FEDERAL COURT OF AUSTRALIA

MZYOI v Minister for Immigration and Citizenship [2012] FCA 868

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    By a supplementary notice of appeal dated 4 May 2012, the appellant appeals from a decision of Riethmuller FM who, on 19 March 2012, dismissed an application for review of the determination of the second respondent, the Independent Merits Reviewer (“IMR”) handed down on 24 January 2011. The IMR found that the appellant did not meet the criteria for a protection visa in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and recommended that he not be recognised as a refugee.

2    The grounds of appeal are as follows:

1.    The Federal Magistrate erred in concluding that the Second Respondent did not deny procedural fairness to the Appellant.

Particulars

(a)    The Second Respondent failed to notify the Appellant that she was inclined to reach her decision by reference to an issue other than those considered dispositive by the delegate at first instance. The Second Respondent found that the Appellant had not been the victim of an incident of kidnapping shortly prior to the Appellant undertaking his journey to Australia. This was in contrast to the RSA decision-maker at first instance, who accepted that the incident occurred but did not accept that it was motivated by a Convention reason; and

(b)    The Second Respondent failed to put adverse country information to the Appellant, failed to identify the sources of such information, and further failed to put a complete and accurate account of that information to the Appellant for him to respond to.

2.    The Federal Magistrate erred in concluding that the Second Respondent had found that the appellant was not at a real risk of serious harm.

3.    The Federal Magistrate erred in failing to conclude that the Second Respondent had not taken into account relevant considerations or, in the alternative an integer of the Appellant’s claim. In particular, the Second Respondent failed to consider whether the security situation in and around Jaghori had resulted from a failure of the State to protect Hazara people.

4.    The Federal Magistrate erred in failing to conclude that the Second Respondent had made an illogical finding on the evidence.

Particulars

(a)    It was illogical for the Second Respondent to:

(i)    find that Jaghori district is entirely populated by Hazara people;

(ii)    accept that the Appellant may need to travel out of Jaghori for work;

(iii)    find that the Taliban are a source of insecurity on the routes in and out of that District; but

(iv)    find that the targeting of travellers going in and out of the District is not because of their race or religion, but rather only because of the fact that the Taliban do not control the District.

3    The orders sought are:

1.    A declaration that the Federal Magistrate failed to properly consider that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.

2.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer, and the Federal Magistrate.

3.    An order that the matter be remitted for another consideration by a differently constituted Independent Merits Review.

4    In my opinion, for the reasons that follow, the grounds are not established and the appeal should be dismissed.

Background

5    The appellant is a male citizen of Afghanistan of Hazara ethnicity and the Shia faith, who was born in 1966. He arrived on Christmas Island by boat without a visa on 23 February 2010. On 23 April 2010, he requested a refugee status assessment (“RSA”) by the Department of Immigration and Citizenship. The appellant was interviewed by a delegate of the first respondent (“the Minister”) on 26 April 2010 and, on 16 June 2010, was notified of the Minister’s negative RSA. The appellant sought a review by the IMR, who interviewed him on 10 October 2010 and, on 24 January 2011, recommended that he not be recognised as a refugee. The appellant was notified of the recommendation on 5 April 2011. On 28 July 2011, he applied to the Federal Magistrates Court for judicial review, and in November 2011, filed an amended application which was dismissed on 19 March 2012.

6    Before the delegate, the appellant claimed he was of Hazara ethnicity and was a Shia Muslim who had lived for 44 years in Jaghori where the Mayor, Mullah Irfani, who was formerly a Mujahadeen, was now a member of the Taliban. The appellant conducted a cloth shop in the bazaar established by his father until he left Afghanistan in January 2010. He claimed that in late 2009, about a week before his departure for Australia, three members of the Taliban, one of whom was Irfani’s nephew, came to his house. When his wife claimed he was not at home, the men broke in. The appellant claimed that after assaulting the family, the men kidnapped him, and took him to a former Mujahadeen base where they hit him, demanded money and threatened to kill him. The appellant claimed that he managed to escape. He returned to Jaghori, sold his stock and travelled to Christmas Island.

7    Before the delegate, the appellant stated that the kidnapping was due to his association with his deceased distant relation, Ismael Danish, who had been a popular commander of a group in the Jaghori government. The appellant asserted that Danish was killed by Irfani in 2000, with the Taliban’s assistance, at which time the appellant was imprisoned, beaten and tortured for 24 hours. He was released at the behest of village elders. The appellant claimed that Danish regularly visited his shop prior to his death, after which the kidnappers visited his shop each week and demanded money, which he paid. The appellant claimed that during the kidnapping, the kidnappers asked him to explain why Danish had visited. He explained that Danish was his distant uncle and the kidnappers demanded that he pay $27,000 which Danish had owed. They also threatened the appellant’s family with death. When the appellant indicated that he could pay $7,500, the men took a note from the appellant to his wife instructing her to get the money.

8    The appellant stated that after the kidnapping, he decided that it was no longer safe and made plans to leave.

The Delegate’s reasons

9    The delegate did not accept that the appellant was of political interest to the authorities or any non-state agent, or that he faced a real chance of politically, religiously or ethnically-based persecution. The delegate considered that the appellant’s claims that he was targeted due to his links with Danish were not credible. The delegate did not accept that Irfani’s men frequently visited the appellant’s shop for the reasons claimed, given that Danish had died and his link with the appellant was not strong. The delegate observed that country information indicated that Danish was killed in 1997, rather than 11 years from the time of interview as the appellant claimed. The delegate thought that the link with Danish was not a credible reason for the claimed harassment and, had there been a close association, the appellant would have had accurate knowledge of the date of Danish’s death. The delegate did not accept that the appellant was imprisoned and beaten at about the time of Danish’s death. The delegate did not accept that the appellant was kidnapped for the purpose of interrogating him about Danish or that the harassment, demands for money or kidnapping were due to his political opinion or links with Danish.

10    The delegate stated:

I am willing to accept that [the appellant] … was kidnapped in early 2010 by a group of people who may or may not be linked to Erfani, however I believe that the kidnappers’ motives appear to have been financial and not imbued with a political hue. It appears to have been a criminal act perpetrated against an individual….

11    The delegate also rejected the appellant’s claim made at interview (but not in his RSA statement) that about six to seven months prior to his departure, a woman took his photograph at his shop and gave it to the Taliban.

12    The delegate, taking into account recent country information, concluded that Jaghori was under stable control and was considered safe since the fall of the Taliban. Although the Taliban’s insurgency and operational access in parts of Ghazni Province had increased, the insurgents’ main focus was on a main arterial road and was mainly for robbery, ransom or violence against employees of foreign organisations or the government. Independent evidence indicated the Ghazni province was generally considered a safe area and Hazaras were not selectively targeted on arterial roads by the Taliban and/or insurgent groups or criminals, for reasons of their race and religion.

13    The delegate found that a quarter of Jaghori’s population travelled, and notwithstanding danger on the roads, alternative and safer travel routes were available. While the appellant’s ability to travel was restricted due to insurgency and criminal elements, such dangers applied to the general travelling Afghan population and Hazaras were not singled out.

14    The delegate observed that independent country information indicated that although Shias might experience some discrimination, they were not a religious group at risk of harm.

The IMR Interview

15    In the interview, the IMR informed the appellant at the outset that “[m]y role is to undertake a fresh rehearing of your claims. I will make a completely new and independent assessment of the evidence… the purpose of the interview is to take a new look at the claims you’ve made”. The IMR explained that she might put country information and concerns to the appellant for comment but it did not mean that she agreed with the information or had made up her mind.

