FEDERAL COURT OF AUSTRALIA

MZYLY v Minister for Immigration and Citizenship [2012] FCA 357

THE COURT ORDERS THAT:

1.    Leave to the appellant to rely on a new ground of appeal which alleges that the appellant was denied procedural fairness by the second respondent failing to draw his attention to the 2010 UNHCR Eligibility Guidelines on Afghanistan is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

Note:    The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    Before the Court is an appeal from orders made by the Federal Magistrates Court on 14 August 2011. The federal magistrate dismissed the appellant’s application for review of a recommendation made by the second respondent, the reviewer, to the first respondent, Minister for Immigration and Citizenship, 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 (the Convention).

2    The appellant is a citizen of Afghanistan born in 1984. He arrived on Christmas Island on 23 February 2010. He sought a refugee status assessment by an officer of the Department. When that assessment was unfavourable to him, the appellant sought a merits review of his refugee status. In a report dated 4 March 2011 the reviewer recommended that the appellant not be recognised as a refugee.

the appellant’s claims

3    The appellant is an Hazara from Jaghori district in Ghazni province in Afghanistan. He claimed fear of persecution in Afghanistan for reasons of race, religion and imputed political opinion. He claimed that he feared mistreatment from the Taliban because they regard the Hazaras as infidels. The Taliban are Sunni Muslims and the Hazara are Shi’a Muslims. He claimed that Hazaras were robbed on the road to Ghazni and Kabul and that Hazaras could not practise their religion outside Jaghori.

4    The appellant also claimed that he had worked for a non-government organisation constructing schools. As a result the Taliban regard him as having an anti-Taliban view and would kill him. He said he was detained by the Taliban and beaten by them for this reason.

5    The appellant also claimed that if he returned to Afghanistan he would be persecuted by the Taliban as a person who had been to a western country.

The reviewer’s reasons

6    The reviewer set out in detail the entry interview given by the appellant, his application for refugee status assessment and the contents of the statutory declaration in support of it and a summary of the interview given by the appellant to the refugee status assessment officer. Then the reviewer set out a summary of the submissions made to him and a record of the interview he conducted with the appellant. Next the reviewer summarised the post-interview submissions made by the appellant’s legal adviser. Then he referred to some country information which he regarded as relevant to the claims. Finally, he explained his findings and reasons.

7    The reviewer first concluded by reference to country information that merely being Hazara does not of itself give rise to a Convention claim.

8    The reviewer then considered the central claim of the appellant, namely, that he had a particular profile with the Taliban as a result of the construction of schools he did for the non-government organisation. The appellant claimed that he was captured by the Taliban on his way to Ghazni to obtain some material for his work. He said that the Taliban threatened him because he had been hired by two engineers who were working for the organisation. He said that the Taliban threatened to kill him. He claimed that he was held captive but then escaped and found his way home.

9    The reviewer accepted that the appellant was a self-employed carpenter. He accepted that it was not uncommon for the appellant to travel to Ghazni and Kabul in relation to his work. But he found that the great bulk of the appellant’s work kept or would keep him in his workshop at Sange Masha. The reviewer accepted that the appellant had obtained some orders for ceilings, windows and doors for schools from a non-government organisation called Shuhada.

10    The appellant was not able to recall the name of Shuhada in the course of the interview with the reviewer, but the reviewer said:

He may have forgotten the name of Shuhada on the spot. His evidence suggests that he had fairly minimal contact with the organisation, and then only when two individuals from the NGO came to his factory. It is reasonable that he recalls his work from Shuhada mainly as an intermittent client relationship with these two individuals.

11    The reviewer also accepted that the appellant had obtained the work for Shuhada through two engineers. The reviewer then said:

I also give weight to the intermittency of Mr Hussaini’s work for Shuhada and to the fact that a large part of his work was not for NGOs or the government, as it is reasonable to expect that he would have claimed this instead of saying that he provided products for the NGO only on an intermittent basis.

