return to the country. In a situation where the applicant had himself claimed to have the nationality of Afghanistan, and had invited the decision-makers to address his situation in relation to the Refugees Convention if he returned to that country as such a national, in my opinion, it was open to Mr Tyler to conclude, merely from his acceptance of that claim of nationality, that there was a likelihood of him being granted an identification document confirming his nationality if he were to return to Afghanistan. [40] Indeed, it is difficult to see how the applicant's status or claims in relation to the risks he faced as a returning asylum seeker could have been assessed on any other basis, than that he would be recognised by Afghanistan as a national and allowed to return with whatever necessary identification and/or travel documents were necessary to enable that result. [41] My second reason for not being satisfied that it was not open in law for Mr Tyler to find that the applicant would be given an identity document, is that Mr Tyler did not purport to set out exhaustively in his report all the sources of his general knowledge about conditions in Afghanistan. Patently, he and the applicant's lawyers were in a situation where numerous refugee claims of Hazara Shia Afghanis were being addressed. It would be unreasonable to expect all of the country information bearing on his general background knowledge to be identified in the body of his report. He expressly indicated that he did not do so. [42] In this situation, I would not draw an inference from the absence in the report of reference to specific information upon which Mr Tyler's knowledge on the issuing of identification documents was based, if indeed his reasoning went beyond an inference merely from his finding of nationality. In this respect, it is highly significant, in my opinion, that the applicant's solicitors had not made a claim that identity documents would be refused to a returned failed asylum seeker with Afghani nationality, and they had not referred to any country information raising this as a possibility. [43] In presenting this ground of review today, the applicant has not tendered any evidence which is to the contrary of Mr Tyler's conclusion, whether found in the material generally cited by Mr Tyler or not. I have neither been referred to, nor found, any such information in the Court Book. I would not draw any inference from the absence of positively supportive information in the Court Book, since the Court Book was compiled by the Minister in response to a direction of the Court given at the first court date and before the present ground was articulated. Nor, in my opinion, is there any inference arising or any support for an adverse inference of the absence of evidence from Mr Tyler arising under principles of Jones v Dunkel invoked by counsel for the applicant (cf. Muin's Case (supra) at [25]). [44] I am therefore not satisfied that the ground presented in the amended application is made out. (Original emphasis.) 17 At [48] his Honour rejected the ground that the appellant sought to raise in oral argument stating: "not all pieces of general knowledge are required for procedural fairness to be expressly identified and comments to be invited". 18 His Honour went on to conclude at [51] that: there were no surrounding circumstances which raised the issue as to the likelihood of the applicant being given a taskera on application by him if he returned to Afghanistan, being a matter of controversy … The applicant's suggestion at the hearing that he "does not have a taskera" did not, in my opinion, clearly raise a claim that he would not be given one if he chose to apply for one, and it was not presented in that manner by the applicant or his representative. The applicant has not presented evidence from himself or his representatives to the Court showing that this finding was unexpected or that he would have wished to dispute its factual premises. (Original emphasis.)

Application in this court 19 The appellant's notice of appeal contains the following grounds: The learned Federal Magistrate erred as follows: 1. Refused to allow an adjournment of the proceedings to obtain a legal aid grant with the result that funding was not available to properly prosecute the appellant's case below. 2. Misapprehension of the test of the 'no evidence' rule in relation to the second respondent's recommendation to the first respondent regarding the ability of the appellant to obtain a "taskera" (an Afghan identification document). 3. Failed to find an absence of procedural fairness in the applicant's "Independent Merits Review" hearing ("the IMR hearing") before the second respondent. 4. Made findings not reasonably open on the evidence in relation to the nature of the applicant's claims before the second respondent during the hearing in relation to obtaining taskeras. 5. Misapplication of Plaintiff M61/2010E v Commonwealth; Plaintiff M69 v Commonwealth (2010) 243 CLR 319. 6. Failed to draw an adverse inference in accordance with the principles espoused in Jones v Dunkell (1959) 101 CLR 298 in respect of the failure of either respondent to adduce evidence to meet the no evidence ground pleaded below. 7. Failed to properly exercise discretion in respect of the quantification of costs. 20 The appellant applied to introduce the following further affidavits at the hearing of the appeal. I stated that I would admit the transcript of the directions hearing before the Federal Magistrate on 29 November 2011 and 23 February 2012. Accordingly, I received two affidavits of Mr Raymond Charles Turner, a partner of the law firm Stewart Robert Coulson, each affirmed on 30 July 2012 and which annex those transcripts. I informed counsel that I would rule on his application to put before the Court the transcript of the evidence before the Federal Magistrate from the hearing which occurred on 8 March 2012. I will receive that transcript as part of the record of the Court below and accordingly will admit the third affidavit of Mr Turner affirmed 30 July 2012 which annexes that transcript. I will also receive the affidavit of Ms Sue Archer, a court reporter, affirmed on 3 April 2012 which annexes the transcription of the Independent Merits Review involving the appellant. It was not before the Federal Magistrate but there is no suggested nor actual prejudice to the first respondent and I cannot deal with an important plank of the appellant's submissions without it.

