FEDERAL COURT OF AUSTRALIA SZRET v Minister for Immigration and Citizenship [2013] FCA 851 Citation: SZRET v Minister for Immigration and Citizenship [2013] FCA 851 Appeal from: SZRET v Minister for Immigration and Citizenship [2012] FMCA 901 Parties: SZRET v MINISTER FOR IMMIGRATION AND CITIZENSHIP and DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 1670 of 2012 Judge: DOWSETT J Date of judgment: 23 August 2013 Catchwords: MIGRATION – protection visa – procedural fairness – whether reviewer should have advised appellant that his credibility was in issue – whether credibility a matter obviously in issue having regard to the history of the proceeding and comments made by a prior independent merits reviewer Legislation: Migration Act 1958 (Cth) ss 57, 91R Cases cited: Kioa v West (1985) 159 CLR 550 considered Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 applied SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 cited Date of hearing: 20 February 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 70 Counsel for the Appellant: Mr JF Gormly Counsel for the First Respondent: Mr MJ Smith Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1670 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRET Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: DOWSETT J DATE OF ORDER: 23 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellant pay the first respondent's costs of the appeal. Note: 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 1670 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRET Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: DOWSETT J DATE: 23 AUGUST 2013 PLACE: SYDNEY REASONS FOR JUDGMENT ARRIVAL IN AUSTRALIA 1 The appellant was born in Afghanistan in 1982 and arrived in Australia on 11 February 2010 as an offshore entrant. In an interview conducted on 12 March 2010 (the "entry interview") he claimed that he had left Afghanistan and travelled to Pakistan and then, Australia. The interviewer recorded the following statements concerning his reasons for leaving Afghanistan: Because of persecution from Taliban and Kuchi, and because we are killed on the basis of being Hazaras. They believe that it is a passage to heaven if they kill Shi'a. Nothing happened to me, I was safe – I left because of unrest in the country. That's all. 2 When asked his reasons for not wishing to return to Afghanistan he said, "Our lives and religion are in danger. There is no place for us. If Taliban finds us or sees us they kill us because we are Shi'a Hazaras." 3 He was asked, "What do you think will happen to you?" The interviewer's note of his answer is, "A-an [presumably Australian] govt better kill me here than to return me back to Afgh. Because they (Taliban) don't like us and they kill us for being Shi'a Hazaras." REFUGEE STATUS ASSESSMENT 4 The appellant sought asylum and requested that a refugee status assessment ("RSA") be prepared. An assessor (the "RSA assessor") interviewed the appellant (the "RSA interview"). At pp 3 and 4 of the RSA the RSA assessor summarized the claims made by the appellant at the RSA interview. A major part of his claim concerned an incident in which he was fired upon whilst he was driving to Ghazni with his mother and a young male relation. The appellant asserted that his attackers were Taliban members. He also claimed that in farming his land, he suffered harm at the hands of the Kuchi who stole his harvest and would also take farm animals. The Kuchi were supported by the Taliban. 5 The RSA assessor understood the appellant's advisers to submit that: the appellant's core claims were related to his ethnicity as a Hazara and his Shi'a religion; he also feared persecution on account of imputed political opinion, in that the Hazara did not want to join jihad; and in Afghanistan and Ghazi it was not safe to travel on the roads; and the Taliban insurgency had increased in 2009, targeting the civilian population. 6 In his entry interview the appellant gave his employment history as follows: Dates Employer Nature of employment 1988-1991 family farm farming 1991-1999 Self-employed driver (truck) Honda truck 1999-2009 farming and driving trucks. Alternating jobs. 7 The appellant told the RSA assessor that he had worked in Afghanistan as a taxi driver for 16 years, taking people between villages and towns. Following the incident in which he was fired upon, he became very distressed and found it difficult to drive. He therefore returned to farming but encountered problems with the Kuchi and was unable to sustain himself. The harvest was stolen by the Kuchis who were supported by the Taliban. The Taliban had made dire threats against his village. He was scared for his life as he believed that the Taliban had tried to kill him. 8 In Afghanistan the appellant lived in the district of Jaghori in the province of Ghazni. The country information suggests that this area is relatively safe for the Hazara. However, according to the appellant, the Kuchi were quite disruptive, grazing their animals on farmland, stealing crops and blocking roads. He claimed that they were supported by the Taliban. Nine months before coming to Australia he decided that Jaghori was too dangerous and so he left for Pakistan. However the situation in Pakistan was also very difficult for the Hazara. 9 The RSA assessor found that the relevant convention grounds were race, religion and imputed political opinion. He accepted that the appellant had driven a taxi, but not that he had done so for 16 years. He accepted that the appellant had been fired upon, but not that the Taliban were responsible. The RSA assessor considered that the appellant's claim subsequently to have feared for his life was undermined by the fact that he remained in the village, and then sought the assistance of a Pashtun people smuggler in his bid to escape to Pakistan. The assessor concluded that the appellant and his family had not been targeted for a Convention reason. 10 The assessor dismissed the appellant's claim to have been persecuted by the Kuchi, concluding that such conduct arose out of disputes about land and not any Convention reason. The RSA assessor accepted that the roads between Ghazni Province and other parts of the country were dangerous but was not satisfied that the Hazara were targeted for reason of race or religion. He also concluded that in Afghanistan the Hazara were not being systematically targeted for persecution for reason of race or religion. The RSA assessor was not satisfied that the Shi'a were persecuted in Afghanistan, or that the appellant would be prevented from practising his faith. He rejected the claim that people returning from the west would be persecuted, but that aspect is not relevant to the present appeal. The RSA assessor also concluded that relocation to Kabul would be a safe and reasonable option for the appellant to adopt. He concluded that the appellant did not have a well-founded fear of persecution for a Convention reason. 