FEDERAL COURT OF AUSTRALIA

SZRAE v Minister for Immigration and Citizenship [2012] FCA 916

THE COURT ORDERS THAT:

1.    The time for filing a notice of appeal be extended to 21 August 2012.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

Introduction

1    In form this matter is an application for an extension of time, filed on 18 June 2012, to file a notice of appeal from a judgment of the Federal Magistrates Court. The decision of the Federal Magistrates Court was given on 9 May 2012. The appeal period was 21 days: r 36.03 of the Federal Court Rules 2011. A draft notice of appeal was provided with an affidavit sworn by Mariah Maltezos of Ford Criminal Lawyers filed on 18 June 2012. Ms Maltezos was the solicitor instructed to appear for the appellant under a legal aid grant. She acted on behalf of the appellant as the solicitor in the proceedings before the Federal Magistrates Court.

2    The first respondent filed written submissions opposing the extension of time. The first respondent contended that notwithstanding the explanation provided, the grant of an extension of time to appeal would be futile. Those submissions referred to the decision of the Federal Magistrate.

3    There was a substantial overlap between the question of an extension of time and the merits of the appeal. On being asked a week beforehand, the parties accepted that both aspects of the matter should be the subject of argument on the date fixed for the extension of time application. Submissions were made accordingly. An amended draft notice of appeal was filed in Court at the commencement of the hearing.

Extension of time

4    Ms Maltezos deposed in her affidavit that the appellant did not appear in person on the day of the final hearing in the Federal Magistrates Court and she had difficulties contacting the appellant or obtaining instructions from him thereafter as he did not reside in Sydney and was not held in a detention centre at the time of the hearing. Further, Ms Maltezos deposed that on or about 22 May 2012 she was informed by the Registry of the Federal Court that a letter of proof of the grant from Legal Aid was required in order to file the notice of appeal for the appellant. At that time, however, she could not produce such proof as she did not have instructions from the appellant to apply for a further grant to Legal Aid to proceed with the appeal. Thereafter she applied on behalf of the appellant for a grant of legal aid to file the appeal and obtain advice from counsel; she received the approval of a grant and prepared a brief to counsel. On 15 June 2012 Ms Maltezos spoke to the appellant by telephone and the appellant gave her instructions to proceed with the filing of the appeal.

5    In the circumstances, in my opinion, it is in the interests of justice that the time for filing the notice of appeal be extended. Not only were there difficulties to which Ms Maltezos deposed but, given the importance of the subject matter to the appellant and the absence of specific prejudice to the first respondent, the grounds of appeal should be dealt with on the merits. The remaining grounds of appeal were not so hopeless as to render an appeal futile. The written submissions on behalf of the first respondent opposing the extension of time referred to some unsatisfactory aspects of the appellant’s prosecution of the proceedings. However, because the parties have cooperated in having the leave question and the substantive appeal heard together no question of further delay needs to be put into the balance.

6    By submissions dated 15 August 2012 and by the amended draft notice of appeal filed in Court, Grounds 3 and 4 of the original draft notice of appeal were not pressed.

7    In these reasons I shall refer to the claimant, the applicant before the Federal Magistrates Court, as the appellant.

Findings of the Independent Merits Reviewer

8    The recommendation of the Reviewer was that the appellant did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). Accordingly, he recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. That recommendation and the accompanying statement of reasons were dated 21 November 2011.

9    The findings and reasons of the Reviewer cover some 170 paragraphs over some 30 pages. I shall reproduce them only so far as is necessary.

10    The Reviewer identified the claims from a submission on behalf of the appellant dated 19 May 2011 where it was claimed that there was a real chance that the appellant faced serious harm in Afghanistan for a number of reasons: (i) his ethnicity (Hazara); (ii) his religion (Shia Muslim); and (iii) his imputed political opinion (anti-Taliban/pro-international forces).

11    The Reviewer said that he advised the claimant during the interview held with the appellant on 28 April 2011, in the presence of his agent and lawyer, about his concerns about certain aspects of the appellant’s account of events, including his claims about the Taliban that were not mentioned when he first sought the protection of Australia. At the interview the appellant made claims about what could be his actual or imputed political opinion: these claims had not been earlier raised in his written statement which had been prepared with the assistance of RACS (Refugee Advice and Casework Service (Australia) Inc.).