Ground 1 21 An appeal against a refusal of an adjournment by a Federal Magistrate, in a proceeding concerning the Act is governed by the principles in House v The King (1936) 55 CLR 499 at 505. This was considered in SZOSF v Minister for Immigration and Citizenship [2011] FCA 1234 at [58] as follows: A court, on appeal, will only interfere in the exercise of the discretion, where the court below has acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistaken the facts, or failed to take into account some material consideration. 22 The appellant contends that the Federal Magistrate was in error in failing to take into account a relevant consideration, namely, the absence of legal aid funding and the consequential lack of readiness on the part of the appellant to proceed to hearing. 23 Mr Robison who appeared on behalf of the appellant before me was also counsel for the appellant at the directions hearing before the Federal Magistrate on 29 November 2011 and 23 February 2012, although it seems he so acted on a pro bono basis. 24 The application for legal aid, at least according to the transcript of the directions hearing on 23 February 2012, was to enable representation of the appellant at his hearing on 8 March 2012, a date which had been allocated late last year. This application for an adjournment made by Mr Robison on behalf of the appellant on 23 February 2012, described the legal aid application in this way. 25 It is instructive to set out the relevant parts of the transcript of that directions hearing. HIS HONOUR: All right. So this matter is here for a pre-hearing directions hearing because I think you appeared on the first occasion and couldn't give me any assurance whether the applicant would be represented at the hearing. MR ROBISON: Yes. Unfortunately, that remains the case at this stage. HIS HONOUR: You mean, nobody knows whether he's going to be represented or not? MR ROBISON: That's the case, your Honour, because the applicant has now applied for Legal Aid. Unfortunately, he took quite some time in forwarding the application form to the Legal Aid Commission and I think there was some confusion on his part as to precisely what he had to do to apply for Legal Aid. In any event, that has been done in the last couple of days. I can get the exact time, if that's of any assistance to the court, when it was faxed off to the Legal Aid Commission. When I appeared on the first occasion I did so to assist Mr Gormley, who had been referred the matter by the Public Interest Law Clearing House. On this occasion I hold instructions from the applicant to request that the hearing date be vacated whilst the Legal Aid processes are continuing with a view of representation being secured for the final hearing. . . . HIS HONOUR: Well, I'm trying to work out what I can do, Mr Jones, and both sides are offering me uncertainty, it seems to me. Well, why can't Legal Aid make a decision before the present hearing date, Mr Robison? MR ROBISON: Well, your Honour - - - HIS HONOUR: If I leave it there they will have to make a decision, won't they? Who drafted this amended application? MR ROBISON: I did, your Honour. HIS HONOUR: And you're free on this date I've set down? MR ROBISON: I am, but - - - HIS HONOUR: All right. Why don't we leave it? And I will expect the hearing to proceed. MR ROBISON: Your Honour, although - there is a certain amount I am able to do on a pro bono basis, such as - - - HIS HONOUR: Well, I think you should in the circumstances. MR ROBISON: Well, your Honour, at this point I am not able to commit to appearing at the hearing. HIS HONOUR: All right. Well, we will see what happens. But I am expecting a legal representative to attend on the appointed hearing date. If it's not I will probably transfer it to Perth. 26 Two things at least are clear from these exchanges on their face. First, there was no submission put to the Federal Magistrate that the absence of legal aid meant that the appellant would not be prepared for the hearing, beyond the absence of having a lawyer represent him at the hearing on 8 March. Second, the Federal Magistrate left the matter open when he stated, on the topic of representation: Well, we will see what happens. But I am expecting a legal representative to attend on the appointed hearing date. If it's not I will probably transfer it to Perth. Accordingly, from a review of the transcript, there was no failure by the Federal Magistrate to consider those matters. 27 However, counsel for the appellant before me submits that a consequence of the refusal of the adjournment was that the transcript of the Independent Merits Review was not available for the hearing before the Federal Magistrate, and he informed me that he had wanted to convey that to the Federal Magistrate but had been "cut off" by him. I am prepared to accept this statement from counsel for the appellant. 28 However, as that question was not ventilated before the Federal Magistrate on that date it could, and should, have been raised at the outset of the substantive hearing on 8 March 2012 as the basis for an adjournment application. Mr Robison represented the appellant at the hearing on 8 March 2012 and made no mention to the Federal Magistrate of unpreparedness for this or any other reason. Accordingly, the failure to do so lies at the appellant's door. 29 Furthermore, the appellant has had a copy of the transcript of the Independent Merits Review hearing since at least 3 April 2012. This is the annexure to Ms Archer referred to above. According to the transcript of a hearing before Foster J on Friday, 27 July 2012, when the appellant sought unsuccessfully to adjourn this appeal, the appellant has also had for some time a CD with an audio recording of the Independent Merits Review hearing. Yet the appellant has done nothing to advance his purported complaint that his statements to the Reviewer were "misinterpreted". Indeed it is difficult to understand, without a translation of the audio recording into the appellant's language (which has not it seems occurred), how he could ever instruct his lawyers meaningfully that any such misinterpretation had occurred. There is no ground of appeal based on such an allegation. 30 Nonetheless, I have admitted the evidence of the transcript of the hearing before the Reviewer for the purpose of dealing with the appellant's submissions concerning the import of what he told the Reviewer. 31 If there was a failure by the Federal Magistrate to consider relevant information, namely, the desire of the appellant to obtain the transcript of the Independent Merits Review hearing, then it was a failure which could and should have been remedied by the appellant through his counsel at the substantive hearing. He failed to apply for an adjournment at that time based on what would, in effect, contrary to the submission made by the appellant's counsel, have been, in effect, a change of circumstances in as much as relevant information which had not been able to be put to the Federal Magistrate previously was still relevant to be put on the day of the substantive hearing. He chose not to do so. 32 Any error was overtaken by subsequent events. 33 These considerations are sufficient to dispose of this ground of appeal. However, I would not uphold this ground for additional reasons. The appellant complains that he was not in a position to put before the Federal Magistrate certain matters contained in the transcript of the Independent Merits Review. The relevant extracts from this transcript are set out in paragraph 7 of the appellant's written submissions to this Court as follows: The appellant was not able to rely on relevant portions of the transcript of proceedings before the second respondent such as a. Line 12, page 3 regarding an absence of identification documents in Iran; b. Line 49, page 5, regarding the appellant's father dying in Afghanistan and thus not bringing his taskera back to Iran; c. Line 9, page 6, regarding the Iranian authorities taking that appellant's identification from him; d. Line 48, page 12, regarding the appellant's concerns regarding the future about being treated like a stranger; e. Line 10, page 13, regarding the appellant's concerns as to returning to Afghanistan in the future without a taskera; f. Line 36, page 13, regarding the appellant's fears of being recognised as Iranian. 34 I am satisfied that each of these matters, in substance, are set out in the Statement of Reasons of the Reviewer at [11]-[13], [19] and [23]-[27]. 35 They were, accordingly, before the Federal Magistrate at the hearing of the review application. The appellant suffered no prejudice in not having the actual transcript before the Federal Magistrate.