16    The IMR questioned the appellant about the Taliban, his travel to and from Jaghori for supplies, the available travel routes, his family, his relationship with Danish, the views, history and role of Danish, the date of Danish’s death, why the relationship with Danish caused the appellant’s ill-treatment and the kidnapping.

17    The IMR questioned the appellant about Danish, including when and why he was killed. The appellant stated that Danish was his mother’s uncle who was “against the Mullahs”. He thought that Danish was a socialist. The appellant could give no information about Danish’s life in Kabul or his political activities in Jaghori. The IMR stated that she had difficulty with the appellant’s simplistic description of Danish’s ideas. The appellant stated that he did not know exactly when Danish was killed but thought that it was maybe 10 to 12 years ago in winter time. He claimed that he was ill-treated because he was a friend of Danish who shared the same ideas.

18    The IMR questioned why (if the appellant were imprisoned at the time) he could not recall the year in which Danish died. The IMR stated that the appellant was very vague. The appellant stated that his son (who was now 12) was one year old at the time, which would make the year 1999.

19    The IMR asked the appellant about the claim that he had been harassed continuously by Irfani’s men for many years. The IMR stated that she was having difficulty with the appellant’s evidence.

20    The IMR also questioned the appellant about the kidnapping claim.

21    The IMR asked the appellant whether he had ever been stopped by the Taliban when travelling and the appellant replied that “[o]n the side of the road [he was] stopped by the Taliban … in a van” returning from Ghazni to Jaghori.

22    The IMR informed the appellant that she had difficulties with his story for a number of reasons, one of which was his lack of knowledge about Danish.

23    The appellant informed the IMR that his donation of $4000 to a school, which he had not previously mentioned, was the reason for his problem. The IMR stated that this was a new claim and was a significant shift in the appellant’s story.

24    The IMR put some information about Danish to the appellant for comment, including that Danish had only about 250 supporters in Jaghori, whereas the appellant stated that he had a lot of support. Further, the IMR put to the appellant country information that Danish “had no formal organisation, he didn’t lead a formal organisation” which concerned her as the appellant’s information was not consistent. The appellant responded that Danish was the second in command and had much support among ordinary people.

25    The IMR also put the following country information to the appellant:

I also had problems with your story because our reports indicate that the only people that would be [at] risk of having been associated with Danesh was if they were actively involved in the reformation of a faction similar to that which Danish led in the early 1990s but just a fact that you’re a close relative would not result in persecution.

26    The IMR then read an extract of a report, which stated that:

Intellectuals, former associates and former supporters of Ismael [Danish] could face a threat if they became actively involved in the reformation of a faction similar to that which Ismael led in the 1990s but previous association has not ‘generally’ resulted in persecution...”

but omitted to read the word “generally”.

27    The IMR stated that she had difficulty in accepting that the appellant would be of interest due to an association with Danish, who died 13 years ago. The IMR stated:

There’s also a problem with you not being aware of when Danesh died … You have … shift in your story as to when he exactly died. It ranges anywhere between 10, 11, 12 and 13 years.

28    The IMR then stated that:

Okay. I also have difficulty with the fact that this continues for 13 years when Danesh is no longer a threat to anyone and yet coincidentally just a week before you leave you suddenly have this incident of people coming to your house and asking about your relationship with Danesh which they had asked you 13 years ago and I have real difficulty with that story; I just find it implausible that – I mean … you know, if 13 years ago they imprison you and ask you about Danesh why 13 years later they come to your house and still be asking you about your relationship. Can you explain that to me?

29    The IMR invited comment on the difficulties she had identified.

The IMR’s reasons

Country information

30    In her reasons, the IMR also referred to a considerable volume of country information about the position of Hazaras and the Jaghori area.

31    The IMR referred to the US Department of State 2009 Country Report on Human Rights Practices, the US International Religious Freedom Report, the Amnesty International Report 2010 and the Human Rights Watch Report, none of which mentioned the persecution of Hazara or Shia Muslims by non-state actors or the government.

32    The IMR referred to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009, an extract of which stated that social discrimination against the Hazaras continued to be reported. It further stated that despite significant efforts by the government to address historical tensions affecting the Hazara community, some Hazara community leaders accused President Karzai of providing preferential treatment to Pashtuns and that the rising power of warlords was a concern for the Hazaras “… given the absence of State presence and rule of law in many areas”. Further, despite constitutional guarantees of equality and the Government’s attempts to address the problems faced by ethnic minorities, discrimination and ethnic clashes still occurred. The Guidelines concluded that members of ethnic groups may be at risk of persecution on the ground of their ethnicity/race in areas where they constituted a minority.

33    The IMR referred to Professor Maley’s paper “On the Position of the Hazara Minority in Afghanistan, June 2010”. Professor Maley stated that the general situation in Afghanistan remained profoundly threatening. The security situation, particularly in the south, was extremely dangerous, no part of Afghanistan should be considered immune from violence and Afghan authorities had a limited ability to maintain order and ensure the security of citizens and visitors. Professor Maley referred to fears that the Taliban might attempt to push forward into mainly Hazara areas. He stated that the situation for particular individuals and groups would wax and wane over time.

34    The IMR referred to advice from the Department of Foreign Affairs and Trade (“DFAT”) dated February 2009 that the population in Jaghori was of 100% Hazara ethnicity.

35    The IMR referred to the report of the Co-operation for Peace and Unity, April 2009, which stated that there was an extremely low government presence in Jaghori. The Jaghori district villagers feared that the return of the Taliban might put them at risk and that the Pashtun dominated Taliban was seen as a threat. The Taliban had difficulty penetrating Hazara areas and thus tried to extend their control by dividing communities. Nevertheless, the risk of future ethnic conflict between the Taliban and Hazara was likely to be lower in Jaghori than elsewhere in Hazarajat, because the people there had demonstrated unique negotiating and proactive peace building strategies towards the Taliban.

36    The report stated:

Despite the collapse of government control in Ghazni, at the district level in Jaghori … the Taliban do not hold influence, and overall security has been somewhat better.

37    The report stated that Taliban tactics included an increased reliance on suicide and roadside attacks to exploit ethnic and cultural tensions, divide communities and strengthen Taliban control by weakening established structures. It stated that a key stretch of the Kabul-Kandahar road which international actors entirely avoided, was seriously affected by insecurity, with the Taliban often targeting government forces or police.

38    A situation report by the Finnish Immigration Service, December 2009 stated that “Jaghori is a somewhat secure area where schools and health care can function without threats”. The main problem was getting in and out, as there was a Taliban focus on the Qarabagh to Jaghori road and crimes were committed by regular criminals pretending to be Taliban.

39    The DFAT report dated 15 July 2010 report on “views of a Member of the Afghan Parliament” stated that in Jaghori, the two main problems were insecurity of the routes and economic hardship. The Taliban, petty thieves and organised criminals caused the insecurity on roads. Petty thieves and organised crime affected Hazaras and Pashtuns equally, but the Taliban was more difficult for Hazaras because they lacked the same networks as Pashtuns to negotiate their release.

40    The DFAT report dated 28 September 2010 stated that travel routes and access to Jaghori had become more difficult because, of the three routes between Jaghori and Ghazni city, the most frequently used Nawur road was considered secure, but another route was insecure due to the Taliban’s presence (with occasional check points and incidents) and the third route was very insecure.