11 The appellant applied for an Independent Merits Review ("IMR"). An organization acting on his behalf made submissions in support of that application. It submitted that: The [appellant] fears that if he is returned to Afghanistan he will suffer persecution in the form of abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture and possible death, at the hands of the Taliban, the Kuchi, and/or anti-Hazara/Muslim extremists, and that he will suffer substantial discrimination amounting to persecution, on account of either cumulatively or separately: (i) His Hazara ethnicity and membership of the particular social group, "the Hazara community"; (ii) his Shi'a religion; (iii) his membership of the particular social group "Hazara landowners/farmers"; (iv) his membership of the particular social group(s) "Afghans who have returned to Afghanistan after living abroad", "Afghans who have returned to Afghanistan after living in a Western country" and/or "Afghans who have sought asylum in a western country"; (v) his actual and imputed political opinion in favour of the West, the coalition forces and/or the Afghan government and/or in opposition to the Taliban, the Kuchi and/or other anti-government elements on account of his presence in Australia, his Hazara ethnicity/membership of the Hazara community, his Shi'a religion and/or his refusal to fight for the Taliban and/or his refusal to support the Taliban. 12 The RSA assessor had expressed doubts about the appellant's claim to have driven a taxi for 16 years. In support of his application for an IMR the appellant made a statement asserting that his statement was in error, and that he had been driving a taxi since age 16, not for 16 years. In the same statement he asserted that a case officer had told him that there was no evidence that he was fired upon by the Taliban, and that it was highly likely that the attackers were criminals dressed as Taliban. She apparently also told him that he had made up his story about the Taliban. The "case officer" may have been the RSA assessor. Whether or not that is the case, the appellant was obviously made aware that there were doubts about the veracity of his claims. THE FIRST IMR 13 On 13 February 2011, the appellant was interviewed (the "first IMR interview") by a reviewer (the "first reviewer"). The first reviewer found that the appellant did not meet the criteria for a protection visa and recommended that he not be recognized as a person to whom Australia owed protection obligations. His report (the "first IMR") was dated 29 March 2011. 14 In the course of the first IMR interview the first reviewer drew to the appellant's attention an inconsistency in his claims concerning his involvement in farming. The appellant said that there had been a mistake, and that he had never worked on the farm. His wife and brother had done so. He said that before he married he was a taxi driver and had never farmed the land. He was referred to a statutory declaration in which he said that he had returned to farming, and that the Kuchi had stolen his harvest. He said that the Kuchi only grazed their livestock and did not steal the harvest. He then said that the Kuchi stole the harvest from the mountainous area but not from the town area, although most of the harvest was from the mountainous area. The first reviewer noted that: When the reviewer raised concerns again that he may not be telling the truth he again referred to the fact that there might have been misunderstandings as he maintained it was always his wife who farmed and he always told the truth as a Muslim who believes in Allah and never lies. 15 It seems that the appellant's adviser must have discerned that the first reviewer had some doubts about the appellant's claim. At para 15 of the first IMR the first reviewer said: The [appellant's] adviser indicated that she would address the credibility issues in a further submission following the hearing. She indicated that it was not impossible that there were miscommunications on the issue of the claimant being a farmer or having worked as a farmer. As regards the Kuchis and the harvest, the Kuchis would graze their livestock and ruin the harvest. She submitted that regardless of credibility there was a wide range of country information that Hazaras/Shi'as are at risk including in and around the [appellant's] area and there have been recent attacks by the Taliban in Jaghori and Ghazni and on the roads there. He was a taxi driver and this heightened his risk so he sold his taxi after the incident with his mother and Abdullah out of fear. If he returns to Afghanistan he has no other skills and he could be prevented from driving because of his fears. He is a member of a particular social group of Hazara taxi drivers and the risks he faces in that regard. It is not appropriate that he live discretely given the dangers. Relocation is not reasonable or practical for the claimant and his family in Afghanistan and particularly in Kabul. The risk of harm is not to be remote, far-fetched or fanciful. The Darwin protest that he was caught up in might make him known or recognizable in Afghanistan and add to his risk of harm befalling him there. 16 The adviser made further submissions following the hearing. 17 In the first IMR the first reviewer stressed the emergence of new information at the first IMR interview and inconsistencies in the appellant's various accounts. At para 72 he observed: The way in which major new information regarding the [appellant's] situation and alleged happenings and incidents with the Taliban and others even though he was vague and confused as to the happenings and times emerged was somewhat disturbing. Such major and distinct information and details by the [appellant] seems hard to overlook for such a time during the RSA process. After the entry interview, the [appellant] had further opportunities during the RSA process and with his legal advisers to raise these alleged crucial matters – none of which mentioned the significant information regarding his alleged personal Taliban letter(s) and the other matters known to him about his interactions with the Taliban and others that caused him to leave Afghanistan and being fearful of returning there. The reasons advanced by the [appellant] for these omissions and inconsistencies were unsatisfactory. 