FEDERAL COURT OF AUSTRALIA

SZQGV v Minister for Immigration and Citizenship [2013] FCA 112

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

Introduction

1    The appellant appeals from a decision of the Federal Magistrates Court handed down on 28 September 2012. The learned Federal Magistrate dismissed the appellant’s application, which was in the nature of judicial review, challenging a report and recommendation by the second respondent (the Reviewer) that the appellant not be recognised as a person to whom Australia owes protection obligations because it was found that the appellant did not meet the criteria for a protection visa under the Migration Act 1958 (Cth) (the Act). The appellant sought an injunction to prevent the Minister from relying on the Reviewer’s report and recommendations.

2    The appellant successfully appealed to the Court from an earlier decision of the Federal Magistrates Court, which resulted in a remittal to that Court in the light of the reasons of Rares J (SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207).

3    The appellant now appeals only two of the eight grounds upon which the Federal Magistrate rejected his judicial review application. Grounds 1 and 2 of the appeal broadly reflect judicial review grounds 7 and 8 below. The other judicial review grounds (i.e. 1 to 6) were formally maintained below on the basis that the appellant accepted that the Federal Magistrates Court was bound to reject them in the light of several judgments of this Court in other matters (noting that those judgments were subject to applications for a special leave to appeal in the High Court).

4    Accordingly, there are only two grounds of appeal which need to be dealt with. Before briefly describing those grounds, it is convenient to set out in broad terms the factual and procedural background to the appeal.

Summary of factual background

5    The appellant is a 29 year old Afghanistan national who comes from the Jaghori district, which is part of the Ghazni province. His application for a protection visa was based on his claim that he feared persecution from Pashtuns, the Taliban and/or Sunni Muslims based on his Hazara ethnicity and also him being a Shi’a Muslim. He also claimed to fear persecution based on an imputed political opinion if he were to return to Afghanistan because he would be seen to be returning from a Western country, a perceived sympathiser of the coalition forces and/or as a failed asylum seeker.

6    The appellant claimed that he first left Afghanistan in 2000 after being involved in an incident with the Taliban when he was found eating during Ramadan in breach of the fast. He fled to Iran where he lived and worked before returning to Afghanistan in 2006 to his home town of Al Ghui, which is a sub-village of Dawood. He then began working in his family-owned shop, which involved him having to obtain supplies by travelling regularly on unsafe routes to Ghazni city and Kabul.

7    The appellant claimed to have left Afghanistan for Australia after an incident in 2009 when he bought an unregistered car from a Pashtun person. He said that this led to him becoming the target of two Pashtuns who wished to avenge the killing of their brother, who formerly owned the car. The appellant said that they suspected him of having killed their brother.

8    At an interview between the Reviewer and the appellant, the Reviewer discussed various country information which suggested that the Hazara/Shi’a Muslims were not specifically targeted by the Taliban, that the district of Jaghori was not a Taliban dominated area and was reasonably secure and that there were many returnees in Jaghori who were not targeted for that reason alone. After that interview, the Reviewer provided by email to the appellant’s representative various country information and he invited the representative to comment. The representative did so on 6 February 2011 by providing submissions which also referred to some country information.

Reviewer’s findings and reasons

9    In broad terms, the Reviewer’s findings and reasons for recommending that the appellant not be granted a protection visa are as follows:

(a)    while accepting that the appellant was a Hazara and Shi’a Muslim, the country information did not support his claim that such people had been targeted and persecuted because of their minority status. Rather, he found that the Taliban’s killing of other Hazaras was motivated by other reasons, such as the Taliban’s engagement with NATO forces and the Afghan government;

(b)    he found that the security situation in the appellant’s home village of Dawood and wider Jaghori district would not prevent the appellant from returning to live there, as they were protected by Haraza factions;

(c)    while it was accepted that some country information revealed that there had been incidents of harm to returnees, this was usually where it was known or suspected that the returnee was carrying substantial amount of cash. In any event, it was found that such incidents were very isolated and sources did not conclude that returnees were being adversely targeted simply because they were returnees. He found that there was no credible evidence which showed that returnees from Western countries as failed asylum seekers were for that reason targeted and persecuted; and

(d)    as to the appellant’s specific claims, the Reviewer made adverse findings of credit. Moreover, the Reviewer indicated that, even if he accepted the appellant’s claims concerning the two Pashtuns who wished to avenge their brother’s killing, the harm which the appellant claimed to fear was not for a Convention reason.