41    The report stated that “[s]ecurity challenges in Ghazni are not specific to the Hazara community” and Hazara districts, including Jaghori, were relatively stable compared to Pashtun districts. Threats facing the Hazara community varied across provinces and districts and, while there was a lack of effective protection in Ghazni, Hazara strongmen controlled most districts and had strength and a flexible relationship with other factions and insurgency networks, including the Taliban. The report indicated that conditions in Hazara communities had improved and Hazaras, particularly in Jaghori, enjoyed better educational and health facilities. Despite this, limited employment opportunities, security challenges and a perception of discrimination were encouraging migration.

42    In her reasons, the IMR also referred to DFAT country information about Danish. It stated that he was a Hazara intellectual who was involved in the Shula Javeed Movement and underground opposition activities in government controlled areas. In around 1990, after discovering plans to arrest him, Danish fled to Jaghori. While in Jaghori, he associated himself with the Nasr faction of Hizb Wahadat, and assisted the commanders to obtain control. He was active in the political organisation and administration of Jaghori. The report stated: “Ismael was one of numerous leading ideologues within a formal organisation rather than the actual leader of any formal organisation itself. He represented and organised the post Maoist secular left leaning intellectuals within the Hizb Wahadat organisation and Jaghori Uluswali district administration, which were both dominated by pro Wilay Fiqhy Shia clergy at the time. On the basis of ideological affinities and kinship based links, Ismael [Danish] probably had around 250 supporters in Jaghori”.

43    The DFAT information also set out the statement extracted at paragraph 26 above.

The IMR’s conclusions

44    The IMR noted that, as set out in the country information, there were different views as to the way Hazaras were currently treated and what might happen to them if they returned to Afghanistan.

45    The IMR noted reports which concluded that the majority of Hazaras were currently not being persecuted on any consistent basis, although that situation might not last indefinitely.

46    The IMR accepted that the appellant was a Hazara of the Shia Faith. She stated at [61] that:

The claimant is from Haydar Jaghori Ghazni. I have considered a number of different reports about Jaghori. I accept that it is a district entirely populated by Hazaras. I accept that the district is currently safe and relatively stable compared to Pashtun districts in Ghazni. I accept the people in Jaghori district, enjoy better educational and health facilities than neighbouring provinces due to their better security environment. I accept that the Taliban remain at the outskirts of Jaghori. I accept that Jaghori remains out of reach of Taliban control due to the military and political power of Hizb-I Wahdat Kalili/Nasr faction. I do not accept that the claimant faces a real chance of serious harm amounting to persecution by the Taliban because he is a Hazara from Jaghori.

47    The IMR did not consider the appellant to be a truthful or credible witness. She noted that he appeared unfamiliar with the life, political activities and views of Danish, had avoided answering questions and changed his evidence about Danish’s alleged visits to his shop. The IMR observed that the appellant did not appear to know when Danish was killed, but accepted that there was not a great emphasis on dates in the appellant’s culture. She stated that she therefore placed no weight on his vague evidence about when Danish was killed. Nevertheless, the IMR did take into account the appellant’s lack of knowledge about the circumstances of Danish’s death.

48    The IMR did not accept that the appellant was targeted by Irfani’s men from 1997 to 2009 because he was a relative, friend or supporter of Danish. The IMR observed that the appellant appeared to fabricate his responses and significantly changed his story by the late introduction of a claim that a donation to a boys’ school caused his problems.

49    Further, while country information indicated that associates or former supporters of Danish were at risk of harm only if actively involved in re-forming similar factions, the appellant had not been involved in Danish’s political activities and acknowledged that he did not know what those political activities were.

50    The IMR did not accept that Irfani’s men had the appellant imprisoned, came to his shop, continually threatened him and demanded money, or that his photograph was provided to Taliban.

51    The IMR stated at [60]:

I do not accept that in 2009 a week before the claimant left for Australia Irfani’s men came to his house kidnapped him demanded money from him and threatened to kill him. I am of the view that the claimant has fabricated these claims in order to strengthen his claim to refugee status.

52    The IMR referred to independent country information on which she placed weight. She concluded that despite strong perceptions of discrimination and a sense that development needs were neglected, Hazaras were not living in fear of systemic persecution as they did under the Taliban and currently were not being persecuted on any consistent basis.

53    The IMR did not accept that the appellant’s “ethnicity and religion by themselves means that he faces a real chance of harm amounting to persecution by the Taliban”.

54    The IMR nevertheless accepted that the appellant might be a refugee on the basis of his personal profile, experiences and activities.

55    She considered the appellant’s claims about Ismael Danish, together with independent country information which indicated that Danish was assassinated in 1997.

56    The IMR did not accept the appellant’s claims that he was imprisoned at the time of Danish’s death or that in 2009, he was attacked and threatened with death. The IMR considered that if the appellant were a relative who was visited by Danish, he would have been more aware of the details of Danish’s life. Instead, the appellant was unable to explain Danish’s views and had limited information on the circumstances of Danish’s death. The IMR found that the significant change in the appellant’s story concerning his financial contribution to a school indicated that he was not a witness of truth. The IMR did not accept the appellant’s claims and concluded he had fabricated them in order to strengthen his case.

57    The IMR accepted that access in and out of Jaghori had become more difficult but concluded the Taliban did not target people on the basis of their race or religion. The IMR was not satisfied that the appellant faced a real chance of serious harm amounting to persecution. The IMR concluded that the appellant would not face persecution on account of being a Shia. The IMR also concluded the appellant would not face persecution on account of his being a returned asylum seeker. The IMR held the appellant did not meet the criteria for a protection visa and was not someone to whom Australia owed protection obligations.

application to the federal magistrates court

58    By his amended application filed on 3 November 2011, the appellant stated the following grounds (particulars omitted):

1.    The Second Respondent denied procedural fairness to the Applicant.

2.    The Second Respondent failed to take into account relevant considerations.

3.    The Second Respondent made an illogical finding on the evidence.

The Federal Magistrate’s reasons

59    The Federal Magistrate refused the appellant’s application for review.

60    His Honour rejected the allegation that the IMR’s failure to challenge the appellant’s account of the kidnapping incident denied him procedural fairness because he was entitled to assume, given the RSA, that it was not a live issue.

61    The Federal Magistrate acknowledged the soundness of the “basic legal theory” behind the allegation but found, on an examination of the transcript, that there was no want of procedural fairness.

62    The Federal Magistrate concluded at [23] and [24]:

In light of the interactions at the review hearing it is plain that the Reviewer did not conduct herself in such a way as to lead the applicant to conclude that the kidnapping claim was accepted. Not only did she formally state that she would be making a “completely new and independent assessment of the evidence” at the outset, but the way in which she conducted the interview, and in particular the detailed discussions with respect to the minutiae of the events surrounding the alleged kidnapping make it apparent that this was a real issue at the hearing. This afforded the applicant a proper opportunity to put his case and the details surrounding it.

The case is also further weakened by the fact that even at the initial assessment phase the findings with respect to the kidnapping were not entirely in the applicant’s favour in any event, the officer not accepting that the kidnapping as claimed was by Irfani’s men or at Irfani’s instigation (see court book 101). In these circumstances I am not persuaded that the Reviewer failed to afford the applicant procedural fairness. In the circumstances the applicant cannot succeed with respect to this part of ground one.

63    The Federal Magistrate also rejected the allegation of procedural unfairness based on the IMR’s failure to put to the appellant that there was a well organised Hazara people smuggling operation and Hazara migration patterns were in keeping with economic imperatives rather than levels of threat.

64    The Federal Magistrate observed that the appellant had not sought the source of or precise reference in some country information put to him by the IMR, including about Danish. His Honour rejected the appellant’s complaint that the source of the information was not provided.