12    The Reviewer referred to the appellant’s explanations of why he divorced his second wife and said the inconsistent explanations were one reason why it was difficult to accept that the account of the appellant was credible. The Reviewer said he did not accept as credible the later assertions of the appellant that the reason for the divorce was because of religious reasons or because he was against the beliefs of the brothers of his second wife or the Taliban or that he would not “work” with the Taliban.

13    The submission of 19 May 2011 by RACS on behalf of the appellant included a letter from a nephew of the appellant, being the matter raised in Ground 1. The Reviewer referred to the nephew’s letter, authenticated by the elders of the village, giving an entirely different explanation of why the appellant’s divorce occurred. The nephew claimed that the divorce occurred because of the appellant’s refusal to join the Taliban. The appellant never made an assertion before the Reviewer that he was asked to join the Taliban, although he did raise a new allegation that he was asked to “work” with the Taliban. The Reviewer also said there was a post-interview claim of the nephew that the appellant faces persecution for his failure to join the Taliban.

14    The Reviewer’s fullest consideration of the nephew’s letter was as follows:

113.    I have examined the account given in the translation of documents in Dari which purports to be a letter from the nephew of the claimant which has been approved by the elders in the claimant’s village. I do not give any weight to the assertion of the nephew who claims that certain persons are associated with the Taliban. The nephew does not provide any reasons in support of that assertion. The account in that letter claims that the claimant “has had certain issues such as being forced to join the Taliban bands”. Those documents were provided to me well after the interview. That account alleges that the claimant is threatened from the Taliban because of his refusal “to join the Taliban”. The letter contains the following assertion: “Due to my uncle’s refusal to join the Taliban they demanded their sister’s divorce. After the divorce, on “multiple occasions” they threaten him with death, so he informs his sister via telephone and become impelled to leave the country”.

114.    The claimant has not before me or even previously raised the claim that his divorce from his second wife was because he refused to join the Taliban. There is no such claim at his entry interview. There is also no such claim in his statement of 12 July 2010 that was then settled after he had the benefit of legal advice from RACS. That statement also does not contain any allegations that he had had “multiple” threats from the Taliban; the only threat that is mentioned in that statement is one account where the brothers of the second wife allegedly made threats to kill the claimant or kidnap his son for his failure to pay a dowry. There is also no suggestion in that statement that he was asked to join the Taliban or that the divorce was forced because he refused to accept that invitation to join the Taliban.

115.    I also do not give any weight to the letter from the nephew of the claimant as it is also inconsistent with the previous claims made by the claimant. I also mention that the claimant at the Christmas Island interview never made any assertion that he received any death threat from anyone. At the RSA interview the claimant stated that the brothers were involved in the Iranian drug trade and because of this he refused to let them into his house. He then asserted that it was because of the reason that he would not let the brothers come into his house that he was being forced to divorce his wife and not because he would not join the Taliban.

116.    The account of the claimant in this statement of 12 July 2010 is that the divorce of his second wife was motivated by the assumption that he “would be forced to pay a large dowry to her family”. The claimant did not then assert that he had to divorce his wife because he had refused to join the Taliban. As I have not given any weight to the letter of the nephew I also do not accept his assertion that the Taliban have the photograph of the claimant who they are now seeking. He does not state the basis of that assertion.

117.    The letter from the nephew of the claimant also contains an assertion that the Taliban “keep enquiring from the villagers about my cousins”. The person who has translated the letter has quite properly mentioned that the source document does not actually name those “cousins” are [sic] who are being pursued by the Taliban. These are vague allegations which cannot form the basis of any claim by the claimant that he faces danger or persecution. The translator has also quite properly mentioned that the “Kabul validator” stamp is unreadable.

118.    Although the letter from the nephew of the claimant has been approved by the elders and the claimant’s village, it is not apparent from the document what knowledge they would have of the claims of the nephew. It may be that they are witnesses to the assertions of the nephew.

119.    Having reviewed all of the evidence before me, I do not accept the contention of the claimant that he faces the risk of serious harm from the Taliban. I do not believe that his life is in danger from the Taliban or the brothers of the second wife who are associated with the Taliban. There is an assertion by the claimant that he is on a Taliban list. I do not give that statement any weight as there is no credible explanation placed before me of why he would be placed on a Taliban list. I do not accept that the Taliban took his brother. I also do not accept the post-interview claim that the claimant had to divorce his wife because he did not accept the invitation to join the Taliban.

120.     Having regard to all of the evidence I also find that the claimant does not have a well-founded risk of persecution from the Taliban on account of any actual or imputed beliefs or from the brothers of his second wife who are alleged to be associates or members of the Taliban.

