FEDERAL COURT OF AUSTRALIA

MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent by himself or by his department, officers, delegates or agents is restrained from relying upon the second respondent’s recommendation that the appellant was not a person to whom Australia has protection obligations (under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees).

3.    The court declares that in recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations (under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees), the second respondent made an error of law in that the second respondent failed to observe the requirements of procedural fairness.

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

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

REASONS FOR JUDGMENT

Introduction

1    By a notice of appeal dated 4 May 2012, the appellant appeals pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) from the decision of a Federal Magistrate. On 13 April 2012, his Honour dismissed the appellant’s claim for declaratory relief with respect to the recommendation of an Independent Merits Reviewer (“the IMR”) that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.

2    The appellant alleged, in essence, the following grounds:

1.    the IMR failed to consider a claim previously raised orally in the interview with the first respondent’s officer. Although the claim was not repeated before the IMR, he was bound to take it into account, because he had advised the appellant that he would consider all previous evidence and submissions; and

2.    the IMR incorrectly applied the principle of relocation.

background

3    The appellant is a male Afghan citizen who was born on 31 December 1989 in Jaghori, Ghazni Province, Afghanistan. He is of Hazara ethnicity and is a Shia Muslim.

4    On 31 March 2010, the appellant was taken to Christmas Island and arrived in Australia as an “offshore entry person”. On 13 June 2010, the appellant requested, on a number of bases, a refugee status assessment (“RSA”). In a statutory declaration dated 13 June 2010 made in support of the RSA, the appellant claimed as follows.

1.    His father worked as a truck driver travelling from Jaghori to Kabul carrying shop consignments and construction materials.

2.    He worked as a tiler with his step brother for about one and a half years which sometimes took him to Kabul, but was mostly in Jaghori. They did not work much in Kabul as it was dangerous due to the suicide bombers. Seeing this, they returned to Jaghori and stayed there for about 2 to 3 years.

3.    About one year and 8 months prior to making the statutory declaration, the appellant’s father and brother were taken by the Taliban. A month after their disappearance, the appellant’s uncle investigated and found that the father’s truck had been left burnt by the side of the road in Dashta-Qarabagh. The appellant’s father and brother had been missing ever since. The appellant believed that the Taliban had taken them because they thought his father was involved with the government.

4.    About 9 months prior to making the statutory declaration, the appellant’s brother called him and told him to sell the father’s shop, collect a debt that was owed and move the family to Pakistan.

5.    About 10 months prior to making the statutory declaration, the appellant’s mother died.

6.    Four days after speaking with his brother, the appellant sold the father’s shop, collected the debt and moved to Pakistan. On the way to Pakistan, at Tangi Utla, he was stopped by the Taliban and was searched, along with other family members and passengers.

7.    He feared returning to Afghanistan because he was sure that he would suffer the same fate as his father and brother. He did not believe that the government could protect him from the Taliban.

The RSA

5    On 16 June 2010, the appellant was interviewed by an officer of the Department for the RSA. As the RSA officer’s reasons disclose, the appellant expressly claimed protection on the basis that he was of Hazara ethnicity and a Shia Muslim.

6    In the course of the interview, the appellant also claimed that as a young man without parents, he might be targeted by the Taliban as a military recruit. First, an exchange occurred between the RSA officer and the appellant as follows:

Country information suggests that Taliban are targeting Afghans who assist the government or NGOs or someone with profile. Therefore I find highly implausible that you would be targeted because you are a tiling [sic]. Since you don’t have a profile in Afghanistan, what makes you think you would be? I understand that, most of the time, they are looking for young people. If young people have lost family, they might join the armed forces, to give you clothes and something to do.

7    The appellant’s representative subsequently summarised the appellant’s claim as follows:

…21 year old man. Mother is deceased and father is missing. Elder brother is also missing and rest of his immediate family are either in Pakistan, Iran or England. His case is distinguished by many others before him because of his recent life in Afghanistan, only just leaving last year. He has provided two examples of how he was stopped [on] the road to Pakistan. He has provided the reasons and circumstances as to why he left Afghanistan with the taking of his father and his brother in Ghazni. He has answered your queries as to why he cannot return nor live in any part of the country. He has also provide [sic] you with the fact that he is fearful that he will be targeted by Taliban insurgents as a possible recruit, because of his age and the fact that he has no mother or father left in his life. Being a young man, if he is returned to Afghanistan, he is still faced with this risk, which places him in a particular social group.

8    Before me, it was not disputed that, in the circumstances, the appellant orally raised a claim based on his membership of the social group of young male Hazaras without parents. While neither the appellant nor the migration agent expressly described the recruitment by the Taliban as “forced”, it was not disputed that the identified persecution was targeting and forced recruitment. The claim (hereafter for convenience referred to as “the conscription claim”) identified both harm and a Convention reason.

