FEDERAL COURT OF AUSTRALIA

SZQFR v Minister for Immigration and Citizenship [2013] FCA 574

THE COURT ORDERS THAT:

1.    the appeal be dismissed with 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 was born in Afghanistan. He is of Hazara ethnicity and a Shia Muslim. He arrived at Christmas Island on 1 February 2010 without a valid visa. As an ‘offshore entry person’ within the meaning of the Migration Act 1958 (Cth) (the “Migration Act”) (see ss 5(1),13 and 14), the appellant is unable to make a valid visa application unless the first respondent (the “Minister”), exercises a discretion to permit him to do so: s 46A(2). Pursuant to administrative arrangements a person seeking a favourable exercise of the Minister’s discretion may request a Refugee Status Assessment (an “RSA”). Any such assessment is subject to an Independent Merits Review (an “IMR”). The IMR may be subject to judicial review: Plaintiff M61/2010E v Commonwealth of Australia) (2010) 243 CLR 319.

THE APPELLANT

2    The appellant was born on 20 February 1987 in the Jaghori district of Ghazni province. With his mother he moved to Pakistan in 1997. In 2005 they travelled to the United Kingdom where he unsuccessfully sought refugee status. He was deported to Afghanistan in 2009 but immediately went to Pakistan. In Pakistan the appellant made arrangements with a people smuggler for his passage to Australia. In summary, he lived in Afghanistan until he was aged about ten, then in Pakistan for about eight years, and in the United Kingdom for about four years.

3    The appellant’s knowledge of the circumstances leading to his original departure from Afghanistan is derived from his mother. He said that they left Afghanistan when his father went missing during the war between the government and the Taliban. He said that the Taliban were killing Hazara because of their ethnicity, and because they were Shia Muslims. It seems that the appellant’s father was a member of an Hazara group which was resisting the Taliban. However he was not fighting for the government. In Pakistan conditions deteriorated. The Baluchi were killing Hazaras and Shias. The appellant and his mother went to the United Kingdom. He said that he cannot now return to Afghanistan because there is a war going on, and it is not safe.

4    Shortly after his arrival in Australia, the appellant was interviewed. He claimed that if he returned to Afghanistan, he would be killed by the Pashtun and/or the Taliban. He claimed to fear such treatment for reason of his Hazara ethnicity. He said that he and his mother left Afghanistan because of increased harassment by the Taliban. They would beat people and take them away. His father was taken away. When he was deported to Afghanistan he feared harm from the Taliban and therefore went illegally to Pakistan. He found that the position in Pakistan had deteriorated since he had left for England.

REFUGEE STATUS ASSESSMENT

5    The appellant’s RSA was dated 7 May 2010. The assessor understood the appellant to claim that in both Afghanistan and Pakistan, he would face a real chance of serious harm for reason of his ethnicity and/or religion. The assessor also understood the appellant to claim that the Taliban would harm him because he was a young Hazara. He asserted that the authorities could not protect themselves against the Taliban and were faced with a disastrous security situation. The appellant’s claim to fear harm as a young Hazara is a critical aspect for present purposes. That claim appears to have been made in a written statement by the appellant dated 3  April 2010 as follows:

What I fear may happen to me if I return into that country and why

17.    I believe if I return to either Afghanistan or Pakistan, I would face a real chance of serious harm for reasons of my ethnicity and religion.

Who I think may harm/mistreat me in that country and why

18.    I believe if I return to either country the Taliban would harm me because I am a young Hazara.

Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

19.    The Authorities in both countries are faced with a disastrous security situation. They cannot protect themselves against the Taliban. They are the law.

6    In the RSA the assessor referred to a submission made by the appellant’s representative that “the claimant is a young man, and young men are particularly targeted by the Taliban”. Concerning this submission the assessor said:

I have considered the above information and I acknowledge that the Taliban have been known to target young men. However the claimant’s family home is located in Jaghori district within walking distance of Sang-e-Masha, in Hazarajat, which is an area of Afghanistan considered to be relatively safe. Country information indicates that there are currently about 250,000 inhabitants in Jaghori, which is almost entirely inhabited by Hazaras, with about 10% of the population estimated to be returnees … .

7    Both the appellant’s representative and the assessor referred to the targeting of “young men” and not “young Hazara men”. At one stage the appellant raised membership of both groups as a basis for his fearing persecution. However, on appeal the case was limited to fear of persecution for reason of his being a young Hazara man. The assessor appears so to have understood the claim.

