Aal18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 289
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 289
File number(s): SYG 7 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 27 April 2022 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – whether the authority failed to apply
s 473DC of the Migration Act 1958 (Cth) – whether there was jurisdictional error – no jurisdictional error made out – application dismissed.Legislation: Migration Act 1958 (Cth) ss 36, 473CA, 473CB, 473DA, 473DB, 473DD 473DC, 473DE, 473GA, 473GB. Cases cited: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620
CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DKY16 v Minister for Immigration and Border Protection [2018] FCAFC 222
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
SZBEL v Minister for Immigration and Border Protection [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 21 April 2022 Date of hearing: 21 April 2022 Place: Parramatta Counsel for the Applicant: Mr Johnson Counsel for the Respondents: Ms Hooper ORDERS
SYG 7 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAL18
Applicant
AND: MINISTERFOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.No order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant claims to be a Hazara Shia citizen of Afghanistan. The applicant first arrived in Australia in November 2012.
On 1 April 2016, the applicant applied for a Protection visa. On 13 February 2017, a delegate of the Minister for Immigration (“the delegate”) refused the applicant his Protection visa.
The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 8 December 2017, the Authority affirmed the decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE SHEV INTERVIEW AND THE AUTHORITY’S DECISION
The Authority’s decision is lengthy and detailed. Given the sole ground relied upon by the applicant it is not necessary to summarise in full the decision other than those parts that are relevant.
At paragraph three of the decision record, the Authority sets out the information it relied upon in coming to its decision. This included the information provided by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”) which included a post-interview submission provided by the delegate. The Authority noted that it received a submission on behalf of the applicant which addressed the delegate’s reasoning and findings.
At paragraph six of the decision record, the Authority rejected the applicant’s submission that the delegate failed to afford the applicant an adequate opportunity during an interview to put forward his individual situation and true factual situation. The Authority notes that the applicant was asked at the end of the interview “Is there anything else you want to say before we finish? Anything at all?” Further, a post interview submission was provided. The Court notes at this point that the interview with the delegate commenced at 2.59 pm on 31 January 2017 and concluded at 5.09 pm. The interview, including breaks, took some 2 hours and 10 minutes.
Paragraph eight of the Authority’s decision deals with the submission that the delegate erred in finding that the applicant’s three maternal uncles had resided in the village of S, Afghanistan, at the time the applicant’s father was murdered. It was submitted this was factually incorrect as the uncles were living in Pakistan at the time of the murder. The Authority noted that this was new information that directly contradicted previous evidence given by the applicant during the Safe Haven Enterprise visa (“SHEV”) interview that his maternal uncles lived in S.
At paragraph nine of the decision record, the Authority concludes that this new information could have been provided to the delegate. The Authority found this was not credible personal information and did not fall into the exceptional circumstances to justify its admission under
s 473DD(b)(i) or (ii) of the Act.
Paragraph 21 of the Authority’s decision deals with where the applicant would return to in Afghanistan if he was unsuccessful in his application. The Authority noted the applicant lived in S, Malistan, Ghazni until he was 10 years old, upon which point he moved to the village of B, Urzugan. The applicant returned to S when he was 16 and attended a religious school. B is approximately 3 hours on foot from S. Based on the evidence contained in the SHEV interview, that his maternal uncles reside in S. S is a majority Hazara district. The Authority then stated:
From the representative’s verbal submissions both about Urzgan and Ghazni, at the SHEV Interview, I am satisfied the applicant and his representative were on notice to the possibility that S, Ghanzi would be considered a home area… I consider that as a question of fact, the applicant would return to, and seek to establish himself, in S, Malistan, Ghazni as his home area. I have assessed his claims on this basis.
In the SHEV interview the following appears at p 18 of the transcript:
Interviewer: Your mother was originally from S. Is that correct?
Interpreter: S, yes.
Interviewer: Yeah. Did she have any brothers or sisters?
Interpreter: Yes.
Interviewer: Yeah? Where do they live?
Interpreter: Okay. So her brothers are mostly in that – still in that S area, around there.
At page 22 of the SHEV interview transcript, the following appears:
Interviewer: I see Ok. You said that your mother still has, was it, three brothers still live in – they live in S? Is that correct?
Interpreter: Yes.
At page 23, the applicant stated he lived in B from when he was little till he went to S to study. While he was in S, his father was killed.
GROUNDS OF JUDICIAL REVIEW
In an Initiating Application filed on 2 January 2018, the applicant sought to rely upon two grounds of judicial review. In a document entitled “Consolidated Submissions of the Applicant” filed 8 April 2022, the applicant abandons the second ground of judicial review and seeks to rely only upon the following ground:
1. The second respondent (“the Authority”) committed an error of law by failing to apply section 473DC of the Migration Act 1958 (“the Act”).
