SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 | Case summary

The court: 1 In our opinion, this appeal should be allowed with costs. The appellant is an Afghan national who arrived, aged 17, at Christmas Island on the morning of 1 May 2010. He was travelling in a boat codenamed by Australian authorities 'Wilston'. He claims to be a person entitled to protection as a refugee on a number of bases. For the purposes of this appeal it is sufficient to consider only his claim that he is an Afghan of Hazara ethnicity who would be persecuted by the Taliban if returned to Afghanistan. 2 On 13 May 2011 a private contractor, Mr S Karas A.O., in the capacity of an Independent Merits Reviewer, concluded that the appellant would not be persecuted by the Taliban if returned to Afghanistan. The appellant then applied for injunctive and declaratory relief in respect of that decision in the Federal Circuit Court. This application was heard by a judge of that Court on 14 June and 22 August 2012 who decided on 24 September 2013 that relief should be refused. It is from his Honour's orders dismissing that proceeding that the appellant now appeals. 3 The appellant had the benefit of having a solicitor acting for him in his application to Mr Karas, a Mr McCrudden. Mr McCrudden submitted to Mr Karas that the boy was likely to be persecuted if returned to Afghanistan because he was of Hazara ethnicity and that this argument was supported by a note prepared in November 2010 by the then Department of Immigration and Citizenship ('DIAC'). This submission was in writing and dealt with many other topics besides the DIAC note. It was detailed. According to Mr McCrudden's submission to Mr Karas the DIAC note showed that ethnic Hazaras faced an increased risk of persecution from an increasingly aggressive and militant Taliban. 4 Mr Karas did not refer to the DIAC note in his decision. Instead he was more impressed by an earlier document prepared by the Department of Foreign Affairs and Trade ('DFAT') on 21 February 2010 which suggested that Hazaras did not live in fear of violence or systematic persecution as they had originally done under the Taliban. The situation, according to this earlier document, was that the situation in Afghanistan was the best it had been for Hazaras for centuries. Mr Karas' ultimate conclusion was that the appellant was not a person to whom Australia owed protection obligations. 5 As it happens, Mr McCrudden was not unaware of this earlier DFAT document when he prepared his original written submission to Mr Karas. He sought to diminish its impact through two sources of material. The first was the later DIAC note referred to above which appeared to paint a different picture to the earlier DFAT report. On the difference between the two Mr McCrudden submitted to Mr Karas: 'Given the apparent disparity between the DFAT's earlier assessment and the more recent DIAC assessment together with the fact that the DIAC report bears greater consistency with the abundance of information that is currently available the DFAT report must now be considered to be of little, if any, relevance.' 6 The second set of materials deployed by Mr McCrudden was more direct. The methodology involved in the February 2010 DFAT report had been criticised by Professor William Maley in a piece entitled 'On the Position of the Hazara Minority in Afghanistan' dated 20 May 2010. Professor Maley is the Professor and Director of the Asia-Pacific College of Diplomacy at the Australian National University. He is also the author of the entry in the Oxford Encyclopaedia of the Islamic World for 'Hazaras' as well as a number of other published works on Afghanistan. Professor Maley referred to the earlier DFAT report and said this: 'I understand that in assessing claims for refugee status, decision-makers have referred to Department of Foreign Affairs and Trade Cable number CX240092 dated 21 February 2010 and entitled Afghanistan: Situation of the Hazara Minority. At the outset, one should note that while the Australian Embassy in Afghanistan is staffed by excellent officials, their ability to conduct field research of their own is extremely limited, given the tight security constraints under which they operate. This applies also to a number of the organisational informants on whom they rely in other embassies and in international agencies such as UNHCR. This poses a problem in relying on such sources for an assessment of the general situation for Hazaras, namely that the scale of persecution and abuse of power in Afghanistan tends to be under-reported.' 7 Professor Maley then noted the position of the District of Ghazni. This is significant because it is that district from which the appellant comes and, correspondingly, it is the place to which he would be returned should he fail to secure asylum in this country. Of Ghazni Professor Maley said this: 'Many asylum seekers in Australia have come from the province of Ghazni. The Taliban are now active in parts of Ghazni. As early as 20 May 2003, it was described by Todd Pitman in an Associated Press despatch as 'a hotbed of suspected Taliban activity southwest of Kabul'. The former governor was assassinated in 2006, and an analysis in April 2006 concluded that 'A fierce Taleban-led insurgency in recent months has placed Ghazni, which lies just 135 km south of Kabul, among the most volatile provinces in Southern Afghanistan': Borhan Younus, Taleban Call the Shots in Ghazni (Kabul: Afghan Recovery Report no.213, Institute for War and Peace Reporting, 25 April 2006). The situation since then has arguably become even worse (see Christoph Reuter and Borhan Younus, 'The Return of the Taliban in Andar District: Ghazni', in Antonio Giustozzi (ed.), Decoding the New Taliban: Insights from the Afghan Field (London: Hurst & Co., 2009) pp. 101-118). No part of Ghazni can realistically be considered safe for Hazaras, even in districts where they might seem numerically predominant.' 