8    Having dealt with other aspects of the appellant’s claim the assessor concluded that if the appellant were returned to Afghanistan he would not be persecuted simply for reason of his religion or his ethnicity. That conclusion appears to have been based upon the country information concerning current conditions in Afghanistan. As to the possibility of persecution for some reason peculiar to the applicant, in conjunction with his ethnic and religious affiliations, the assessor concluded that he would be safe in the Jaghori district or in larger cities such as Kabul. The assessor therefore concluded that the appellant did not have a genuine fear of harm. These findings effectively disposed of all of the appellant’s claims.

FIRST INDEPENDENT MERITS REVIEW

9    Following his unsuccessful RSA the appellant requested an IMR. By letter dated 20 July 2010 Playfair, an organisation providing visa and migration services, made submissions on his behalf. It submitted that:

7.    [The appellant] fears persecution on account of his actual/imputed political opinion of being opposed to Taliban rule and supportive of the government in Afghanistan and the coalition forces.

8.    His membership of a particular social group namely,

(a)     actual/perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs in Afghanistan; and/or

    (b)    returnees from a Western country;

    (c)    failed asylum seekers returning from a Western country.

9.    Furthermore, and although it is not necessary, the [appellant] has experienced past-persecution and other serious violations of his human rights on account of a Convention reason/s. This also constitutes persecution. This has taken the form of his father being killed by the Taliban, discriminated for being a member of a minority, having restrictions imposed on his freedom of movement and his family fearing harm to the point where they fled their country to live as illegals in Pakistan. He is unable to participate equally in the political, economic and civil life of Afghanistan for a Convention reason.

10.    It is submitted that [the appellant’s] claims and fears at the time when he fled Afghanistan provide the critical and necessary starting point for an assessment of the [appellant’s] present status.

10    At p 6 Playfair submitted that:

The core claim by the [appellant] is that he is a Hazara. This is not disputed.

11    Playfair challenged the conclusion in the RSA that the appellant could live safely in Jaghori or Kabul and made other criticisms of the decision. One such criticism was that the assessor failed properly to consider the possibility that the appellant was “at risk of persecution because of his actual or imputed political opinion and membership of a particular social group”. These claims seem to have been separate from his claim to fear persecution for reason of his Hazara ethnicity and Shia religion. Playfair also asserted that the assessor had failed to assess the appellant’s claims cumulatively and to consider a claim that the appellant feared persecution as a failed asylum seeker returned from a western country. It is not clear to me that any such claim was made to the assessor who performed the RSA.

12    The reviewer summarised the appellant’s claims as follows:

Country of Nationality

84.    On the basis of the claimant’s language, interviews and knowledge of Afghanistan, and in the absence of any contrary indications, the Reviewer accepts for the purposes of this decision that the claimant is a national of Afghanistan. The Reviewer assesses his claims accordingly.

Claims

85.    Essentially, the claimant claims to fear persecution in Afghanistan because:

•    He is a Hazara and Shia Muslim who was born in Afghanistan. His family moved to Pakistan in 1997 when he was 10 years old. Before they moved, his family suffered discrimination for reason of being a member of a minority, and had restrictions on their freedom to travel and subsist. For those reasons he will suffer harm from the Taliban, Pashtuns and Sunny Muslims if he returns.

•    His family suffered harm in the past: his father was taken away by the Taliban in 1997 and is presumed dead.

•    He cannot return to his home village in Jaghori as the family property and farm are deserted and he knows no-one there. Nor does he have any farming skills.

•    It is neither relevant nor reasonable for him to relocate within Afghanistan as he has no family or livelihood in Afghanistan.

•    He travelled to the UK in 2005 and lived there until he was deported in 2009. In Afghanistan he would be targeted as a returnee who has changed after time in the West.

86.    The claimant departed Pakistan via Karachi airport and made his way to Australia, arriving by boat at Christmas Island.

87.    He therefore claims to fear persecution because of his race, religion and political opinion (real or imputed). Also, because of his membership of a particular social group namely: actual/perceived sympathizers or supporters of the coalition forces or foreign workers/NGOs; or returnees from a Western country; or failed asylum seekers returning from a Western country.

13    The reviewer rejected the appellant’s claim to refugee status. It is not necessary that I set out the detailed reasons for that conclusion.

AN ALTERNATIVE APPROACH

14    On 10 November 2010 Playfair wrote to the Minister’s department, submitting that there were grounds upon which the appellant should be allowed to remain in this country, notwithstanding his failure to satisfy the criteria for refugee status. This submission depended upon the International Covenant on Civil and Political Rights. Many of the matters canvassed in the first IMR were repeated in support of this application. There was no reference to any fear of persecution for reason of the appellant’s being a young Hazara man.