18 Paragraphs 82 and 83 of the first IMR contain quite extensive criticisms of the appellant's evidence. It seems that the appellant's claims focussed substantially upon his having been shot at whilst driving with his mother and young male relation, and subsequent written threats to the village generally and to him. That issue is not relevant to this appeal. The first reviewer also recorded that there was "much confusion" in the RSA process "regarding whether the [appellant] was even a farmer" and concerning his experience with the Kuchi. The first reviewer concluded that he was: … left in some doubt as to whether he had personal involvements with the Kuchis or whether he was referring to them and their dealings with the Hazaras and others in a more generally way given his being adamant that he never farmed the land but only his wife and brother did. 19 The first reviewer did not accept attempted explanations of the various discrepancies and added claims, leading to his "overall impressions and finding that the [appellant] lacks credibility …". 20 At para 83, the first reviewer dealt in some detail with the appellant's claims concerning the Kuchi. He said: The [appellant] also referred to his fear of being harmed (owing to possible land disputes) by the Kuchis even though his wife and brother were able to farm his lands over the years. He stated the Kuchis would come and ruin their crops and harvest. Although they were able to bring in a harvest of wheat from the mountains even though he stated he had no land there. It appears that although he had encounters with the Kuchis grazing their animals on his land he was still not denied the capacity to earn a livelihood as his wife and brother still farmed the land for the years after the shooting incident up until they left for Pakistan in 2009. Also the Reviewer does not find that the essential and significant reason for the incidents involving the Kuchis and the [appellant's] land is so because of his race or religion. It more likely involves arguments about access to land and grazing rights regardless of who currently occupies it. However, the Reviewer finds that any difficulties or disputes that the [appellant] might encounter in this regard would not be serious harm or persecution for a Convention reason. 21 The appellant now relies on that paragraph as reflecting an "acceptance" or "assumption", but not a "finding" that the appellant owned land. Plainly, the first reviewer disposed of this issue upon the basis that any difficulties in this regard were not inflicted for a Convention reason. He also seems to have doubted the extent of such difficulties. On this approach, it was not necessary that he ultimately decide whether or not the appellant owned the land in question. In view of the first reviewer's earlier conclusion that the appellant lacked credibility, it seems unlikely that he would have found for the appellant on that issue, had it been necessary that he do so. There was no other evidence as to such ownership. THE SECOND IMR 22 The first IMR was overturned by a Federal Magistrate, apparently on the basis that the first reviewer had erred in the approach taken to determining the existence of a recognizable social group. The matter was remitted for further review by a different reviewer. The appellant's advisers again made extensive submissions, but they seem not to have dealt with the credibility of the appellant's claims. The second respondent in these proceedings (the "second reviewer") interviewed the appellant on 24 October 2011 (the "second IMR interview"). He eventually recommended that the appellant not be recognized as a person to whom Australia owed protection obligations. His decision and reasons were dated 20 November 2011 (the "second IMR"). 23 In the course of the second IMR interview the second reviewer confirmed that he was independent, and that he was "going to make a fresh assessment of your claims taking into account the information that you've already previously provided and what you say to me today". He also said, "Now, you're aware that you've already had one assessment by an IMR reviewer, but again I am independent and will be making a fresh assessment". The appellant acknowledged all of this information. The second reviewer then said: If I was to make a positive recommendation to the Minister and he accepts it, then you may be entitled to apply for a protection visa. So today's interview gives you the opportunity to put any information or to give me anything of relevance as to why you think you are a refugee. I may ask you to comment on information that's adverse to your case. This may include country information if it appears to indicate that you are not a refugee. But please bear in mind that this interview is confidential and you should feel free to fully tell me why you think you're a refugee. 24 The second reviewer also said, "So it's very important that you answer my questions truthfully. Do you agree to do so?" The appellant said that he would do so. He was then asked questions about his family and about his employment in transporting passengers in the Hazarajat. He was also asked if he had ever been involved in farming, to which he replied: When my father was alive he was a farmer. Every now and then I used to help him but I was not a regular farmer. I was driving myself at the time and when I had free time I used to go and help my father. 25 He confirmed that his father had owned his own land near the village where the appellant lived. After his father's death, and after he was threatened by the Kuchi and the Taliban, he was very careful. His wife and his brother worked the farm. It was put to him that he had previously said that he was both a farmer and a taxi driver and that, in a statutory declaration, he had said that when he was not driving, he was working on the farm. The second reviewer suggested that these statements appeared to be inconsistent with the above statement. He replied: When my father was alive he was a farmer looking after our family land and I used to deliver tea and food and so on to him and I used to help him every now and then but I was a driver. But after my father was died then my wife and my brother was looking after the farm and I received threat [sic] from the Taliban. 26 He was then referred to the occasion on which, as he alleged, the Taliban had fired on him. He said that after this incident, he sold his taxi and "family land" in Ghazni. Such land had been acquired in order to build a house. It was not his father's farm. He said that about two months after the incident in which he was fired upon, he was told that the Taliban were looking for him. He also received warning letters. He was asked whether he had any problems personally with the Kuchi. He said: I have previously mentioned as well the Kuchis associate with the Taliban and the Taliban is the Kuchi. Different name but the same objective. They targeted me and the Kuchis used to come to my village and we were always harassed and abused by them and they took our crops. 