65    In relation to the appellant’s complaint that the IMR put to him that Danish was killed in 1997, but the country information stated that Danish was killed in “around 1997”, the Federal Magistrate stated at [29]:

The Reviewer is not required to put the precise source of each piece of information it may rely upon in conducting the process. Nor is the Reviewer required to give specific references during the course of the hearing. It is clear from the transcript that the substance of the information, or as it was described during argument “the gist of the information” was put to the applicant to allow him to comment upon it.

66    The Federal Magistrate referred, in that context, to VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”) at 100, where the High Court considered that procedural fairness would have been accommodated if the Tribunal had informed the appellant of the substance of the allegations made in a letter and asked him to respond.

67    The Federal Magistrate concluded at [33]:

In viewing the transcript as a whole in the context of this particular case it is difficult to conclude that the applicant was not afforded procedural fairness in this respect.

68    The Federal Magistrate rejected the appellant’s allegation that the IMR failed to consider, as a relevant consideration, whether the security situation in and around Jaghori Province had resulted from the failure of the State to protect Hazara people and whether this resulted in the appellant having a well-founded fear of persecution.

69    The Federal Magistrate observed that the issue involved two aspects, being whether there was a real risk of persecution of the appellant and if so, whether it was for a Convention reason. While acknowledging ambiguity in the last sentence at [63] of the IMR’s reasons, the Federal Magistrate found that when read fairly and in context, the IMR there concluded that there was not a real chance of serious harm to the appellant with respect to his travel; and nor was there any harm or persecution for a Convention reason. The Federal Magistrate considered that the IMR had made adequate findings to support the conclusion that there was not a real chance of serious harm. His Honour concluded that it was therefore unnecessary to consider whether, as the appellant contended, the Taliban’s desire to control Ghazni areas was for Convention reasons, as opposed to merely criminal or strategic.

70    Further, the Federal Magistrate did not determine the appellant’s complaint based on illogicality on the basis that (given that risk of serious harm was not established) his application must fail in any event.

GROUNDS OF APPEAL

Ground 1: Denial of procedural fairness

71    On appeal, the appellant alleged that the Federal Magistrate erred in failing to hold that the IMR denied him procedural fairness in:

(a)    the IMR’s treatment of the alleged kidnapping incident; and

(b)    the IMR’s failure to put, or to put accurately, a number of pieces of adverse country information to the appellant.

Ground 1(a): The alleged kidnapping incident

72    The appellant submitted that the IMR denied him procedural fairness in failing to notify him of her inclination to make a decision based on a factual finding that differed from the finding on that matter made by the refugee status assessor.

73    The delegate accepted that the kidnapping occurred but was not carried out for Convention reasons. The IMR found that the kidnapping did not occur at all.

74    The appellant submitted that the kidnapping claim was both central to and dispositive of his claim, because it involved violence shortly prior to his departure. Further, the IMR’s total rejection of the kidnapping claim had also foreclosed consideration of a subsidiary question, as the occurrence of the kidnapping (even if not for Convention reasons), raised a claim of State protection. The appellant submitted that therefore, consistently with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”), the IMR should have advised him that she would adopt an approach to the kidnapping incident which differed from that of the delegate.

75    The appellant submitted that although the IMR made clear that she would make a fresh decision, this did not displace the obligation to give specific notice, given his vulnerability. Rather, in circumstances where the IMR did not reject all factual aspects of his claim and notified him of her challenge to some other claims, he was entitled to assume that she would not take a different approach to the kidnapping.

76    In SZBEL, an applicant for a protection visa relied on three matters in his statutory declaration, only one of which was not accepted by the delegate. Although the Refugee Review Tribunal (“Tribunal”) disbelieved the applicant’s accounts of the two matters which the delegate had accepted, but did not challenge him about them.

77    The High Court held that in such circumstances, the Tribunal did not accord the applicant procedural fairness.

78    The High Court recognised that the statutory framework in which the decision-maker exercised statutory power was critical to what procedural fairness required (at [26]). It referred to the statutory framework of the Act, including s 425(1) and s 424(1). The High Court also referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) where the Full Court stated (at 592) that procedural fairness required, inter alia:

the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(emphasis added by the High Court)

79    The High Court observed (at [32]) that the fundamental issue identified in Alphaone (at 590-591) was as follows:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(emphasis added by the High Court)

80    The High Court stated (at [33]) that the Act defined the nature of the opportunity to be heard, and observed at [33] to [34] that “the issues arising in relation to the decision under review” referred to in s 425(1) were not limited to the overriding question whether an applicant was entitled to a protection visa.

81    The High Court observed that while an applicant would ordinarily know from the invitation to appear that the Tribunal had not already been persuaded in his or her favour, “unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision” (at [36]). The High Court stated that this was “the consequence of the statutory scheme” (at [37]).

82    The High Court noted that the relevant “issues” could (but need not necessarily) extend to all aspects of an applicant’s claim to a protection visa, and, if it had been intended that the Tribunal would consider afresh all possible aspects of an applicant’s claim, its task would not be described as a review (at [40]).

83    In SZBEL, the High Court noted (at [42]) that the applicant was not on notice that the two matters accepted by the delegate were issues arising in relation to the review. The delegate had not based his decision on either of those matters or indicated that the applicant’s account of them was in issue (at [43]). The High Court stated “[t]he Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review” (at [43]).

84    The High Court concluded (at [44]):

The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

85    The High Court noted, however, that there may be many cases where the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicated that everything the applicant said in support of the application was in issue. Such indications could be given in many ways. The High Court stated at [46] to [49]:

Three further general points should be made.

First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

86    In Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 (“Plaintiff M61”), the High Court considered, in relation to two plaintiffs, the administrative process applicable to the assessment of the refugee status of an unlawful non-citizen (such as the applicant in this case) who enters Australia at an excised offshore place where the Minister exercises the power under s 46A(2) of the Act to hold that s 46A(1) does not apply.

87    The High Court described in detail the process, in which an officer of the Minister conducts an RSA which, on the applicant’s request, may be reviewed by an IMR, who then recommends to the Minister whether Australia owes the offshore entry person protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.

88    The High Court held that a decision whether to exercise powers under s 46A directly affected the rights and interests of those subject to the determination or review. The consideration of the exercise of the power, including the steps taken to inform it, must therefore be procedurally fair and based on the application of correct legal principles.

89    The High Court held, in relation to one plaintiff, that the independent reviewer had erred by treating the Act and case law as mere “aids to interpretation”, by failing to deal with one of the plaintiff’s claims and by failing to put to the plaintiff for comment country information which was an important basis for the reviewer’s adverse conclusion. The High Court stated that “procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims.” (at [91]).

90    The High Court also noted that the special provisions in s 424A(1) applicable to the Tribunal’s conduct of its reviews requiring information to be put to an applicant (subject to an exception for country information) “were not engaged in respect of the Independent Merits Review” or the initial RSA. Thus, “[t]he reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.” (at [91]).

91    In Plaintiff M61, another plaintiff alleged that he had been denied the opportunity to deal with adverse country information on which the reviewer relied to conclude that he was not at risk. The High Court accepted that the reviewer had failed to put certain country information about the treatment of failed asylum seekers to that plaintiff and “[n]ot putting the substance of the country information to the plaintiff for his consideration and comment denied him procedural fairness” (at [98]).

92    SZBEL establishes that the statutory procedure prescribed for a review by the Tribunal would ordinarily require it to notify an applicant of an intended deviation from the delegate’s finding on a dispositive or important matter, so that, consistently with procedural fairness, the applicant has notice of the “live” issues in the review. The underlying rationale is that, as the Tribunal conducts a review of the primary decision, unless advised by some means that all findings are in doubt, the applicant may assume that, in the absence of a specific challenge or notice, the dispositive facts accepted by the primary decision maker would also be accepted on review.