Particulars
a.The delegate of the First Respondent failed to make a finding on whether the Applicant would face any persecution in his home area. The Authority came to the critical conclusion that the Applicant’s home area was S and that the questioning by the delegate of the First Respondent at the visa interview was sufficient to put him and his then representative on notice as to the possibility of the conclusion being drawn.
b.The conclusion was erroneous and the Authority’s failure to advise the applicant of their intention to make this finding and provide an opportunity to comment was legally unreasonable.
THE APPLICANT’S SUBMISSIONS
The applicant contends that the fundamental question in considering whether the Authority has acted reasonably in deciding not require the applicant to attend for an interview and/or seek new information from him is whether there was and intelligible basis for that decision: (see; DKY16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [67]). Whether or not an administrative decision is legally unreasonable requires close attention to be given to the scope, purpose and objects of the statutory source of the power under which the decision is made: (see; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [54]).
There are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC of the Act: (see; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]).
It was submitted the Authority has power (albeit no duty) to get new information from an applicant, however the Authority must choose to exercise its power reasonably under
s 473DC(3) of the Act.
It is accepted the Authority may disagree with the delegate’s evaluation of an applicant’s material without providing the applicant an opportunity to respond or comment. However, this is not the applicant’s complaint.
The applicant’s complaint is that the Authority made a crucial factual finding because the Authority determined the review on the basis different from that determined by the delegate. The delegate made no distinction in his decision between the different parts of Afghanistan in which the applicant might reside. The error lies in the Authority’s failure to provide further information from the applicant about a crucial issue that was not in play before the delegate about which the applicant was never given the opportunity to present information.
The Authority proceeded to determine the applicant’s claims on the basis of a critical finding of fact that he would return and seek to establish himself in S as his home area. It was submitted this is a case where the Authority’s “failure to consider the exercise of discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew it did not have but the respondent was likely to have, information on his particular circumstances: (see; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]) (“CRY16”).
It was submitted by the applicant’s Counsel that the applicant’s home area was a matter that was not explored or the subject of findings by the delegate. Reference was made to various points of the transcript of the SHEV interview in which the applicant stated that there were Taliban in both the village of S and B. The applicant indicated that he held fears for the entirety of Afghanistan and could be found anywhere by the Taliban. If the applicant went back to B and one person recognised him, they would talk.
It was submitted by the applicant’s Counsel that this was plain from the applicant’s answers during the SHEV interview that his primary fear emanated from people in the circumstances he expected to be confronted with on return to Afghanistan. The delegate never put to the applicant anything to obtain information about whether he would (or reasonably could) return to live in S. The delegate did ask questions about Kabul and Mazar-e-Sharif, but not about S.
It was submitted by the applicant’s Counsel that the Authority’s error was manifest in its finding at paragraph 21 of the decision record that “the applicant’s links to B are no longer as strong as his links to S”. In circumstances where the delegate never put the proposition to the applicant or asked about his links to be compared to S, this finding was made in the absence of any information about the very topic. The Authority therefore suffered, in the relevant sense, from an informational deficit that should have been remedied by inviting the applicant to provide information on the topic. This information was material and critical in determining that the applicant did not face a relevant risk of harm in Afghanistan.
It was submitted that the Authority restricted itself to the risk that the applicant would face in S and did not give adequate consideration as to whether he might face harm if returned to B.
It was submitted that this amounted to a material jurisdictional error in circumstances where even had the Authority considered, and found the applicant was at risk if he return to B, it nevertheless found that there was no such risk in S. It was put to the Court that a decision-maker will not perform the tasks required of him or her if he or she simply searches for “a place” within the Country of nationality where a particular applicant will not have a well-founded fear of persecution. The decision-maker must assess, on the material before him or her, the place or places to which an individual is likely to return: (see; CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [45]).
The jurisdictional error here is that the Authority’s failure to appreciate the consideration of this fact specific enquiry. The Authority did not have, but the applicant was likely to have, critical information about the question of where he was likely return to. The applicant had stated the different points in his life he lived both in S and B.
The Authority’s failure to invite the applicant to comment was a material error in that had it received more information about S, it may have prompted the Authority not to treat that place as his home area. Had the Authority come to the view that it was not his home area, it would have asked the applicant further questions about his capacity to relocate to S. The outcome would most certainly have been different.
THE FIRST RESPONDENT’S SUBMISSIONS
The Minister’s Counsel submitted that the delegate found the applicant’s home area was S, in the Malistan District of Ghanzi province. The delegate made no finding that the applicant faced a real chance of serious harm as a Hazara Shia in any specified location within Afghanistan. However, the delegate also considered and made findings concerning relocation by the applicant to Kabul and Mazir-e-Sharif.
The applicant’s representative made a submission to the Authority on 17 March 2017. At paragraph 21 of the decision record, the Authority made the impugned findings that the applicant would return and establish himself in S as his home area. This was the same location as the delegate found to be the applicant’s home area.