9    On 11 August 2010, the RSA officer found that the appellant did not have a well-founded fear of persecution. The appellant was notified of the decision on 16 August 2010. The RSA officer did not, in his reasons, refer at all to the conscription claim.

The independent merits review

10    On 27 August 2010, the appellant requested an independent merits review. The appellant’s legal advisers provided substantial written submissions dated (apparently incorrectly) 25 August 2010 to the IMR. The submissions stated that the appellant faced:

a real risk of harm because of a combination of circumstances, including:

•    his Hazara ethnicity

•    his Shi’a religion

•    his claim for asylum and his return from a Western country such as Australia.

11    The submissions did not refer to a claim based on the fear of forced recruitment by the Taliban. It did, however, include an extract from the Human Rights Watch Country Summary for Afghanistan dated January 2010, which stated “[t]he Taliban continued to be involved in the forcible and voluntary recruitment of children to take part in fighting”.

12    The appellant’s submission to the IMR stated:

We refer to and rely on all previous oral and written evidence and submissions previously provided by or on behalf of the applicant and now wish to make the following further submissions in support of his review application.

13    On 11 March 2011, the first respondent, at the request of the IMR, sent the following email to the appellant’s migration agent:

…the Independent Merits Reviewer who will be conducting an interview with the claimant at Scherger in April/May 2011, has asked me to advise you that the material quoted or cited in the RSA report remains relevant and may be relied upon.

Please note that country material and discussion of issues which may be relevant to Afghan claimants is available in DIAC’s publicly available November Country Guidance Note for Afghanistan (http://www.immi.gov.au/media/publications/pdf/cgn-afghanistan-november-2010.pdf). Your attention is also drawn to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010, HCR/EG/AFG/10/04, available at: http://www.unhcr.org/refworld/docid/4d0b55c92.html.

Copies are attached of two relevant DFAT reports, those of February 2010 and September 2010.

Also of interest in relation to the situation of Hazaras in Afghanistan generally, and in Kabul in particular, is the attached passage from an article “Afghanistan’s apocalypse now”, by Professor Amin Saikal, Professor of Political Science and Director of the Centre for Arab and Islamic Studies (the Middle East and Central Asia) at the ANU, and author of a 2006 book on Afghanistan. The article appeared in the Forum section of “The Canberra Times” on 22 January 2011 (pp. 4-5).

The IMR interview

14    On 28 April 2011, the appellant was interviewed by the IMR.

15    At the outset of the interview, the IMR stated:

IMR:    My role is to make a new and independent assessment of your claims and of the evidence and to make a recommendation about whether you are a refugee. If it is my recommendation that you are a refugee then the Minister may allow you to lodge an application for a visa to remain in Australia. That whole process is likely to take some time so don’t expect to hear anything very soon. I have all the information previously provided by you and your advisor or referred to in the earlier decision and that will be taken into consideration whether or not we specifically cover it again today. I may ask you questions about any of that. I will be most interested in what caused you to leave Afghanistan and in particular what it is you fear will actually happen and why if you now return there. As part of this process and to clarify matters I may have to ask you some difficult or searching questions. Or put to you some information about your country which may not appear to support your claims. The purpose of this is to get your comments in order to take them into account. … (the italicised words are, for convenience referred to “the opening statement”)

16    The exchange continued as follows:

IMR:    Ok. Now [Migration Agent (“MA”)], I’ve got the submission dated 25 August 2010 but I’m not sure whether that is misdated because it attaches a statement dated 1 September 2010, although that’s of no significance. Do you have any further documents or other material to [indistinct] today’s certificate?

MA:    No further documents at this stage but given the date this is something I was going to raise at the end but given the date of the submission would it be appropriate for me to submit a very short post review submission just updating [?].

IMR:    Yes as a matter of course for this and indeed for the other interviews I’m conducting this week I’ll be allowing a clear period of 3 weeks after the date of interview to provide any further information submissions follow up to the interview whatever.

MA:    Ok then.

IMR:    And I won’t be finalising any report or recommendation within that 21 days.

MA:    Ok thank you.

IMR:    I’m just explaining to the advisor that a period of time will be allowed after this interview of 3 weeks (21 days) to allow for any additional information or submissions to be provided to me in writing.

17    In his interview before the IMR, the appellant stated that when travelling to Pakistan, he and his family were stopped twice on the road by the Taliban who, on one occasion, slapped him and beat another passenger, but did not take the appellant’s money and allowed him to travel on after clarifying that he did not work for the government.

18    The IMR put to the appellant that the Taliban was not in control everywhere and, in particular, did not control Jaghori. The appellant conceded that the Taliban did not control Jaghori but said that if a person “travelled from Jaghori to Kabul or back they will be controlled or be … spied [on]”.

19    The IMR put to the appellant that he would not necessarily be transporting construction materials between Kabul and Jaghori. The appellant responded that he needed to work.