Grounds 2 and 6 36 Grounds 2 and 6 may conveniently be considered together. As the first respondent submits, and I accept, the learned Federal Magistrate did not misunderstand or incorrectly apply the no evidence rule. His Honour referred to the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where his Honour said at 356 that it is enough for a decision-maker to avoid error "[s]o long as there is some basis for an inference ... even if that inference appears to have been drawn as a result of illogical reasoning". 37 At [36] the Federal Magistrate noted that, in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, the decision under review was set aside because their Honours were: able to arrive at a positive conclusion that there was no evidence before the Tribunal to justify a particular factual conclusion, due to their identification of "information that is clearly to the contrary" in the material before the Tribunal. (Original emphasis.) 38 The Federal Magistrate also noted at [35] that the last statement was consistent with other authorities, including Muin v Refugee Review Tribunal (2002) 190 ALR 601. 39 There was some basis for the inference drawn by the Reviewer, namely, the nationality of the appellant. The appellant had claimed Afghani nationality. The Reviewer accepted that claim. The Federal Magistrate observed at [39] of his reasons that it was open to the Reviewer to "conclude, merely from his acceptance of that claim of nationality, that there was a likelihood of [the appellant] being granted an identification document confirming his nationality if he were to return to Afghanistan". 40 Moreover, as his Honour observed, in distinguishing this case from the facts in SFGB, the appellant identified no material which, as in that case, clearly contradicted the Reviewer's conclusion. 41 The appellant never claimed before the Reviewer that he would not be able to get identity documents were he to return to Afghanistan. The Federal Magistrate observed as much at [13], [17] and [42]. The appellant's statement that he did not have identity documents was uncontentious. The Independent Reviewer accepted that fact. This fact, as the Federal Magistrate noted at [51], does not give rise to an inferential claim that he would not get identity documents if he applied. 42 However, counsel for the appellant submits, by reference to the transcript of the Independent Merits Review that, understood in context, the appellant was saying to the Reviewer that he would not obtain identity documents if he were to return to Afghanistan. I do not agree. The transcript shows that at times the appellant spoke in the present tense for example, when speaking about not having identity documents and at other times in the future tense, for example, when saying "[i]n Afghanistan I'll be treated like a stranger from Iran" or "I will be identified and recognised as an Iranian speaking person". Accordingly, the finding by the Reviewer was not referable to any such claim. It concerned merely the appellant's statement that he did not then have identification papers. It was not adverse to that assertion for the Reviewer to find that he would likely get such papers were he to return to Afghanistan. 43 Further, the Federal Magistrate was correct to conclude that the evidentiary rule in Jones v Dunkel (1959) 101 CLR 298 did not arise. The Reviewer was self-evidently not a party to any litigation during the Independent Merits Review. As a necessary party in the application for review before the Federal Magistrate he had no obligation to put on evidence. The reliance on the rule in Jones v Dunkel is misconceived. Indeed, Gleeson CJ, McHugh, Kirby and Callinan JJ in Muin at [25], [118], [197], [299]-[300] held that Jones v Dunkel had no application in relation to a member of the Refugee Review Tribunal who was a "party" to a review proceeding. 44 Gleeson CJ, for example, said, relevantly, at [25]: It places a tribunal member in a false position, inconsistent with that immunity, to expect a member, in proceedings challenging his or her decision, to go outside the published reasons for decision and explain the process of research and consideration leading up to the making of the decision. Furthermore, this court has taken pains to discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36; 29 ALR 289 at 306. Consistently with that approach the tribunal has entered a submitting appearance in these proceedings. The process of factual inference considered in Jones v Dunkel involves an expectation that the party against whom the inference is drawn would call the absent witness. There was no proper basis in the present case for an expectation that the tribunal member would be called to give an account of the process of decision making beyond that which is set out in her published reasons for her decision. 45 The same course, in my opinion, ought to be encouraged in relation to Independent Reviewers under the Act. As with the case of the Refugee Review Tribunal, a hearing before an Independent Reviewer is not an adversarial proceeding. There is no contradictor and no issue is joined: see Muin at [7] per Gleeson CJ. An Independent Reviewer should not be treated as a party in the orthodox sense who would be expected to give or put on evidence in a judicial review or appeal to explain their non-binding assessment and recommendation. They ought be encouraged, as occurred here, to file merely a submitting appearance.