SECOND INDEPENDENT MERITS REVIEW

15    For legal reasons, the appellant’s claims were the subject of a second IMR. The appellant was again unsuccessful. The second respondent was the reviewer (the “Reviewer”). His statement of reasons was dated 16 February 2011. The Reviewer summarised the various claims which the appellant had made. Referring to the statement dated 3 April 2010, he said at para 19:

[The appellant] believes that if he returns to Afghanistan the Taliban will kill him because he is a young Hazara; he fears serious harm because of his ethnicity and religion.

16    However, the Reviewer seems to have understood the appellant’s then current claims to have been those set out in the letter dated 20 July 2010 to which I have referred. The reviewer summarised those claims at paras 74-76 as follows:

74.    The claims were characterized in the submission of 20 July 2010 as follows:

•    Fear of persecution at the hands of the Taliban on account of ethnicity and religion;

•    Fear of persecution on account of actual/imputed political opinion of being opposed to Taliban rule and supportive of the government and coalition forces; and/or

•    Membership of a particular social group, namely:

actual/perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs in Afghanistan;

and/or

returnees from a Western country,

and/or

failed asylum seekers returning from a Western country.

75.    The adviser stated at the first independent merits review interview that the strongest part of the claimant’s case is that he is a returnee and has changed after time in the West.

76.    At the January 2011 independent merits review interview the adviser additionally suggested that the claimant would be at risk should he try to reclaim his father’s property in the village.

17    These grounds were considered individually. The Reviewer concluded at para 86 that:

The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.

18    In context, it seems that the Reviewer was distinguishing between a generalized threat of persecution, directed at Hazara and Shia Muslims on the basis of those characteristics on the one hand, and any specific threat to the appellant, in the context of his ethnicity and religion, on the other. Having dismissed any fear of persecution for reason of ethnicity or religion, the Reviewer then went on to consider the possibility of feared persecution for reasons peculiar to the appellant. In that regard, the Reviewer concluded that the appellant had no well-founded fear of persecution in the Jaghori district, largely because the area was predominantly Hazara. The Reviewer also rejected claims based on alleged membership of various social groups, and on any possible claim by the appellant to the land previously owned by his father.

19    Clearly, the Reviewer understood that the appellant had, at an early stage, claimed to fear persecution as a young Hazara. However he understood the claims agitated before him to be those made in the letter of 20 July 2010.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

20    By application filed on 12 May 2012, the appellant sought the following relief:

1.    A declaration that the recommendation of the [Reviewer] was not made in accordance with law, by reason of the grounds of this application.

2.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the [Reviewer].

3.    That the [Minister] pay the applicant’s costs.

4.    Such further orders the Court deems fit.

21    The appellant also sought an extension of time in which to make the application, purportedly pursuant to s 477 of the Migration Act. The “grounds” were as follows:

That the decision of the [Reviewer] was affected by legal error.

22    An amended application was filed on 19 July 2011. The relief sought was unchanged, but the amended grounds were:

1.    That the decision of the [Reviewer] was affected by legal error.

2.    The [Reviewer] denied the [appellant] procedural fairness by not considering the claim that the [appellant] feared harm for reason of being:

a.    a young Hazara; or

b.    a young man.

3.    The [Reviewer] made an error of law by failing to consider the claim that the [appellant] feared harm for reason of being: a.

a.    young Hazara; or

b.    a young man.

23    Again, the appellant also sought an order pursuant to s 477 of the Migration Act. That section provides that any application to the Federal Magistrates Court for a remedy in the Court’s original jurisdiction pursuant to s 476, must be filed within 35 days of the migration decision in question. The Federal Magistrates Court may extend that 35 day period if an application for such extension is made in writing, and if the Court is satisfied that it is necessary, in the interests of the administration of justice, that such an order be made.

24    As appears from observations made by the Federal Magistrate in a later judgment, both the application pursuant to s 477 and the substantive matter were heard on 24 August 2011. His Honour published his reasons for judgment on 11 October 2011. In summarizing the appellant’s claims, the Federal Magistrate noted that in his statement dated 3 April 2010 he had claimed that he feared returning to Afghanistan because the Taliban would kill him because he was a young Hazara. At that time he had also claimed to fear serious harm because of his ethnicity and religion. At [29]-[33] the Federal Magistrate said:

29.    The [appellant] submitted that one of the claims he made from the outset was that he feared harm because he was “a young Hazara”. He pointed to the fact that this claim was first made in his statement of 3 April 2010 submitted in support of his RSA and had been included in the assessor’s summary of his claim. He pointed to the assessor’s conclusions where that claim was dealt with in the following terms:

… The representative also mentioned that the (appellant) is a young man, and young men are particularly targeted by the Taliban.