20    The IMR put to the appellant that while the Taliban were not strong in Jaghori but only on the borders and in some places on the way to Kabul, the appellant’s concern “generally focuses on the dangers of the roads in or out of Jaghori”. The IMR discussed country information about the three routes connecting Jaghori to Ghazni city and therefore on to Kabul. He stated that the Taliban’s main focus was on a particular stretch of one of the roads, but that section could be avoided by taking a detour through Nawur and the strong Hazara districts to Ghazni city, which “may not be convenient but it’s relatively safe” and was regularly used.

21    The IMR then sought the appellant’s comments on whether, if Jaghori gave rise to a well-founded fear of persecution, his relocation to Kabul (where the appellant had worked for some months) would be reasonable. The appellant responded to the effect that relocation to Kabul would be unsatisfactory. He asked “[h]ow can I live in Kabul” and asserted that anything could happen to him there.

22    The appellant again referred to the Taliban on the roads. The IMR stated that he was not talking about the situation between cities, but avoiding the necessity to travel.

23    During the course of the interview, the IMR observed that the appellant had made a fresh claim in his written submissions that he feared persecution as a member of a particular social group, “namely a failed asylum seeker returning from a western country”.

24    At the conclusion of the interview, the IMR stated: “… if there’s anything else that you feel you haven’t had the opportunity to say or that you feel is relevant or important, now is your opportunity to say it before we conclude”. The IMR stated that any further submissions or information he received within 21 days of the interview would be taken into account in his report.

The IMR’s reasons

25    In his statement of reasons, the IMR stated at [4]:

This independent review will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information, including information available to the refugee status assessment officer in reaching the unfavourable refugee status assessment, information provided by or on behalf of the claimant and any additional information the independent reviewer may consider relevant.

26    The IMR characterised the appellant’s claims as follows:

•    Fear of persecution at the hands of the Taliban on account of ethnicity and religion, in the context of general persecution of Hazaras;

•    Fear of persecution by the Taliban as his father’s son (that is, he would be imputed with the same characteristics which, it is suggested, led them to target his father, possibly being imputed political opinion);

•    Fear of persecution by the Taliban as a member of a particular social group, “namely a failed asylum seekers [sic] returning from a western country”

27    The IMR made the following findings:

(a)    He found that the appellant was generally credible in relation to his own experiences, although his broader claims about the situation in Afghanistan were less reliable.

(b)    Having considered extensive independent country information on the treatment of Hazara Shias in Afghanistan, he concluded that the appellant did not face persecution simply because he was a Hazara Shia.

(c)    He accepted the appellant’s claims about the fate of his brother and father. The IMR found it plausible and consistent with country information that the appellant’s father was suspected of working for or with the government or international forces, and accepted that in Afghan culture, a person may attract adverse attention because of the actions or imputed beliefs of a family member.

(d)    He found that there was a “small but real chance” that the appellant might face harm on the basis of an imputed political opinion should he return to Jaghori and travel regularly along the main route between Jaghori and Ghazni city through Qarabagh where the Taliban (particularly those involved in his father’s disappearance) operated. The IMR found that the fear of harm (if it existed) was localised to the area where the appellant’s father disappeared, on the road from Jaghori through Qarabagh.

(e)    He found that the appellant had no need to travel regularly out of Jaghori to earn a living as he was an experienced tiler who formerly worked as such mainly in Jaghori. There was also a family farm in Jaghori which was cared for by a relative. The appellant had no history of working as a truck driver and there was no need for him to expose himself to regular risks on the road. There was no truck or remaining business to take over. The IMR was satisfied on the basis of the country information that if the appellant felt the need to travel between Jaghori and Ghazni city or Kabul, notwithstanding the dangers of the Qarabagh route, there was a relatively safe route which was regularly used. There was no “fundamental factor” that would make the use of that safer alternative route unreasonable.

(f)    He found that there was no credible evidence before him to satisfy him that returnees from Western countries were targeted by the Taliban or others as failed asylum seekers.

28    The IMR concluded at [92]-[94]:

The reviewer has found that the claimant’s limited chance of persecution applies only in a very localised context and that there is not a real chance of such persecution away from the particular area where his father went missing. It is only in Qarabagh that the claimant faces any real chance of harm in relation to an opinion which might arguably be imputed because of his father – but the claimant does not live in Qarabagh.

The reviewer is satisfied that the claimant would be safe from such attention in his own area in Jaghori if he did not travel into or through Qarabagh and therefore is secure there in relation to the specific harm feared from the Taliban in Qarabagh. There is no fundamental factor which would make it unreasonable for the claimant to avoid the perceived risk of harm by not travelling into or through Qarabagh.

As the claimant does not have a well-founded fear of persecution in relation to his home district of Jaghori, it is not necessary to consider relocation elsewhere within Afghanistan.