93    In contrast, in the context of an entirely fresh determination, such as that conducted by an IMR, where it is made clear to the applicant that all claims are the subject of a fresh determination, there is no equivalent need to identify the crucial issues in contention by specifically notifying the applicant of any intended divergence from the delegate’s findings on dispositive facts or issues.

94    In the present case, as the Federal Magistrate observed, the IMR at the outset made abundantly clear that she was conducting a fresh hearing of the claims and would make a completely new and independent assessment of the evidence. Moreover, the IMR’s extensive questions and reiterated concerns about the credibility of the appellant’s account clearly expressed pervasive doubt about the appellant’s entire story. While neither party adverted to it, the IMR, on one view, during the interview (transcript extracted at paragraph 28 above), specifically expressed doubt about the occurrence of the kidnapping incident. Even if the IMR did not express doubt about the occurrence of the kidnapping while specifically indicating doubt about other particular aspects of the appellant’s claim, the appellant was unambiguously apprised that all of his claims and all evidence would be considered and determined afresh, and that the IMR had substantial difficulties with his whole story not limited to her specifically expressed doubts. Further, the appellant was given a full opportunity to put his case.

95    In such circumstances, the appellant was not entitled to assume that in the absence of specific notice, the IMR would not deviate from the delegate’s finding that the kidnapping incident occurred, albeit not for Convention reasons. Any failure specifically to notify the appellant that the IMR would or might make a different finding did not deny the appellant procedural fairness.

96    While the delegate’s acceptance of the kidnapping did not lead to the delegate’s acceptance of the appellant’s claim to protection, the appellant contended that the IMR’s rejection of the occurrence of the kidnapping was dispositive, because it sidetracked his claim based on State protection, in which the occurrence of the kidnapping, even if not for a Convention reason, was an important element. For reasons set out below, however, I was not persuaded that the appellant, on a fair interpretation, raised a claim of State protection.

97    In my opinion, the complaint in ground 1(a) is not established.

Ground 1(b)

98    Under ground 1(b), the appellant alleges a denial of procedural fairness constituted by the IMR’s failure to put some country information to him at all and a failure to put other country information accurately. (The appellant did not press a complaint based on failure to state the source of the country information).

99    As Plaintiff M61 makes clear, procedural fairness requires the reviewer to put to an applicant for comment the substance adverse of country information which the reviewer considers might bear upon the applicant’s claims.

100    The authorities provide guidance on the nature of the country information which must be put to an applicant in this context. The applicant should be directed to critical issues on which a decision is likely to turn, in order to have an opportunity to deal with it. In Kioa v West (1985) 159 CLR 550 (“Kioa”), the delegate failed to put to an applicant facing deportation an “extremely prejudicial” allegation in the Department’s submission (at 588). While the delegate did not, apparently, rely on the allegation, the High Court majority concluded that procedural fairness required the applicant to have the opportunity to comment and deal with it.

101    Brennan J stated (at 628-629) that:

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.

…

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made..

102    His Honour stated that a person likely to be affected by the decision should be given an opportunity to deal with information of the kind that creates a real risk of prejudice, even if subconscious. It was not sufficient for the decision maker to attempt to shut such information out of his mind.

103    The adverse information which must be disclosed in this context has been variously described as, of crucial importance, determinative, decisive to the application for review or of a relevance which is not obvious. (See Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991-992 [133]-[137] (McHugh J), 1005-1006 [229]-[236] (Kirby J), 1010-1011 [263]-[268] (Hayne J, with whom Gummow J agreed dissenting on this point), at 975 [30] (Gleeson CJ) and 980 [64] (Gaudron J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 85-86 [97]-[99] (Gaudron J), 96-97 [140]-[141] (McHugh J), 117-118 [193]-[194] (Kirby J); Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [144] (Merkel and Hely JJ). See also SZBEL at 165 [44]).

104    It is ordinarily unnecessary that the relevant country information be put exhaustively or word-for-word. In Plaintiff M61, the High Court stated that the substance must be put. In VEAL, the High Court also stated that procedural fairness would be accommodated if the Tribunal informed an applicant of the substance of adverse allegations and asked him to respond to them. It was unnecessary to provide the applicant with a copy of the letter making allegations, tell him who had sent it or that the allegations were in written form.

Ground 1(b)(i)

105    The appellant alleged that he was denied procedural fairness because the IMR failed to put to him country information about the existence of a well-organised Hazara people smuggling operation.

106    That information appeared in a paragraph of country information from DFAT dated 21 February 2010, which also contained information about economic imperatives for migration. The paragraph stated:

UNHCR considered that there was a well-organised Hazara people smuggling operation in existence. UNHCR was witnessing migration patterns that were “out of sync” with levels of threat and more in keeping with economic imperatives associated with labour migration. The Hazaras seeking protection abroad were a reflection of this. UNHCR thought that the Afghan Government needed to do more to prevent people smuggling.

107    While the appellant initially also complained of the failure to put country information about economic migration, that matter was not pursued on appeal. As the Federal Magistrate found, the IMR put to the appellant that DFAT reported that limited employment opportunities, security challenges and a perception of discrimination were encouraging migration from Afghanistan; and further, that conditions for Hazaras had improved, they were making the most of opportunities now available for education and political involvement, did not live in systematic persecution and were not persecuted on any consistent basis.

108    That information encapsulated the substance or gist of the country information that there were economic incentives for migration which were “out of sync” with the levels of threat.

109    The IMR did not, however, put the statement about the existence of a well-organised Hazara people smuggling to the appellant. The appellant submitted that it was plainly adverse, because it appeared together with the information that Hazara migration patterns were out of sync with levels of threat and more in keeping with economic imperatives. Further, it appeared to be placed as a fundamental point of the country information synthesised by the IMR. As such, it was necessary to put it to the appellant for comment.

110    While the IMR referred to the entire paragraph of country information, including that about people smuggling, in her reasons, I was not persuaded that the statement regarding people smuggling was independently adverse to the appellant’s claim, or determinative of, or significant to, the IMR’s recommendation. The statement about people smuggling appeared directed at the Afghan government, as the paragraph concluded that it needed to do more to prevent people smuggling. The appellant did not submit that the existence of people smuggling was inconsistent with, or likely to exclude, genuine claims to protection. The substance of the adverse country information about economic migration was, as the Federal Magistrate found, put to the appellant, who was afforded the opportunity to comment and respond.

111    In my opinion, the complaint in ground 1(b)(i) was not established.

Failure to put country information accurately

112    The appellant also alleged that the IMR inaccurately put to him certain country information and her adverse findings on his credit were thus based partly on his responses to the above misinformation or incomplete information. Further, the inaccuracies could rattle a vulnerable interviewee and lead to self-doubt, thus denying him a fair hearing.

Ground 1(b)(ii)

113    The IMR put to the appellant that Danish was assassinated in 1997, whereas the country information was that he was assassinated “around 1997”.

114    The appellant submitted that the apparently minor differences between “1997” and “around 1997”, assumed importance because the IMR placed significance on his inability to state precisely when Danish died, challenged his recollection that Danish was killed when his eldest son was a certain age, and challenged his account of his relationship with Danish.

115    The accuracy or otherwise of the IMR’s articulation of the country information concerning the date of Danish’s death (which was within the province of the IMR, in fact finding, to interpret) depends, however, on matters of degree and nuance. Further, the IMR not only afforded the appellant the opportunity to comment on or rebut any inaccuracy, but also ultimately expressly placed no weight on the vagueness of his evidence about the date of Danish’s death. The Federal Magistrate correctly concluded that the omission of the word “around” did not establish a denial of procedural fairness.

