FEDERAL COURT OF AUSTRALIA Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189 Citation: Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189 Appeal from: SZQKB v Minister for Immigration [2011] FMCA 1000 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZQKB and JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 75 of 2012 Judge: YATES J Date of judgment: 30 October 2012 Catchwords: MIGRATION – refugee – offshore entry person – independent merits review – whether failure to notify claimant of reports relied upon was a denial of procedural fairness – whether failure to consider the "real chance" test – where correct test stated but not referred to in operative part of reasons Legislation: Migration Act 1958 (Cth) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89 Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 Date of hearing: 22 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Appellant: Mr T Reilly Solicitor for the Appellant: Australian Government Solicitor Counsel for the First Respondent: Mr S Lloyd SC and Mr P Reynolds Solicitor for the First Respondent: Fragomen IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 75 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: SZQKB First Respondent JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: YATES J DATE OF ORDER: 30 October 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 75 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: SZQKB First Respondent JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: YATES J DATE: 30 october 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal by the Minister for Immigration and Citizenship (the Minister) from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 14 December 2011 in which an application by the first respondent seeking judicial review was allowed in respect of a recommendation of the second respondent (the IMR) made on 29 May 2011 that the first respondent not be recognised as a person to whom Australia owes protection obligations. 2 In the proceeding in the Federal Magistrates Court, the first respondent raised a number of grounds of review. As events transpired, the presiding Federal Magistrate found two of those grounds to have been established. They can be summarised as follows: (a) The IMR failed to put before the first respondent material, or its substance, that the IMR knew of and considered may bear upon whether to accept the first respondent's claims, and had thus denied him procedural fairness. (b) The IMR failed to make a recommendation in accordance with law, in that the IMR failed to correctly apply the "real chance" test by not considering "the reasonably foreseeable future". 3 As a consequence, the Federal Magistrates Court made the following declaration: The Court declares that, the 29 May 2011 recommendation of the [IMR] that the [first respondent] 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 was not made in accordance with the law. 4 The Federal Magistrates Court awarded costs in favour of the first respondent in a lump sum amount. 5 The Minister contends that there was, in the circumstances, no denial of procedural fairness. The Minister also contends that the IMR correctly applied the "real chance" test. Background 6 The first respondent arrived by boat at Christmas Island on 9 April 2010. His arrival was unauthorised. An entry interview was conducted with him on 5 May 2010. On 25 July 2010 he made a request for a refugee status assessment (RSA). 7 The first respondent is originally from the Jaghori district of Ghazni province in Afghanistan. He claims persecution from the Taliban (and Pashtuns generally), as well as Kuchis, by reason of his Hazara ethnicity and Shia Muslim religion. He left Afghanistan in 1998 and travelled to Pakistan with his family, where he had lived up to the time of his arrival in Australia. 8 On 20 August 2010 a delegate of the Minister determined that the first respondent was not a person to whom Australia owes protection obligations, as he did not meet the definition of a refugee as set out in Art 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Convention). 9 On 3 September 2010 the first respondent sought an independent merits review of his claims. He was interviewed on 2 May 2011. At that time he was given the opportunity to submit any further information or submissions. The first respondent's agent sent a further (22-page) submission to the IMR by email on 11 May 2011. 10 In his statement of reasons dated 29 May 2011 the IMR recommended that the first respondent not be recognised as a person to whom Australia owes protection obligations. The first respondent was informed of this recommendation by letter dated 6 June 2011. It was this recommendation that was the subject of the application for judicial review in the Federal Magistrates Court. The IMR's findings and reasons 11 In his reasons the IMR noted (at [64]) that the first respondent's underlying claim was that he would face persecution as an Hazara and as a Shia because Hazaras and Shias are generally persecuted by the Taliban. He also noted that the first respondent claimed that he would face persecution by Pashtuns generally. 12 The IMR found, however, that the first respondent did not face persecution simply as an Hazara and a Shia on the basis of his contention that Hazaras and Shias are generally persecuted in Afghanistan: see at [75]. In reaching that finding the IMR considered a range of material, which he identified and discussed in his reasons. 13 Specifically for present purposes, the IMR referred to and quoted from an article entitled "Afghanistan's Apocalypse Now" that had been written by Professor Amin Saikal and published in the Forum section of The Canberra Times on 22 January 2011. The IMR referred to this article as "relevant to any consideration of the present general situation of Hazaras in Afghanistan": see at [72]. This article had been provided to the first respondent's advisers by the IMR on 11 March 2011: see at [30]. 