27 The following questions and answers followed: [Q] So did they, did they only take your crops during the time when the Taliban were in power or did they take your crops up until the time that you left Afghanistan? [A] During the Taliban when the Taliban was very strong the Kuchi was very strong and they are still very strong. [Q] But did they take your crops up until the time that you departed Afghanistan? [A] Yes, that's correct. When I left Afghanistan. [Q] If your farm was some distance away from where your house was, how do you know it was the Kuchis that took your crop? [A] When the Kuchis used to come to the area there are many many sheeps and also camels and they used to destroy our crops, our farming and no one could stop them, they were very strong. If anyone stop or bother them they will straight away shot them dead. 28 He was asked if his wife or brother had any difficulty with the Kuchi whilst they were farming. He replied: My brother and my wife always used to grow in our family a farm but when the Kuchi were attacking and no one could stop them. 29 He also said: When the Kuchi came to the area especially during summer time where everywhere is green and the farm that we do is very green as well and they just destroy. They set up their tents in the mountain and they come and take our crops away. 30 He said that his wife had not confronted the Kuchi. It was then put to him: You're saying that you've had problems with Kuchi in the recent past and the country information that I've looked at suggests that there has been a problem between the Kuchis and the Hazaras in Maiden Wardak around the Behsud area, but I haven't come across any country information to suggest that the Kuchi are causing problems for the Hazara in Jaghori. This may lead me to doubt that you might have a well-founded fear of this occurring in the future. Would you like to comment? 31 The appellant replied: When the Kuchi come they go through Deba to my area and also through Gaya. And they come through Deba and Shaspur and then they go to Nawur. They take other route from Gaya and they go to Nawur. Deba and [foreign name] is very close to Nawur. 32 He was then asked about having participated in a demonstration in Darwin and about any dangers to him, should he return to Afghanistan. He claimed to be in fear for his life if he returned to Afghanistan because he had sought asylum in the west. This aspect of the case is not presently relevant. 33 It was pointed out to him that in his entry interview, when asked about his experiences in Afghanistan, he had said that, "Nothing had happened me to me, I was safe". …It was suggested that this statement was contrary to his later claims that he was targeted by the Taliban and the Kuchi. He replied: My previous interview, most of the interview no one asked me in detail like you have and I was, I'm very illiterate and I was very nervous. I never had interview before in my life so maybe I missed out, I didn't mention with full description as I'm doing now. 34 The second reviewer then referred to country information which suggested that he might not be at risk of persecution, given that Jaghori was "100 per cent Hazara", that the Hazara were not being persecuted on a consistent basis and that they were currently in a better position then at any other time in recent history. The appellant replied that Jaghori was surrounded by the Pashtun population, that the Hazara were targeted if they moved outside of Jaghori, that they experienced a lot of problems due to their religion and ethnicity and that their schools, farms and people were targeted. 35 He was asked whether he had been able to practise his religion and to pray. He said that after "the incident", he was cautious and avoided going to the mosque. He was asked about his house and farm land. He replied: I just left – we just left the family land behind. We don't know much about it what is happening with it. My family are in Pakistan at the moment and we cannot return. We are fearful to return back to my home town. Pakistan is very unsafe as well for Hazara people. There's a lot of target [sic] killing and ethnic cleansing is happening. I am very worried about my children. My eldest child is nine years old and they cannot go to school and no one is there to support them financially. It is very dangerous there. I worry a lot about the safety of my family because a lot of target killing is happening in the region because of our ethnicity and our religion and I've got some documents here with me in that regard. 36 He was asked if, after he stopped driving, he had been able to survive on food produced from his farmland. He said: My family farm is not very big, a big farm that can support my family financially. I have to do extra work to support them financially. And the Kuchi always used to attack and destroy our crops and our farm. 37 He was asked: If you went back do you think you'd be able to return to your home and still have the farm? 38 He said: I cannot return back to my home town because I feel very fearful and that my life is in danger. If I return they will target and kill me because I'm returning from Australia and they will accuse me of converting to Christianity as well. So they've tried to target me before when I left and I cannot return. 39 The appellant's adviser then made a number of points. In particular he indicated that he wished to limit the claim to fear persecution by reason of membership of a social group to a group described as "Hazara land owners" and not "Hazara farmers". He then made a number of submissions in which the appellant apparently concurred as follows: And I'd add to that as well that even though [the appellant] did farm the land himself, at least on a regular basis, he still faced harm from the Kuchis as an Hazara landowner. Further to that, even though there were no direct confrontations with the Kuchis and him or his family I submit they still suffered for the purposes of the Convention. The Kuchis had no legal right to graze on the land and my client and his family were entitled to defend their land … But as he's given evidence previously he was intimidated and not able to tell the Kuchis to leave his land as he was entitled to, and I submit that this modification of is behaviour for fear of persecution is itself persecution and that is on the basis of the decision of the High Court in S395 of 2002 v Minister for Immigration. … But otherwise I summarize this submission on behalf of our client as follows. [The appellant] fears abduction, physical harm and even death at the hands of the Taliban and/or Kuchi nomads. On the grounds of his Hazara ethnicity and Shi'a religion. His membership of a particular social group Hazara landowners. And imputed political opinion in favour of the west and in opposition to the Taliban as well as membership of a particular social group which is related as returnees from a western country, on the basis of his presence in Australia and his previous instances of crossing the Taliban. His fears are well-founded and informed by his experience of harm from the Taliban and Kuchis There's no state protection available in Afghanistan from the harm that he fears. And he previously put to you information from the UNHCR and I think that is generally accepted. I also submit that there is no reasonable relocation alternative for my client. He has no family in Kabul, and even in any event we don't submit Kabul is a safe or reasonable place for him to be relocated. So my client meets the definition of a refugee and is owed the protection of the Australian Government. 