116    In my opinion, the complaint in ground 1(b)(ii) was not established.

Ground 1(b)(iii)

117    The IMR put to the appellant that the only people who would be at risk because of their association with Danish would be those associates of Danish who became actively involved in the re-formation of a faction similar to that which he lead in the 1990s, and that a previous association with Danish had not, of itself, resulted in persecution. The appellant submitted that as the country information stated that a previous association with Danish had not “generally” resulted in persecution (therefore implying the existence of exceptions) the country information put to him was inaccurate and resulted in a denial of procedural fairness.

118    The IMR’s omission of the word “generally” from the extract of country information she read out was in the context of her preliminary comments that reports indicated “just a fact that you’re a close relative would not result in persecution”. The IMR then challenged the appellant that he did not claim to be a supporter of or associated or involved with Danish at all, but just a close relative who was visiting his shop. The essential subject matter of the exchange was thus the antecedent proposition that the appellant had no relevant association with Danish at all, but was merely a close relative. In any event, as the first respondent submitted, the omission of the word “generally”, if anything, aggravated the adverse quality of the country information and the appellant, who was invited to comment, responded to the IMR’s query. In my view, the Federal Magistrate correctly found that no procedural unfairness arose from the omission of the word “generally” from the country information concerning the risk from an association with Danish which the IMR read to the appellant.

119    In my opinion, the complaint in ground 1(b)(iii) was not established.

Ground 1(b)(iv)

120    The IMR put to the appellant that Danish had no, and did not lead, a formal organisation, whereas the country information stated that he was one of numerous leading ideologues within a formal organisation.

121    The statement that Danish was one of numerous leading ideologues within a formal organisation, was an element of a much longer report in which relevant terms were not defined and the statement, in context, was ambiguous. Its precise meaning was a matter for interpretation by the IMR. The inaccuracy of the IMR’s statement as an interpretation of the relevant country information as a whole is not, in my view, established. Further, in circumstances where the appellant had a full opportunity to comment and explain, the statement was not, in any event, a basis of procedural unfairness.

122    In my opinion, the complaint in ground 1(b)(iv) was not established.

Ground 2

123    In paragraph [61] of her reasons, set out in full at paragraph 46 above, under the heading “Haydar Jaghori Ghazni”, the IMR concluded that she did not accept that the appellant “faces a real chance of serious harm amounting to persecution by the Taliban because he is a Hazara from Jaghori”.

124    Under the heading “Travel in and out of Jaghori to obtain supplies for his shop”, the IMR concluded at [63] and [64]:

I have considered that the claimant may need to travel in and out of Jaghori to obtain supplies for his shop. I accept that access to Jaghori has become more difficult. I accept that there are three main sources of insecurity on the routes in and out of Jaghori: the Taliban; petty thieves and organised criminals. I accept that the Taliban have focussed their efforts on extending their influence in Ghazni because they view it as a strategic province with proximity and road access to Kabul. It is in this context that they target travellers in and out of Jaghori the majority of whom are Hazaras. I do not accept that the Taliban target these travellers because of their race or religion rather it is part of their strategy to put pressure on and gain control over areas in Ghazni they do not control. I accept that there are three routes connecting Jaghori to Ghazni City and that the most frequently used road passes through the Nawur district and is considered secure. This is consistent with the evidence of the claimant who stated that when he travelled to Ghazni and Kabul he used the Nawur road even though it was longer. The claimant also provided evidence that he has frequently travelled to Ghazni City and Kabul to obtain supplies for his shop but has only been stopped on one occasion. On the evidence before me I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel to and from Jaghori.

Shias in Jaghori

I have considered the claimants claim that he fears persecution by the Taliban because he is a Shia. The claimant’s adviser in her submission dated 15 July 2010 provided numerous country information reports to support this claim. At the interview when I put to the claimant country information about Shias he stated that he would have no problems in Jaghori because he is a Shia. Given the claimant will be returning to a district where there is no Taliban presence and where the majority of the population practice the Shia religion I do not accept that the claimant faces a real chance of serious harm amounting to persecution by the Taliban because he is a Shia.

125    Under ground 2, the appellant alleges that the Federal Magistrate erred in concluding that the IMR found that the appellant was not at risk of serious harm with respect to his travel.

126    The appellant submitted that, to the contrary, the IMR found that there was a real risk of serious harm to the appellant in his travel. Further, it was not open to the Federal Magistrate to find that the IMR found otherwise, in circumstances where:

(a)    The IMR also found that:

(i)    there are three main sources of insecurity on the routes in and out of Jaghori; the Taliban; petty thieves and organised criminals,

(ii)    the Taliban have focussed their efforts on extending their influence in Ghazni because they view it as a strategic province with proximity and road access to Kabul, and in this context target travellers in and out of Jaghori;

(iii)    There are three routes connecting Jaghori to Ghazni city and the most frequently used road passes through Nawur district and is considered secure. This was consistent with the evidence of the appellant that when he travelled to Ghazni and Kabul he used the Nawur road even though it was longer;

(iv)    The appellant frequently travelled to Ghazni City and Kabul to obtain supplies for his shop but had only been stopped on one occasion.

and

(b)    The evidence of the appellant about travel around the district (which was not challenged) included, inter alia:

(i)    That when he transported cloth for his shop he had to deal with smugglers because if the Taliban stopped you they would “burn you”,

(ii)    That when travelling to Jaghori the appellant would not tell people his party was leaving, and the cloth would be given to a truck driver who used a Pashtun name;

(iii)    That it was stated that the cloth belonged to a Pashtun person, and it would not be said that it belongs to an Hazara;

(iv)    That compared to the Nawur Route the Zardalow route was much shorter but very dangerous. The Nawur Route would take from early morning until 9pm to travel from his shop to Ghazni, but the Zardalow route would take 4 hours;

(v)    That he would travel to Ghazni 5-6 times a year, and to Kabul 1-2 times a year;

(vi)    That the roads are more dangerous now than when the Taliban were in power; and

(vii)    [That] … there had been a previous incident on the roads when the appellant was stopped by the Taliban when returning from shopping in Ghazni, but they fled after American forces arrived.

127    The appellant acknowledged that the Federal Magistrate’s misconstruction of the IMR’s finding, if established, would not constitute jurisdictional error unless jurisdictional error by the IMR were also shown. The appellant advanced ground 2 as a gateway or threshold to establishing a precondition of grounds 3 and 4, rather than an independent ground of appeal.

128    The appellant submitted that the Federal Magistrate’s misconstruction led to his Honour’s failure to consider the complaints in grounds 3 and 4, to which a finding that the appellant faced a real risk of serious harm was a prerequisite.

129    In support of his submission that the Federal Magistrate’s construction of the IMR’s finding was not open on the basis of other facts and evidence before the IMR, the appellant relied on Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395/2002”).

130    In Chan, McHugh J stated that “the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason” (at 431). McHugh J’s statement was made in the context of observing that “persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination” (at 430).

131    In S395/2000, the High Court found that a real chance of persecution for a Convention reason is not excluded merely because a person can avoid, and has, in the past avoided, harm by modifying conduct and, or alternatively, concealing factors likely to lead to such persecution. The High Court majority held that the Tribunal erred in failing to consider whether there was a real chance that the appellants (who were homosexual men) would be persecuted because of their sexuality if they were to return to Bangladesh. The Tribunal acknowledged that it was not possible to live openly as a homosexual in Bangladesh. It also found that the appellants had lived together for four years without experiencing more than minor problems from outsiders, had conducted themselves discreetly and would continue to do so.