14 The substance of the quotation made by the IMR from the article was that changing circumstances had resulted in "enormous empowerment of this traditionally deprived group" (that is, Hazaras) who "today wield a share in the power structure and economic life of Afghanistan well beyond their numerical strength". The article noted that, in the September 2010 parliamentary elections, Hazaras won 59 of the 249 seats in the Lower House. Professor Saikal said that "(t)hey have succeeded in securing not only constitutional and legal rights pertinent exclusively to protecting their ethnic and sectarian identity, but also a strong presence in the executive leadership and legislature". Professor Saikal referred to "their expanding ownership of many businesses" which had "transformed them into a powerful group in the country". He quoted "one perceptive observer" as saying that "they have now the strength and solidarity to take over Kabul if they wanted to do so". 15 In the submission sent on 11 May 2011 the first respondent's advisers had referred to this article and had criticised Professor Saikal in the following terms: We note the article titled [Afghanistan's Apocalypse Now] was written by Mr. Amin Saikal who comes from a Tajik and a Muslim Sunni background. His family has affiliations with the Afghani Government, and the Hazara community regard him as a person who has always promoted the idea that Afghanistan is safe despite continued violence towards Hazaras. In contrast, Professor William Maley, director of the Asia-Pacific College of Diplomacy at the Australian National University and an independent observer, has recently published an article outlining the dangers associated with refouling Afghani Refugees. … 16 It is clear that, by this submission, the first respondent sought to challenge the reliability and soundness of Professor Saikal's views generally in relation to the situation of Hazaras in Afghanistan, and specifically as portrayed in this article. 17 In his reasons the IMR dealt with that challenge (at [74]) in the following way: The post-interview submission of April [sic] 2011 by the claimant's agent appears to impugn the opinions of Professor Saikal on the basis of his ethnicity, religion and imputed political opinion. This reviewer hesitates to reject expert testimony on the basis of ethnicity or religion when no specific bias or inaccuracy has been asserted or demonstrated (while noting that some of the more colourful reporting comes from the various Hazara websites, as amply demonstrated in relation to the report discussed below under 'Kuchis', that the police / army have massacred Hazaras in Kabul). As for imputed political opinion, the reviewer notes that the overall tenor of Professor Saikal's article is very far from uncritical of the Karzai Government, and nor does it suggest in any way that Afghanistan is safe. One might as well dismiss Professor Maley as an "independent observer" on the basis of his Vice-Presidency of refugee advocacy and services umbrella organisation, the Refugee Council of Australia (RCOA). [Emphasis added] 18 I have quoted this passage (with emphasis) because it is relevant to one of the grounds of review raised in the Federal Magistrates Court that remains of significance to the present appeal. 19 In the end result, the IMR was not satisfied that the first respondent's application was one that should be considered by reference to a "group determination" where each member of the group (here, Hazara Shias) is regarded, prima facie, as a refugee. In those circumstances he went on to consider the first respondent's individual circumstances. 20 In that connection, the IMR (at [81]-[86]) found: (a) There is a good deal of evidence that the Taliban are not strong within Jaghori district, although they have a presence on its borders. (b) The Taliban may have capacity to strike at specific targets with a significant profile in local areas not distant from district borders (perhaps including Anghori, near where the first respondent was born) but the first respondent had no individual profile. (c) There is a relatively safe route regularly used from Jaghori through Nawur and Jaghatu (both Hazara districts) to Ghazni city. (d) In any event, not all interdiction of roads by the Taliban necessarily amounts to persecution for a Convention reason. 21 The IMR concluded (at [87]) that he was not satisfied that there was a real chance that, in the particular circumstances, the first respondent would be targeted should he return to his home village or local area in Jaghori, which district the IMR found to be "Hazara-controlled". 22 The IMR then turned to consider the first respondent's claim that, if the Taliban should find out that he had travelled to Australia, "they will hang him because they will think he has become a Christian". The IMR considered this claim to be unsupported by authoritative evidence. He found that there was no credible evidence that persons returning or returned from Western countries as failed asylum seekers were, for that reason, "suspected of apostasy" and for that reason targeted by the Taliban or others: see at [92]. 23 The IMR therefore concluded that the first respondent "would not face a real chance of persecution in relation to his absence overseas or return to Afghanistan from the West or having sought asylum in Australia or because he would therefore be believed to have become a Christian": see at [93]. 24 Finally, the IMR considered a claim made by the first respondent in his first interview in which he referred to difficulties with Kuchis in his home area prior to 1998. In that connection the IMR noted that the first respondent did not claim that, for this reason, he had a well-founded fear of harm in the future. Moreover, the IMR found that the circumstances referred to by the first respondent were not likely to arise in the future because the first respondent no longer had any land: see at [94]. 