40 The adviser then said: There is one more matter that I forgot to raise but I did raise it in my letter of submission was that [the appellant] has contacted Amnesty International and they said they would provide a report but they won't be in a position to provide it for a couple of weeks. 41 The Reviewer allowed 14 days for the report to be provided. 42 In the second IMR, the second reviewer summarized the appellant's claims derived from the various documents and the first IMR. He then summarized the information provided in the second IMR interview and set out particular aspects of the appellant's claims in connection with which there appeared to be inconsistencies, including: his claims concerning his work in Afghanistan; his claim concerning the disposal of his taxi after the incident in which he was fired upon; and the number of letters which he received from the Taliban. 43 The second reviewer expanded upon these inconsistencies and indicated his rejection of explanations offered for them. He said that he had taken into account various factors which might be said to explain these deficiencies in the appellant's evidence but concluded that: I am of the opinion that the inconsistencies and difficulties set out above are of such a fundamental nature that they outweigh these considerations. 44 The second reviewer accepted the appellant's evidence that whilst driving to Ghazni city from Jaghori with his mother and cousin, they were fired on by the Taliban and his cousin injured. This claim had been consistently made over time. However the second reviewer did not accept that he worked as a taxi driver, or that he had sold his taxi. The second reviewer did not accept that the appellant was later targeted by the Taliban because of the incident on the road to Ghazni, or that he received any threatening letters. He also did not accept that the Taliban had come looking for him, or that he went into hiding or kept a low profile. The second reviewer did not accept that the appellant had ever been involved, directly or indirectly in farming, and did not accept that the Kuchi grazed their animals on his family land or stole their crops. He accepted that the Kuchi may have blocked roads in the area but noted that the appellant had not claimed any direct contact with them. In any event, the second reviewer considered that such conduct did not amount to serious harm for the purposes of s 91R(2) of the Migration Act. 45 The second reviewer also concluded that the country information indicated that there was "no evidence of a general campaign by the Taliban insurgency to target Hazara Shi'as or that Hazaras are being persecuted on a consistent basis". He also concluded that the country information did not suggest discrimination against Hazaras which would amount to serious harm as defined in s 91R(2). He noted that the appellant was from Jaghori which was "100% Hazara", indicating that the appellant would not face a real chance of persecution in the reasonably foreseeable future on account of his race or religion. He noted that although the appellant was a Sayyid, he had not suffered any harm in the past, beyond the one incident on the Ghazni road in a Pashtun area outside of Jaghori. The second reviewer did not accept that the appellant was a landowner whose family land had been the subject of illegal grazing and whose crops have been stolen, or that he would face such treatment in the future. The second reviewer did not accept that the appellant would face persecution in the future by virtue of his being an Hazara taxi driver, Hazara landowner or Hazara landowner/farmer as he did not accept that he was a member of any of these groups. He also rejected the appellant's claim to fear persecution by reason of his involvement in a demonstration at the Darwin Immigration Detention Centre. THE APPLICATION TO THE FEDERAL MAGISTRATES COURT 46 In his further amended application to the Federal Magistrates Court the appellant sought an injunction restraining the first respondent from acting upon the recommendation of the second reviewer, and a declaration that the second reviewer had failed to observe the requirements of procedural fairness. The grounds were said to be: That the decision of the [second reviewer] was affected by legal error in that: 1 The [second reviewer] did not afford procedural fairness to the [appellant] in that [he] did not bring to the attention of the [appellant] a critical issue of factor on which the decision was likely to turn. 47 Particulars were: • The [appellant] had claimed fear of persecution by the Kuchi and the Taliban as a member of a social group of "Hazara land owners/farmers". This claim was supported by substantial country information in addition to the [appellant's] own account of Kuchi attacks in the area; • On the basis of what the [second reviewer] regarded as the fundamentally inconsistent nature of the [appellant's] claims concerning his work and his general lack of credibility the [second reviewer] did not accept that the [appellant] owned the farm or was engaged in farming (either directly or indirectly as a land owner). As a result the [second reviewer] did not accept that the [appellant] was a member of a particular social group of "Hazara landowners" or "Hazara landowners/farmers"; • The [second reviewer] did not bring to the attention of the [appellant] or his adviser that a decisive factual basis of his Kuchi and social group claims, ie that he owned a farm, was in issue; • The said factual basis of the [appellant's] social group claims was accepted in both the (RSA) and [the first] IMR review, and each decision-maker rejected the Kuchi claims on the basis that they were not Convention-related; • the social group claim was not raised in the RSA and was dealt with by [the second reviewer] without challenge to the said factual basis' • the [second reviewer] made no finding that even if the said factual basis of the Kuchi claims was accepted, the social group claims would be rejected, including for reason that the claim was not Convention-related. 48 In her decision the Federal Magistrate summarized the relevant law and procedure and the basis of the appellant's claims to refugee status. Her Honour then turned to the history of the proceedings. In particular her Honour pointed out that following the hearing before the first reviewer, the appellant's advisers had made further submissions concerning the question of credibility, addressing issues which had emerged in the course of the hearing. The advisers had also provided a further statement by the appellant. Effectively, they also gave character evidence for the appellant by stating: Our own experience and observations of the [appellant] indicate that he does not seem to provide information unless specifically asked about a matter. In our submission, this should not be seen as evasive or as an excuse as to why the [appellant] did not previously disclose certain information … . 