FEDERAL COURT OF AUSTRALIA

MZYUV v Minister for Immigration and Citizenship [2013] FCA 498

THE COURT ORDERS THAT:

1.    The Appellant have leave to file the amended notice of appeal dated 3 May 2013.

2.    The appeal is dismissed.

3.    The Appellant pay the Respondents’ costs of the appeal to be taxed unless agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant appeals against an order of Federal Magistrate Burchardt (as he then was) of 4 October 2012 dismissing an application for judicial review of a recommendation of the second respondent, David Corrigan, in his capacity as an independent merits reviewer (the Reviewer) made on 16 January 2012.

2    The Federal Magistrate dismissed the appellant’s application for review of the recommendation of the Reviewer, a delegate of the first respondent, the Minister for Immigration and Citizenship (the First Respondent), that:

1.    the appellant did not meet the criteria for the grant of a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act); and

2.    the appellant was not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees (the Refugee Convention).

The Reviewer filed a Submitting Notice pursuant to r 12.01(1) of the Federal Court Rules 2011 (Cth) on 9 November 2012.

PROCEDURAL HISTORY

3    The appellant is a Hazara Shia Afghani citizen who arrived in Australia on 1 February 2010. On 23 July 2010 a delegate of the First Respondent acting as a Refugee Status Assessor assessed the appellant as a person to whom Australia did not owe Refugee Convention obligations. The appellant applied for an independent merits review. On 11 January 2011, the reviewer found that the appellant did not meet the criteria for a protection visa and recommended that he not be recognised as someone to whom Australia owed Refugee Convention obligations. That independent merits review was the subject of orders made by consent by Federal Magistrate Driver (as he then was) on 2 November 2011 which declared that the reviewer failed to observe the requirements of procedural fairness. The appellant’s claim was then the subject of a further independent merits review.

4    On 11 December 2011, the Reviewer interviewed the appellant. On 16 January 2012, the Reviewer recommended that the appellant did not meet the criteria for a protection visa and recommended that he not be recognised as someone to whom Australia owes Refugee Convention obligations. It was that recommendation which gave rise to these proceedings. The appellant then sought judicial review of the Reviewer’s recommendation and, on 4 October 2012, the Federal Magistrates Court (now the Federal Circuit Court) dismissed the application for review.

THE PROCESS BEFORE THE REVIEWER

5    The appellant sought protection under the Refugee Convention on the following grounds:

1.    he was a Hazara Shia from Jaghori in Ghazni Province;

2.    he was formerly a book-seller transporting religious books from Kabul and Ghazni to Jaghori where he sold them by hiding them amongst other goods;

3.    his car was searched by the Taliban on at least three occasions;

4.    the Taliban beat him and threatened to kill him if he continued to transport books; and

5.    his photograph has been distributed amongst the Taliban.

The appellant claimed that the attacks occurred on a number of occasions ranging from 10 years ago to just before he departed for Australia.

6    The appellant’s history in this matter was not straightforward. What is known is that the appellant claimed that he stopped selling books and migrated to Pakistan. The appellant claimed that his life was in danger in Pakistan as he believed Taliban spies from Jaghori were looking for him so he left and spent a short time working as a construction worker in Iran. He claimed however that Iran was not an alternative so he returned to Afghanistan for several years, working as a farmer, before returning again to Pakistan. The appellant says that he returned to Afghanistan from Pakistan with a people smuggler for only a few days before his departure for Australia.

7    The Reviewer was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugee Convention. In particular, the Reviewer:

1.    found that the appellant was not a credible witness and that his claims were fundamentally inconsistent and included highly significant omissions;

2.    did not accept that the appellant was a bookseller;

3.    did not accept that the Taliban was looking for him;

4.    accepted that the appellant’s father had gone missing but did not accept that this was at the hands of the Taliban;

5.    did not accept that the appellant would face a real chance of persecution for being a Hazara Shia;

6.    did not accept that the appellant would face a real chance of persecution as a failed asylum seeker; and

7.    found that the appellant would be able to return home safely via a secure route from Kabul to Ghazni.

Consequently, the Reviewer did not accept that the appellant’s fear of persecution was well-founded.

8    The parameters of judicial review of recommendations made by an independent merits reviewer were considered by the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 at [72]-[91]. In particular, an independent merits review recommendation is to be made “according to the criteria and principles identified in the [Act], as construed and applied by the courts of Australia”: Plaintiff M61 at [88].