29    The IMR did not consider the information, including the conscription claim, that the appellant provided to the RSA officer in his interview on 16 June 2010. It was common ground that the IMR did not have before him any transcript, notes or audio recording of the interview. As the Federal Magistrate noted at [11]:

a.    Exhibit HRH-2 [to the affidavit of Haroon Hassan affirmed 6 February 2012] was created by the applicant’s registered migration agent based on his contemporaneous notes taken at the RSA interview;

b.    The RSA interview was itself tape recorded by officers of the first respondent;

c.    No audio recording or transcript of the interview, whether prepared by [an] agent or otherwise, was before the Reviewer; and

d.    The Reviewer did not have before him as part of the file at any stage the audio recording of the RSA interview or any contemporaneous notes that may have been taken by the RSA interviewer.

the Federal magistrate’s reasons

30    The appellant sought declaratory relief in relation to the IMR’s recommendation in the Federal Magistrates Court. Before the Federal Magistrate, the appellant advanced three grounds of review. First, that the IMR failed to deal with the appellant's claim of risk of persecution as a member of a particular social group, of young men of military age without family at risk of forcible recruitment by the Taliban. Secondly, that the IMR failed to consider whether the appellant would be safe from persecution for reasons of imputed political opinion in his own area of Jaghori, if he did not travel in or through Qarabagh. Thirdly, that the IMR failed to consider the claims cumulatively.

31    The Federal Magistrate found that no audio recording, note or transcript of the RSA interview was before the IMR. The audio tape made at the RSA interview was in the possession of the first respondent.

32    The Federal Magistrate acknowledged that the conscription claim made orally at the RSA interview was not dealt with by the IMR. The Federal Magistrate observed, however, that the appellant did not articulate the conscription claim in his statutory declaration filed on 13 June 2010 or before the IMR. Nor did the agent’s written submissions to the IMR state the conscription claim, although the appellant was represented by the same firm of agents before the RSA officer and the IMR.

33    His Honour concluded that the conscription claim was therefore abandoned on the basis of the reasoning in SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785 at [47]-[48], where Cameron FM stated:

When viewed as a whole, I conclude that the applicant’s claim as articulated to the Reviewer was based on his ethnicity, his religion, his perceived political views and possible perceptions of him were he to return to Afghanistan after a period abroad. Although the applicant’s adviser did initially raise with the assessor the question of the applicant’s youth and the Reviewer must be considered to have been aware that it had been advanced at that stage, it is apparent that to the extent that this was an integer of the applicant’s claims at the RSA stage, it was not subsequently so on review.

At all times the applicant was professionally represented and the fact that his youth was not raised at the review stage was not a case of an unrepresented applicant inadequately articulating his or her claims. It should be understood to represent a decision concerning what the applicant’s claims were and what claims were being pursued. In those circumstances, the omission from the further evidence and submissions on review of any reference to the applicant’s youth as an integer of his claims had the effect of abandoning it as an aspect of those claims. Consequently, the assertion that the applicant was at risk of harm from the Taliban because of his youth could not be said to have been, at the review stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov or a claim which emerged clearly from the materials, in the sense discussed in NABE. As a result, the Reviewer was not required to consider it and no error on the Reviewer’s part has been demonstrated on that account.

34    His Honour found that ground 1 was not made out, as the conscription claim, although made in the RSA interview, was abandoned before the IMR, who did not err in failing to address an abandoned claim.

35    The Federal Magistrate dismissed an alternative basis for ground 1 constituted by failure to consider the audio tape. His Honour stated at [27]-[28]:

Counsel for the first respondent further submitted that in SZQFR the RSA claim was referred to in the RSA recommendation, pointing to the fact that this was not the case in this case, and said that accordingly the force of the decision of this court in SZQFR is even stronger in this instance.

In my view, the Reviewer did not fall into jurisdictional error by failing to address a claim that the applicant, who was at all times represented, did not articulate before him. If either the recording and/or the transcript of the RSA hearing had been before the Reviewer, the Reviewer would, in the context of the way that the applicant put his case, still have been entirely entitled to assume that the claim about forced recruitment into the Taliban been abandoned in the sense described by Cameron FM in SZQFR.

36    The Federal Magistrate dismissed the allegation in ground 2 that the IMR erred by, in essence, concluding that the appellant would be safe from persecution by reason of imputed political opinion in his own area of Jaghori if he did not travel in or through Qarabagh without considering the proximity of the appellant’s home town to Qarabagh, the inaccessibility of other routes to Ghazni or Kabul during the winter months and whether the appellant’s personal circumstances would require him to travel regularly to maintain gainful employment.

37    His Honour found that ground 2 was not made out, as the IMR found that the appellant would not be at risk in Jaghori and would be at risk only if he returned to Jaghori and travelled regularly along the route through Qarabagh where the Taliban operated. There was an alternate route to Jaghori which would be safe. Further, the IMR was not satisfied that the appellant would need to travel regularly out of Jaghori in order to earn a living.