Federal Magistrates Court decision on judicial review

10    As noted above, while reserving his rights in respect of the first six grounds of his judicial review application, the appellant focused on grounds 7 and 8 (which now constitute the two grounds of appeal to this Court).

11    Ground 7 below involved an allegation that the Reviewer denied the appellant procedural fairness by not identifying to him that two reports would be used adversely to his interests in making findings regarding his claims to fear harm as a returnee. Ground 7 was expressed in the following terms:

The Reviewer denied procedural fairness to the applicant in that he failed to identify to the applicant that the 2010 DFAT Report identified in paragraph 142 of the decision and the date and sample used in the “Reported to Danger II” (sic) report by the Edmund Rice Centre would be used adversely to the interests of the applicant.

In particular, the appellant argued that procedural unfairness occurred because the Reviewer’s reasons for his recommendations were based in part on his rejection of material which had been supplied by the appellant in support of his claims, without identifying to the appellant the reasons for the Reviewer’s rejection of that material. In addition, it was alleged in argument that the Reviewer had led the appellant to believe that his material would be accepted.

12    Ground 8 below involved a complaint that the Reviewer had failed to make findings concerning relevant geographical matters bearing upon the security of the route which the appellant would have to take in order to return to his home village. Ground 8 was in the following terms:

The Reviewer failed to make a finding that the applicant’s home village was not on the outskirts of Jaghori or Malistan districts and that travel to the home village would not involve travel through the outskirts of Jaghori and Malistan districts and accordingly failed to identify the correct issue and its decision was affected by that error so that he exceeded his authority and power.

13    Both those grounds were rejected by the Federal Magistrate. As to the first of those grounds, the Federal Magistrate noted that the Reviewer had rejected a report provided by the appellant because of its age and the small sample of returnees interviewed for it. The report in question was a report of the Edmund Rice Centre for Justice and Community Education entitled Deported to Danger II (dated September 2006) (the Edmund Rice Report). His Honour found that, although the Reviewer had not discussed the Edmund Rice Report with the appellant during their interview, the Reviewer had put to the appellant for comment adverse country information which the Reviewer ultimately preferred in making his findings regarding the treatment of returnees. Moreover, while accepting that the Reviewer had not provided the appellant with an opportunity in advance to contest his reasons for rejecting the Edmund Rice Report, the Federal Magistrate held that procedural fairness requirements did not oblige that opportunity to be given.

14    As to the second of the appellant’s relevant grounds, the Federal Magistrate found that the Reviewer had not failed to consider an integer of the appellant’s claims, namely whether he would be safe travelling within the Jaghori district to his home town of Dawood. The Federal Magistrate noted that the Reviewer found that the appellant could return to his home area by using secure routes between Kabul and Ghazni and then from Ghazni to Jaghori. The combination of those secure routes and the finding that the Hazara dominated areas of Jaghori were safe, led the Reviewer to conclude that the appellant was able to travel home safely to Dawood. Furthermore, the Federal Magistrate found that, even if he were wrong in his factual findings on this topic, any risk posed by using the roads to return to Dawood was of a generalised nature and not for any Convention reason.

Ground 1 in the appeal

15    This ground of appeal is directed to the Federal Magistrate’s reasoning at [33] to [34] of his reasons for decision (which were directed at the appellant’s challenge to [142] of the Reviewer’s report), which are as follows:

The applicant complains that he was not provided an opportunity to contest the Reviewer’s reasoning for dismissing the Edmund Rice Centre report which supported his claims. It is true that that opportunity was not provided. However, in my view, procedural fairness did not require that the Reviewer provide that opportunity. As has been stated many times, a decision maker is not under any obligation to provide a “running commentary” on his or her thought processes prior to reaching a decision. The correspondence sent to the applicant’s legal adviser after the interview would have alerted the applicant (and his advisers) that the Reviewer was minded to prefer other country information to that contained in the Edmund Rice Centre report. They therefore had the opportunity to address the relative merits of the various pieces of country information. Further, the reasons why the Reviewer rejected the Edmund Rice Centre report were based upon the date and content of the report. Both were (or should have been) known to the applicant and his legal advisers at the time the legal advisers referred the report to the Reviewer. These were not circumstances that would necessarily have taken the applicant by surprise.