12    The reviewer accepted that the appellant did all of his work for Shuhada within the confines of his factory. He was not involved in the delivery of the finished product outside his factory. The reviewer found that this was because the appellant had other work to supervise in his factory. The reviewer rejected the appellant’s contention that he remained in the factory because he was afraid of being attacked if he left it.

13    The reviewer then contextualised the work which the appellant did for Shuhada as follows:

I give weight to Mr Hussaini’s claim at the IMR [Independent Merits Reviewer] interview about Shuhada operating across a wide area in Afghanistan and working with many sub-contractors. This evidence, in my opinion, lessens the significance of his relationship with Shuhada, as does his claim about only having done a few jobs for them over the years.

14    The reviewer then rejected the appellant’s report that another person was attacked by the Taliban as a result of working for Shuhada. The reviewer also doubted the motivation of the Taliban in capturing, holding, beating, and interrogating the appellant when the information which the appellant said that the Taliban was seeking would have been accessible by the Taliban without taking these steps.

15    These considerations led the reviewer to regard the appellant’s claim that he had been detained, beaten and interrogated by the Taliban as fabricated.

16    The reviewer then provided some additional reasons which he referred to as “cumulative reasons” for regarding the story as fabricated. The reviewer referred to the inconsistency in the appellant’s stories about his means of escape from the Taliban, and said:

Overall, he was unconvincing and somewhat selective in his portrayal of the Taliban as a group whose members would kill a Hazara without hesitation. His description of how the Taliban used the days on which they held him was also unconvincing. His account of his placement in an unsecured room from which he escaped is, in particular details, inconsistent and generally far-fetched.

17    The reviewer considered the appellant’s claim that he immediately closed and sold his carpentry business because he was afraid of the Taliban coming and finding him there. The reviewer considered the apparent conflict in the appellant’s evidence as follows:

Rather, he said the reason he closed the business was that the Taliban knew where his factory was and could and might come for him there. At the same time he generally indicated that the Taliban could not enter Jaghori, and the country information in his submissions supports this; he also said, more specifically, that the Taliban could not enter his village. I do not believe that Mr Hussaini genuinely believed the Taliban could or would come for him at his factory inside the city of Sange Masha inside Jaghori.

18    The reviewer did not accept that the appellant sold his business out of fear that the Taliban would come for him there.

19    The reviewer gave weight to the fact that the appellant spent four or five months in Jaghori without any sign of pursuit by or interest from the Taliban before he left Afghanistan. Then the reviewer said:

I give weight to the fact that Mr Hussaini was on the road between Jaghori and Kabul a number of times over the four to five months before he left Afghanistan. He did not suggest that he took or had to take any unusual precautions. He did not have any potentially significant encounters. So soon after the claimed trauma of being captured and threatened with death by the Taliban, he did not hide out in his Taliban-proof village but went himself to Kabul by road and back to Jaghori again and back to Kabul. I find that these actions on his part do not sit with his claim about being a Taliban target at the time.

20    At this point the reviewer concluded:

Overall, I find that I cannot rely on Mr Hussaini’s claims about an individual profile with the Taliban. I am of the view that in the eyes of the Taliban, Mr Hussaini would be regarded as a Hazara and a Shi’ite from Jaghori province and as no-one of significance to them beyond that. I find on his evidence that he has often been able to avoid attracting suspicion at roadblocks and find that he would likely continue to be able to do so.

21    The reviewer then moved to another aspect of the claim. The appellant had submitted opinions and analysis from Professor Maley and Mr Ruttig who, in 2010, both speculated on the possible fall of Jaghori to the Taliban. The reviewer said that both analysts indicated that the Taliban were not then able to enter Jaghori. The reviewer then said that the appellant’s own evidence did not suggest that the Taliban have influence within Jaghori and rather suggested the opposite. In particular the appellant “claims that the Taliban cannot enter Jaghori, or a least he says quite emphatically that the Taliban could not come into his village”.