THE COURT BELOW

9    The appellant filed an application for review in the Federal Magistrates Court on 26 March 2012 and amended that application on 4 July 2012. The grounds of review before the Federal Magistrate were that the Reviewer:

1.    failed to take into account three documents which were referred to by the appellant during his interview and which the appellant supplied in a translated form after the interview (Ground One);

2.    engaged in illogical reasoning by concluding that there was no indication that the appellant would regularly use roads from Ghazni to Kabul (Ground Two); and

3.    fell into jurisdictional error by failing to apply the correct legal principles to the case, by requiring the appellant to abandon road travel between Ghazni and Kabul (Ground Three).

Ground One

10    Ground One concerned one translated document and two untranslated documents which were referred to by the appellant during his interview. The Reviewer recorded the exchange with the appellant about the documents at [38]:

…. I also asked about another translated document and he said it was from the village elders and they said that he was selling religious books and was a person with a problem who would be killed. Another couple of untranslated documents were presented. The [appellant] stated that one was another letter that said he had problems in Jaghori and it was written by [an] uncle and certified by the Iman, council members and elders. The other document was also by the elders of the village and recorded his problems. The agent undertook to get them translated and I gave 14 days for these to be submitted.

11    The two untranslated documents were translated and the translations were submitted to the Reviewer after the interview. The documents were then described by the Reviewer (at [47]) as:

-    A letter (dated 18/12/89 [2010]) from [AD] to the District Chief of Jaaghuri asking him to confirm that his nephew, the [appellant], had a bookshop in Sangmaasha and that these were confiscated during the Taliban regime and he was tortured and threatened. It states that he has escaped but the Taliban are still looking for him. The elders of Qultar Ghoi Haidar village are then asked for information about whether or not the information is true. The cleric of the village states that the matters are true and confirmed this and the fingerprints and signatures of the elders are affirmed.

-    Another letter from [AD] to the District Chief of Jaaghuri asking him to confirm that his nephew, the [appellant], had a bookshop in Sangmaasha and that these were confiscated during the Taliban regime and he was tortured and threatened. It states that he has escaped but the Taliban are still looking for him. The elders of Qultar Ghoi Haidar village are then asked for information about whether or not the information is true. The cleric of the village, Alhaaj Mesbah, confirms this and states that during the Taliban government the bookshop owned by [ED], which was in the centre of Jaghuri District was attacked and all his belongings taken. It states that the [appellant] has escaped the area and the Taliban are looking for him. The fingerprints and signatures of the elders are affirmed.

-    A letter (dated 18/12/89 [2010]) from the elders of the village stating that during the terrorist (Taliban) government, the bookshop owned by [ED], which was in the centre of Jaghuri District was attacked and all his belongings taken. It states that the [appellant] has escaped the area and the Taliban are looking for him. The fingerprints and signatures of the elders are affirmed.

12    In the Findings and Reasons section of the recommendation, the Reviewer found that the appellant was not a credible witness, rejected the appellant’s various claims and dealt with the documents in the following manner (at [70]-[72]):

[70]    I have considered carefully the [appellant’s] claims and circumstances but find that he is not a credible witness. I do so for the following reasons related to fundamental inconsistency [sic] and highly significant omissions:

-    Despite its obviously highly fundamental importance to his claims to be a refugee, the [appellant] failed to in his entry interview, his statutory declaration or his RSA interview mention that he was involved in the selling of religious books and that he was on a number of occasions detained and physically mistreated because of this. When I put this to him at the interview he stated that when he arrived he did not know about interviews, he was tortured in the past and stressed and it was only later on that he realised that he had to tell the truth at interview. However, given the very high significance of these matters and the various previous occasions prior to his first IMR interview, I do not accept this explanation.

-    The [appellant] for the first time at the second IMR interview mention [sic] that his father was involved in the selling of religious books and was captured and killed by the Taliban for this reason. Whilst the agent at the interview stated that that in previous [sic] reviewer’s decision it was stated that he had said his father was a book seller this was not the case. Whilst the [appellant] did mention in his RSA interview that his father had gone missing on the way to Kabul in 2008 the failure to mention this critical matter of his father’s involvement in religious bookselling during previous opportunities (entry interview, statutory declaration and RSA interview) again reflects very poorly on the [appellant’s] credibility.