8 Having then sketched Mr McCrudden's two-pronged attack on the DFAT report it is useful to observe a submission which Mr McCrudden did not make. He did not submit that the DFAT report should be approached cautiously because of the optimism of diplomatic officials about political conditions in countries where they were accredited and he did not invoke a dictum of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 to the same effect. 9 How then did Mr Karas deal with Mr McCrudden's submission? At paragraph 55 in his reasons he said this: '55. Notwithstanding the advisers submission the Reviewer attaches particular weight to the recent report by the Department of Foreign Affairs and Trade (DFAT) which squarely addresses the issue of persecution of Hazaras, while not dismissing the historical background and concerns articulated by Professor Maley and his caution regarding future developments. While mindful of the comments of Kirby J. in Re Minister for Immigration and Multicultural affairs; Ex parte A (2001) HCA 77, regarding the optimism of diplomatic officials about political conditions in countries where they are accredited and that Professor Maley is a well known academic commentator on Afghanistan and advocate for refugees the Reviewer prefers the findings of DFAT on the Afghanistan situation as presenting an unbiased and informed view of the situation of the Hazaras there.' [errors in the original] 10 These reasons did not expressly refer to the later DIAC note. On the other hand, the reasons did deal with the views of Professor Maley and gave reasons for preferring DFAT's views to his. 11 The question which arises on the present appeal is whether Mr Karas failed to consider the later DIAC note. It was at the heart of Mr McCrudden's submission and was a substantial and clearly articulated argument relying upon the established fact of the DIAC note. Consequently, for Mr Karas not to deal with the DIAC note would involve a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 322 [1], 326 [24]. Given the centrality of the submission, such a failure would not be able to be characterised as a mere failure to advert to some aspect of the evidence: cf. Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. 12 The question then is a factual one: did Mr Karas consider and reject Mr McCrudden's argument based upon the DIAC note? 13 The opening words of [55] tend to suggest that he did indeed consider the DIAC note ('Notwithstanding the advisers [sic] submission….') for they are apt to suggest that Mr Karas was aware of Mr McCrudden's submission and, therefore, it might reasonably be presumed, with its contents. That conclusion is also buttressed by a reference in [16] to 'the claimant's submissions' having included 'information regarding and addressing the situation of the Taliban and Hazaras in Afghanistan…'. Furthermore, this view of affairs receives support from the well-known principle that decisions of administrative decision makers such as Mr Karas (assuming that is what he is) are not to be read with an eye closely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 14 Ordinarily, these considerations would persuade us that the appellant's claims should be dismissed. Four matters, however, incline us to take a different view in this case. 15 First, at [19] of his reasons Mr Karas set out a list of documents that he had relied upon. The list was extensive and included the earlier DFAT report. It did not include the DIAC note. It is true that the list is only said to be inclusive rather than exhaustive but the presence on the list of the DFAT report and the corresponding absence of the DIAC note is odd given that Mr McCrudden's submission required consideration of both. 16 Secondly, contrary to [55] of Mr Karas' reasons Mr McCrudden did not refer to the dictum of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A. It is odd that the reasons refer to an argument which was not put. 17 Thirdly, although it is possible that the words in paragraphs 16 and 55 may suffice to signify that the DIAC note was considered (even if it was not mentioned expressly) it is a little surprising that such a basic issue was not mentioned if it was indeed actually considered. 18 Fourthly, the evidence before the primary judge showed that paragraph 55 of Mr Karas' reasons for decision appeared in precisely identical terms in four other written decisions and, if the introductory words 'notwithstanding the advisers submissions' are left out of account, in 56 other decisions. A paragraph equivalent to paragraph 16 appeared in all 62 of the decision records, although the terms were not identical and it can be inferred that the wording was amended to reflect the contents of the respective submissions. We accept that many paragraphs of Mr Karas' reasons appeared in large numbers of other decisions either in identical terms or very slightly modified. 