22     The reviewer then made a finding relating to the safety of the appellant’s home district as follows:

In my view, even allowing for the presence of Pashtuns inside Jaghori and the sending of night letters into the district from time to time, I find that it is safe for Mr Hussaini to live and work and be socially supported inside his home district. He also claims the Taliban cannot come into where he lives and I believe him.

23    The particular risk about travel on roads between Ghazni and the Jaghori district was addressed as follows:

Mr Hussaini and independent country information agree on the point that there is a risk of robbery with violence to anyone travelling on the road between Ghazni city and Jaghori district. On the other hand, as discussed, Mr Hussaini has evidently managed numerous journeys on these roads a number of times in recent years in spite of the unabated risks of criminality on the road. There is nothing before me to suggest that any self-protective measures he might have taken in planning and undertaking these trips have been or would continue to be unreasonably burdensome.

24    Next, the reviewer rejected the appellant’s claim of fear of persecution for reason of having sought asylum in the west.

25    The reviewer then made the following reference, which has some significance in this appeal:

I have considered that Mr Hussaini would have to pass through Kabul before taking a road route to Jaghori. As he has on many occasions stayed and conducted business there before, I do not think it unreasonable for him to pass through Kabul on his way home. I accept that there have been occasional reported outbreaks of social disruption and violence in Kabul, such as attacks on mosques and government buildings, and that in these episodes there have been losses of life, but I give more weight to Mr Hussaini’s demonstrated ability, for example during the passport application visit and on his way from Jaghori to Australia, to negotiate his way in and out of the capital safely. Mr Hussaini’s evidence about travel outside of his home district for work indicates that it was not essential but rather occasionally helpful to go to Ghazni and Kabul on procurement trips. I am of the view, on his evidence, that he could continue to live safely within Jaghori without having to leave the district. He said this was how he preferred to do business in the past, and evidently managed to operate accordingly, and profitably enough to support his large family. I believe the chance of Mr Hussaini being harmed for any reason on a repatriation journey from Kabul into Jaghori to be remote.

[Emphasis added]

26    Then by way of a final summary the reviewer said:

I accept that there is occasional instability and conflict outside of Jaghori, in some parts of Afghanistan, and that in such places there is ongoing risk of being robbed, or kidnapped for mercenary reasons, or injured or killed in crossfire and the like. However, I find that these are issues of criminality and of general law and order and are not within the purview of the Convention to remedy in this individual claim for protection.

27    The appellant then applied for review in the Federal Magistrates Court. The grounds of review are largely the same as the grounds of appeal argued before this Court. Consequently, it is convenient to deal with the federal magistrate’s reasons, and the arguments on appeal, together.

The grounds of appeal

28    The Notice of Appeal in this Court was filed on 3 November 2011. The grounds of appeal were as follows:

1.    The Federal Magistrate failed to properly consider that the Independent Merits Reviewer (“the reviewer”) asked itself the wrong question and/or applied the wrong test in assessing whether the applicant faced a “real chance” of persecution.

Particulars

(a)    The reviewer found that the applicant ‘could continue to live safely within Jaghori without having to leave the district.’

(b)    The reviewer imposed a condition upon the applicant’s return; that is, if he remained within the confines of his village he would be safe from persecution.

(c)    The notion that it was reasonable for the applicant to take action to avoid persecutory harm led the reviewer into a failure to consider properly whether there was a real chance of persecution if the applicant was returned to Afghanistan.

2.    The Federal Magistrate failed to properly consider that the reviewer exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it made findings for which there was no evidence or probative material and/or misconstrued or failed to consider the applicants claims.

Particulars

(a)    The reviewer made the following significant findings:-

(i)    The Taliban were not able to enter Jaghori and that the applicant’s village was “Taliban proof;”

(ii)    The significance of the applicants relationship with the Shuhada was lessened because they operated across a wide area in Afghanistan and the applicant did intermittent work for them.

(iii)    The applicant travelled on the roads subsequent to his claimed detention without any potentially significant encounters.

(b)    The above findings were made without an evidentiary basis or probative material and/or were based on a misconception of the applicants claims and case.