The discretion conferred by s 473DC(3) of the Act is subject to the implied condition that must be exercised in accordance with legal reasonableness: (see; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 227 [21] ) (“Plaintiff M174/2016. Further, the content of the constraint of reasonableness in this legislative context is informed by features of the scheme of review set out in Part 7AA of the Act.
Pursuant to s 473DA, Division 3 of Part 7AA with ss 473GA and 473GB of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. Section 473DB of the Act “sets out the primary requirement that, subject to the part, the Authority is to review a FastTrack reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting a new information without interviewing the referred applicant”: (see; Plaintiff M174/2016 at [22]).
The capacity for the Authority to accept and request new information is further limited by the provisions of ss 473DC, 473DD and 473DE of the Act. New information can only be considered if there are exceptional circumstances: (see; s 473DD(a) of the Act).
The applicant contends that the Authority erred in failing to exercise its power under
s 473DC(3) of the Act to invite the applicant to give new information by way of comment on the question of his home area. The applicant’s submissions refer to an alleged failure by the Authority to consider exercising its s 473DC(3) of the Act discretionary power whereas the ground of review is a failure to exercise the power.
The applicant submits that the delegate did not distinguish between different parts of Afghanistan which the applicant might reside, whereas the Authority made a “critical” factual finding that the applicant would return to S, causing the Authority to determine the review on a different basis to that of the delegate. The Authority lacked information on this issue, the applicant submits, because the issue of the applicant home area was not explored by the delegate at interview or the subject of findings by the delegate.
The Minister put forward six reasons why it is submitted the delegate and the Authority made precisely the same factual finding as to the applicant’s home area being S.
First, both the delegate and the Authority made precisely the same factual finding as to the applicant’s home area being S. The delegate found “The applicant’s home area in Afghanistan is S village, Malistan District of Ghanzi province: (see; Court Book p 129).
Second, the present application is not a case in which the Authority did not have, in relation to a new determinative issue, relevant information that it knew the applicant had and could supplied if invited: (cf; CRY16 at [82]). Rather, the Authority merely evaluated the existing body of evidence that formed the review materials and made findings of fact on the basis of the existing evidence: (see; DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]). There was ample material to support the Authority’s finding of fact as set out in paragraph 21 of the decision record.
Third, the applicant gave oral evidence as to his ties to S in his SHEV interview. His oral evidence appears to proceed on the basis of a claimed to fear in potential return to S because that is where the applicant was living when he was aged 17 or 18 attending religious school. It is further noted that at the beginning of the hearing, the applicant’s representative made an oral submission addressing both Ghanzi and Uruzgan provinces.
Fourth, there was nothing in the face of the material before the Authority that suggested the applicant had any “new information” (within s 473DC(1) of the Act) that he could provide contradicting the delegates factual finding that S was his home area. The submission by the applicant that he was “never” afforded the opportunity to present information on whether not he would return to S as his home area overlooks the fact the applicant had the opportunity throughout the entire process to advance whatever submissions or evidence he wished to in support of this issue and the application in generally.
Fifth, accepting that there are no fixed categories of circumstances in which legal unreasonableness is demonstrated, this is not a case that is factually similar and analogous to any other in which legal unreasonableness has been found. For example, the case is factually unlike CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620 where the Authority was faced with an apparent fundamental changes to the applicant’s familial circumstances within the appellants country of nationality or CRY16 which concerned an internal relocation to a specified location raised for the first time, on review by the Authority.
In terms of the particulars of the application before the Court, it was submitted by the first respondent’s Counsel that the suggestion in particular (a), that the delegate did not consider the applicant’s home area, is factually incorrect. To the extent that this particular is intended to suggest legal error on the part of the delegate by failing to make a finding as to whether the applicant would face persecution in his home area, no authority was cited for that proposition and in any event any failure on the part of the delegate to make a finding was “rendered moot” by the Authority’s review: (see; Plaintiff M174/2016 at [46]).
Particular (b) is at odds with the statutory scheme under Part 7AA of the Act. There is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant to a matter that might be decided on a different basis from the how the matter was determined by the delegate. The principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 do not apply to reviews under Part 7AA of the Act.
CONSIDERATION
The applicant contends that the decision of the Authority is infected by legal unreasonableness. Legal unreasonableness is where a decision maker has come to a conclusion that no reasonable decision maker could have come to: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28]) (“Li”), or where a decision has been made that lacks an “evident and intelligible justification”: (see Li at [76]). The test for unreasonableness is ‘stringent’ and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision maker: (see; Li at [30], [113]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11]).
In Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15, at [43] Gordon J stated (citations omitted):
…unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”.
