FEDERAL MAGISTRATES COURT OF AUSTRALIA
DZABZ v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 372	

MIGRATION – Review of decision of Independent Merits Reviewer – where information provided by applicant’s advisers used by reviewer in manner adverse to claims – where applicant’s advisers submitted only part of document containing information – where adviser’s omitted negative sections of document – whether material submitted by applicant used in a manner that could not reasonably have been expected.	

Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 
SZQNO v Minister for Immigration & Anor [2012] FCA 326	

Applicant:	DZABZ	

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP	

Second Respondent:	STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER	

File Number:	DNG 61 of 2011	

Judgment of:	Raphael FM	

Hearing date:	26 April 2012	

Date of Last Submission:	26 April 2012	

Delivered at:	Darwin	

Delivered on:	26 April 2012	

REPRESENTATION
Counsel for the Applicant:	Mr J Gibson	

Solicitors for the Applicant:	Northern Territory Legal Aid Commission	

Counsel for the First Respondent:	Mr T Anderson	

Solicitors for the First Respondent:	Clayton Utz	

ORDERS
(1)	Application dismissed.
(2)	Applicant to pay the First Respondent’s costs assessed in the sum of $6,240.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN	
DNG 61 of 2011
DZABZ	
Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP	
First Respondent

STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER	
Second Respondent

REASONS FOR JUDGMENT
1.	This case turns upon a short, but nonetheless, controversial and interesting point.  It is an application made by an Afghani applicant whose claims to have a well-founded fear of persecution should he be required to return to his home country arose out of certain specific facts.  These involved his detention by Taliban, and violence inflicted upon him by them whilst driving a lorry loaded with bricks, which he claimed arose out of him being suspected as working for the Provisional Reconstruction Authority in Afghanistan.  He also made generic claims as a Hazara Shia of a well-founded fear of persecution by reason of his ethnicity and religion.
2.	The specific claims that were made by this applicant were all dismissed by the reviewer and they did not form part of any application to this court.  In the submissions made by the applicant’s advisors to the RSA, and later the reviewer, reference was made to an article that appeared in the New York Times on 26 June 2010 concerning the beheading of nine Hazara men who had been killed in an ambush in central Afghanistan, an area controlled largely by the Taliban.  That article was submitted without any particular reference to whether or not it related to the applicant’s specific claims or his generic ones.  It was considered by the reviewer at [87] of [CB 263] volume 1 of his decision.  He stated:
	“[87]		The Reviewer has considered other relevant material like press reports of recent killings of 9 (or 11)  Hazaras by the Taliban in the Khaz Uruzgan district of Uruzgan province, an area “so remote that [the provincial police chief] and the intelligence representatives said that they had not been able to verify the account” (New York Times, ‘Taliban Kill 9 Members of Minority in Ambush’ 26 June 2010 at http://www.nytimes.com/2010/06/26/world/asia/26Kabul.html).  Although one report stated that the men had been killed because they were Hazaras and Shias (Press TV, 26 June 2010, ‘Taliban behead 11 Shia Afghans’, at http://www.prestv.ir/pop/Print/?id=132110), the more detailed and circumstantial New York Times account quote Afghan law enforcement officials saying that the mean had been suspected informants to NATO troops and special operations forces who had recently targeted a house in the area and killed several Taliban militants.  The Taliban was itself quoted as saying the elders had been killed because they were trying to form a traditional local militia in defiance of Taliban warnings.  From the available evidence, the Reviewer is satisfied that they were killed in relation to specific actions they undertook or were suspected of in Khaz Uruzgan, and that this has no direct relevant or parallel to the claimant’s circumstances.”
The reviewer went on to find at [88]:
	“[88]	Overall, based on the information available to the Reviewer, including the available evidence about his and his family’s experiences, I am not satisfied in the circumstances of this case that the claimant would suffer persecution in the form of abduction or arbitrary arrest and detention, imprisonment, physical assault and torture and possible death, at the hands of the Taliban, or others on account of, either cumulatively or separately:
•	  His Hazara race and ethnicity;
•	  His Shia religion;
•	  His actual and/or imputed political opinion in favour of the West, the coalition forces and/or the Afghan government and/or in opposition to the Taliban and/or other anti-government elements on account of his suspected working for the PRT (an American NGO);
	should he return to Afghanistan now or in the reasonable foreseeable future.”
3.	In an amended application filed with this court on 29 March 2012 the applicant seeks review of that decision of the reviewer on a sole ground  that is:
	“The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or the decision was affected by an error of law.
	Particulars
	a)	The Second Respondent did not afford procedural fairness to the Applicant in that it did not bring to his attention or allow him to comment on information from which the Second Respondent drew conclusions adverse to the Applicant’s claim.  It did not put the substance of the information relied upon to the Applicant either in the course of the review or at any other time prior to the recommendation.  The material was used decisively and relied upon by the Second Respondent in relation to the Applicant’s general claims relating to his fear of persecution as a Hazara Shi’a
	The information was drawn from the material material
•	New York Times, Taliban Kill 9 Members of minority in Ambush  26 June 2010”
4.	It is common ground that when this amended application was drafted, those acting for the applicant were not aware that the article in question had, in fact, been submitted by the applicant’s advisors to the reviewer, and so, prima facie, this claim could not be maintained, because, in the view of the Full Bench of the Federal Court in Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 at [30]:
	“[30]	Procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice.”
The applicant was most certainly on notice of this piece of information, he having brought it to the attention of the reviewer.
5.	As the case developed before me, a more sophisticated argument was made by Mr Gibson on behalf of the applicant.  He relied heavily on what fell from Katzmann J in her appeal decision of SZQNO v Minister for Immigration & Anor [2012] FCA 326.  This was a case about undisclosed information and thus is distinguishable from the present one. But its importance turns, according to Mr Gibson, on her Honour’s view of the manner in which the material was used.  Perhaps this is best articulated at [41] of her Honour’s judgment:
	“[41]	Here, much, if not all, of the undisclosed material was no different in substance from the material to which the appellant referred in the generic submission of 5 April 2011. Yet, the appellant submitted, the information was used in a way that was adverse to the appellant’s case – something he could not reasonably have expected – and, for this reason, it should have been disclosed. I agree, although disclosure of the reports alone would not have been enough. The point the reviewer was implicitly, if not explicitly, making was that, although there were (credible) reports confirming that there had been attacks by the Taliban on (unsuccessful) asylum seekers, the fact that the reports did not establish that the victims had been attacked only because they had returned from a western country meant that the reports could (and should) be discounted, if not disregarded. That was a matter upon which the appellant was not heard although it was part of the reason his application was dismissed. As McHugh J observed in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 (which concerned the power of the Minister in s 56 of the Act to obtain information he thinks relevant) at [141]:
	“In some cases, exercises of the power [to obtain relevant information under s 56 of the Act], although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.””
(Emphasis added.)
6.	Mr Gibson argues that his client could not expect that the New York Times article, which had been submitted as supportive of his client’s case, could be turned into evidence adverse to his client and that by doing this the reviewer fell into the jurisdictional error of not giving the applicant an opportunity to comment upon adverse material that was significant, credible and relevant to the decision under review.  He also argues that the finding of the reviewer in relation to this piece of information was one of the essential and significant reasons for coming to the conclusion that he did regarding the applicant’s claims.  The respondent in his written submissions initially argued simply that the Times article was not information that was unknown to the applicant, it having been provided by him to the reviewer.  But he then developed his argument in an attempt to show that it did not relate at all to the generic claims made by this Afghani but to the specific claims.  
7.	To my mind, this submission can be put most strongly by looking at [81] [CB 260] where the reviewer refers to the incident in which the applicant was allegedly stopped by the Taliban whilst carrying building materials and then proceeds to consider that claim until he reaches [87] where the New York Times article is dismissed.  He also makes reference to other parts of the court book, in particular matters put to the Minister’s delegate and to the transcript.  With respect to Mr Anderson I do not believe that they provide any further comfort.  Certainly the transcript never ties the article to the specific claim nor, so far as I can see, to the references to the delegate.
8.	I’m afraid that I cannot agree that [87] of the decision does refer to the applicant’s specific claim.  As Mr Gibson points out, at [83] the reviewer ceases to talk about the specific claims and moves on to the more general ones and it is from these that [87] follows.  Although I should say that if I am wrong about this and the point made by Mr Anderson is a good one, the specific claim having been dismissed for lack of credibility, this reference to the New York Times article is not relevant to the decision made.
9.	Whilst I do think that her Honour may well be correct in looking not just to the information itself but the way it is used; of course, it would not matter what I thought, I would be bound in any event. I believe that the facts of this particular case distinguish themselves from those before her.  What occurred was that the applicant, being well aware of the content of the whole of the New York Times report, only decided to submit part of it, that part which was of most assistance to him.  So it would seem from [CB 204].  It would appear that only the first three paragraphs were reproduced.  It could be argued that by doing this the applicant required the reviewer to look at the whole article so that he could put it into its proper context and that is exactly what the reviewer did.  He pointed out that there were more than three paragraphs in the document, although not in so many words, and then paraphrased the conclusions in the paragraphs that had not been put in the adviser’s submissions.  
10.	This is not a case, as was SZNQO, in which the information had not been provided and then the real debate was whether or not it was relevant.  This is a case where the information had been provided.  To my mind all the tribunal did was to point out the full extent of it and draw the obvious conclusion there from.  I do not believe that in so doing the reviewer fell into jurisdictional error by not providing the applicant with procedural fairness.  His advisers were aware of the article.  They would have been aware of its negative conclusions so far as their client’s case was concerned.  They had the opportunity to address them in the submissions that they made.  They chose instead merely to omit the part of the article which did not give them comfort.  
11.	Whilst I am grateful to Mr Gibson for putting the matter in the manner in which he has I cannot go all the way with him.  This application must be dismissed.  The Applicant must pay the First Respondent’s costs which I assess in the sum of $6,240.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  4 May 2012