3.    The Federal Magistrate failed to properly consider that the reviewer failed to accord to the applicant procedural fairness by failing to provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information.

(a)    The reviewer referred to and relied upon country information in its decision.

(b)    Some of this material critically referred to the security situation in Jaghori.

(c)    The reviewer failed to provide the applicant with significant and adverse country information and/or an opportunity to comment on it.

29    It was common ground that the reviewer’s recommendation is governed by Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 (M61/2010E) and is subject to challenge for jurisdictional error. It was also common ground that jurisdictional error might be constituted by the reviewer failing to address the right question, making a finding where there is no evidence to support the finding, or denying the appellant procedural fairness. Each of these alleged errors will now be addressed.

Did the reviewer ask the right question?

30    The question which the reviewer had to address was whether the appellant faced a well founded fear of Convention related persecution. Ms Bennett, who appeared as counsel for the appellant, argued that the reviewer did not address that question but the question whether the appellant was safe within a small area of Afghanistan provided that he modified his behaviour which would significantly curtail his freedom of movement within Afghanistan and his ability to work and earn a living. The reviewer thus, so it was contended, required the appellant to accept certain restrictions in order to ensure his own safety.

31    The appellant relied upon the reviewer’s statement that “I am of the view, on his evidence, that he could continue to live safely with Jaghori without having to leave the district”. The full context of this statement is set out in [25] of these reasons.

32    The appellant also relied upon the following view of McHugh and Kirby JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71, at [40]:

… persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.

33    The federal magistrate rejected this argument. He held that if the reasons of the reviewer were read fairly and as a whole they demonstrate that the reviewer did not impose a condition on the appellant that he live in Jaghori. Rather, the reviewer accepted that the appellant would continue to travel for work as he had done in the past, but would not be at risk of persecution by doing so.

34    Mr Knowles, who appeared as counsel for the first respondent, argued that the federal magistrate’s finding was correct. He said it was evident from the reasons that the reviewer was aware of and had contemplated that the appellant would potentially leave Jaghori district in the future. In particular he relied on the following statement in the reasons:

I find on his evidence that he has often been able to avoid attracting suspicion at roadblocks and find that he would likely continue to be able to do so.

35    The statement of the reviewer on which the appellant’s argument is based raises several questions. It appears in a paragraph about the dangers which the appellant might face upon repatriation to Afghanistan if he landed in Kabul from Australia and had to travel by road to Jaghori. However, the statement seems unrelated to that issue.

36    If one takes that sentence separately and referable not to the repatriation journey but rather to the context of the future risk to the appellant from life in Jaghori, then it may be read as an assessment by the reviewer of the life circumstances which would probably confront the appellant. Where the reviewer concludes that the appellant “could” continue to live safely within the Jaghori district, the reviewer seems to have been using the word “could” to mean that the appellant “would be inclined” to choose to stay in the Jaghori district. This is apparent from the sentence that follows:

He said this was how he preferred to do business in the past, and evidently managed to operate accordingly, and profitably enough to support his large family.

Read in this way the reviewer did not place a requirement on the appellant to stay within the Jaghori district, but rather forecast what the appellant was likely to do as a matter of his own choice in the future.

37    Such a reading is consistent with the reviewer’s findings elsewhere in the reasons including:

Mr Hussaini himself gave evidence of having undertaken many road trips in recent years, both out of and back into Jaghori, in the course of operating his business and dating back to his work with his father.

…

On the evidence before me, I do not accept that a trip outside of Jaghori to procure timber would help to identify Mr Hussaini as a person working with NGOs. He described many road stops during procurement trips in recent years where he was not at all suspected of assisting the government of NGOs.

38    Such a reading is also consistent with the reviewer’s finding that, to the extent that there is a danger in travel outside Jaghori, the danger is not Convention related but is the result of criminal activities.