19 Our conclusion is that Mr Karas used a method of cutting and pasting earlier decisions to produce his reasons on the appellant's application. This is probably not surprising where a large number of similar applicants make similar claims. One can perhaps sympathise with the position of a decision-maker who, confronted with the same argument 100 times, opts to copy what he has said on the earlier occasions. 20 There are, of course, risks with adopting such a practice as the facts of this case bear out. Chief amongst these is that the risk of overlooking the actual submissions made is increased. Allied with that risk, or perhaps overlapping it, is the potential to fail to consider each case on its own merits. It is true that this Court has held that generic reasoning of the kind used by Mr Karas does not, by itself, bespeak ostensible bias: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 237-239 [43]-[50]. But be that as it may, the practical risks to which we have referred exist. 21 The process of dealing with the appellant's submissions by cutting and pasting his own decisions on earlier, but similar claims, has caused Mr Karas, accidently we do not doubt, to overlook the substantive submission made to him about the later DIAC note. We draw that conclusion because of the three other matters to which we have referred. Once that finding is made, it is clear there was a denial of procedural fairness of the kind described in Dranichnikov. 22 There are some footnotes to this conclusion. The first is that the High Court held in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 358 [98] and 359 [103] that it could declare that an Independent Merits Reviewer in the same position as Mr Karas had denied the applicant in that case procedural fairness. M61 therefore directly authorises the grant of such a declaration in this case. 23 Another way to arrive at the same conclusion may be to apply the reasoning of the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 that the Refugee Review Tribunal cannot discharge its statutory review task without 'a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the on-going circumstances on the ground' (at [38]). MZYTS cannot be applied directly to an Independent Merits Reviewer because such a reviewer is not performing a statutory function. Accordingly, no question of the direct application of MZYTS arises in this case. 24 There is an issue to our minds as to whether MZYTS reveals any different principle to the ground of review that permits the setting aside of a decision which has not involved 'proper, genuine and realistic consideration' of an application: see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. That ground is probably the same as the one exposed in Dranichnikov (above), i.e., a denial of procedural fairness. We mention it in the context of MZYTS only to note Basten JA's cautionary remark in Swift that one needs to be alert to the risk that the words 'properly', 'genuinely' and 'realistically' 'may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process' (at [45]). It may be that the reasoning in MZYTS needs to be understood in a context which includes that customary admonition. 25 The second footnote is this: the present argument was raised before this Court in oral submissions as an aid to a different argument. That other argument sought to establish actual or ostensible bias on Mr Karas' part by reason of the process of cutting and pasting his earlier decisions which was said to show, at the least, pre-judgment. We deal with that argument below. In the present context, it was said that the failure to consider the November 2010 DIAC note assisted in drawing the inference of bias. During the course of counsel's oral address the point gradually changed, or widened, to include an argument that the failure to consider the DIAC note constituted a failure to consider a claim and explicit reference to MZYTS was made. 26 Mr Smith for the Minister, in his lucid argument, directly met this point with an argument we return to below. We mention these apparently procedural matters for two reasons. First, the issue of the November 2010 DIAC note was the subject of express submissions in this Court and, second, it was not suggested that the Court should not deal with the point. We record this matter because our perusal of the learned primary judge's reasons leads us to suspect that this precise form of the argument (i.e. as a procedural fairness argument based on the November 2010 DIAC note) may not in fact have been raised before his Honour. Quite properly, however, no point was taken about this. 27 Mr Smith's submission on behalf of the Minister in this Court was that the November 2010 DIAC note did not constitute any new information that was of such significance that it needed to be the subject of particular scrutiny. This was because the report expressed a view on the conditions in Ghazni which Mr McCrudden had paraphrased this way: 'The November 2010 report also notes that, notwithstanding that the February 2010 DFAT report had previously reported that the Daikundi area did not witness "motivated targeting of Hazaras", the area now experienced "violent clashes from time to time." Similarly it noted that despite DFAT previously describing Bamyan Province as being relatively secure, it too had seen "some Taliban violence", particularly associated with the 2010 parliamentary elections. Furthermore, Ghazni Province is described as beset by a slow pace of progress, substantial unemployment (reflecting the legacy of decades of discrimination) and neglect in service provision from Kabul, indicating the limited power of the national government over the Hazarajat. These statements are consistent with the independent information referred to above in relation to the increase in violence and lawlessness in the Hazarajat region at present.' [emphasis in original] [footnotes omitted] 28 The point was that if one focussed on Ghazni then the picture painted was not one of Hazara persecution but rather of the social disadvantage constituted by high unemployment, lack of social services and so on; that is, misfortune, not persecution. 