25 The IMR noted that in the submission sent on 11 May 2011 the first respondent's advisers had referred to Kuchi-Hazara clashes in Behsud in Nangarhar province and in Bamyan province as well as clashes in Kabul in August 2010. This submission was made, however, in the context of the first respondent's possible relocation to Kabul. The IMR noted that "(n)o information or claims were provided in relation to any Kuchi activity or incidents in Ghazni province, and the reviewer is aware of no reports in recent years of any incidents with Kuchi in Jaghori district": see at [95]. The IMR was thus satisfied that the first respondent did not have a well-founded fear of persecution by Kuchi nomads should he be returned to his home district of Jaghori. 26 In relation to Kuchi-Hazara clashes in Kabul, the first respondent had drawn the IMR's attention to a particular article dealing with police handling of large-scale Hazara rioting following Kuchi-Hazara clashes in August 2010. The IMR concluded that this article painted "a highly coloured picture" and that non-Hazara sources "paint a very different picture". In that connection the IMR referred to and summarised three articles on which it is clear he had placed significant reliance. It is common ground that these articles were not raised with or put before the first respondent for comment, although the IMR had placed other material before the first respondent for comment. The IMR concluded (at [100]), at least in part based on this material, that, amongst other things, "(t)he Hazara press or website reports present a very partial picture …". 27 The IMR noted in any event (at [101]) that, as he was not satisfied that the first respondent faced a real chance of persecution for a Convention reason, the question of the reasonableness of his relocation to Kabul did not arise. The Federal Magistrates Court 28 In relation to the procedural fairness ground the presiding Federal Magistrate identified the essence of the first respondent's complaint to be that the IMR's consideration of his claim of feared persecution based on his ethnicity and religion was affected by the IMR's views on the quality of some of the country information that had been provided by the first respondent, specifically the material in relation to Kuchi-Hazara clashes in Kabul. 29 The gravamen of the first respondent's submission was that the IMR had not only used the three undisclosed reports to reject his contentions concerning Kuchi-Hazara clashes but had effectively used them to sustain Professor Saikal's views about the political and economic power of Hazaras in Afghanistan – the reliability and soundness of which the first respondent had specifically challenged. The first respondent contended that, as a consequence of the IMR relying on these reports without raising them with or putting them to him, he was denied procedural fairness. 30 In [14] of his reasons, the presiding Federal Magistrate observed: The point raised is not without difficulty. There are those who might say that the remark about colourful reporting was just a throwaway line that had no bearing upon the substantive decision. They would say that there is abundant independent evidence that Hazara Shia's are not generally persecuted in Afghanistan and that the Reviewer relies heavily on this in a section which covered paragraphs 64 to 75 of his decision record. This may well be the case but the court has to look at the record as it stands and the record indicates that the Reviewer expressed doubts about some of the evidence put forward by the applicant concerning the situation for Hazara Shias generally because, after an analysis of conflicting evidence concerning alleged Kuchi persecution, he expressed a view that the information from Hazara websites relied on by the applicant was "colourful". In doing so he relied on the specific information referred to in ground 2(b). In SZQEM v Minister for Immigration & Anor [2011] FMCA 662 Cameron FM said: "[30] In a passage which was quoted with approval by the High Court in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at 162 [32] it was said in Alphaone that It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ... (at 590-591) In Minister for Immigration & Citizenship v SZGUR it was also said: Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. (at 599 [9] per French CJ and Kiefel JJ, Heydon and Crennan JJ agreeing)" In SZQEM supra Cameron FM, faced with a similar argument said at [31]: "The Reviewer relied on the circumstances of western force deployment when assessing the weight to be given to the views of Professor Maley and Mr Ruttig concerning the position of Hazaras in the reasonably foreseeable future. In doing so he reached his decision on that question by reference to an issue which had not been raised in that context by the applicant in his claims or by the Reviewer in his conduct of the review. In such circumstances, and for more than one reason, the conclusion which the Reviewer reached on the position of Hazaras in the reasonably foreseeable future was not one obviously open on the known material. When the Reviewer decided that the deployment of western forces in the reasonably foreseeable future would determine the weight to be given to the forecasts and contentions of Professor Maley and Mr Ruttig, and thus would determine whether the applicant's claim to fear persecution from the Taliban in the reasonably foreseeable future by reason of those matters was objectively well-founded, it became an issue which had to be identified to the applicant and which he had to be given an opportunity to address." 