-    The [appellant’s] evidence as to the various claimed incidents of encounters with the Taliban were marked with gross inconsistency. For example before the first IMR reviewer the [appellant] stated that he was stopped by the Taliban on three occasions but that this was around 10-15 years ago and he stopped selling books after that. However, before me, the [appellant’s] account fundamentally changed to claiming that these events occurred in the period just prior to his departure from Afghanistan and that he sold books after his father’s death in 2008. There were further inconsistencies related to what he told the first IMR reviewer and myself in respect of what they took (before the first reviewer he claimed that each time they took money, family photos and his mobile but before me on one occasion it was just a list of books) and the type of car (before the first reviewer, it was a rental car on each occasion but before me he said at first it was not a rental car).

[71]    Given these matters I do not accept that the [appellant] or his father was [sic] ever involved in the selling of religious books or that [the appellant] or his father were ever threatened in relation to this. Nor do I accept that the [appellant] was stopped on any occasion by the Taliban and subjected to mistreatment or that he was ever captured and detained by them. Following this, while I note that the [appellant] has claimed that he was told whilst in Pakistan that the Taliban were looking for him and searched his home, I do not accept that the Taliban have his photo or have searched for him or that he is of any interest to them. Whilst I am prepared to accept that his father has gone missing, I do not accept that this was at the hands of the Taliban. I am also not prepared to accept that his uncle was beaten by the Taliban two years ago as the [appellant] was unable when asked at interview to provide any details of where this occurred or why. Even if I was to accept this incident as having occurred, the [appellant] has not provided any reason or details as to why this would make the [appellant] of any particular interest to the Taliban and I therefore do not accept that if he would face a real chance of persecution, now or in the reasonably foreseeable future on account of this for reasons of his membership of a particular social group (his family) or any other Convention reason.

[72]    In making these findings I have taken into account the translations of the similar documents provided by the [appellant] which purport to corroborate the [appellant’s] account. However because of the highly significant issues that I have with the [appellant’s] credibility as set out above, I have given these documents no weight in making my findings as the well has been so poisoned that the documents are undermined by these findings.

(Emphasis added.)

13    The appellant submitted that, although the Reviewer referred to the documents, the Reviewer gave no weight at all to the documents because “the well was poisoned.” The Federal Magistrate found that it was clear from the recommendation that the Reviewer had regard to the documents, even if they were not analysed in detail. Consequently, the Federal Magistrate found that the first ground was not made out: see MZYUV v Minister for Immigration & Anor [2012] FMCA 906 at [19]-[24] and [37]-[40].

Grounds Two and Three

14    The Federal Magistrate found in relation to grounds two and three that the Reviewer’s recommendation was open on the evidence, and that no error was made out: see MZYUV v Minister for Immigration & Anor [2012] FMCA 906 at [31].

APPLICATION TO THIS COURT

15    The Notice of Appeal filed in this Court on 19 October 2012 was substantially a reproduction of the application filed in the Federal Magistrates Court: see [9] above. The grounds of appeal in this Court were that the Federal Magistrate:

1.    … failed to properly consider whether the [Reviewer] fell into jurisdictional error by failing to take into account a relevant consideration, namely the [Reviewer] purports to dismiss from consideration material submitted by the [appellant] in support of his claim;

2.    … failed to properly consider whether the [Reviewer] engaged in illogical reasoning when the [Reviewer] found that there was no indication that the [appellant] would regularly use the roads from Ghazni to Kabul; and

3.    … failed to properly consider whether the [Reviewer] fell into jurisdictional error by failing to apply correct legal principles to the [appellant’s] case, by requiring him to abandon road travel between Ghazni and Kabul. This requirement to modify his behaviour is not lawful.

16    The appellant sought leave to rely upon an amended Notice of Appeal dated 3 May 2013. The amended Notice of Appeal made alterations to Ground One. First, it deleted the reference to failing to take into account a relevant consideration and inserted a reference to a failure to accord procedural fairness. Second, it added a further ground in the alternative based on a failure to take into account a relevant consideration, being the corroborative material. The First Respondent did not consent to the appellant having leave to file his amended Notice of Appeal. The appeal was conducted on the basis that Ground One had been amended in the terms identified.

17    I will deal with each ground in turn.

Ground One

18    Ground One was supported by particulars as follows:

1.    the appellant provided a number of letters in support of his claim: see [10]-[11] above;

2.    the Reviewer placed no weight on those documents because of issues the Reviewer took with the appellant’s credibility: see [12] above;

3.    there was no ground to disregard those documents, either on their face or on the facts. There were no findings made about whether the letters were genuine;

4.    although the Reviewer did not find the appellant to be a credible witness, there were no findings of dishonesty, untruthfulness or lies; and

5.    in dismissing the consideration of the letters, the Reviewer failed to accord the appellant procedural fairness.