49 In his statement the appellant sought to explain the inconsistencies in the evidence concerning his land holding and the Kuchi grazing animals and stealing the crops before they were harvested. Her Honour noted at [30]: The first reviewer found that there were a number of inconsistencies in the [appellant's] claims made to the assessor and the claims made to the first reviewer. The first reviewer found the [appellant's] evidence of the Kuchi's ruining crops on his farming land to be "vague, confusing and inconsistent". The first reviewer expressed doubt as to whether the [appellant] had personal involvement with the Kuchis. The first reviewer did not accept that the inconsistencies if found were due to the [appellant's] stress and was not satisfied with the [appellant's] explanations about concerns it put to the [appellant] about his evidence. The first reviewer found that the [appellant] had "embellished and exaggerated" aspects of his claims and formed an "overall impression" that the [appellant] lacked credibility. 50 Her Honour noted that on 20 October 2011 the appellant's advisers wrote to the second reviewer providing further submissions, confirming that the appellant's claim to membership of a particular social group was of "Hazara landowners in Afghanistan" and/or "Hazara farmers in Afghanistan". They submitted that "Hazara landowners in Afghanistan" is a particular social group identifiable by its common characteristic of ownership of farmland. The letter submitted that whilst the Kuchis may have been motivated by wanting access to grazing land and/or the appellant's crops, the appellant was targeted because of his Hazara ethnicity, his Shi'a religion and his membership of a particular social group. 51 Her Honour then reviewed the second reviewer's reasons, in particular his findings on credibility and summarized the grounds raised in the application. The federal magistrate noted that as the appellant's claims had proceeded from the entry interview, through the RSA, the first IMR and the second IMR interview, they had "evolved". Her Honour noted that the appellant's advisers had made specific submissions to the first reviewer concerning the appellant's credibility, and that the first reviewer had not found that the appellant was a landowner. 52 Her Honour then pointed out that a decision-maker might have to disclose the possibility of adverse conclusions not obviously available on the known material, but did not have to disclose thought processes or provisional views prior to making a decision. In effect, her Honour seems to have concluded that the appellant's credibility was a live issue before the first reviewer and recognized as such by the appellant's advisers. In those circumstances, it was difficult to accept that the appellant was not on notice that the second reviewer might also conclude that he lacked credibility. 53 The federal magistrate considered that to require the second reviewer to notify the appellant that his claim to be a landowner might be rejected, would have involved the second reviewer in giving a "running commentary" on his thought processes. The federal magistrate also considered that the second reviewer's indication that he would make a fresh assessment of the case, together with his questioning of the appellant provided sufficient notice that the appellant's credibility was in issue. 54 Finally, her Honour considered that the question of ownership was so obviously vital to the claim to fear persecution as a member of a social group, namely landholders, that the appellant must have been aware of its importance. However, as her Honour observed, it must be kept in mind that the appellant's case was, until the end of the hearing, based upon a claim to fear persecution by reason of his being a member of a social group, namely "Hazara landowners and/or farmers". The uncertainty surrounding the extent to which he had, himself, been actively engaged in farming, seems to have led to his placing substantial reliance upon the fact that his wife and brother were farming his land. It is probable that, in both the first and second IMR interviews, the focus was on farming rather than the ownership of land. 55 No explanation was given for the appellant's advisers' late abandonment of any claim based upon membership of a social group, namely farmers. Coming as it did at the end of a process which extended over almost two years, it can only be seen as a final attempt to formulate a claim which reflected the evidence. As I have said, at that point, ownership probably assumed a significance which it had not previously enjoyed. Notwithstanding that increased importance, upon which the appellant now relies, neither the appellant nor his advisers sought to provide further information concerning that question. The second reviewer could hardly have been expected to re-commence the interview in the face of this last minute change of course, or immediately to review his previous approach to the interview, nor did the appellant or his advisers suggest that he should do so. I understand this to be the point made by her Honour at [53]. THE APPEAL 56 The appellant's grounds of appeal are as follows: 1. The Court erred in finding that the rejection by the second respondent reviewer of the appellant's claims, in particular the appellant's claim that he was a landowner, was a finding that was obviously open on the known material because the appellant's credibility was in issue for the First Reviewer. Particulars i. The First Reviewer's findings on the appellant's credibility did not extend to the appellant's ownership of land. The First Reviewer had assumed that that the appellant was a landowner in finding that the appellant had encounters with the Kuchis grazing their animals on the appellant's land. ii. The Refugee Status Assessment officer had also accepted that the appellant owned the land on which the Kuchi grazed animals. 