I conclude that the requirements of procedural fairness did not oblige the Reviewer to disclose in advance of his report his reasons for rejecting the Edmund Rice Centre report.

The appellant contends that the Federal Magistrate mischaracterised his complaint by suggesting that in substance the appellant required the Reviewer to conduct a “running commentary” of the Reviewer’s thought processes. The appellant said that his complaint was actually along the following lines:

(a)    the Reviewer found that there was no credible evidence establishing that returnees from Western countries as failed asylum seekers are for that reason targeted and persecuted for a Convention reason;

(b)    in reaching that finding, the Reviewer preferred DFAT supplied country information and rejected the Edmund Rice Report, stating that it was over 4 years old and covered only a small sample of returnees;

(c)    the failure to provide the appellant with an opportunity to comment on the two reasons for rejecting the Edmund Rice Report, was in breach of the “common law” principles of procedural fairness (citing Re Minister for Immigration and Citizenship and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [99] and [140] and Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [30], [63], [123] and [227]); and

(d)    favourable material in the Edmund Rice Report was disregarded by the Reviewer in circumstances where the Reviewer represented to the appellant that regard would be had to that material unless it was questioned by the Reviewer (which didn’t happen). The appellant placed reliance on various extracts from the transcript of the interview between the appellant and the Reviewer. In particular, reliance is placed on the Reviewer’s following statements:

All right sir, what I will do when I make my recommendation is consider everything you’ve said and the submissions. As I’ve told you when I’ve had concerns with your story or evidence;

After this interview I’ll send a letter which will set out with more particulars the country information I have been referring to. The letter will give just a short period in which more information or comments, whatever, can be provided;

I’ve raised my concerns as we’ve gone along, you’ve given answers and I’ll consider all of that.

Ground 2 in the appeal

16    The appellant’s essential complaint is that the Federal Magistrate erred in his consideration of the appellant’s claims to fear the Taliban if he were to return to his home village of Dawood. While the appellant accepts that the Reviewer made certain findings of fact on this subject which are unreviewable, he expresses this appeal ground by reference to an alleged “lacuna” in the Reviewer’s reasons. In particular, the appellant complains that the Reviewer failed to address and determine the safety of the route which the appellant would have to take to return home in circumstances where that would involve travel through parts of the outskirts of the Jaghori district, which were subject to Taliban control. This alleged failure to engage in a particular consideration of the internal route within the Jaghori district to Dawood is said to constitute a failure to consider an integer of the appellant’s claims, namely his feared harm from the Taliban if he was required to return home to Dawood.

Consideration

17    I consider that the appellant’s first ground of appeal should be rejected. In my view no appellable error has been established in respect of this aspect of the Federal Magistrate’s decision. I substantially agree with his Honour’s reasons at [26] to [34] for rejecting what was ground 7 below and can discern no appellable error. Accordingly, I need only state briefly my reasons for rejecting ground 1, which are as follows.

18    First, the core of the appellant’s complaint is that procedural fairness required the Reviewer to afford him an opportunity to comment on the reasons why the Reviewer ultimately rejected the Edmund Rice Report (i.e. its age and sample size) and to provide a comparison of that material with the country information preferred by the Reviewer. In my view there was no breach of procedural fairness in respect of those matters because:

(a)    it is well established that procedural fairness obligations ordinarily require a person affected to be given an opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material, but there is no duty to provide “a running commentary” upon what the decision-maker thinks about evidence which has been presented to it. As the High Court indicated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]):

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

    The appellant relies on what the High Court said in SZBEL at [47], that in some circumstances, such as where a decision-maker considers that an applicant’s account might be important to the decision and that account is doubted, the applicant should be asked to expand upon the account. In my view, that is not the situation here, where the relevant matter was not the appellant’s account but, rather, the Reviewer’s assessment of the weight to be attached to particular material provided by the appellant in support of his claims.