15    I turn next to how the Reviewer dealt with an undated letter from the appellant to RACS, being the matter raised in Ground 2, the undated letter having been submitted to the Reviewer after the interview on 28 April 2011. The Reviewer said:

104.    After the interview the agent provided a translated copy of a letter to Ms Khan of RACS (as well as a copy of the original letter written in Dari) in which the claimant refers to an incident on “15th September” (presumably in 2010 when there was the Afghan Parliamentary election). The letter does not bear a date and it would seem had been written after the claimant arrived in Australia and after a lawyer from RACS had been allocated to assist the claimant. However, the document was not provided to me at the interview even though his agent attended the interview and had a consultation with him before the interview.

105.    In that undated letter the claimant alleges that the Taliban seized a vehicle with individuals because there were election ballot papers in the vehicle. It is also alleged that following that incident the Taliban produced a photograph of the claimant and indicated that they wanted the claimant. That letter also asserts that there was some co-operation between the Taliban and the Hazara commanders. This letter alleges a serious threat against the claimant which was not raised by either the agent or the claimant at the interview with me.

106.    As I had not the opportunity to ask the claimant any questions about the undated letter I arranged for written questions to be sent to the agent. I asked IPAO to write to the agent in the following terms: "Can you advise when [the appellant] received the letter from Ms Khan. This letter refers to an incident on “15th September”. Was this incident on the 15 September 2010? If so could [the appellant] confirm that he is sure that this date is accurate. The letter does not bear a date and can [the appellant] confirm when he wrote the letter and advise why he did not inform [the Reviewer] of the incident at the interview when he had the opportunity to inform [the Reviewer] of the threat to his life from the Taliban. Can he also confirm how he is sure that there were election ballot papers in the vehicle?" That letter was sent by IPAO on 13 October 2011. The agent responded on 26 October 2011.

107.     In respect of my question: “Can you advise when [the appellant] received the letter from Ms Khan?”, the agent thought that I had misunderstood the production of the letter that was originally sent by the claimant to Ms Khan. This was certainly appreciated by me when in that letter of 13 October 2011 I stated that [the appellant] “wrote the letter”. I, however, wanted to know whether the claimant had ever received a copy of the letter from the agent. The agent confirmed that the letter was received on 13 October 2010.

108.     In respect of the question as to why the agent did not inform me of the incident when he had the opportunity to inform the IMR Reviewer of the threat to his life from the Taliban, I received the following response: “We advise that it was RACS’ decision not to forward the letter written by [the appellant] to the Reviewer at an earlier date and was not a decision made by [the appellant]. Due to the change of caseworkers, each new caseworker considered the information that was at hand. The letter that [the appellant] sent to RACS was a privileged document and it was decided to submit this document to form part of the post-IMR submissions to the Reviewer and not earlier. [The appellant] would not have been aware of this and would not have thought to bring up the matter again at the Hearing unless requested by the Reviewer or his caseworker. We stress that this was not a decision by [the appellant] to withhold this information from the Reviewer at the interview.”

109.    I do not know why the agent chose to submit the document as part of the post-IMR submissions rather than at the IMR interview. There was no indication that this was because of instructions by the claimant. The decision of the agent has the consequence that I was unable to ask the claimant any questions about his assertion that the Taliban had his photograph and asked for him. The claimant should not be prejudiced by the fact that the letter was not produced at the interview. However, if the incident had indeed occurred, I would have expected that at the IMR interview the claimant himself would have mentioned that the vehicle had been seized by the Taliban who then demanded him.

110.    The letter refers to the incident occurring on “15th September”; however, it does not refer to the year in which the incident allegedly occurred. One of the questions that I directed to the agent was whether the claimant was sure that the incident occurred on 15 September 2010. The agent confirmed that the incident did occur on 15 September 2010. This date is significant because the Afghan Parliamentary election occurred on 18 September 2010 (a few days before the alleged incident). It is a matter of public record that the Taliban (through Zabullah Mujahid) had warned that everyone connected to the elections, including voters, would be targeted. In view of these threats of the Taliban I did not think that it was plausible somebody would drive through an area where the Taliban could have influence if they had any election ballot papers in their possession. I accordingly asked the claimant through his agent why he is sure that there were election ballot papers in the vehicle. I did not receive any explanation from the agent.