2. The Court erred in finding that the appellant was reasonably on notice that the appellant's overall credibility, in particular in relation to his claim that he was a landowner, was in issue. Particulars i. The First Reviewer's findings on the appellant's credibility did not extend to the appellant's ownership of land. ii. The second respondent reviewer's representations to the appellant that the reviewer would give fresh consideration to the appellant's claims meant that, without further notice, the appellant was not to assume or be taken to be on notice that the reviewer would take the same view of the appellant's credibility as the First Reviewer. iii. The First Reviewer did not express any pervasive doubt about the appellant's entire story and accepted that the appellant owned land. iv. The second respondent reviewer also did not express any pervasive doubt about the appellant's entire story, nor did the second respondent reviewer express specific doubt about whether or not the appellant owned land. v. The second respondent reviewer's questions to appellant during the interview accepted and/or assumed that the appellant owned land. 3. The Court erred in finding the questioning of the applicant during the interview was sufficient to put the appellant on notice that the appellant's credibility, even to the extent of his claim that he was a landowner, was in issue. i. The second respondent reviewer did not express any pervasive doubt abut the appellant's entire story, nor did the second respondent reviewer express specific doubt or scepticism about whether or not the appellant owned land. ii. The second respondent reviewer's questions to appellant during the interview appeared to accept and/or assume that the appellant owned land. 4. The Court erred in finding the second respondent reviewer's intended rejection of the claim of ownership of land did not give rise to procedural fairness obligations because ownership of land was itself a fundamental element of the appellant's social group claim and therefore an obvious issue. Particulars i. It is a fallacy to equate the fundamental factual basis of a claim with its' obviousness as "an issue" and thereby to deny the appellant an opportunity to adduce further evidence of the factual basis in contention. ii. The appellant was denied the opportunity to adduce further evidence to prove his ownership of the land and therefore the basis of his social group claim. iii. The second respondent reviewer did not make a finding which subsumed ownership as a fundamental issue, eg that Hazara landowners did not constitute a particular social group for the purposes of the Refugees Convention. 5. The Court erred in finding that the appellant was on notice that every issue arising from his claims was in issue. 57 These grounds are somewhat obscure and may need a little explanation. Ground 1 challenges the finding that the first reviewer's conclusions concerning the appellant's credibility put him on notice that the second reviewer might reject his claims, including his claim to be a landowner. Ground 2 challenges the finding that in the second IMR interview, the appellant was on notice that his overall credibility was in issue, particularly as to his claim to be a landowner. Ground 3 challenges the finding that the second reviewer's questioning put the appellant on notice that his credibility was in issue, particularly as concerns land ownership. Ground 4 challenges the finding that given the importance of the question of ownership, it must have been obvious to the appellant that it was in issue. Ground 5 challenges the finding that the appellant was on notice that every issue arising from his claim was "in issue". 58 Clearly, the requirements of procedural fairness will require a tribunal of fact to take different steps, depending upon the way in which the proceedings have been conducted up to the point at which any question as to procedural fairness arises. Obviously enough, the second reviewer's job was to decide questions concerning the appellant's claim. The latter cannot possibly have believed that the second reviewer would simply recommend acceptance of his application without testing it by questioning or considering all relevant material. The appellant's case seems to be based upon the proposition that the second reviewer could reject some claims but not others, apparently on the basis that the assessor or the first reviewer may have accepted some matters, thereby conferring on the appellant the right to expect that the second reviewer would not depart from such acceptance without giving notice of his intention to do so. 59 Such a submission seems to be the product of a mindset which sees the extended process of assessment and review of offshore asylum claims as a process which is designed to allow applicants to refine and re-cast their cases at every stage, rather than as a process for ensuring that a case, once made, is fairly assessed and resolved. In practice, an applicant has the opportunity to refine and strengthen his or her case, but that is not the purpose of the system of assessment and review. Further, the re-working of a case at different stages in the process has its downside for an applicant. As in the present case, it may create doubts about the credibility of his or her claims. Further, to require a decision-maker to give notice of his or her intention to reject some, but not all aspects of a claim, may create serious difficulties. Notice concerning some issues might be interpreted as an assurance that other issues are not in dispute. 60 In support of his case, the appellant refers to the decision of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19], the decision of Mason J (as his Honour then was in Kioa v West (1985) 159 CLR 550 at 587 and the decision of the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]. 61 In Saeed the Court considered the obligation to extend procedural fairness to a person who was not within the migration zone. At [19] the majority (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) said: Brennan J in Kioa v West … said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs … . Mason J in Kioa v West … went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case. 62 Referring to the requirements of s 57 of the Migration Act (which dealt with procedural fairness in the case of an application by a person within the migration zone) the Court said at [20]: The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J. When the Minister considers that certain information would be the reason, or part of the reason, for refusing to grant a visa, the Minister is to provide particulars of it in order that the visa applicant understands its relevance. The requirement in s 57(2)(b), that the Minister ensure, as far as is reasonably practicable, that the visa applicant understands why certain information is relevant, may go further. It would require that the importance of the information and its potential impact upon the applicant's case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is possible. It would also require that consideration be given to the means by which particulars of the information should be provided, as most suitable to that purpose. 