Grounds 3 and 4 46 The appellant submits that there is no evidence that the Reviewer had general knowledge about taskeras and that even if he had such knowledge, the source of his knowledge had to be disclosed, or at the very least his intention to rely on his beliefs in this respect, to avoid unfairness. 47 He then submits that this was procedurally unfair because the information, if it existed, was never disclosed, but was adverse to the appellant's case, relying on Kioa v West (1985) 159 CLR 550 and Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 generally. 48 I do not accept that the finding was adverse to the appellant's case. His case as I have mentioned, was that he did not presently have a taskera but not that he had been refused a taskera or that he would not be able, in the future, to obtain a taskera. Accordingly, the Federal Magistrate was correct to conclude at [51]-[53] that procedural fairness did not operate as his claim was not controversial.

Ground 5 49 The appellant submits that the Federal Magistrate fell into error in that he addressed the proceedings as if it were judicial review relating to the Refugee Review Tribunal. He contends this gives rise to difficulty because of the statutory restrictions in that context which do not apply to an Independent Merits Review. He submits that it appears that the Court below misunderstood that which the appellant was required to establish: see for example, SZQVI v Minister for Immigration [2012] FMCA 222 at [34]. 50 He then submits that Independent Reviewers do not have a jurisdiction, and therefore, there is no question of jurisdictional error, but simply legal error and that although susceptible to judicial review, the Reviewer is nothing more than a contractor to the Department of Immigration and Citizenship: Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467 at [4]. 51 The appellant does not contend that anything turns on this, and I find it unnecessary to consider these submissions in a vacuum.

Ground 7 52 The Federal Magistrate awarded costs against the appellant in accordance with the scale set out in the Federal Magistrates Court Rules 2001 (Cth) (the Rules). This is the ordinary outcome for a successful party under those Rules, unless the Federal Magistrate otherwise orders: r 44.15(1), Sch 1 Pt 3 of the Rules. His Honour saw no reason to do so and, therefore, costs according to the scale followed the event. There is no basis for the appellant's contention that the Federal Magistrate misdirected himself in this respect. 53 For these reasons the appeal should be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Federal Magistrates Court Rules 2001(Cth)

Migration Act 1958(Cth)s 46A(7)

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