I have considered the above information and I acknowledge that the Taliban have been known to target young men. …

30.    The [appellant] submitted that at his interview before the assessor it was clearly articulated that young men were particularly targeted by the Taliban and so this was a claim which was before the Reviewer. In his summary of the [appellant’s] claims the [Reviewer] referred to the relevant claim in the following terms:

He believes that if he returns to Afghanistan the Taliban will kill him because he is a young Hazara; he fears serious harm because of his ethnicity and religion.

31.    The [appellant] submitted that the Reviewer appeared to accept that he was both young and Hazara but made no findings on the aspect of his claim which concerned his youth. He said that all of the Reviewer’s findings concerning the general situation in Afghanistan dealt only with Hazaras in general.

32.    The [appellant] submitted that his claim to fear persecution because he was a young Hazara was one which was apparent on the face of the material before the Reviewer and was thus something which the Reviewer had to consider, particularly as the Reviewer had to conduct a review of the RSA on the basis of all the material before him. In this regard he submitted that the Reviewer implicitly acknowledged that the claims before him included those which the [appellant] had made to the Minister’s department because he specifically referred in his reasons to having the department’s file relating to the [appellant] before him and to the [appellant] having presented claims to the department at interview.

33.    The [appellant] submitted that he satisfied the NABE criteria in that his claim was articulated, and also arose on the material, such that the Reviewer did not have to inquire or engage in constructive or creative activity to be aware of it. He submitted that the fact that claims made to the assessor were not later articulated in submissions made to the Reviewer did not matter as they had not been expressly abandoned.

25    The reference to “NABE” is to the decision of the Full Court in NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.

26    Following the passage from the RSA cited by the Federal Magistrate at [29] of his reasons and set out above, the assessor had gone on to indicate that in the appellant’s family home, Jaghori, the population was almost entirely Hazara. Other parts of the RSA suggest that the assessor considered that Hazaras in that area would be relatively safe from Taliban attacks. The assessor also suggested that Hazaras would be safe in Kabul or other larger cities where there are large Hazara populations. In this regard the assessor noted that the appellant was resourceful and had IT skills, presumably implying that he would be able to support himself in one of those cities.

27    At paras [34]-[37] the Federal Magistrate summarized the Minister’s submissions as follows:

34.    The Minister submitted that although the [appellant] had claimed in his initial application for refugee status to fear harm as “a young Hazara” his detailed submissions before the first and second reviewers did not suggest that his age was significant to his claim to fear harm as an Hazara or that he was claiming persecution as a member of a social group of “young Hazaras”, as opposed to a claim based on his Hazara ethnicity. He submitted that on no view could there be said to have been “a substantial, clearly articulated argument relying upon established facts”, as referred to in Dranichnikov and NABE, that the [appellant] claimed to fear harm as “a young Hazara” rather than as a “Hazara” so as to require such a claim to be addressed separately by the Reviewer.

35.    In particular, the Minister submitted that the [appellant] had been represented before both reviewers and that detailed submissions had been made on his behalf on both occasions. The Minister agreed that the Reviewer was required to consider all previous submissions but these did not express his claim based on being a young Hazara to be anything different from a claim to being an Hazara and young. He submitted that, before the Reviewer, no attempt was made on behalf of the [appellant] to argue that youth put him in a position different from other Hazaras, his claim being that all Hazaras had reason to be fearful and because he was Hazara he had such a fear.

36.    The Minister submitted that a claim must be articulated in such a way that it is understood to be a claim but the [appellant] had not done this and there was nothing to indicate that his youth put him in a position different to that of other Hazaras. It was submitted that although the [appellant] had hinted at such a claim at the outset, it was not persisted with before the Reviewer and because there was no articulation before the Reviewer of a distinct claim to fear harm based on his youth and because the claim which was fairly articulated, namely that being Hazara, comprised a claim to be a young Hazara, it could not be said that the [appellant] had, in fact, articulated a claim based on his youth.

37.    The Minister finally submitted that, in any event, any such claim was subsumed by findings of greater generality reached by the Reviewer.

28    At [38] the Federal Magistrate observed that:

The resolution of this matter turns on whether the [the appellant] can be understood to have made a separate claim to fear persecution by reason of his youth, either in conjunction with or in addition to his ethnicity.