132    Hayne and Gummow JJ stated that the Tribunal erred in not asking why the appellants would live discreetly and whether it was because they would thereby hope to avoid persecution (at [88]).

133    McHugh and Kirby JJ observed that the notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a Tribunal of fact into a failure to consider whether there is a real chance of persecution if the person is returned to the country of origin, particularly where “the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group” (at [43]). Their Honours further stated “[t]o determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly” (at [43]).

134    As I understood his submissions, the appellant in this case argued that, by parity of reasoning, it was not open to the Federal Magistrate to conclude that the IMR found, nor open to the IMR to find, as a fact, that the appellant was not at real risk of serious harm in his travel to and from Jaghori city, given the evidence that he habitually took the secure but longer road and had his goods transported by a truck driver with a Pashtun name, which, by inference, was a modification of his conduct.

135    The appellant’s argument depended on applying principles governing the assessment of whether there is a real chance of persecution for a Convention reason to the different context of fact finding as to whether there is a real risk of serious harm when travelling. The reasoning in S395/2002 does not exclude a factual finding that because the appellant used a secure road that was longer than two other available insecure routes, or transported goods with a Pashtun driver, there was no real risk of serious harm in travelling.

136    In my opinion, contrary to the appellant’s submission, the Federal Magistrate was entitled to construe the IMR’s finding as he did. As the Federal Magistrate correctly observed, the IMR’s reasons must be read in context and should not be overzealously criticised. The IMR had expressly found that the appellant did not face a real chance of serious harm amounting to persecution by the Taliban because he is a Hazara from Jaghori or because he was of the Shia faith. The IMR also found that during the twenty year period that the appellant had frequently travelled between Jaghori and Ghazni using the longer, secure road, he had only been stopped once (when on an insecure road) by the Taliban who, on that road, harassed both Hazaras and Pashtuns (although the latter were better able to negotiate their release). The IMR also found that for fifty years, the appellant and his father had transported cloth by giving it to a driver using a Pashtun name without difficulty. Given those findings, it was, in my view, open to the Federal Magistrate to conclude that despite the ambiguous expression of the last sentence in paragraph 63 of her reasons, the IMR found as a fact, and had a sufficient basis for so finding, that the appellant did not face a real chance of serious harm in travelling to and from Jaghori.

137    In my opinion, the complaint under ground 2 is not established.

138    As I am not persuaded that the Federal Magistrate erred in his construction of the IMR’s factual finding, the basis for grounds 3 and 4 (which depend on a finding that the appellant is at real risk of serious harm in or travelling to and from Jaghori) is not established. As North J in Razai v Minister for Immigration and Citizenship [2012] FCA 394 at [15] to [37], having summarised relevant authority, concluded at [19]:

It follows as a matter of inevitable logic from the finding that the appellant would not face serious harm in the reasonably foreseeable future that the reviewer was not called upon to consider whether Afghanistan could or would provide protection. That finding of fact meant that no state protection was required.

139    In MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 (“MZYPA”), Bromberg J applied that reasoning. His Honour accepted that although a State protection claim was raised but not considered by the IMR, consideration was unnecessary given the finding that (as in this case) the appellant was not faced with serious harm from the Taliban simply because he was a Hazara and a Shia, and further, his personal circumstances did not give rise to any well-founded fear.

140    For completeness, however, on the assumption that, contrary to the views expressed above, the IMR found that the appellant was at real risk of serious harm in travelling, I consider grounds 3 and 4.

Ground 3: Alleged failure to consider

Claim that clearly arises from the materials must be considered, although not expressly made

141    Under ground 3, the appellant alleged a jurisdictional error constituted by a failure to take into account relevant considerations, or alternatively, a failure to deal with an integer of his claim. The appellant contended that he squarely raised a claim of State protection before the IMR but the IMR failed to consider whether the security situation in and around Jaghori had resulted from a selective failure of the State to protect Hazara people.

142    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1; [2004] FCAFC 263, the Full Court analysed a number of decisions dealing with the obligation of the Tribunal to review claims. The Full Court stated at [60]:

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; 75 ALD 411; [2003] FCA 709 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made”: at [16]. Selway J, however, went on to observe in SGBB (at [17]):

… But this does not mean the application is to be treated as an exercise in nineteenth century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

… the Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

[18] The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

143    The Full Court concluded at [61] that:

We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

144    In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802, Allsop J stated (at [42]):

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299.

145    In MZYPA, Bromberg J stated at [13]:

The legal principles to be applied are not in contest. A failure by a Reviewer to consider a claim made by a prospective applicant for a visa will result in a denial of procedural fairness: Plaintiff M61 at [90]. However, there is no obligation upon a Reviewer to consider claims which are not articulated and which do not clearly arise from the materials before the Reviewer: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] (Black CJ, French and Selway JJ). A judgment that a Reviewer has failed to consider a claim is not lightly to be made: NABE at [68]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 French, Sackville and Hely JJ said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

Claim of withholding State protection

146    It was not disputed that, as Bromberg J stated in MZYPA at [14]:

A person who is persecuted by non-state agents will fall within the definition of a refugee if there is a Convention nexus consisting of either the motivation of the non-state actor or the motivation of the state. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] Gleeson CJ stated as follows:

Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

147    In Minister for Immigration and Citizenship v SZONJ (2011) 278 ALR 608, the Full Court recognised that if a State failed to prevent persecution by a non-state agent for a reason which had no Convention nexus only because the State was unable, as opposed to unwilling, to provide protection, the test will not be satisfied. The Full Court stated at [33] that:

where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied.

148    In the present case, the appellant relied on the following statement in the migration agent’s submission in support of his application for independent merits review under the heading “Failure of Afghanistan to avail protection”: “Hazara[s] are a targeted and vulnerable group without access to police protection. The Taliban are widespread throughout Afghanistan. They have regained their stronghold and continue to dominate the country. The Afghan authorities cannot provide protection for ethnic Hazaras. The Taliban are made up of Pashtuns who are the majority ethnic group in Afghanistan. The Karzai Government and allied forces are unable to secure any areas in Afghanistan [and] cannot protect themselves. The Taliban are better equipped and trained and are more familiar with the mountainous terrain of Afghanistan than the foreign forces”.

149    The appellant submitted that his claim based on the withholding of State protection was supported by the country information included in the submission that the Afghan government had been forging political alliances with former warlords from the main ethnic factions who had been implicated in war crimes and that the Taliban had been shielded by the current Afghan government.

150    As the first respondent submitted, the IMR concluded that “[c]urrently Hazaras were not being persecuted on any consistent basis”, and noted that Amnesty International and Human Rights Watch reports “make no mention of the persecution of Hazaras by either the government of [sic] non state actors”. While that indicates that the IMR concluded that the government did not persecute Hazaras, the appellant’s complaint is that the conclusion was reached without considering a claim based on withholding State protection which he clearly raised.

151    The appellant relied particularly in this context on MZYLR v Minister for Immigration [2011] FMCA 633 (“MZYLR”), which was cited to the Federal Magistrate, but was not referred to in his Honour’s reasons. In MZYLR, Riley FM held that there was a denial of procedural fairness because the IMR failed to consider a claim that the State’s selective non-enforcement of the law to protect the applicant on the basis of his race (Hazara) and/or religion (Shia), gave rise to a well-founded fear of persecution for a Convention reason.