39    In the end, the statement relied upon by the appellant, when read in the context of the reasons of the reviewer as a whole, does not support the argument that the reviewer failed to ask the right question. The federal magistrate was correct to so determine. This ground of appeal is not made out.

no evidence

Taliban proof

40    Counsel for the appellant contended that there was no evidence to support the reviewer’s finding in the following passage that the appellant’s village was Taliban proof:

I give weight to the fact that Mr Hussaini was on the road between Jaghori and Kabul a number of times over the four to five months before he left Afghanistan. He did not suggest that he took or had to take any unusual precautions. He did not have any potentially significant encounters. So soon after the claimed trauma of being captured and threatened with death by the Taliban, he did not hide out in his Taliban-proof village but went himself to Kabul by road and back to Jaghori again and back to Kabul. I find that these actions on his part do not sit with his claim about being a Taliban target at the time.

[Emphasis added]

41    This paragraph appears as part of the reasoning of the reviewer which resulted in the rejection of the claim that the appellant was detained and beaten by the Taliban. The context can be seen in the description of the reviewer’s reasons set out in [8] – [21] of these reasons for judgment. That conclusion was reached by the reviewer forming the view that the appellant was not a credible witness on this issue. Counsel for the appellant argued that the credit finding was critical to the reviewer’s reasoning and, as the finding was based on a conclusion which had no evidentiary basis, the reviewer fell into jurisdictional error.

42    Counsel for the appellant construed the reviewer’s reference to the appellant’s village being Taliban proof as a finding that the Taliban had no influence whatsoever in the village. This conclusion, so it was submitted, was not open on the evidence. For instance, a report referred to by the reviewer entitled The Current Situation in the Jaghori District of Ghazni from the Finnish Immigration Service and dated 10 December 2009 stated:

People of Jaghori see Taliban as a serious threat: 95% of the population fear them according to Altai Surveys. Although not able to act effectively in Jaghori, Taliban has showed interest in disrupting the area. Members of the former police chief Bashi Habibullah’s family were killed in a Taliban raid in Angori in 2007. Since 2007, the general escalation of violence in Ghazni has affected Jaghori, mainly by further isolating the area from the outside world. Taliban militiamen from neighbouring districts have staged attacks against bordering police posts in Hutqul. Taliban has also issued warning night-letters to villagers in the district.

43    Counsel for the appellant also relied on the appellant’s evidence that:

Taliban cannot come directly into the village where we live but they have informant and stuff in the area.

44    It was accepted that the reviewer was entitled to find on the evidence that the Taliban could not enter Jaghori and could not enter the appellant’s own village. The appellant himself gave this evidence and there was country information to the same effect. But, so it was argued, the finding that the appellant’s village was Taliban proof was an exaggeration without a factual foundation. It was a finding that the Taliban had no influence, either direct or indirect, in the area. The fact which was established was that the Taliban had no direct influence in the area. But the evidence was that they had an indirect influence in the area. There was thus no evidence that the appellant’s village was Taliban proof in the sense that the Taliban had no indirect influence in the area.

45    The argument concerning the reviewer’s reference to the appellant’s village being Taliban proof seems to have been put rather differently before the federal magistrate. However, no point was taken on this basis by the first respondent.

46    Rather, Mr Knowles contended that the reference by the reviewer to the appellant’s village being Taliban proof was, in context, a reference to the evidence that the Taliban could not enter Jaghori. There was, as previously related, abundant evidence to this effect, including from the appellant himself.

47    The first respondent’s argument should be accepted. The reviewer on several occasions referred to the appellant’s evidence and country information that the Taliban could not enter Jaghori. In those circumstances the reference to Taliban proof was intended to be a shorthand reference to the same factor. This ground of appeal is not made out.

The size and frequency of the appellant’s dealings with Shuhada

48    In the passage extracted at [13] of these reasons the reviewer reasoned that both the large size of Shuhada and the fact that the appellant had done only a few jobs for it over the years lessened the significance of his relationship with that organisation.