29    His Honour pointed out that such claim had been addressed only in paras 17 and 18 of the appellant’s statement of 3 April 2010, and in the RSA. Neither the appellant nor his advisers had raised the issue in either of the IMRs. The Federal Magistrate noted that the appellant had been represented at all material times and inferred that a decision had been taken to abandon that aspect of the claim. The Reviewer was therefore not obliged to consider it. At [49] and [50] his Honour said:

49    As the applicant has failed to make out his allegation that the reviewer failed to consider an aspect of his claims, and thus that his substantive application has reasonable prospects of success, I conclude that it is not in the interests of the administration of justice that time be extended for the bringing of these proceedings.

50    Consequently, the application for an extension of time, and the application as a whole, will be dismissed.

THE APPEAL TO RARES J AND THE FULL CoURT

30    The appellant sought an extension of time in which to apply for leave to appeal to this Court, the grounds of the application being:

The court below made an error of law in refusing to extend the time within which the proceedings in that court could be brought, namely, in concluding that a failure to succeed on a ground meant, without more, that the proceedings did not have reasonable prospects of success and so it was not in the interests of the administration of justice that an extension of time be granted.

31    As some stage a notice of appeal was prepared and annexed to an affidavit filed on 31 October 2011. The proposed grounds of appeal were:

1.    The court below erred in failing to find that the second respondent had:

a.    denied the appellant procedural fairness; or

b.    made an error of law

in failing to consider an aspect of the appellant’s claim, namely that he feared harm by reason of being a young Hazara man and a young man.

2.    The court below erred in finding that s 477 of the Migration Act 1958 applied to the proceedings so that an extension of time was required in order for the appellant to bring the proceedings.

3.    The court below should have found that the recommendation by the second respondent was not a “migration decision” within the meaning of s 477 of the Migration Act 1958.

4.    In the alternative to [2] and [3] above, if an extension of time was required, the court below made an error of law in refusing to extend the time within which the proceedings in that court could be brought, namely, in concluding that a failure to succeed on a ground, meant, without more, that the proceedings did not have reasonable prospects of success and so it was not in the interests of the administration of justice that an extension of time be granted.

32    The matter was apparently placed on the docket of Rares J. At some stage the matter was listed for hearing by the Full Court. On 14 November 2011 Rares J ordered that the proposed hearing date be vacated. At the same time his Honour ordered that a number of questions “arising in each application for leave to appeal be heard separately and before any other questions in each application”, such hearing being in the Full Court. The reference to “applications” reflected the fact that similar questions had arisen in a number of cases concerning the application of s 477. It was proposed that all such questions be resolved by the Full Court. The questions for resolution were as follows:

1.    Does s 477 of the Migration Act 1958 (The Act) apply to recommendations by an Independent Merits Reviewer?

2.    If the answer to question 1 is yes, what is the relevant “date of the migration decision” for the purpose of s 477(1) of the Act as defined by s 477(3) of the Act?

3.    Does s 476A(3) of the Act operate to prevent an appeal to the Federal Court of Australia from a judgment that makes an order or refuses to make an order under s 477(2) in circumstances where:

(a)    s 477 did not apply to the application in respect of which the judgment was made;

(b)    s 477 did apply to the application in respect of which the judgment was made but the refusal to make an order under s 477(2) was infected by jurisdictional error?

4.    Is the application commenced in the Court competent or should it be dismissed for want of jurisdiction?

5.    By whom should the costs of the proceedings in the Full Court be borne?

33    The matter was heard on 15 February 2012. On 13 March 2012 the Court delivered its judgment, answering the questions as follows:

1.    No.

2.    Not necessary to answer.

3(a).    No.

3(b).    Not necessary to answer.

4.    The application is competent.

5.    The respondent.

34    At [46] the Court observed:

We conclude that, because the Minister has not yet made any decision and, as Plaintiff M61 decided at 353 ..., need not take account of the assessments and recommendations, the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted, because any such decision is yet to be made by the Minister and will be in the future. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under section 477(2). No doubt due to the focus of the parties on the issue of an extension of time, that Court was led to misconceive the nature of the applications by dealing with them under s 477(2). The applications require determination on the merits.

35    At [48] the Court continued:

We consider that in each of the five applications, leave to appeal should be granted, the appeal be treated as instituted instanter, the orders dismissing the proceedings below should be set aside and the proceeding should be remitted to the Federal Magistrates Court to make final orders consistent with these reasons. An appeal will then lie as of right to this Court from those orders. The parties should prepare short minutes of order to give effect to these conclusions so that they may be made by Rares J following the answers we will give to the separate questions.