19    The Reviewer gave the documents no weight on the basis that, in light of his findings as to the credibility of the appellant, “the well has been so poisoned that the documents are undermined by these findings”: see [12] above. The Federal Magistrate interpreted that to be a reference to the comments of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [49] that:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. …

20    The Federal Magistrate found that it was clear from the recommendation that the Reviewer had regard to the documents in question, albeit they were not analysed in detail: see MZYUV v Minister for Immigration & Anor [2012] FMCA 906 at [37]-[38].

21    The Federal Magistrate referred to two relevant extracts from the Full Court decision in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [36] and [37]-[39]:

[36]     When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. …

…

[37]     Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 … . The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

[38]     The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 … does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 … made in SZDGC … at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

[39]     On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

(Citations omitted.)

22    Those passages, of course, must be read in light of what was said by North and Lander JJ earlier in the judgment, at [29]-[32]:

[29]     McHugh and Gummow JJ said that the tenor of the RRT’s findings was that the appellant thoroughly lacked credibility, had misled the RRT and had lied. That led them to the dicta which is expressed in [49] of their reasons.

[30]     We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected. We do not read McHugh and Gummow JJ as saying that a precondition to the exercise which is described at [49] of their reasons is a finding that the party who is tendering the corroborative evidence in support of the party’s evidence has lied.

[31]     As we have said in SZNPG … in reasons published today, the RRT should not be encouraged to find that an applicant for a Protection visa has lied. A finding of fabrication is enough to allow the RRT to consider whether the evidence which has been tendered in support of the applicant’s case has the capacity to affect the RRT’s assessment of the applicant’s credibility.

[32]     But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.

23    As North and Lander JJ held in SZNSP, “Applicant S20/2002 … does not sanction a practice of disregarding corroborative evidence” (citation omitted). Rather, “[i]t still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence”: SZNSP at [38]; see further WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27].

24    The appellant submitted that the Federal Magistrate erred in failing to find that the Reviewer fell into jurisdictional error by failing to accord procedural fairness or failing to consider a relevant consideration. The question which therefore arises in this appeal is: was the Federal Magistrate correct to reject the contention that the Reviewer failed to consider the documents in such a fashion so as to give rise to jurisdictional error? Put another way, while the Reviewer stated that he had “taken into account the translations of the similar documents provided by the [appellant] which purport to corroborate the [appellant’s] account”, was there assessment of that evidence or weighing in the balance of that evidence as Applicant S20/2002 (at [37]-[38]) requires? The answer to the last question is yes.

25    Ground One fails “at the threshold”. Here, the Reviewer:

1.    asked the appellant some questions about the documents during the interview;

2.    read the translated documents provided to him after the interview;

3.    summarised the contents of the documents; and

4.    took the contents of the documents into account in light of the comprehensive findings that he had made: see [10]-[12] above.

Having taken those steps, “[w]hether or not the Reviewer gave weight to the supporting [documents] was a matter for him as fact-finder”: SZQQR v Minister for Immigration and Citizenship [2012] FCA 911 at [18] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] citing Abebe v The Commonwealth (1999) 197 CLR 510 at [197].

26    The appellant relied upon a number of earlier decisions in support of his contention that the Reviewer did not do what was required of him. It is necessary to consider each decision in turn.

27    First, WAIJ. In WAIJ, Lee and Moore JJ stated that “it will not be open for the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by the applicant occurred”: at [27]. Instead, the majority held that, in those circumstances, “the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility”: at [27]. In the present case, the Reviewer did not state that it was unnecessary for him to consider the documents which were said to be corroborative. As explained at [25] above, the Reviewer made comprehensive findings and in making those findings he took into account the translations of the documents provided by the appellant.