111.    What also concerns me about the report of this incident on 15 September 2010 is that it is not plausible that the persons named in the letter were in possession of election ballot papers that would be in the custody of the Afghan Independent Election Commission. That is why I sought an explanation from the claimant how he is sure that there would be election ballot papers in the vehicle. The agent of the claimant did not give any explanation of why those persons would have the ballot papers.

112.    I consider that if this incident had indeed occurred the claimant had the opportunity to mention this incident at the interview with me and he did not do so. I acknowledge that at the interview he asserted that he was put on a Taliban “list” on 15 September 2010. This is well after he had arrived in Australia. After the interview it can now be seen that his claim that he was put on a Taliban list is based upon the allegations in the undated letter to Ms Khan which I do not accept. I do not believe that the Taliban have demanded him. If indeed the incident had occurred and the Taliban had his photograph he would have been on a Taliban list at a much earlier date. What is significant is that the interview before me the claimant did not mention anything about this incident in which the Taliban and made a demand for him.

Federal Magistrates Court

16    I shall consider the reasons of the Federal Magistrate under the two Grounds remaining in the amended draft notice of appeal. It was common ground that the Federal Magistrates Court had jurisdiction to entertain the application and to grant relief and that this jurisdiction involved common law principles of procedural fairness: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at [77]; see also SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207.

Grounds of appeal

17    The particulars of the grounds of appeal in the amended draft notice of appeal were in substance identical to the particulars of the corresponding grounds of the application to the Federal Magistrates Court and were as follows:

Ground One

The Federal Magistrate erred by failing to find that the second respondent denied the [appellant] procedural fairness and thereby fell into jurisdictional error.

Particulars

a)    After the interview the agent provided a translated copy of a letter from the nephew of the [appellant] which was approved by the elders in the [appellant’s] village.

b)    The letter contains specific assertions that: the [appellant] had refused to join the Taliban; that this refusal was connected with the circumstances leading to the [appellant’s] divorce from his wife; and that the Taliban have a photograph of the [appellant] and that the Taliban “keep enquiring from the villagers about my cousins”.

c)    The document was not provided to the IMR before the interview.

d)    On 19 May 2011 the document was submitted to the IMR to form part of the post-IMR hearing submissions.

e)    On 13 October 2011 a natural justice letter was sent by the IMR regarding matters raised in the post-IMR hearing decisions.

f)    The natural justice letter did not raise any matters relating to the letter – including the circumstances around which the document came to the attention of the IMR hearing after the hearing and what knowledge the witnesses would have of the claims of the nephew.

g)    The second respondent therefore erred in rejecting the contents of the letter without giving the [appellant] an opportunity to give evidence and make submissions on that issue.

Ground Two

Federal Magistrate [sic] erred by failing to find that the second respondent denied the [appellant] procedural fairness and thereby fell into jurisdictional error.

Particulars

a)    After the interview the agent to the Reviewer provided a translated copy of a letter to RACS in which the [appellant] referred to an incident on 15 September 2010 proximate to the Afghan Parliamentary election.

b)    The document was not provided to the IMR before the interview.

c)    On 19 May 2011 the document was submitted to the IMR to form part of the post-IMR submissions.

d)    On 13 October 2011 the [appellant] was given an opportunity to respond about why he did not raise the incident.

e)    On 26 October 2011 the Refugee Advice and Casework Service explained the misunderstanding that he had put the document before and did not know that he needed to raise it separately.

f)    In so finding that “if this incident had indeed occurred the claimant had the opportunity to mention this incident at the interview with me and he did not do so”, the Reviewer did not deal with or take into account the explanation offered for why he did not mention the 15 September incident (although he took into account the explanation for why the document had had [sic] not been provided prior to the hearing).

Submissions

18    In relation to Ground 1, the appellant submitted that the Reviewer did not foreshadow with the appellant or his agent the reasoning he would adopt in relation to the nephew’s letter. The appellant then submitted that the nephew’s letter clearly raised a large number of matters adverse to the appellant’s claims. Reference was made to [113]-[120] of the Reviewer’s reasons. The appellant submitted that the perceived inconsistencies between the nephew’s letter and the appellant’s own statements led to a finding not only that the nephew’s letter was not to be accepted but those matters were also bound up in the rejection of the appellant’s claims arising from the appellant’s “well founded risk of the Taliban on account of any association with his brothers-in-law”.