36    Thus this matter was sent back to Rares J in the expectation that his Honour would remit it to the Federal Magistrates Court “to make final orders”, as opposed to the order which had been made, dismissing the application upon the basis that it was out of time. Rares J made the following orders by consent:

1.    The application for an extension of time for leave to appeal filed on 28 October 2011 be granted.

2.    The applicant have leave to appeal from the whole of the judgment of the Federal Magistrates Court of Australia made on 11 October 2011 by Cameron FM in action SYG968 of 2011.

3.    The appeal be treated as instituted and heard instanter and allowed.

4.    The orders made by Cameron FM on 11 October 2011 be set aside.

5.    The matter be remitted to the Federal Magistrates Court of Australia for determination of the relief sought in the amended application filed in the Federal Magistrates Court on 19 July 2011 having regard to the reasons for judgment in SZQDZ v the Minister of Immigration and Citizenship [2012] FCAFC 26.

6.    The first respondent pay the applicant’s/appellant’s costs of the proceedings in this Court as agreed or taxed.

PROCEEDINGS FOLLOWING REMITTER

37    Following the remitter, the matter was listed for hearing before the same Federal Magistrate. The appellant asked that he withdraw from the matter for reason of apprehended bias. It seems that this assertion was based upon the proposition that in his earlier reasons, the Federal Magistrate had indicated that the appellant should fail on the merits of the case.  His Honour listed the matter for 23 August 2012 and ordered that the parties then address the following questions:

1.    Do the [Full Court’s] decision and orders permit amendments to the [appellant’s] [application]?

2.    Is [the Federal Magistrates Court] required to reconsider those aspects of the [appellant’s] substantive [application] which was considered previously?

3.    If the answer to 2 is yes, is it appropriate that [the Federal Magistrate] hear the matter?

38    At [12] and [15] in reasons published on 6 September 2012, the Federal Magistrate set out the appellant’s submissions as being:

… that because [the Federal Magistrates Court] orders were set aside, its exercise of jurisdiction was incomplete and that the completion of the exercise of that jurisdiction required a further hearing …; and

… [the Federal Magistrate having] previously found that [the appellant] did not have a reasonable argument on his substantive application, a reasonable lay observer might apprehend that (he) had made up his mind on the critical issue to be determined.

39    According to the Federal Magistrate the Minister submitted that:

    the appellant was entitled to a further hearing and to make further submissions;

    the appellant might seek to raise new grounds by amending his application; and

    the Federal Magistrate should not withdraw from the matter for reason of apprehended bias.

40    The Federal Magistrate accepted that he had now finally to determine the matter but did not accept that it was “a necessary corollary of the fact that the Court has been directed to deal with the [appellant’s] substantive [application] that a further hearing is necessary ...”. The Federal Magistrate then examined s 28 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”). That section deals with orders which may be made by this Court in exercising its appellate jurisdiction. His Honour’s examination focussed particularly on provisions dealing with the “further hearing and determination” of a matter and provisions dealing with a “new trial”. This examination appears to have been part of his Honour’s approach to the construction of the orders contemplated by the Full Court and made by Rares J.

41    With all respect to the Federal Magistrate, it is unlikely to be helpful for an inferior court to seek to interpret a superior court’s order by reference to a section such as s 28. First, such an exercise is unlikely to assist, given the presence of s 28(1)(b). Secondly, it was for the Full Court to concern itself with the source of its power. For an inferior court to do so is akin to questioning the validity of the order. Plainly, such a course is not open.

42    At [28] the Federal Magistrate identified the issue for determination as whether the appellant was entitled to the declaratory and injunctive relief sought, that question turning on whether the appellant could demonstrate that the second IMR was procedurally unfair or had not been conducted by reference to the correct legal principles. That conclusion was correct. His Honour acknowledged that he had previously found that the Reviewer had not relevantly erred and, on that basis, determined that it was not in the interests of the administration of justice that time in which to bring the proceedings be extended. His Honour also noted that his findings had not been challenged on appeal, and therefore had not been found to be erroneous. In those circumstances, the Federal Magistrate considered that, subject to any application to re-open the appellant’s case, there was no need or reason to reconsider the findings, conduct a further hearing or receive further submissions.