29 This may ultimately be a good point and could have provided Mr Karas with a reason to reject Mr McCrudden's argument if he had, in fact, considered it (to be clear, we are not saying that it required that outcome). But even allowing that to be so does not provide a reason why it did not need to be considered. It remained a central part of the appellant's submission all the same. 30 For those reasons we would allow the appeal on this point. The current notice of appeal is sufficiently broad to capture it although the originating process in the Federal Circuit Court is not. We would direct the filing of a further amended application in that Court raising the November 2010 DIAC note in terms of the ground articulated as ground 4(a) in this Court. 31 Other grounds were advanced on this appeal which should be mentioned. In addition to the DIAC note, reference during argument was also made to a report prepared by the Edmund Rice Centre. In light of the above conclusion it is not necessary to deal with this issue. It will suffice to say that the same problem appears to have arisen. 32 Most of the appellant's submissions in this Court were directed at establishing actual or ostensible bias on Mr Karas' behalf from the fact of his enthusiastic cutting and pasting. 33 Mr Karas had made 61 similar determinations and, as we understand it, these were produced during the trial in the Federal Circuit Court. By the time the matter reached this Court, the appellant's advisers had had a much greater opportunity to analyse these decisions. The Court was provided with an annotated version of Mr Karas' reasons for dismissing the appellant's application which indicated the exact provenance of each paragraph and just how many other decisions that paragraph had been referred to in, together with any relevant alterations. The preparation of this document must have involved a great deal of work and we have found it to be a most useful aid. 34 It is not necessary to set out the welter of detail which it contains. It is clear that swathes of Mr Karas' decision in this case have been copied by him from other decisions of his. The most likely inference is, as we have already said, that Mr Karas used his original few Hazara decisions as templates for each new decision adjusting here and there to take account of the position of individual applicants. 35 The immediate question is whether this, without more, bespeaks ostensible or actual bias. We have no doubt a case of actual bias is not made out. The mere fact that a decision maker cuts and pastes his or her own work says nothing about his or her attitude to the claims involved - they are separate fields of discourse. Further, without more, we can see no reason to depart from this Court's determination in SZQHH which, on almost identical facts to this case, concluded that apprehended bias was not made out. 36 There are real risks with template reasoning of the kind undertaken by Mr Karas in this case but these risks do not relate to the rules about bias. 37 It was also alleged that Mr Karas had denied the appellant procedural fairness by failing to inform him of his repeatedly expressed views on issues material to the appellant's claims or the materials relied on by him to support those views. When considering this ground in the Court below, the trial judge observed that Mr Karas was under no obligation to disclose his views on a particular matter and that he was only obliged to alert the appellant to conclusions that would not obviously be open on the known material and to notify the appellant of information from third party sources that was credible, relevant, significant and adverse to his claims: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [32] and 166 [48]; SZQHH at 233 [27]. In support of this ground the appellant pointed to Mr Karas' reliance on a June 2010 DFAT report concerning the treatment of Sayeds in Afghanistan. However, an officer of the Department expressly relied on this report in the Refugee Status Assessment and as such the appellant was on notice of the information. We see no error in the trial judge's reasoning in relation to this ground. 38 We would make the following orders: 1. Appeal allowed with costs. 2. Set aside Orders 2 and 3 of the Federal Circuit Court made on 24 September 2013 in SYG55/2012 and in lieu thereof order: 2. Declare that the decision of the Independent Merits Reviewer given on 13 May 2011 in review case number WIL040 was arrived at in breach of the rules of procedural fairness. 3. The first respondent to pay the applicant's costs as taxed or agreed. 3. The appellant file a further amended application in the Federal Circuit Court to include a ground in the same terms as ground 4 (a) of the notice of appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Perram & Davies.

SZRBA v Minister for Immigration and Border Protection

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (7)

Cited By (13)