19    The specific adverse uses referred to were:

(i)     the timing of the provision of the letter, being after the interview, was used to undermine the claims in the letter, [113];

(ii)     the fact that the nephew’s letter does not “provide any reasons” for the statement that the brothers-in-law are associated with the Taliban and was used to discount those claims, [113];

(iii)    that claims in the letter concerning the appellant’s refusal to join the Taliban at the behest of his brothers-in-law had not been previously raised and that the earlier statement did not contain reference to multiple threats. These concerns appeared to be used simultaneously to discredit claims in the nephew’s letter and the appellant’s claims relating to his brothers-in-law generally, [113]-[114] and [120];

(iv)    the fact that at the entry interview certain matters were raised by the appellant which were not contained in the nephew’s letter, [115];

(v)    the part of the nephew’s letter which recounted the stopping of a car and the questioning of the occupants about the whereabouts of the appellant was rejected on the basis of perceived inconsistencies, [116];

(vi)    the Reviewer noted that the interpreter’s note on the nephew’s letter did not specify which particular cousins were the subject of enquiries from the Taliban, [117]. This was used by the Reviewer to discount those matters as not supporting any claim that the appellant faces persecution;

(vii)    the fact that the nephew’s letter contained anti-Taliban content and was authenticated by the elders was used adversely to the appellant in holding that those facts lead to an inference that there was no Taliban influence in that village, [138].

20    Reference was made to the dictum of Mason J in Kioa v West (1985) 159 CLR 550 at 587 and the citing of that dictum in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 that “the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it” [sic]. It was submitted that the approach so identified was not adopted by the Reviewer in relation to the findings and reasons arising from the nephew’s letter which were adverse to the appellant.

21    In relation to Ground 2, the appellant submitted that it was plain how the letter was used adversely to the appellant because, first, the Reviewer was concerned that the contents of the letter were inconsistent with the appellant’s statements at the interview concerning the 15 September 2010 incident and, second, the Reviewer’s reasoning when rejecting the claim that the Taliban were looking for the appellant after he left Afghanistan was based entirely upon a comparison of two versions of the incident.

22    It was submitted that procedural fairness required the Reviewer to draw the appellant’s attention to those adverse inferences.

23    The first respondent submitted that the argument put before the Federal Magistrate was based on Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 where there was found to be a breach of procedural fairness on the basis that, in that case, the Tribunal member had given the impression that, without the appellant having a further opportunity to answer questions in writing, the review was incomplete. Counsel for the first respondent drew attention to the following paragraphs in the reasons of the Federal Magistrate in the present case:

60.    Counsel for the applicant did not present Ground 1 as raising contentions of denial of procedural fairness on principles addressed by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, and with respect, counsel’s concessions in this respect were correctly based. There was no new or surprising issue shown by Dr McDermott’s adverse assessment of the new piece of evidence. It addressed issues of credibility which had been clearly identified at the hearing, and had been recognised by the applicant’s agent at the end of the interview. It must have become clear to both the applicant and the applicant’s agent in the course of the hearing, that Dr McDermott might have serious concerns about the applicant’s claims of political and religious reasons for his fears of the applicant’s former brothers-in-law and of the Taliban, and that Dr McDermott might not be persuaded by evidence submitted by the applicant in support of his new claims.

24    However counsel for the first respondent did not submit that the appellant should not be permitted to raise in this Court the point based on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. Rather, she submitted that there was no error in the conclusion of the Federal Magistrate at [60] of his Honour’s reasons for judgment set out above.

25    Counsel submitted that the reason the appellant put forward for being forced to divorce his second wife was about a dowry, and it was not about his own refusal to join the Taliban. There was a supplementary issue about the brothers-in-law being members of the Taliban and in some of the material, but the fundamental finding which was not open to be challenged was that the reason for the divorce was monetary.

26    The submission was that the nephew’s letter being provided by the appellant to the Reviewer and then the reliance on that latter by the Reviewer in terms of rejecting it was not a matter that had to be put to ensure procedural fairness was afforded to the appellant. Ultimately it was a credibility issue and that letter was one element, but not the sole element, in the Reviewer's assessment of the appellant’s credibility. One of the examples in relation to credibility was that the nephew’s letter now suggested an alternative reason for the divorce than had otherwise been provided. The Reviewer did not give weight to the nephew's letter because it was inconsistent with the claims otherwise put. For the letter to have assisted the appellant, the Reviewer would have had to accept what was said in the nephew's letter as preferable to or in addition to what had been put before by the appellant.