38    The Federal Magistrate also dismissed the allegation in ground 3 that the IMR failed to consider the appellant’s claims cumulatively. His Honour considered that it was neither appropriate nor necessary for the IMR, having dismissed each individual claim, to return to consider them in “some global way”. His Honour referred to NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383, and stated that the relevant claims did not gain any additional force from being considered together.

The appellant’s affidavit

39    The appellant, by an affidavit sworn on 2 May 2012, deposed that he feared that he would be persecuted by the Taliban if he returned to Afghanistan due, inter alia, to his membership of a particular social group, being young men of military age without a family. The appellant deposed that he feared that if he returned to Afghanistan, he would be targeted by the Taliban and may be forcibly recruited by them.

40    The appellant referred to the migration agent’s summation of the conscription claim in the RSA interview. He deposed that he did not intend to abandon the conscription claim before the IMR and relied on his migration agent (who was not the same person who assisted him in the RSA interview) to run his case. He did not instruct the migration agent not to put the conscription claim before the IMR. The appellant deposed that he took the IMR to mean that all documents and materials related to the appellant’s case would be considered.

The grounds of appeal

Ground 1

41    Under ground 1, the appellant alleged that the Federal Magistrate erred in failing to find that the IMR erred in failing to consider:

(1)    a record of the RSA interview conducted on 16 June 2010 between the appellant and the RSA officer; and

(2)    the conscription claim (described as the appellant being a young man of military age without family, who was at risk of forcible recruitment or conscription by the Taliban);

The appellant’s submissions

42    The appellant submitted that the IMR erred in failing to consider the conscription claim, as it was expressly made at the RSA stage, and although not specifically repeated at the IMR stage, was relevantly before the IMR in the circumstances.

43    The appellant also submitted that the Federal Magistrate erred by finding that the conscription claim was abandoned. Abandonment required a clear and unequivocal statement and could not be inferred simply from the fact that the claim was not expressly repeated. The appellant submitted that in contrast to the Refugee Review Tribunal, an IMR is not involved in a separate statutory process. Instead, the IMR process and RSA process form part of a continuing executive exercise. In such a context, the principle of abandonment, which is, in any event, more appropriate to adversarial curial proceedings, would not apply.

44    Further, the appellant submitted that the Federal Magistrate mistakenly viewed the RSA interview as relevant only to the conscription claim, but it was really relevant to all of the appellant’s claims. The appellant stated in written submissions at [19]:

The IMR officer was charged with “consider[ing] all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the ‘real’, as distinct from fanciful, ‘chances’ would bring if the applicant were returned to” his country of origin. In failing to consider the RSA interview, the IMR officer failed to execute this task. The Appellant’s conscription claim (contained in the RSA interview) places greater emphasis on this failure, being also a failure to consider one of the Appellant’s clearly articulated claims.

45    The appellant submitted that the IMR’s failure to consider the conscription claim amounted to a breach of procedural fairness. The appellant relied, in that context, on Muin v Refugee Review Tribunal (2002) 190 ALR 601 and Re Refugee Review Tribunal & Anor: Ex Parte Aala (2000) 204 CLR 82, in which the Refugee Review Tribunal represented that it would, in determining an applicant's claim, consider certain documents that had been before previous decision-makers but failed to do so. A majority of the High Court concluded that there was a breach of natural justice.

46    The appellant submitted that in this case, the breach of procedural fairness had a bearing on the outcome. The IMR’s failure to consider the conscription claim was not subsumed in his finding that the appellant could avoid the risk of harm based on his imputed political opinion and association with his father, which was localised to the stretch of the main road to Kabul through Qarabagh, where the Taliban might associate him with his father. Even if that finding were otherwise valid (see ground 2), it did not address the risk of conscription by the Taliban, which was not localised to the Qarabagh stretch of the main road to Kabul.

The first respondent’s submissions

47    The first respondent conceded that the conscription claim was raised in the agent’s summary during the RSA interview. The first respondent submitted that although the IMR did not consider the conscription claim, he was not obliged to do so, as it was not, in the circumstances, a claim before him.

48    The first respondent submitted that as the conscription claim was not made in the appellant’s subsequent statement on 1 September 2010, the agent’s written submissions dated 25 August 2010, the appellant’s interview before the IMR on 28 April 2011 or a supplementary submission, the claim was abandoned before the IMR.

49    That conclusion was fortified because the IMR put to the appellant that the claim that he feared persecution as a member of a particular social group (namely, as a failed asylum seeker returning from a Western country) was a fresh claim, yet the appellant failed, at that point, to claim before the IMR that he was also a member of another particular social group. Further, the appellant did not refer to the conscription claim at a number of junctures in the interview with the IMR where he would logically have done so if the claim were still live.

50    The IMR also accorded the appellant an opportunity at the end of the interview to add to his claims, but the appellant, although represented by his professional migration agent, made no reference to the conscription claim.