31 The presiding Federal Magistrate concluded (at [15]) that the information which led the IMR to come to his finding about the Hazara information should have been put to the first respondent for comment and that, consequently, the IMR had fallen into jurisdictional error. His Honour therefore found this ground of review to have been made out. 32 In relation to whether the real chance test had been properly applied, the presiding Federal Magistrate noted (at [16]) that the IMR had recorded that the question of whether a claimant is a person to whom Australia owes protection obligations "requires a consideration of the circumstances in the reasonably foreseeable future". The presiding Federal Magistrate also noted, however, that this requirement found no expression in the "operative part" of the IMR's decision. 33 In [20] of his reasons, the presiding Federal Magistrate concluded as follows: It seems to me that in the instant case the Reviewer proceeded upon the basis that as the applicant made no specific claims about what might occur in the reasonably foreseeable future (in contrast to the way the matter was dealt with on the applicant's behalf in SZQEM) there was no need for him to make reference to it. He may well have thought that the circumstances for this particular applicant were safe and would remain safe. But he does not say so in terms and there exists a doubt as to whether the fact that they would remain so was considered. The reference to the applicant's claims about the Kuchis being a claim for the future does not mean that it was considered as such. The Reviewer dismissed the claim about the Kuchis because it referred to the situation in Kabul, to which the Reviewer did not require the applicant to go. Again the matter is not free from controversy but, to my mind, the better finding to make is that the Tribunal did not consider the reasonably foreseeable future and thus fell into jurisdictional error by not considering the applicant's case according to law. The appeal 34 In this appeal the Minister attacked both findings by the Federal Magistrates Court. Procedural fairness 35 On the question of the denial of procedural fairness, the Minister's submissions can be summarised as follows: All the IMR had done was to find some more material (that is, the three undisclosed publications) on the subject of the treatment of Hazaras in Kabul, an issue which the first respondent himself had raised. The information referred to was not adverse to the first respondent's interests: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [27]-[30]. In the circumstances, it was difficult to see how procedural fairness would require its disclosure, especially since the first respondent did not give evidence before the Federal Magistrates Court as to what steps he would have taken if those publications had been disclosed to him: Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at [54]; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [36]-[38]; Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 at [52]-[54]; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [16]. Importantly, the three publications went to an issue which the IMR ultimately found did not arise (namely, the reasonableness of the first respondent's relocation to Kabul). Procedural fairness did not require the disclosure of information that, ultimately, was not relevant to the decision. All that the IMR had done was to engage in an evaluation of country information, which was a factual matter for the IMR: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. Even if this task was affected by the view that some Hazara websites have colourful reporting, this is not so surprising a conclusion that procedural fairness would have required specific disclosure: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]. 36 In my view these submissions do not fully engage the apparent use made by the IMR of the three publications. Procedural fairness required the IMR to put before the first respondent for his consideration and comment those aspects of country information known to the IMR which he considered may bear upon the first respondent's claims: Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 at [91]. The IMR used the information in the three publications to contradict and discount the country information which the first respondent had advanced to demonstrate the adverse treatment of Hazaras in Kabul in the context of Kuchi-Hazara clashes. He referred to the material submitted by the first respondent as having painted "a highly coloured picture" and as presenting "a very partial picture". Plainly he considered the country information submitted by the first respondent in this regard to be unreliable based, at least in part, on the information in the three undisclosed publications. Importantly for present purposes, this view seems to have been carried over by the IMR into his consideration of "the present general situation of Hazaras in Afghanistan" and used to bolster his acceptance of the views expressed by Professor Saikal: see the IMR's reference in [74], quoted above, to his belief that "the more colourful reporting comes from the various Hazara websites". Thus it can be seen that, contrary to the Minister's submission, the information in the three undisclosed publications was plainly adverse to the first respondent because, amongst other things, it was deployed by the IMR, indirectly, to support his apparent acceptance of Professor Saikal's views which the first respondent had specifically challenged. 37 In all the circumstances I am not persuaded that the presiding Federal Magistrate erred in concluding (at [15]) that the information which led the IMR to come to his conclusion about the reliability of the country information advanced by the first respondent should have been put to the first respondent for comment, and that the failure to do so constituted a denial of procedural fairness. 