27    In relation to Ground 2, the first respondent submitted that the circumstances of the appellant’s letter were slightly different as was evident from the following paragraphs of the reasons for judgment of the Federal Magistrate:

64.    As I understood Ground 2 as submitted in the applicant’s counsel’s oral and written submissions, it was contended that Dr McDermott had failed to take account of the explanation given by the applicant’s agent when he drew adverse inferences from the contents of the letter to RACS in his reasoning in paragraph 109. In this paragraph, Dr McDermott said:

109.    I do not know why the agent chose to submit the documents as part of the post-IMR submissions rather than at the IMR interview. There was no indication that this was because of instructions by the claimant. The decision of the agent had the consequence that I was unable to ask the claimant any questions about his assertion that the Taliban had his photograph and asked for him. The claimant should not be prejudiced by the fact that the letter was not produced at the interview. However, if the incident had indeed occurred, I would have expected that at the IMR interview the claimant himself would have mentioned that the vehicle had been seized by the Taliban who then demanded him.

65.    However, in my opinion, a reasonable reading of paragraph 109 and the subsequent paragraphs shows that Dr McDermott did not draw any adverse conclusions or inferences from the timing of the presentation of the applicant’s letter of instructions, but was concerned that its contents were inconsistent with the applicant’s statements at the interview concerning the 15 September 2010 incident. A consideration of the agent’s explanations was irrelevant to that reasoning, and no error of law or denial of procedural fairness is evidenced by the omission of any further discussion of these explanations.

28    The first respondent submitted, in relation to this ground, that procedural fairness did not require the appellant to be given any further opportunity to make submissions in relation to the undated letter for the following, descending, reasons. First, the material was provided by the appellant and not from a third party unbeknownst to the appellant. Second, the way in which the Reviewer relied on the letter could not be said to have created a new issue. Third, the way in which the Reviewer relied on the material was to say that if the incident had actually happened he would have expected a complete account at the interview which he conducted with the appellant.

Consideration

29    I shall deal with the two remaining grounds in turn. Before doing so I make the following general observations.

30    First, in relation to both the two grounds as drafted and in relation to the general thrust of the submissions put on behalf of the appellant, it is not the common law that in every case where a party provides further material he or she must be given an opportunity to give evidence and make submissions if the decision maker is considering making use of the material in a manner adverse to the interests of the party providing it.

31    Second, in SZBEL the High Court said at [25] it was not to the point to ask whether the decision-maker’s factual conclusions were right: the relevant question was about the decision-maker’s processes, not his or her actual decision. The submissions on behalf of the appellant recognised this.

32    Although SZBEL concerned statutory procedures, particularly s 425(1) of the Migration Act, rather than the common law, further guidance is given by that decision about the identification of determinative issues. It will be recalled that the High Court held that the tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be, in that case, two of the three determinative issues arising in relation to the decision under review: see the judgment at [44]. The High Court said at [42]-[43] that the appellant was not on notice that his account of how his ship’s captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review. The delegate, the primary decision-maker, had not based his decision on either of these aspects of the matter. 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.

33    Importantly for the present appeal, in SZBEL the High Court explained the relationship between what was or was not obviously open on the known material and the issue or issues critical to the decision as follows:

[38]    When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the Tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was “obviously … open on the known material”.

34    Third, I note what was said in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [8]-[9] by French CJ and Kiefel J, with whom Heydon and Crennan JJ expressly agreed at [91] and [92] respectively:

[8]     The “information” upon which the Tribunal invited comment, was the existence of “contradictions and inconsistencies” between what SZGUR had stated orally and in writing to the Tribunal, variously constituted, during the iterations of the review process. The contradictions and inconsistencies, which were elaborated at some length in the letter, related to SZGUR’s claimed involvement with the Communist Party of Nepal, whether he and his family had gone into hiding in Nepal, whether he had been helped to leave the country and his claim that two colleagues had been executed by the Nepalese Army.

[9]     Despite the language of the Tribunal’s letter, the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18], the term “information” in s 424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:

“However broadly ‘information’ be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond. . . .

(footnotes omitted)

35    It will be noted that their Honours expressly referred to the limits on the procedural fairness hearing rule at common law.

36    It follows, in my opinion, while recognising that whether an issue must be raised with a claimant for the purposes of a further hearing will depend on the circumstances of each case (Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [51]), in circumstances such as the present where the claimant, or the claimant through his or her adviser, submits material to the decision-maker after a hearing or interview it will be unlikely that that material gives rise to a critical issue not apparent from the nature of the decision. This is because, in most cases, that material will be directed to one or more such issues apparent from the conduct of the decision-making thus far.