51    The first respondent submitted that the 11 March 2011 email from the IMR to the appellant's legal adviser did not indicate that the IMR would take into account oral claims made only at the RSA interview. The email was directed only at country information on which the IMR might rely. It merely noted that “material quoted or cited in the RSA report remains relevant and may be relied upon”. As the RSA report did not refer to the conscription claim, the email did not constitute an undertaking to consider it.

52    The first respondent also submitted that the IMR’s opening statement, when viewed in the context of the exchange as a totality, did not amount to an assurance that the IMR would take into account statements made in the course of the RSA interview that were not reflected in any written submission.

53    The first respondent relied, in that context, on SZEIV v Minister for Immigration and Anor [2006] FCA 1798, where Bennett J stated at [32] and [34]:

The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] 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’ and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ‘can only deal with the claims actually made’. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ‘whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it’.

A claim made to the Department and referred to in the Delegate's decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate's decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.

54    The first respondent also relied on SZQFR v Minister for Immigration and Anor [2011] FMCA 785 (which was considered by the Federal Magistrate) and on DZACT v Minister for Immigration and Anor [2012] FMCA 557, where Driver FM stated at [41]-[42]:

However, there are several reasons why the Reviewer was under no obligation to consider the matter in any event. As she noted, there was no reliance on these matters and no evidence was given to her about them, In these circumstances there was no "substantial clearly articulated argument relying on established facts" which "clearly emerge[s] from the materials" requiring consideration.

Further, had the alleged claim ever been made, the Reviewer would have been justified in considering it to have been abandoned in all the circumstances. It was not a "live issue" as the applicant now alleges. He had killed it off by making no mention of it whatsoever after the entry interview. Hence it was not dealt with during the RSA process and effectively treated as a non-issue by the Reviewer. The reasoning of Cameron FM in SZQFR v Minister for Immigration & Anor and Burchardt FM in MZYQZ v Minister for Immigration & Anor can be applied in these circumstances. (footnotes omitted)

55    The first respondent submitted that if, contrary to its contention, the IMR were obliged to consider the conscription claim, he found that the appellant had no well-founded fear of persecution due to his imputed political opinion through association with his father in the country as a whole, and the risk of persecution by the Taliban was limited to the road from Jaghori through Qarabagh. Further, the IMR found that the appellant would not be targeted or persecuted by the Taliban within his own Jaghori region. In such circumstances, a precondition of the conscription claim was lacking and it was subsumed in a finding of greater generality. (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1). Therefore, any error did not amount to jurisdictional error.

Consideration of ground 1

56    It was not disputed that the conscription claim was not expressly raised either in writing or orally before the IMR. It was made only as an oral claim in the course of the RSA interview, first briefly by the appellant and then more substantially by his migration agent. It was common ground that the RSA officer failed to deal with the conscription claim in his reasons, but the appellant (although represented by a firm of migration agents), did not complain of the omission or refer at all to the conscription claim in written or oral submissions to the IMR, although there were many logical occasions and ample opportunity to do so.

57    The central question is whether the IMR’s opening statement (particularly after the appellant’s avowed reliance on previous oral and written evidence and submissions) displaces the inference of abandonment that would otherwise arise from the failure to complain of the RSA’s omission or to repeat or refer to the conscription claim before the IMR.

58    In my opinion, in the circumstances of this case, the conscription claim was not abandoned before the IMR. The IMR not only failed to challenge the appellant’s express assertion that he relied on previous written and oral evidence and submissions, but reinforced it by his unqualified opening statement that he had “all the information previously provided by you and your adviser or referred to in the earlier decision” and would take it into consideration, whether or not it was specifically covered.

59    It was common ground that (although the first respondent had an audio recording and the first migration agent had taken notes of the RSA interview) the IMR did not have any notes, transcript or audio recording of the RSA interview before him.

60    While it is thus unlikely that the IMR intended, by his opening statement, to undertake to consider claims made orally only in the course of the RSA interview, the statement, according to its literal, ordinary meaning, in my view extended to such claims. Particularly given the appellant’s express reliance on previous oral and written evidence and submissions, there is no basis to construe the statement as applicable only to written material. Further, there was no evidence that the appellant or his migration agent were aware that the IMR did not have any record of the RSA interview available or before him.

61    The appellant deposed that he did not intend to abandon the conscription claim and thought that the IMR would consider all documents and materials related to his case. There was no evidence on whether, and if so how, the IMR’s statement influenced the migration agent’s conduct in the course of the interview.