38 In my view this conclusion is not qualified by the fact that the first respondent did not give evidence as to the steps he would have taken had the three publications been disclosed to him. The Minister accepted that there is no general rule that such evidence is required in every case: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122; Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [34]; NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89 at [17]-[18]; Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at [95] and [97]. The Minister submitted, however, that the absence of such evidence was a factor to be considered in determining whether there was practical injustice. 39 The Minister has not stated why, in the circumstances of the present case, there was no practical injustice and I am not confident that the breach, as the presiding Federal Magistrate found it to be, could not have affected the outcome. The real chance test 40 On the question of whether the real chance test had been properly applied, the Minister's submissions can be summarised as follows: The IMR made explicit reference in his prefatory observations on "relevant law" to the need to consider, in the context of the requirements of s 36(2) of the Migration Act 1958 (Cth) (the Act), the circumstances of a claimant "in the reasonably foreseeable future". The IMR also referred twice to "a real chance" in his reasons: see at [87] and [101]. These references should be enough to conclude that the correct test was applied. The IMR's findings show that he took into account circumstances that could reasonably be assumed to continue into the future concerning the position of Hazaras in Afghanistan and in the Jaghori district of Ghazni province. 41 The IMR was required to consider whether there was a real chance that the first respondent would be persecuted for a Convention reason were he to return to Afghanistan at the present time or within the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 42 I am not persuaded that the presiding Federal Magistrate erred in concluding (at [20]) that the IMR did not consider the reasonably foreseeable future when assessing the first respondent's claims. The first respondent pointed to a number of passages in the IMR's reasons that, in terms, identify a focus on the present situation in Afghanistan, not the foreseeable future. The Minister's submission – that the IMR's findings could reasonably be assumed to be based on circumstances that would continue into the future – is problematic. It is essentially question-begging. The presiding Federal Magistrate specifically referred to the possibility (at [20]) that the IMR may well have thought that the first respondent would be, and remain, safe if returned, but correctly noted that the IMR did not express himself in these terms, such that there was a doubt that the IMR did, in fact, engage with the first respondent's circumstances in the reasonably foreseeable future. In coming to this view I do not think that the presiding Federal Magistrate analysed the IMR's reasons with a mind attuned to the establishment of error. I share the doubts expressed by his Honour, notwithstanding that the IMR alluded to the correct test in his discussion of the relevant legal principles. the notice of contention 43 The first respondent filed a notice of contention raising five grounds on which he considered that the judgment of the Federal Magistrates Court should be affirmed. At the hearing of this appeal the first respondent pressed only three of those grounds, which were pleaded as follows: 2. The Judgment may also be affirmed because the Reviewer failed to make the Recommendation in accordance with the law by misconstruing and misapplying the applicable law or by otherwise failing to ask himself the correct question. Particulars a. The Reviewer found that, on the basis of the information that he accepted, Hazara Shias in Afghanistan faced a degree of societal discrimination (Recommendation [69]). Further, the information which he accepted included statements to the effect that the discrimination faced by Hazaras and Shias in Afghanistan extended to extortion through illegal taxation, forced recruitment and forced labour, physical abuse, and detention (US Department of State, 2010 Human Rights Report). b. Discrimination is capable of amounting to persecution as defined by s 91R of the Migration Act 1958 (Cth) (particularly the type of discrimination referred to in the said US Department of State report, which the Reviewer accepted). The Reviewer, however, failed to ask himself whether the said discrimination which it accepted Hazara Shias faced amounted to persecution. … 4. The Reviewer failed to make the Recommendation in accordance with the law by making a finding in the absence of evidence or otherwise failing to take into account a relevant consideration. Particulars a. The Reviewer at [95] of its Recommendation concluded that no information or claims were provided in relation to any Kuchi activity or incidents in the Ghazni province, and he was aware of no reports in recent years of any incidents with the Kuchi in the Jaghori district. On this basis the Reviewer was satisfied that the First Respondent did not have a well founded fear of persecution by Kuchi nomads should the First Respondent return to his home district in Jaghori. b. However, the information before the Reviewer, including that accepted by him, stated that the confrontation between the Kuchi and Hazara communities was recurring, although temporarily resolved, and that clashes between the Hazara and Kuchi groups were a perennial problem in Central Afghanistan (including in Ghazni). The Reviewer failed to consider this information in respect of the finding referred to in sub-paragraph (a) or the finding referred to in sub-paragraph (a) was not open to it in view of this information. 