37    I also note that in SZKTI the High Court considered a notice of contention raising the question whether the Tribunal had failed to comply with s 425(1) by not issuing a second invitation to appear before it to give evidence and present arguments regarding what were said to be additional issues arising from the Tribunal’s telephone inquiries of a Mr Cheah, who was referred to as an elder of the Local Church. The Court said, at [51], that Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. The extant issue was whether SZKTI had been an active Christian in China. Mr Cheah's knowledge of SZKTI’s past activities in China deriving from any account given to him by SZKTI was directly related to that issue.

38    In the present case, therefore, a real question is whether the Reviewer reached any adverse conclusion which would not obviously be open on the material provided on behalf of the appellant having regard to the issues which had arisen. The use of that latter expression is, as I have indicated, immediately referable to the discussion of the statutory scheme by the High Court in SZBEL, and I use it by analogy in the present appeal which is concerned with the position at common law.

Ground 1

39    The Federal Magistrate said at [49] that it was undoubted that the Reviewer did not foreshadow to the appellant or his agent the reasoning which he adopted in relation to the nephew's letter. This was common ground before this Court.

40     In my opinion, the Reviewer dealt with the letter from the nephew of the appellant on its merits and, in doing so, did not deny the appellant procedural fairness and thereby fall into jurisdictional error. I do not accept that it was a denial of procedural fairness for the Reviewer to reject some or all of the contents of the nephew’s letter: the Reviewer was entitled to do so and to assess the contents of the letter for inconsistency with the appellant’s claims.

41    There was no basis for any assumption that the mere forwarding of the nephew’s letter would or should mean that its contents would be accepted as true by the Reviewer. The letter had no special status. It could be accepted or rejected, in whole or in part, along with all the other material which was before the Reviewer. It is to be recalled that this letter was forwarded to the Reviewer by RACS, with two other documents, without any elaboration or verification apart from: “In support of his application we are instructed to provide the following enclosed documents”.

42    The overarching consideration in the present case is that the material which was said to have been unfairly used by the Reviewer was material which the appellant himself, through his agent, provided to the Reviewer with a submission which “supplements [the appellant’s] oral evidence provided to you at his Independent Merits Review (IMR) hearing before you … on 28 April 2011 … and the oral submissions made by his representative … ”.

43    In addition, it was provided without explanation and in circumstances where, in the course of the interview with the Reviewer, at least, not only was credibility an issue but also his claims about the Taliban’s interest in him flowing from his relationship with his ex-wife’s brothers and their activities.

44    Plainly much turns on the level of generality or particularity at which the issue is identified. In general, when credibility is in issue and fraud or forgery is not, it is not necessary to give the person affected an opportunity to be heard in relation to each circumstance relevant to the evaluation of the issue of claims, here the present appellant’s claims about the Taliban’s interest in him flowing from his relationship with his ex-wife’s brothers and their activities: see Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 at [59]-[61], [71]-[74] per Emmett, Kenny and Jacobson JJ in the context of s 422B(3) of the Migration Act; and SZOZU v Minister for Immigration and Citizenship (2011) 123 ALD 61; [2011] FCA 1005 at [26]-[28] per Rares J, which involved the application of common law principles rather than those developed under the provisions of the Migration Act.

45    As Allsop J said in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559 at [27]-[28]:

[27]     Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.

[28]     Natural justice is ultimately a question of fairness.

46    In my opinion this is a sufficient basis on which to reject the appellant's submissions of denial of procedural fairness raised under Ground 1.

47    The submissions put on behalf of the appellant to this Court were not that the particular issues were not raised but that the contents of the nephew’s letter were discounted for inconsistencies with the other material before the Reviewer.

48    Further, in my opinion the “adverse use” to which the appellant refers amounted to a self-evident use of the material. Where a claimant provides, after a hearing, fresh material to the decision-maker which is self-evidently of little cogency or is inconsistent with previous claims or both then, absent assurances or representations by the decision-maker, it is open to the decision-maker to assess that material and accept or reject it in whole or in part without providing the claimant a further opportunity to be heard. Mere adverse use where that use is related to adumbrated issues, in the circumstances of this case, is not a denial of procedural fairness.

49    Turning to the seven instances of adverse use submitted by the appellant, and which I have set out at [19] above, I reject the submission that those uses of the nephew’s letter were adverse uses of which procedural fairness required the Reviewer to give the appellant an opportunity to be heard. Having regard to the issues, the rejection of critical aspects of the appellant’s account of events was not an adverse conclusion which would not “obviously be open on the known material”: see SZBEL at [38] and SZGUR at [9], considered in these reasons at [31]-[35] above.