49    Counsel for the appellant accepted that there was evidence that Shuhada was large and that the appellant worked for Shuhada on an intermittent basis. She argued that these findings were not probative of the conclusion that the appellant was unlikely to have attracted the attention of the Taliban. There was, so it was contended, a logical disconnection between the fact finding and the conclusion.

50    Again, it seems that the argument concerning Shuhada was put rather differently to the federal magistrate, but again, no point was made of this by the first respondent.

51    In relation to the size of Shuhada, the reviewer did not draw a conclusion from its size alone. Rather, the reviewer found that Shuhada worked with many subcontractors over a wide area. These factors caused the reviewer to explore with the appellant whether other contractors had been targeted by the Taliban as a result. Because there was no evidence which the reviewer accepted of people involved with Shuhada’s operation over a wide area being attacked or warned, the reviewer found some reason to doubt that the appellant had been targeted by the Taliban as a result of his work for Shuhada. In this way, the size of Shuhada was a rational consideration in the reviewer’s path of reasoning.

52    Then, it was argued that it was not open to the reviewer to conclude that the appellant’s work for Shuhada was infrequent or insignificant from the evidence that it was intermittent. Consequently, the finding that the infrequency or insignificance of the work lessened the likely profile of the appellant in the eyes of the Taliban was not open.

53    The finding that the appellant had only done a few jobs for Shuhada and that this reflected a lack of significance of the appellant in the relationship with Shuhada is supported by evidence from the refugee status assessment interview which was material before the reviewer. The assessment contained the following:

He worked with the engineers for about one year but not continuously as he already had enough of his own work. He made about thirty to forty thousand Afghanis each month. Given the claimant’s rather minor role in the construction of the schools and given that he was not even present when the material was installed, it is not feasible that he would be perceived as a prominent or major contributor to the construction of schools in the community where he worked, Sange Masha, or any of the locations in which the schools were being constructed. He made no mention of any harassment of which he was aware by the Taliban of people who were more heavily involved in the construction of the schools. By his own admission he worked sporadically with the engineers.

…

As the client himself said, he worked irregularly on the school project for only one year and he already had enough of his own work.

…

His role in reconstruction projects was minimal and not long lasting.

54    This material was put to the appellant by the reviewer who said:

I invited Mr Hussaini to comment on the RSA officer’s conclusions about his not having had any significant involvement with NGOs, foreign agencies or the government, and on the RSA officer’s conclusion to the effect that his claims about detention by, and escape from, the Taliban had been fabricated. In reply, he said he had explained his case as well as he could.

55    Thus, there was evidence that the appellant’s work for Shuhada was not significant. It was open to the reviewer to draw an inference from this evidence that the appellant did not, on the basis of his work for the organisation, have a profile that would make him a target for the Taliban. There was no logical disconnection or lack of probative evidence in this aspect of the reviewer’s reasoning.

The appellant’s road travel after his claimed detention

56    The reviewer said:

I give weight to the fact that Mr Hussaini was on the road between Jaghori and Kabul a number of times over the four to five months before he left Afghanistan. He did not suggest that he took or had to take any unusual precautions. He did not have any potentially significant encounters. So soon after the claimed trauma of being captured and threatened with death by the Taliban, he did not hide out in his Taliban-proof village but went himself to Kabul by road and back to Jaghori again and back to Kabul. I find that these actions on his part do not sit with his claim about being a Taliban target at the time.

[Emphasis added]

57    The appellant relied on the federal magistrates observation as follows:

The Reviewer found that the appellant was on the road between Jaghori and Kabul a number of times over the four or five months before he left Afghanistan. While it is true that this finding may be open to some serious question given that while the applicant undoubtedly travelled to Kabul at least once in order to leave Afghanistan, there does not appear, as far as I can see, to be any direct evidence of multiple travel as the Reviewer asserted.

[Emphasis added]

58    The federal magistrate however held that because the reviewer found that any incident on the roads outside Jaghori district did not have a nexus with the Convention, the finding was not critical to the reviewer’s recommendation and hence no jurisdictional error was revealed.