28    Next, SZJSS. An issue in that proceeding was whether the Refugee Review Tribunal had fallen into jurisdictional error by choosing to give “no weight” to letters produced by some of the respondent claimants. The claimants submitted that the Tribunal’s treatment of the facts and, in particular, the letters was inconsistent with the Tribunal’s statutory duty to review: at [31]. The High Court rejected those contentions. The Tribunal’s reasons recorded that the letters were considered by it as part of the whole of the evidence to which it had regard: at [33]. The Court cautioned against undertaking a review of findings of the weight to be attributed to particular pieces of evidence: at [36]. In the present case, as the Federal Magistrate noted, it would have been preferable if the Reviewer had made some more detailed analysis of the documents: see MZYUV v Minister for Immigration & Anor [2012] FMCA 906 at [38]. However, it cannot be said that such a failure constitutes jurisdictional error. As mentioned above, “[t]he weighing of various pieces of evidence is a matter for the [Reviewer]”, not the Court: SZJSS at [33] citing Abebe at [197].

29    The appellant’s submissions also referred to the decision of SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554. That decision principally considered the proposition from Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] that:

… To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend …

(Citation omitted.)

30    In the course of considering Htun, Reeves J noted at [36] that:  “the tribunal has no obligation ‘to refer to, or adequately to consider, evidence, whether or not it might be thought probative’” (citation omitted). Rather, as stated by Lander J in SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [33]:

Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial.  The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself.  It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived. …

(Emphasis added.)

31    In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] Robertson J considered the distinction between claims or integers and evidence. His Honour’s view was that:

In my opinion there is no clear distinction in each case between claims and evidence: … . The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

(Citation omitted.)

32    His Honour drew a distinction between cases, such as the present, where the decision-maker adverts to evidence and purports to address it (even if only to dismiss it), and other cases, such as SZRKT, where the decision-maker fails to advert to and consider a piece of evidence altogether: SZRKT at [103]-[105]. Therefore, the principle expressed in Htun and SXRB (and the other cases surveyed by Robertson J in SZRKT) has no application to the present facts. This is not a case where the Reviewer failed to advert to some piece of evidence. Rather, the Reviewer was aware of the letters, considered them, made comprehensive findings and then gave the “documents no weight in making [his] findings as the well has been so poisoned” that the documents were undermined by the findings.

33    For those reasons, Ground One fails.

Ground Two

34    The relevant finding of the Reviewer was that:

[79]     … The country information also indicates that there is [a] secure (but long and arduous route) from Kabul to Ghazni City. Whilst this information indicates that the trip is long and arduous, I do not accept that the [appellant] needing to travel through this safe route is inconsistent with the principles espoused by the majority in S395 as there is no indication (given his past employment history) that this is a trip that he would need to undertake on a regular basis or that he would be required to modify his religious or political opinions in so doing. …

(Emphasis added.)

35    Ground Two was supported by particulars as follows:

1.    there was no basis for the finding that there was no indication that the appellant would regularly use the roads from Ghazni to Kabul;

2.    the appellant would need to use the road from Ghazni to Kabul to return to Kabul;

3.    the appellant had a history of travel on those roads;

4.    the appellant’s work history demonstrated a need for road travel; and

5.    the reasoning of the Reviewer was illogical and was so illogical as to constitute a jurisdictional error.

36    The Federal Magistrate found the Reviewer’s recommendation was open on the evidence, consistent with the First Respondent’s submissions that:

[29]    Counsel for the first respondent dealt with grounds 2 and 3 together and first. It was submitted that the Reviewer simply did not believe the [appellant’s] employment history. It was pointed out that it was not until the first [independent merits review] hearing that the [appellant] asserted that he had been a bookseller and it was noted that this was 10 to 15 years earlier. At the second [independent merits review] hearing, the [appellant] said that he had been selling books in the three years before leaving Afghanistan and it was submitted that it was on this basis that the second [independent merits review] hearing did not believe the [appellant]. It was submitted that the finding that the [appellant] had not been a bookseller was, in the circumstances, entirely open to the Reviewer.

[30]    It was also submitted that the need for the utilisation of the road to Ghazni, albeit by an arduous alternative route, was only necessary upon return to Afghanistan to get to Jaghori, where the [appellant] would be safe.

37    The Reviewer made findings of fact that the appellant was not, and never had been, involved in the sale of religious books. Consistent with that finding, the Reviewer considered that “there is no indication (given his past employment history) that this is a trip that he would need to undertake on a regular basis or that he would be required to modify his religious or political opinions in so doing”.