63 Clearly, their Honours were dealing with the need to communicate "information" upon which a relevant decision might be made. In this context, the word "information" should bear the same limited meaning as was attributed to it by French CJ and Kiefel J (Crennan and Heydon JJ concurring) in SZGUR v Minister for Immigration and Citizenship (2011) 241 CLR 594 at [8]-[10] and by the Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. In effect, those cases establish that the requirement for procedural fairness does not require that a decision-maker expose his or her thought processes or provisional views for comment before making the decision, or identify weaknesses, inconsistencies and contradictions in an applicant's case. However the decision-maker might, in his or her discretion, choose to invite comment on such matters. When Saeed is so understood, it offers no support for the appellant's submission that the second reviewer was obliged to extend to the appellant an opportunity to comment upon the proposal that his claim to be a landowner might be rejected. 64 The appellant seems to assert an entitlement to rely upon an expectation, allegedly created by earlier acceptance of this aspect of the appellant's claim by the assessor and by the first reviewer, such expectation being that the second reviewer would not depart from findings made by the assessor and/or the first reviewer, without giving the appellant notice of the intention to do so. The appellant finds support for this argument in the following passage from the judgment of Mason J in Kioa v West at 587: However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion … . In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter … . If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding the procedural fairness requires that such an opportunity be given is unquestionably stronger. 65 The cases to which Mason J refers in support of this proposition are all cases in which the complaint was that the relevant decision-maker had acted on information or concerns that had not been communicated to the relevant applicant for comment. In other words, they concerned the duty to seek comments on "information", not thought processes, provisional views, weaknesses, inconsistencies or contradictions in the case actually advanced. The observations by Mason J do not support the appellant's proposition. 66 Even accepting that a subsequent decision-maker may be bound by an earlier acceptance of an aspect of the case by another decision-maker, it will always be a question of fact whether there has been such an acceptance, and whether the relevant applicant has relied upon it in some way. Such language may suggest estoppel rather than an absence of procedural fairness, but it seems fairly to describe the appellant's argument on appeal. Of course it is unlikely that the second reviewer could be estopped from the performance of his duty by virtue of the earlier conduct of either the assessor or the first reviewer. This raises the question of how a decision-maker could discharge the duty asserted by the appellant. The assertion seems to be that a subsequent decision-maker must look at the whole history of the matter for the purpose of identifying limits upon his or her decision-making, imposed by the applicant's expectations, having regard to the prior conduct of the matter, and without the applicant having expressed those expectations. Further, as occurred in this case, a late change by the applicant in the focus of his or her case might compel the decision-maker to re-assess the earlier conduct of the case in order to ascertain whether he or she should give the applicant notice of his or her intention to depart from some earlier acceptance or assumption. It is one thing to hold that a party to proceedings is bound by the way in which he or she has conducted the case. It is quite another thing to say that a decision-maker is bound by the approach taken by an earlier decision-maker. 67 In any event, I do not accept that in this case, the appellant could have reasonably expected the second reviewer to proceed on the basis that he was a landowner. Both the assessor and the first reviewer had expressed doubts about his evidence concerning the farming of the land. The first and second reviewers both concluded that he was not a credible witness. It may be that the assessor and the first reviewer assumed or accepted that he was a landowner for the purpose of considering particular submissions, but, at least in the case of the first reviewer, there could be no rational basis for his finding that the appellant owned land in light of the conclusion that he was not a credible witness. There was no other evidence as to such ownership. Similarly, in the absence of other evidence, the second reviewer could not reasonably have found that the appellant was a landowner, having generally rejected him as a credible witness. Of course, either reviewer could have qualified his general rejection of the appellant's evidence by accepting the evidence as to ownership, but I am unpersuaded that the first reviewer did so. The second reviewer certainly did not do so. 68 The first ground of appeal must fail. For the same reason, much of the second ground must fail. Particular ii of ground 2 is difficult to understand. It seems to assert that the second reviewer's assertion that he would give fresh consideration to the matter meant that the appellant was not to assume that he would take the same view of the appellant's credibility as did the first reviewer. That proposition leads nowhere. I consider that particular iii is largely incorrect. Particular iv may be partially correct in that the second reviewer may not have expressed a specific doubt about the appellant's ownership of land. For the reasons which I have given, he was not bound to do so. The second reviewer certainly expressed pervasive doubt about the appellant's claims. As to particular v, some questions may have been framed in a way which appeared to assume land ownership, but such an approach is frequently the only sensible way in which to frame a question. The questions could only be relevant if it were necessary to find in them, some negation of the appellant's reasonable expectations arising out of the prior conduct of the matter. As I see no basis for any such expectations, I see no need to do so. 69 Ground 3 seems to repeat ground 2. Ground 4 misrepresents the federal magistrate's reasoning. The reference seems to be to her Honour's reasons at [53] and [54]. Her Honour there refers to the late change in the focus of the appellant's case, with the increased emphasis on ownership to which I have referred. Her Honour simply meant that the appellant and his adviser must have been aware that they were placing all of their reliance upon the alleged ownership of the land, thus elevating its importance in the case. As to ground 5, the second reviewer made it clear that he proposed to consider the whole matter afresh. ORDERS 70 The appeal must be dismissed with costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 23 August 2013