43    His Honour anticipated the possibility that an observer might wonder whether the appellant had, at the original hearing, necessarily fully addressed all the aspects of his substantive case, given that, in connection with the application to extend time, he had only to demonstrate prospects of success, and not ultimate success on the merits. However his Honour pointed out that he had directed that both the application for an extension of time and the substantive application be heard on 24 August 2011. There has been no suggestion that the hearing on that day was conducted on any other basis. Clearly, there has been no suggestion that the Federal Magistrate’s original findings were infected by any apprehension of bias. Nor has it been suggested that any apprehension of bias might infect his giving effect to those findings by making the only order which could be made in view of those findings. The appellant’s allegation of perception of bias really depends upon his submission that the orders contemplated by the Full Court and made by Rares J required that there be a re-trial on the merits. The Federal Magistrate concluded that the orders did not contemplate a new trial. This conclusion meant that in a practical sense, no question of apprehended bias could arise.

44    His Honour then listed the matter for further hearing on 13 September 2012. Following that hearing the Federal Magistrate delivered his final judgment on 18 September 2012. His Honour outlined the history of the matter and then turned to the grounds upon which the appellant relied in support of his application for review of the IMR decision. He identified the issue as whether the Reviewer had erred in not considering the appellant’s alleged claim to fear persecution for reason of his being a young Hazara or a young man. His Honour referred to his earlier conclusion that reliance upon any such grounds had been abandoned and that, as a consequence, the appellant had failed to make out his allegation of want of procedural fairness or error of law. He therefore dismissed the application.

THIS APPEAL

45    The appellant appeals against that decision. The grounds of appeal are as follows:

1.    The decision of the FMC was affected by a reasonable apprehension of bias.

Particulars

    (a) His Honour Cameron FM had previously decided adversely to the appellant the same question he was required to decide on the application for review.

2.    His Honour erred in finding that the second respondent had neither denied the appellant procedural fairness nor failed to properly consider whether the appellant was a person to whom Australia owed protection obligations.

3.    His Honour ought to have found that the second respondent was required to consider whether the applicant had a well-founded fear of harm for reasons of being a young Hazara male and that by failing to do so he denied the appellant procedural fairness and failed to properly consider whether the applicant was a refugee.

46    Three issues arise on appeal. They are:

    the effect of the order of remitter;

    given that effect, whether the Federal Magistrate should have withdrawn for reason of apprehension of bias; and

    whether the Federal Magistrate should have found that the Reviewer failed to accord the appellant procedural fairness by not considering his claim to refugee status .by virtue of his being a young Hazara male; and/or that the Reviewer failed properly to consider such claim.

THE EFFECT OF THE REMITTER

47    The appellant places considerable emphasis upon the Full Court’s statement at [46] that the applications “require determination on the merits”. The expression “determination on the merits” might describe the process of hearing and deciding a case. However it might equally appropriately describe the process of making an order based on existing findings and reasoning. In this case, the Full Court indicated at [48] that the proceedings should be remitted to the Federal Magistrates Court “to make final orders consistent with these reasons”, suggesting that no further hearing was contemplated. The orders made by Rares J provided for remitter for the purpose of “determination of the relief sought in the amended application …”. In other words, any “determination” was to be as to the relief sought. The appellant’s submissions tacitly assume that the remitter necessitated reconsideration of the merits of the case. Neither the Full Court nor Rares J indicated any such thing. Plainly, the Full Court had in mind the final disposition of the matter by reference to his Honour’s earlier reasons. No doubt it was open to the appellant to seek to lead further evidence, make further submissions, or amend the application, but he did not seek to do so.

48    In my view the Federal Magistrate was correct in determining the matter by reference to his earlier conclusions, the reasons of the Full Court and the orders made by Rares J.

WITHDRAWAL FOR REASON OF APPREHENDED BIAS

49    At para 11 of his outline the appellant submits:

Here, the learned primary judge had already decided the precise question which fell to be decided in the matter before him: whether the IMR had committed jurisdictional error by failing to consider whether the appellant had a well-founded fear of persecution for reason of being a young Hazara male. That constituted the clearest basis for an apprehension that he might not bring an impartial and unprejudiced mind to the resolution of that very issue. His Honour found that the question did not arise because the orders of the Federal Court simply required him to make the same decision.

50    The appellant correctly states the test as being whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide. See Michael Williams & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]. There is, however, no suggestion of apprehended bias in connection with the Federal Magistrate’s initial conclusions that the appellant’s case had no prospects of success on the merits. The fair-minded lay observer would know of the contents of the Full Court’s reasons, and would be aware of the terms of the order made by Rares J. In particular, he or she would understand that the Federal Magistrate was obliged to give effect to the conclusions which he had previously reached, having regard to the reasons of the Full Court. The fair-minded lay observer would also understand that only one order was possible in the circumstances. There was simply no basis for any reasonable apprehension of bias or, as the Federal Magistrate put it, the question did not arise.