59    Counsel for the appellant argued that the federal magistrate erred in holding that the appellant’s travel between Jaghori and Kabul was not critical to the recommendation. The finding was critical, she contended, because it was used to form a view as to the appellant’s credit and was thus a part of the reviewer’s reasoning which led to the conclusion that the appellant had not been detained by the Taliban. The reviewer, it was contended, reasoned that if the appellant had travelled on the road between Jaghori and Kabul after his claimed detention, his claimed fear of future harm must be doubted.

60    The starting point of the appellant’s argument was the observation by the federal magistrate that there was no direct evidence of multiple travel during the four to five months before the appellant left Afghanistan.

61    The appellant submitted that the federal magistrate’s observation was correct. There was direct evidence of only one trip from Jaghori to Kabul in the period after the appellant’s claimed detention, and that trip was in order to escape from Afghanistan. This submission relied on the answers provided by the appellant in his entry interview on Christmas Island on 18 March 2010 as follows:

Q.1 Why did you leave your country of nationality (country of residence)?

… I decided it was too dangerous for me so I went to Kabul to seek out a smuggler so I could leave Afghanistan. It took me 4-5 months to sell my shop and equipment before I moved to Kabul. I left Afghanistan in April/ May 2009.

…

Q.11 When did you start making arrangements for your travel to Australia?

March 2009.

Q.12 Who made those arrangements for you?

A man by the name of Sayed Akbarzada made the arrangements for me. I was in an Hazara hotel in Kabul…

Q.13 What arrangements were made?

About a month and 15-20 days after meeting S.A he got me my passport and a ticket and I went by plane to Dubai on my own…

62    The appellant contended that these answers showed that four to five months after his detention the appellant made a single trip to Kabul in March 2009 for the purpose of arranging his escape and then remained in Kabul for a month and 15-20 days before departing for Dubai in April / May.

63    However, the basis upon which the reviewer found multiple journeys can be seen from his summary of the entry interview as follows:

Mr Hussaini claimed he was too scared to return to his job after this episode in 2008. He claimed he went (apparently by road) to Kabul to seek out a people smuggler. He claimed it took him four or five months back in Jaghori to sell his shop before he moved again (presumably by road) to Kabul. He claimed he stayed in a Hazara hotel in Kabul. He said it took over two months for a smuggler to arrange his passport, tickets and route.

[Emphasis added]

64    The entry interview is ambiguous on the issue of whether the appellant, after first meeting the smugglers, returned to Jaghori, or whether he remained in Kabul. The reviewer construed the interview as having the former meaning. This meaning was open. There was no jurisdictional error in the reviewer so construing the evidence even though another interpretation was open.

65    Furthermore, even if the reviewer wrongly interpreted the entry interview, and wrongly found that the appellant had made multiple journeys in the four to five months before he left Afghanistan, there was no jurisdictional error unless that finding was determinative in the reviewer’s assessment of the appellant’s credit.

66    The analysis made by the reviewer which led to the reviewer concluding that the central claim of the appellant was fabricated is set out at [8] – [20] of these reasons. The finding concerning the appellant’s use of the road to Kabul in the four to five months prior to his departure was found not to sit well with the appellant’s claim to be a target of the Taliban at the time. The reviewer came to the conclusion that the appellant’s claim was fabricated for reasons set out in [9] – [15] of these reasons and then provided some additional reasons which are set out at [16] – [20] of these reasons. The appellant’s use of the roads in the four to five months before departure is one of those additional reasons. This factor together with the way in which the reviewer said that he used the factor demonstrates that it was not determinative of the reviewer’s conclusion on the appellant’s credit. Consequently, even if the fact finding was wrong, that error did not amount to a jurisdictional error. This ground of appeal is not established.

procedural fairness

67    The reviewer referred to the following extract from the UNHCR Eligibility Guidelines dated 17 December 2010 which related to the situation in Afghanistan:

UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.

In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.

UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary …

68    He then said:

These guidelines were released after Mr Hussaini’s adviser sent the post-interview submission, in which an earlier version was cited. I note that similar relevant advice appears in both versions.