38    The appellant’s submissions referred to evidence before the Reviewer to the effect that:

26.1    The [appellant] has historically used these roads to travel and transport books for his business. The [appellant] regularly made trips on this road. In doing these trips, it is noted that he “would mostly rent a car but used his car about once a month”. At the second IMR [the appellant] confirmed his travel was “one a month”;

26.2    The [appellant] had previous[ly] left Afghanistan to obtain work. He had “gone to Iran in 2008 for a year ‘to earn money for my family’”. The [appellant] was not in a position to turn down work;

26.3    The [appellant] said of his home in Jaghori “he had a piece of land with just the basics like onions and potatoes … he did grow some wheat but not enough for a living”;

26.4    “Restrictions of movement in these situation[s] threaten Hazaras ability to subsist who need to travel to cities or other bigger areas to obtain basis [sic] essentials including groceries and clothing”.

(Citations omitted.)

39    The appellant submitted that the Reviewer’s finding, that there was no reason for the appellant to regularly use the road from Kabul to Ghazni, was illogical in the sense explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Adopting the words quoted by Heydon J at [57], the appellant submitted that the Reviewer’s analysis had “simply no basis”, was “completely unsustainable as a piece of logical analysis” and was “based squarely on an illogical process of reasoning.” However, the appellant conceded that, as stated at [130] by Crennan and Bell JJ in that case, the “[C]ourt should be slow, although not unwilling, to interfere in an appropriate case”.

40    The difficulty with the appellant’s submission was that it depended, in part, upon evidence rejected by the Reviewer. The Reviewer rejected the appellant’s evidence that he regularly used those roads to travel and transport books for his business. Further, the appellant misstated the Reviewer’s findings when he submitted that the Reviewer had found that there was no reason for the appellant to use the road from Kabul to Ghazni. The Reviewer in fact accepted that the appellant would need to use such a route to return home but found that there was an alternative route from Kabul to Ghazni which the appellant could utilise. Whether the appellant should be required to modify his behaviour and adopt an alternative route is addressed below. For the purposes of Ground Two, bearing in mind the hesitation of the Court to interfere in the factual findings of the Reviewer, I do not accept that the Reviewer’s reasoning was affected by illogicality so as to give rise to a jurisdictional error. Given the state of the evidence as accepted by the Reviewer, the finding was not one which no rational or logical decision-maker could arrive at: SZMDS at [130].

41    Ground Two fails.

Ground Three

42    The third appeal ground was not supported by any particulars. The relevant finding by the Reviewer was again that:

[79]     … The country information also indicates that there is [a] secure (but long and arduous route) from Kabul to Ghazni City. Whilst this information indicates that the trip is long and arduous, I do not accept that the [appellant] needing to travel through this safe route is inconsistent with the principles espoused by the majority in S395 as there is no indication (given his past employment history) that this is a trip that he would need to undertake on a regular basis or that he would be required to modify his religious or political opinions in so doing. …

43    The appellant submitted that, by requiring him to use a “long and arduous” route, the Reviewer was requiring him to modify his behaviour in an unlawful manner.

44    The reference by the Reviewer to S395, of course, was a reference to the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. In that case, the High Court allowed an appeal from a decision of the Refugee Review Tribunal that two Bangladeshi men, who sought asylum on the basis of a well-founded fear of persecution by reason of their homosexuality, did not hold a well-founded fear of persecution because, in the Tribunal’s words, they had “clearly conducted themselves in a discreet manner and there [was] no reason to suppose that they would not continue to do so if they returned home now”: at [9]. The majority (McHugh, Kirby, Gummow and Hayne JJ) considered the extent to which a person seeking protection for a Refugee Convention reason could be expected to modify their behaviour in their home country so as to avoid the adverse consequences said to give rise to a fear of persecution. McHugh and Kirby JJ held at [50] that “[i]n so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.” Gummow and Hayne JJ held at [82] that “[t]he Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection”.

45    The Reviewer’s recommendation in this case, however, does not offend the principle in S395. The Reviewer’s conclusion in [79] must be read in the context of the whole of the recommendation, in which the Reviewer concluded that “there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis” but that “travel is dangerous for all ethnic groups”. In those circumstances, the conclusion that the appellant might have to modify his behaviour in order to protect himself, not for a Refugee Convention reason but generally, does not impose a requirement that the appellant is required, or expected, to take reasonable steps to avoid persecutory harm. Rather, it is a requirement, or expectation, that the appellant will take reasonable steps to avoid harm generally, which does not offend S395.

46    Ground Three fails.

CONCLUSION

47    The appeal is dismissed. The appellant is ordered to pay the respondents’ costs of the appeal.

Associate:

Dated:    28 May 2013