In considering the matter, it is not what might be described as a classic relocation case, where the Authority determined that the applicant could safely relocate within their country of citizenship to a different area from where they originated, but chose not to raise that issue with the applicant for comment: (see; CRY16 at [82]). The delegate in this case made a specific finding at Part 5 of the decision record that “The applicant’s home area in Afghanistan is S village, Malistan district of Ghanzi province”. The impugned finding of fact by the Authority was precisely the same finding as that of the delegate. The applicant was clearly on notice from the delegate’s decision that is where the delegate thought he would return to and the consideration of his claims was through that lens. It was through precisely the same lens that the Authority considered the matter
This is not a matter where the applicant was in possession of crucial information that could have been easily obtained from him regarding his capacity to relocate to a different area from which he originated, being the evil found in CRY16.
The finding of the Authority that the applicant would return to the village of S was a finding that was open to it on the evidence that was before it. S was the only place where the applicant had family, given his mother and siblings at that stage resided in Pakistan. The applicant was born there. The applicant lived for his early years there, before moving to B, but later returned to S for education at a religious school. Following his father’s death, the applicant fled to Pakistan with his family who collected him from S.
It was the applicant who told the delegate of his ties to S. At no point did the applicant raise in his SHEV interview that he would propose to live anywhere else within Afghanistan if returned. The applicant clearly stated in his SHEV interview that he feared all of Afghanistan not just either S and/or B. This was rejected by both the delegate and the Authority.
In these circumstances, the Court is not of the view it was incumbent on the Authority to raise with the applicant a potential finding he would return to S pursuant to s 473DC of the Act, given the overall limitations on the consideration of new material in Part 7AA reviews.
In the Court’s view, the finding by the Authority that the applicant would return to S was entirely predictable and orthodox. There is nothing legally unreasonable in the way the Authority went about its consideration of the matter, noting that the test is stringent and factually dependant. The Authority set out in some detail his fears in relation to both S and B, but was not satisfied they met the test for refugee protection.
In terms of the applicant having a well-founded fear of persecution, at [25] and [26] of the decision record, while the Authority was satisfied the applicant’s father was killed by the Taliban in 2005 in the village of B, it noted that 12 years had passed (as at the time of the decision in 2017) and was satisfied that the applicant would be of no interest to the Taliban upon return. The Authority noted the applicant’s maternal uncles, who resided in S, did not appear to have been bothered by the Taliban.
As pointed out by the respondent, there is no general obligation on the Authority to put dispositive matters to the applicant or to alert an applicant that a matter may be decided on a different basis to that of the delegate.
The Court is not satisfied the Authority’s process of reasoning or its ultimate conclusions involve legal unreasonableness. The Authority was not satisfied the Taliban, after such a long period abroad, would continue to have any adverse interest in the applicant, whether he resided in S, B or anywhere else within Afghanistan. The Authority properly considered all his claims and found none gave rise to the requirement for refugee protection under s 36(2)(a) or (aa) of the Act.
CONCLUSION
The ground of judicial review has no merit. The application is dismissed.
In coming to the conclusion that it has, the Court has been mindful that it is required to review the decision of the Authority on the basis of judicial review only and not conduct merits review. Judicial review is time of decision focussed, in that it cannot take into account developments that may have taken place post the decision which may significantly impact on the merit of the decision and the factual basis that underpins it.
In this regard, the Court notes that the fears expressed by the applicant in relation to the Taliban, if he were returned to Afghanistan, take on an entirely different complexion, following the ousting of the previous government in Afghanistan and the installation of the Taliban led government.
The Court is aware of multiple, well-sourced reports of ongoing human rights abuses being perpetrated by the Taliban led government on Afghan citizens, and in particular human rights abuses of women and girls. The Court was advised, in response to a specific inquiry made at the commencement of the hearing that on 17 August 2021, the Minister for Immigration announced that no Afghan citizen would be forced to return to Afghanistan while the security situation remains dire. The possibility of applications for Ministerial intervention was also covered in the announcement. That power is, of course, a personal and non-reviewable power of the Minister.
What changes in the conditions within Afghanistan might be necessary for the security situation to return to a State where forced return was appropriate has not been addressed since that announcement. Nor has any time frame for the review of the security situation been announced.
This in effect leaves the applicant and those like him in a state of suspended animation. They have no right to continue to stay in Australia indefinitely. They can be forcibly returned if a future government determines the security situation in Afghanistan has improved. How long that might take must be measured in years rather than months. It might never occur.
Rather than this Court spending valuable hearing time, at considerable cost to the community, considering decisions of the Authority that are no longer factually supportable due to the changes within Afghanistan. Surely it be preferable for a more permanent solution to be arrived at by the Executive.
Such a course of action might give certainty to the applicant and those like him, and allow the Court to concentrate its time on matters that require a genuine determination of disputed issues.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 27 April 2022
0
12
0