62    It might be thought likely that the appellant would have expressly raised any important claims, irrespective of any assurance from the IMR that he would consider all previous information. Before me, senior counsel for the appellant acknowledged that the conscription claim was subsidiary to the claims expressly articulated before the IMR. Nevertheless, while the question is not without difficulty, in my opinion, in circumstances where the appellant did not intend to abandon the conscription claim, and expressly adopted all previous oral and written evidence and submissions; the IMR’s statement, fairly construed, extended to all previous oral and written information provided by the appellant, whether or not covered at the interview; and the appellant understood the IMR to mean that he would consider all documents and materials related to the appellant’s case; the conscription claim cannot be treated as abandoned. The authorities on which the first respondent relied are distinguishable from this case, as they did not involve an express statement by a decision-maker that all previously provided information would be considered.

63    Senior counsel for the appellant acknowledged that there is no general obligation for an IMR to consider the transcript of the interview with an RSA officer. It was open to the IMR to require the appellant expressly to state what matters he relied on, or to identify any previous information which was unavailable or which he did not wish to consider. The IMR’s obligation to consider information or claims raised only orally in the RSA interview arose from the unqualified statement he made, particularly in conjunction with the appellant’s foregoing statement that he relied on all previous oral and written submissions and evidence.

64    The unusual circumstances of this case demonstrate the importance of a decision-maker such as an IMR precisely describing what, if any, previously provided material he or she will consider. An unduly wide and imprecise statement may impose an obligation to take into account a claim raised only fleetingly in an inaccessible form, of which the decision-maker is in fact unaware.

65    As the conscription claim, was in my opinion, incorporated by the reference of both the appellant and the IMR to the previously provided information, and was in that sense before the IMR, the failure to deal with it was procedurally unfair.

66    Further, I was not persuaded that the failure to consider the conscription claim was subsumed in the IMR’s findings and thus did not affect the outcome.

67    The IMR found that the appellant was not at risk of persecution from the Taliban (or any other party) because he was a Hazara or a Shia. The IMR found that the appellant was at risk from the Taliban on the basis of imputed political opinion by association with his father, but only on a particular route in a localised area between Jaghori and Kabul. The IMR concluded that the appellant was secure in Jaghori, could find work there and (although he did not need to do so regularly for work) could travel between Jaghori and Kabul if he felt the need to do so using a relatively secure alternative route.

68    In making the above findings, the IMR, contrary to the appellant’s submissions, considered the appellant’s need to work, but rejected his claim that he would have to travel regularly between Jaghori and Kabul for employment. The IMR did not, in my opinion, find or assume that the appellant must remain confined to Jaghori in order to avoid the identified risk of persecutory harm. Rather, the IMR expressly stated that the appellant could travel between Jaghori and Kabul if he felt the need to do so, albeit he would need to use an alternative, relatively secure route. The IMR, in the interview, acknowledged that the alternative route may not be convenient.

69    The above findings were circumscribed and addressed only the risk of harm from Taliban based on the appellant’s imputed political opinion through association with his father, which was geographically confined to the main route to Kabul through Qarabagh. The IMR found that the risk of harm on the basis of the appellant’s imputed political opinion was posed only by Taliban who presumably were involved in the appellant’s father’s disappearance, might associate the appellant with his father and might impute the father’s imputed political opinion to the appellant.

70    The IMR was satisfied only that any real chance of persecution for imputed political opinion was essentially limited to the road from Jaghori to Qarabagh, that there was no real chance that the appellant would be targeted or persecuted within the Jaghori district “for this reason” and that the appellant did not have a well-founded fear of persecution “for this reason” in relation to the country as a whole. (Emphasis added).

71    The IMR found that the Taliban did not control Jaghori and that the appellant would be secure there. Nevertheless, the IMR did not (understandably, given that he was apparently unaware of the conscription claim) consider whether there was any, and if so, what, chance that the appellant as a young man without parents might be targeted by the Taliban for forcible recruitment, when using the main road or the alternative, relatively secure routes from Jaghori to Kabul, or when travelling from Jaghori to destinations other than Kabul.

72    The findings made by the IMR could not subsume the conscription claim unless he also found that the appellant (because secure in Jaghori and able to work there) could properly be confined to Jaghori in order to avoid any risk of harm. The IMR did not, however, find that the appellant should be restricted to Jaghori without the ability to travel to any other part of the country, and it is unnecessary to consider the validity of such a finding.

73    The appellant also submitted under this ground that the IMR’s failure to consider the RSA interview as a whole did not accord with his opening statement and deprived the appellant of the buttressing effect of the relevant material on his claims. The appellant did not, however, identify any particular instance of further support from the RSA interview as a whole for his claims, such that the IMR’s failure to consider it affected his recommendation. I was thus not persuaded that the failure to consider the interview as a whole had any bearing on the IMR’s recommendation.

74    In my opinion, the principal allegations in ground 1 are made out.

Ground 2

75    Under ground 2, the appellant alleged that the IMR misapplied the principle of relocation, under which “a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country” (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) at [22]). In that context, “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.” (at [24]).

76    The appellant acknowledged that ground 2 differed from the corresponding ground before the Federal Magistrate and sought leave, in so far as it was necessary, to rely on it, on the basis that it was, in essence, a “rebadging”.