50    On its facts, this case does not relevantly resemble NAFF, relied on by the appellant before the Federal Magistrate. The circumstances are not comparable. This was accepted in the written submissions on behalf of the appellant. Merely allowing the appellant’s agent a further opportunity to make a submission and that opportunity being taken up does not give rise to any procedural unfairness.

51    Similarly, the mere fact that on 13 October 2011 a “natural justice letter” was sent regarding other matters did not impose a procedural obligation, in the circumstances of this case, to draw to the appellant’s specific attention how it was that the Reviewer might deal with the contents of the nephew’s letter.

52    To the extent that the Federal Magistrate dealt with this issue, which was not argued before him on the basis of SZBEL but which his Honour considered for completeness, I agree with his Honour’s conclusions.

Ground 2

53    In terms this Ground is that the Reviewer did not deal with or take into account the explanation offered for why the appellant did not mention the 15 September incident at the interview with the Reviewer on 28 April 2011.

54    This related to the 26 October 2011 communication on behalf of the appellant in response to the letter on behalf of the Reviewer dated 13 October 2011 which the Reviewer substantially set out at [106]-108] of his reasons and which I have reproduced at [15] above.

55    The Federal Magistrate dealt with this Ground as follows:

    [65]    However, in my opinion, a reasonable reading of paragraph 109 and the subsequent paragraphs shows that Dr McDermott did not draw any adverse conclusions or inferences from the timing of the presentation of the applicant’s letter of instructions, but was concerned that its contents were inconsistent with the applicant’s statements at the interview concerning the 15 September 2010 incident. A consideration of the agent’s explanations was irrelevant to that reasoning, and no error of law or denial of procedural fairness is evidenced by the omission of any further discussion of these explanations.

56    I agree. In my view it is clear from reading the reasons of the Reviewer that he did not draw any adverse conclusions or inferences from the late forwarding of the letter. What the reviewer was concerned with were inconsistencies between the contents of the letter and the appellant’s statements at the interview about the same alleged incident of 15 September 2010.

57    In this Court, as I have set out above, the submission on behalf of the appellant was that the appellant's letter was used adversely to the appellant and that this adverse use constituted a denial of procedural fairness.

58    As with Ground 1, the first respondent did not submit that it was not open to the appellant to raise this submission in this Court.

59    However, in my opinion, the ground fails for similar reasons to Ground 1. Mere adverse use does not constitute a denial of procedural fairness and neither do findings of inconsistency between two versions by the appellant of the same alleged event.

60    It was self-evident, in my opinion, that the contents of the appellant’s letter might not be accepted by the Reviewer, in the same way that other statements by the appellant might not be accepted. It was also self-evident that the Reviewer might not accept the important details of the incident where the appellant had not mentioned them in his interview.

61    I reject the submission that the fact that the 13 October 2011 “natural justice letter” was sent regarding other aspects of the appellant’s letter imposed a procedural obligation, in the circumstances of this case, to draw to the appellant’s specific attention how it was the Reviewer might deal with the balance of the contents of the appellant’s letter.

62    Finally, I observe that there appears to have been a misunderstanding, common to both the Reviewer and to the representatives of the appellant, as evident from their correspondence of 13 October 2011 and the reply of 26 October 2011. This apparent misunderstanding was that there had been no mention at all by the appellant at the interview on 28 April 2011 with the Reviewer of an alleged incident on 15 September 2010, after the appellant had left Afghanistan, involving a motor vehicle being pulled over by the Taliban and the Taliban then showing the occupant of the vehicle a photograph of the appellant and asking the occupant of the vehicle whether he knew the person in the photo. That this seems to have been the view of the Reviewer is evident not only from the letter of 13 October 2011 but also from some of the language used by the Reviewer in [105], [106], [109] and [112].

63    However, in the context of what the appellant could have said if he had been given the opportunity, counsel for the appellant referred to page 33 of the transcript of the interview on 28 April 2011 which showed that the appellant had referred to this incident in the course of the interview with the Reviewer. I note that the first respondent did not put in issue before me that the appellant should fail because there was nothing he could have said if he had been given the opportunity. Rather, issue was joined on whether there had been a denial of procedural fairness in the first place.

Conclusion

64    The appeal is dismissed with costs.

Associate:

Dated:    29 August 2012