5. The Reviewer failed to make the Recommendation in accordance with the law by failing to accord procedural fairness to the First Respondent. Particulars a. The officer of the Appellant's Department who assessed the First Respondent's claims ("Officer"), accepted country information before it to the effect that, whilst there was no evidence of a campaign by the insurgency to target Hazaras, the situation in Ghazni was an exception (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues) – CB83. b. The Reviewer departed from this finding and held that no information or claims were provided in relation to any Kuchi activity or incidents in Ghazni province and that it was not aware of any reports in recent years of any incident with the Kuchi in the Jaghori district (Recommendation, [95]) without informing the First Respondent that: i. it might depart from the Officer's acceptance of the country information before it in this regard; and ii. these were issues arising in his review of the Officer's decision. 44 In light of the conclusions to which I have come on the appeal advanced by the Minister, it is not necessary, strictly speaking, for me to deal with these grounds, as the appeal must be dismissed in any event. Nevertheless I shall briefly deal with these grounds and state my conclusions on them. Ground 2 45 The first respondent submitted that the IMR accepted (at [69]) that certain reports noted that Hazaras and Shias were the subject of "a degree of societal discrimination", but did not go on to consider whether, in the case of the first respondent as an Hazara Shia, this constituted persecution as defined in s 91R(1) and (2) of the Act. 46 The presiding Federal Magistrate rejected this ground on the basis that the first respondent had made so little reference to matters other than physical persecution that it was not necessary for the IMR to make specific reference to other matters unless dealing with a specific claim. 47 I do not, with respect, consider the presiding Federal Magistrate's reasoning to be wholly dispositive of the issue raised by this ground. Nevertheless, I am not persuaded that his Honour's ultimate conclusion to reject it was incorrect. In my view, the IMR did sufficiently deal with this issue. First, he identified the existence of "a degree of societal discrimination". Secondly, a fair reading of the reasons in [69] shows that the IMR did not regard this to be generally pervasive or to rise to the degree of seriousness which would constitute persecution according to the statutory standard. Clearly questions of fact and degree are involved and this was a matter of assessment for the IMR. The first respondent did not himself raise any specific claim of "societal discrimination". In my view no error is disclosed. Ground 4 48 The first respondent submitted that, in finding (at [95]) that no information and claims were provided in relation to Kuchi-Hazara clashes in Ghazni province, the IMR overlooked the contents of two reports before him which referred to such incidents as being a perennial problem. The presiding Federal Magistrate accepted that the IMR failed to take this information into account but noted that it only related to clashes over land and associated problems, and that the first respondent had no land. Thus "the evidence that he [the IMR] should have considered went directly to his own ground of excluding this claim": see at [29]. In my view this reasoning should be accepted. 49 In this connection the Minister submitted that the IMR plainly addressed the first respondent's claim to fear harm from the Kuchis in Jaghori district and that, if he overlooked some evidence before him that was relevant to this claim, this would not constitute legal error but only errant fact-finding: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47]; Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]; Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [51]. It is not necessary for me to decide whether this characterisation is correct. Ground 5 50 Ground 5 is related to ground 4. It is based on the same erroneous finding by the IMR that, in relation to Kuchi-Hazara clashes, no information or claims were provided in relation to Ghazni province. 51 The presiding Federal Magistrate was of the view that if the claim under ground 4 could not be made out, then nor could the claim under ground 5. The first respondent submitted that the delegate (whose decision was the subject of independent merits review) had accepted the information that Kuchis and Hazaras had clashed over pastoral issues. The first respondent submitted he had been denied procedural fairness because, the delegate having decided a particular issue (the existence of such clashes in Ghazni province), the first respondent should have been put on notice by the IMR that he (the IMR) intended to depart from that finding: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] and [43]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592. 52 In my view this ground raises issues that are theoretical rather than real. The reported clashes were in respect of pastoral issues. The first respondent did not own land. The first respondent did not claim that he had a well-founded fear of harm for this reason, in the future. In this appeal the first respondent submitted that it would be an unwarranted assumption that he might not acquire land in Ghazni province in the reasonably foreseeable future should he be returned to Afghanistan. It seems to me that if this were to be sensibly put forward as a realistic prospect for consideration by the IMR then it was a factual matter that should have been specifically raised by the first respondent himself. It was not. In the circumstances, I am unable to see how there could have been a denial of procedural fairness on this particular basis. disposition 53 The appeal should be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 30 October 2012