77    As the first respondent asserted no prejudice and had responded to ground 2 in written submissions, leave, to the extent necessary, was granted.

78    Before me, the appellant’s formulation of the argument under this ground shifted somewhat. First, the appellant submitted the IMR erred in concluding that the appellant did not have a well-founded fear of persecution in Afghanistan, as that was based on a requirement that the appellant be confined to Jaghori where he would be secure.

79    Alternatively, the appellant submitted that the IMR distorted the applicable test in concluding that there was no fundamental factor which rendered it unreasonable for the appellant to avoid the perceived risk of harm by refraining from travel to or through Qarabagh. The appellant submitted that such reasoning effectively confined him to alternative routes if he travelled between Jaghori and Kabul, but their disadvantages were not considered. The appellant thus submitted that the IMR failed to take into account the appellant’s need to modify his conduct by taking the alternative routes in order to avoid persecutory harm and/or failed to consider the length of, and seasonal conditions on those routes, which were raised in the “Finnish Immigration Report on the Current Situation in the Jaghori District of Ghazni”, to which the IMR indicated he had regard. The appellant also submitted that the IMR erred in failing to consider his need to obtain employment.

80    In my opinion, the IMR did not err as alleged. As stated above, the IMR did not conclude that the appellant must remain confined to Jaghori. Rather, the IMR envisaged that the appellant could travel to Kabul relatively securely by avoiding a particular stretch of the main road. While the IMR did not expressly so state, by inference he considered that the appellant could also travel to other areas in Afghanistan outside Jaghori, as he concluded that the risk to the appellant from the Taliban on the identified basis of imputed political opinion by association with his father was geographically confined; and he did not accept that the appellant faced a real risk of persecution from the Taliban (or others) because he was a Hazara Shia.

81    Further, contrary to the appellant’s submission, the IMR did consider the appellant’s need to work, although he did not accept the assertion that the appellant would have to travel regularly between Jaghori and Kabul for employment.

82    The IMR also, in my view, took into account that the appellant would need to modify his conduct in order to avoid the localised risk of persecutory harm by avoiding Qarabagh, and while he did not specifically consider the length and seasonal weather conditions on the alternative, relatively secure, routes, the IMR recognised that the alternative route may not be convenient.

83    As recognised in SZATV, the principle of relocation is neither expressed in the Act nor the Convention and is thus derived by inference from generally stated provisions of the definition of “refugee” in the Convention at [11]. Therefore, as Kirby J in particular acknowledged, formulations of the relocation principle may vary (at [68]).

84    The relocation principle appears predicated on a recognition that a claimant who has a well-founded fear of persecution in his or her home region (or at least, a particular region where the claimant has previously resided) may legitimately be required to return instead to an alternative region where there is no appreciable risk of the feared persecution and where the claimant could reasonably be expected to relocate.

85    In my opinion, the complaints under ground 2 did not squarely involve the relocation principle as it is generally understood in the light of relevant Australian authority. The appellant’s home region was Jaghori and he had also, at one time, travelled between Jaghori and Kabul. The IMR discussed the possibility of relocation to Kabul with the appellant in the course of the interview. Ultimately, however, he concluded that the appellant had no well-founded fear of persecution in Jaghori and stated that it was therefore unnecessary to consider relocation.

86    In substance, as I understood it, the appellant argued under ground 2 that it was unreasonable for the IMR to find that the appellant had no well-founded fear of persecution in Afghanistan because the finding depended on either confining him to Jaghori or failing to consider the disadvantages of the means he would have to adopt to avoid persecutory harm if he did travel to Kabul. Thus, what was at issue was not relocation proper, but the alleged necessity to submit to being quarantined in the home region, or at least, to significant travel restrictions. As senior counsel for the appellant acknowledged, the complaint more accurately depended on the reasoning in S395/2002 v The Minister for Immigration and Multicultural Affairs (2003) CLR 473 and whether the reasonableness of any adjustments that the appellant must make to avoid persecution if based in Jaghori was considered by the IMR.

87    It is, however, unnecessary to determine those questions. In so far as ground 2 is directed at the appellant’s claim of fear of persecution on the bases expressly raised before the IMR, for the reasons expressed above, in my opinion, the complaints were not made out.

88    As discussed above the IMR’s findings do not address the conscription claim which the IMR was obliged to consider, although in practice he was apparently unaware of it. What the IMR would have found on the extent and geographical location of the risk of conscription by the Taliban, and whether the appellant could properly be required to confine himself to Jaghori or otherwise modify his conduct in order to avoid it, remains a matter for speculation. Ground 2 was not, in my opinion, established. Rather, it was overtaken by the failure to consider the conscription claim, which was, in the circumstances, before the IMR.

Conclusion

89    In my opinion, the appeal should be allowed.

Associate:

Dated:    31 August 2012