[Emphasis added]

69    Later in his reasons he said:

I do not accept that an expatriate Afghanistan national’s identity as a Hazara Shi’ite Muslim of itself causes him or her to fall within the purview of the Convention; nor do the UNHCR Guidelines suggest that it should. UNHCR advises that all individual refugee status applications by Afghan and other nationals be considered on their own merits.

70    Counsel for the appellant contended that procedural fairness required that the reviewer put to the appellant the substance of matters which the reviewer knew of and considered may bear upon whether to accept his claims. It was common ground that the reviewer did not put to the appellant the 2010 version of the UNHCR Eligibility Guidelines. By failing to alert the appellant to this version of the guidelines, so it was submitted, the reviewer denied the appellant procedural fairness.

71    This argument was available to the appellant before the federal magistrate but was not raised at that hearing. The first respondent contended that the appellant should not be permitted to raise the argument on appeal in those circumstances.

72    Leave will be granted to raise a new argument on appeal if it is expedient in the interests of justice to do so. An important consideration in the exercise of this discretion is whether the argument sought to be raised has a reasonable chance of success on the appeal. This question will now be considered.

73    The appellant relied on a judgment delivered by the Federal Magistrates Court on 12 August 2011 in SZQEK v Minister for Immigration & Anor [2011] FMCA 628 (SZQEK) in which it was held that there was a denial of procedural fairness by a reviewer who relied on the 2010 version of the UNHCR Eligibility Guidelines relating to Afghanistan, but only disclosed to the applicant the 2009 version. The appellant relied on a passage in [43] of that judgment where the federal magistrate said:

… there was an aspect to that publication which undoubtedly provided an important new element of information, adding to the authoritativeness and weight of the UNHCR’s previous assessment, even if it had arrived at similar conclusions. This is that its assessments and the information which it digested constituted an updating replacement set of guidelines for the guidance of decision-makers after December 2010, in a context where the issue which Mr Karas was addressing concerned a very fluid situation in the applicant’s country, affecting the assessment of his general personal security as well as his Convention ground of feared persecution as a Hazara Shia if he returned to Afghanistan.

74    The same federal magistrate gave judgment in SZQNF v Minister for Immigration & Anor [2011] FMCA 965 on 9 December 2011 in which he found that there had been no denial of procedural fairness by the failure of the reviewer to alert the applicant to the reviewer’s reliance on the 2010 version of the UNHCR Eligibility Guidelines when the earlier version had been disclosed to the applicant.

75    In SZQEK the federal magistrate examined the authorities concerning the denial of procedural fairness including M61/2010E, Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23, and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57; [2001] HCA 21, and concluded at [31]:

As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.

76    It was the factual circumstances in each case that governed the outcome. In particular, in SZQEK the federal magistrate rejected the Minister’s argument that:

47.    … the new document ‘added no new element to the debate’, and was not significant or material new information relevant to Mr Karas’ adverse assessment of a very important factual issue raised in the review.

77    In the present case the appellant’s argument is foreclosed by the reviewer’s statement that what he considered relevant information in the 2010 version of the UNHCR Eligibility Guidelines was similar in both versions. This meant that when the reviewer provided the appellant with a reference to the 2009 version of the UNHCR Eligibility Guidelines he provided all the information which he thought had a bearing on the case.

78    Further, the extract from the 2010 version of the UNHCR Eligibility Guidelines referred to the risk profiles of Afghan citizens and the security situation in Afghanistan. The appellant was made well aware of these issues. The substance of the information in that version of the guidelines was put to the appellant in the course of the refugee status assessment interview and he was asked to, and did, comment on it.

79    The argument that the appellant was denied procedural fairness by not being alerted to the newer version of the UNHCR Eligibility Guidelines has no prospect of success. Hence, leave to raise the argument on appeal should be refused.

Conclusion

80    For the reasons expressed, the appeal must be dismissed with costs.

Associate:

Dated:    5 April 2012