SHOULD THE MAGISTRATE HAVE FOUND THAT THE REVIEWER FAILED TO AFFORD THE APPELLANT PROCEDURAL FAIRNESS OR PROPERLY TO CONSIDER THE MATTER?

51    On appeal the appellant submits only that the Reviewer ought to have considered the appellant’s claim to fear persecution by virtue of his being a young Hazara male. I have already set out the way in which this claim was made and dealt with in the RSA, and pointed out that it was not again raised until the appellant applied to the Federal Magistrates Court for review of the Reviewer’s decision. Both the appellant and the Minister rely substantially upon the decision of the Full Court in NABE v The Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. In that case the Court (Black CJ, French and Selway JJ) recognised that the Refugee Review Tribunal would commit jurisdictional error if it failed to make a finding on “a substantial, clearly articulated argument relying upon established facts”. At [58] their Honours observed, (omitting references to authorities):

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it … . There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … . By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant … . It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it … . The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

52    At [61]-[65] the Court said:

61.    … The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but … extends to reviewing the delegate’s decision on the basis of all the materials before it.

62.    Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. …

63.    It is plain enough … that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdiction error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which (the) contention rests which has been rejected: Applicant WAEE (at [77]). But as the Full Court said in WAEE (at [45]):

    If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the appellant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by [the Migration Act] to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

53    The reference to WAEE is to the decision of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

54    The Federal Magistrate disposed of the matter upon the basis that given the failure by the appellant and his advisers to raise the matter in either IMR, he had abandoned reliance on any claimed fear of persecution for reason of the appellant’s being a young Hazara male.

55    In considering the correctness of this conclusion one must have regard to the unusual facts of the case. Save for his brief period in transit after his deportation from the United Kingdom, the appellant has been absent from Afghanistan for many years. He has virtually no personal experience of living there. Such knowledge as he has of conditions in that country must be based on information provided by his mother, other expatriates, literature and media reports. In those circumstances, it is inevitable that his fears will lack any focus upon actual events. He is, in effect, reciting information which he has derived from others. Such information may be the basis for a well-founded fear of persecution. However it will not be surprising if a claimant’s explanation of his claimed fear varies in content, particularly over any extended period of time. The appellant’s principal claim has always been to fear persecution for reason of his being an Hazara and Shia Muslim. There is no apparent basis for any separate fear based on his age. Further, nobody is young forever, and the concept of youth is, in any case, relative. As time passes one must inevitably become less concerned about the adverse effects of being young.

56    Even in the statement of 3 April 2010, the appellant’s fear was said to have been of serious harm for reasons of ethnicity and religion. The reference to his being a young Hazara, and therefore at risk, appears to have emerged in answer to a question as to the feared source of persecution and subjective motivation for it. No explanation was offered as to how or why any fear of persecution for reason of his being a young Hazara male differed from his fear of persecution for reason of ethnicity and religion. It is difficult to identify the precise meanings of paras 17 and 18 of the statement. They may mean that all Hazara people face persecution for reason of ethnicity and religion, but that young Hazara males are at greater risk, or are more vulnerable. In view of the evidence concerning the appellant’s father, and the history of violence in Afghanistan, it is unlikely that the appellant meant that only young Hazara males were at risk.

57    I do not accept that there was any separate claim to fear persecution for reason of the appellant’s being a young Hazara male as opposed to his claim to fear persecution as an Hazara or as Shia. There was only one claim, and the Reviewer disposed of it on the basis of his findings. Even if there were a second, more limited claim, the Federal Magistrate correctly concluded that it had been abandoned. In the letter of 20 July 2010 which preceded the first IMR, there was no reference to such claim. In the letter of 10 November 2010 (after the unsuccessful first IMR), there was mention of the rights of the family and of children, but no reference to the appellant’s own youth. There was also no such claim in connection with the second IMR. The most likely explanation for this omission is that it was deliberate, and based upon a realization, following the RSA failure, that it added nothing to the more general claim. If either the appellant, or those representing and advising him considered that there was a second claim to fear persecution for reason of his being a young Hazara, the perceived distinction would surely have led to its being stressed, not completely overlooked.

58    Whether this ground of appeal is based upon the alleged want of procedural fairness or that of improper consideration, it must fail.

ORDERS

59    The appeal should be dismissed with costs.

Associate:

Dated:    13 June 2013