(b)    the appellant’s attempt to circumvent that principle by denying that he was complaining of the absence of a “running commentary” should not be accepted. In my view, that principle is applicable in the circumstances here. As the Minister points out, the appellant did not and could not complain that he was not put on notice that the treatment of returnees was a relevant issue and that the Reviewer could take into account other country information on that subject. The appellant’s representative availed himself of the opportunity to comment upon that material; and

(c)    I do not consider that the appellant has established that the Reviewer misrepresented to the appellant how he would deal with the Edmund Rice Report. The appellant’s complaint is that the Reviewer represented that the material provided by the appellant “would be considered, unless some particular identified concern was raised with the appellant”. Assuming for the moment that this is an adequate characterisation of the transcript extracts relied upon and set out in [15(d)] above (which is questionable), I cannot see how there has been any breach of procedural fairness. The appellant’s characterisation focuses upon a representation that material would be “considered” and not that it would be necessarily accepted. It is indisputable that the Reviewer did “consider” the Edmund Rice Report, but ultimately rejected it for the reasons stated. It was open to the Reviewer to do so and to prefer the other country information which he had obtained and upon which the appellant’s representative commented. There was in the circumstances of this case no procedural fairness obligation on the Reviewer to invite the appellant’s comments on the grounds why the Reviewer rejected this aspect of the appellant’s evidence.

19    Finally, and in any event, it is also to be noted that there are real doubts whether the appellant has correctly characterised the Reviewer’s findings concerning the Edmund Rice Report. As is evident from [142] of the Reviewer’s report, the Reviewer’s primary relevant finding was to the effect that he did not accept that that Report corroborated the appellant’s claim that unsuccessful asylum seekers are persecuted in Afghanistan for that very reason:

The Edmund Rice Centre for Justice & Community Education has chronicled investigations into the treatment of rejected asylum seekers. A report “Deported to Danger II” in September 2006 detailed interviews of some Afhani returnees. The report is now over 4 years old and concerns the particular circumstances of a small sample of returnees told from their perspective. I do not accept that this report corroborates the contention that failed asylum seekers are persecuted in Afghanistan for that reason. I further note and accept the September 2010 DFAT report which indicates contacts in Afghanistan did not believe Hazaras would be targeted because they had sought asylum in the west. There is no credible evidence before me which shows that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted for a Convention reason (emphasis added).

20    I consider that the appellant’s second ground of appeal should also be rejected, substantially for the same reasons as those expressed by the Federal Magistrate in rejecting ground 8 below (see [35] to [45]). In brief my reasons are as follows.

21    First, assuming for the moment that the alleged “lacuna” exists, I cannot see how any such error is material in circumstances where the Federal Magistrate made clear at [43] of his reasons for judgment that, even if the Reviewer had erred in his consideration of this aspect of the appellant’s claims, he found that the persecution feared was not Convention related. This provides a complete answer to this ground of appeal.

22    Secondly (and in any event), I see no appellable error in the Federal Magistrate’s analysis and finding at [43] to [45] that the Reviewer had not fallen into error in the manner alleged by the appellant:

(a)    it is not disputed that the Reviewer made general findings to the effect that the appellant would have a safe passage within the Jaghori district, but the appellant complains that the Reviewer erred by not addressing whether the particular route which the appellant would have to take involved passage through parts of Jaghori which were unsafe;

(b)    the Reviewer found at [135] that there were secure routes between Kabul, Ghazni and Jaghori which the appellant could take (see also his finding at [147] that the appellant would be able to travel on a secure route/s to Ghazni and Kabul to purchase stock, which by necessary implication must include his journey within the Jaghori district to and from Dawood) that, together with the protection he could expect from the Hazara faction in the area, meant that there was no real chance that he would face serious harm returning to Dawood; and

(c)    I accept the Minister’s contention that, having regard to the Reviewer’s findings of fact regarding the appellant’s ability to travel safely to and from his village, there was no failure on the part of the Reviewer to consider the entirety of the appellant’s travel in light of the security situation across Jaghori.

23    In my opinion, no appellable error has been established in respect of the Federal Magistrate’s consideration and determinations of the issues underpinning the second ground of appeal.

24    Thirdly, and for completeness, I should add that while at times the appellant’s arguments under ground 2 strayed beyond the wording of ground 2 as expressed in the notice of appeal, the Minister did not oppose the ground as being read as though the appellant was contending that the Federal Magistrate had erred in rejecting ground 8 below.

25    For all these reasons, I consider that the appeal should be dismissed and the appellant ordered to pay the first respondent’s costs. The Court records its gratitude to Mr Prince for representing the appellant on a pro bono basis and for presenting his case so ably.

Associate:

Dated:    21 February 2013