152    The applicant in MZYLR was a former employee of a non-government organisation, who claimed to have been threatened by the Taliban and robbed on the way to Jaghori. Riley FM considered that the applicant’s submission to the IMR (particularly by the statement that “Hazara Shia’s are a targeted minority without access to police protection” included in a paragraph identical or substantially so to that in the appellant’s migration agents submission in this case) raised a claim of the authorities’ failure, for a Convention reason, to protect Hazara Shias who were victims of crime by not enforcing the law. Further, her Honour considered that the IMR’s own factual findings, including that the roads around the applicant’s town were prone to violence and robbery, provided a factual substratum for the claim. Accordingly, Riley FM concluded that the IMR erred by, inter alia, failing to consider the claim.

153    Although the appellant’s migration agent’s submission to the IMR included the same phrase in a substantially identical paragraph which Riley FM in MZYLR considered an important element in raising a claim of State protection, the paragraph on which the appellant relies, when read as a whole, asserts the authorities’ incapacity to protect Hazaras rather than an unwillingness to afford protection for a Convention reason. It states that the Afghan authorities “cannot provide protection for ethnic Hazaras” and “the Karzai Government and allied forces…cannot protect themselves”. The paragraph is, in my view, at best ambiguous and, in this case, when viewed in the overall context of the appellant’s oral and written submissions, does not make a claim based on the selective refusal or withdrawal of State protection. Although several statements contained in the body of the very large volume of unsynthesised country information in the migration agent’s submission were, if considered in isolation, consistent with or supportive of a claim based on State protection, when the appellant’s statutory declaration, submissions, materials and claims made at the interview are read in their totality, a claim based on the selective failure to provide State protection to Hazaras for Convention reasons was, in my opinion, neither expressly made nor clearly arose on the materials before the IMR.

154    Rather, as the first respondent submitted, the material and interview before the IMR disclosed a claim that the appellant feared persecution by the Taliban, from which the State would be unable to protect him, rather than selectively refusing to enforce the law to do so. As the first respondent stated in written submissions:

1.    In his arrival interview, the appellant’s only stated reasons as to why he left Afghanistan related to his fear of Taliban persecution arising from his relationship with Danish. In his statutory declaration under the heading "Why I believe that the authorities in my country will not protect me if I go back [to Afghanistan], the appellant said: “[in] Afghanistan, the Taliban are gaining more power and the Government cannot control them.”

2.    In his arrival interview, in response to a question whether police impacted on his day to day life in Afghanistan, the appellant said simply: “Just Erfani's men”.

3.    The RSA decision does not record that the appellant made any claim about a selective refusal of the State to enforce the law to protect Hazaras and/or Shias in his RSA interview.

4.    The reference to one item of country information indicating that Hazaras suffered discrimination by the Government compared to the "preferential treatment" given to the Pashtuns, in the course of a general submission urging against refoulement, and in the context of 55 pages of submissions in large part comprising unanalysed quotes of country information, does not amount to a (far more specific and profound) claim that the State is selectively refusing to enforce the law to protect Hazaras and/or Shias. Elsewhere, the country information relied on in the submissions says that “[d]ue to limited capacity and ongoing conflict, State authorities are largely unable to provide effective protection from non-State actors” (emphasis added).

5.    Likewise, the reference to President Karzai having "attempted to secure his re-election through a series of deals with former warlords from all the main ethnic factions" does not amount to a (far more specific and profound) claim that the State is selectively refusing to enforce the law to protect Hazaras and/or Shias.

6.    Neither the IMR decision nor the transcript of the IMR interview record that the appellant made any claim about a selective refusal of the State to enforce the law to protect Hazaras and/or Shias. The appellant made no such claim despite being questioned specifically and at length about the risks to him while on the roads out of Jaghori. He stated that on the only occasion when he was stopped by the Taliban on the road, that he was saved by American forces.

155    The IMR also concluded that the Taliban harassed both Pashtun and Hazara travellers and did not harass the latter for Convention reasons, but for military reasons to gain control of areas.

156    If, contrary to the above, a claim of State protection was fairly raised, in contrast to MZYLR, in this case, the factual substratum present in MZYLR was not found by the IMR, who concluded that:

1.    Jaghori was “entirely populated by Hazaras” and was currently “safe”;

2.    Jaghori “remains out of reach of Taliban”;

3.    The Taliban “remain at the outskirts of Jaghori”. The appellant “may need to travel in and out of Jaghori to obtain supplies for his shop”. “[A]ccess to Jaghori has become more difficult”, but one of the three routes connecting Jaghori to Ghazni City and Kabul is “secure”.

157    As stated above, on the better view, the IMR found that the appellant did not face a real risk of serious harm in travelling to and from Jaghori, and on any view, concluded that he did not face a risk of harm in travelling for Convention reasons. The IMR also rejected the appellant’s claim that he had been kidnapped.

158    It follows that, in my view, the complaint in ground 3 was not established.

Ground 4: Illogicality

159    The appellant submitted that the Federal Magistrate erred in failing to find that the IMR made an illogical finding.

160    On the assumption that the IMR (contrary to the finding of the Federal Magistrate and the views expressed above) found that the appellant faced a real risk of serious harm in travelling, the appellant submitted that the IMR illogically concluded that the Taliban’s harassment of travellers to and from Jaghori was for a strategic, rather than a Convention, reason.

161    The appellant submitted that the IMR reasoned illogically in accepting that the appellant may need to travel in and out of Jaghori (with a 100% Hazara population) for work and that the three main sources of insecurity on the route in and out were the Taliban, petty thieves and organised criminals, yet nevertheless concluding that: “I do not accept that the Taliban target these travellers because of their race or religion rather it is part of their strategy to put pressure on and gain control over areas in Ghazni they do not control”.

162    The appellant also relied, in that context, on country information before the IMR, including the Taliban’s reported fuelling of tensions between Hazara and Pashtun communities to further their control by making communities volatile and fragile, due to their limited success in recruiting Hazaras and other ethnic groups and their difficulty in penetrating Hazara areas.

163    The appellant submitted it was difficult to identify motivation and if issues of ethnicity and cultural tension were central to the Taliban’s activities, the IMR could not logically distinguish between “strategy” and Convention reasons for persecution. Rather, the IMR fell into the error identified in Minister for Immigration and Multicultural Affairs v Ibrahim (2010) 204 CLR 1 (“Ibrahim”) of attempting to determine the objectives of a war or civil conflict, which distracted from consideration of the terms of the Convention.

164    As Rares J observed in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [2]:

There are differences in reasoning apparent in the three separate judgments in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) as to what will suffice to support a finding that a decision of the decision-maker’s state of satisfaction that a statutory criterion had or had not been met is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.

165    The threshold for establishing illogicality is, however, on any view, as the appellant conceded, very high. Rares J stated in SZOOR (at [3]-[4]) that in SZMDS:

Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence: at [130]. Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (at [131]; see too at [135]):

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. [Emphasis added]

Their Honours went on to say that the correct approach was to ask whether it was open to the decision-maker “to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it”: at [133].

166    In circumstances where the IMR found that the Taliban (or criminals) did not selectively target Hazaras or other ethnic groups on the road, the evidence as a whole (despite generic country information concerning the Taliban’s fuelling of ethnic tensions) did not compel a conclusion that harassment on the roads around Jaghori was Convention based, or render illogical or irrational the distinction the IMR drew between Convention and strategic reasons for the Taliban’s harassment of travellers on the relevant road. Nor do the caveats in Ibrahim exclude the necessity to determine whether persecution (if established) is for a Convention reason.

167    In my opinion, the complaint in ground 4 was not established.

Conclusion

168    In my opinion, the appeal should be dismissed.

Associate:

Dated:    16 August 2012