ABD18 v Minister for Immigration
[2018] FCCA 3378
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABD18 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3378 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether discretion under s.473DC ought to have been exercised – whether conclusions open on the evidence – Immigration Assessment Authority’s decision affected by error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 5H, 46A, 65, 473BB, 473CA, 473DA, 473DB, 473DC, 473DD, 473DE, 473FB, 473GA, 473GB Pt.7AA |
| Cases cited: AUG17 v Minister for Immigration & Anor [2017] FCCA 1874 Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) 244 CLR 144 |
| Applicant: | ABD18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 9 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 August 2018 |
| Date of Last Submission: | 15 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr P. MacLiver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 18 December 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 9 of 2018
| ABD18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 4 January 2018, amended on 3 August 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 18 December 2017.
The decision of the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 14 March 2017 not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant seeks an order that the decision of the IAA be quashed and that a writ of mandamus be directed to the IAA.
To succeed in this Court, the applicant must show that the IAA fell into jurisdictional error.
Background
The applicant’s protection visa application
The applicant is a citizen of Afghanistan (Court Book (“CB”) 9).
The applicant arrived in Australia at Christmas Island on 21 April 2013 by sea as an unauthorised maritime arrival (CB 7, 60 and 158).
By letter dated 2 May 2016 the former Department of Immigration and Border Protection (the “Department”) advised the applicant that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) to allow him to lodge an application for either a Temporary Protection Subclass 785 visa or a Safe Haven Enterprise Subclass 790 visa (“SHEV”) (CB 30-31).
On 10 November 2016, the applicant lodged an application for a SHEV (CB 36-93).
On 20 January 2017, the applicant attended an interview with a Ministerial delegate to discuss his SHEV application and his claims that he is a person in respect of whom Australia has protection obligations. The applicant's migration agent provided a Post Interview Submission on 2 February 2017 (CB 108-110 and 132-153).
The applicant’s protection claims were correctly summarised by counsel for the applicant at paragraphs 1-9 in written submissions to this court dated 23 August 2018 as follows:
a)Insofar as is relevant to these proceedings, the applicant’s application included reference to a fear of harm because of his religion and ethnicity. In particular, he referred to one occasion during his work as a truck driver, when he was transporting cement from Kabul to Jaghori. During this trip, he got stuck on the roads behind an American military convoy. That meant he had to have his stop-over at Qarabagh late at night.
b)The applicant parked his truck near a bazaar where he intended to stay for the night. While getting ready to wash his hands and face at the back of the bazaar, the applicant heard people shouting. He saw several men armed with guns, and thought they were Taliban because they dressed differently to everyone else. These Taliban saw his truck, and went searching for its owner.
c)The applicant hid and avoided being found, but the Taliban stole his truck. His identity documents were in the truck.
d)The applicant feared harm from the Taliban, because he thought they suspected him of working for a foreign NGO, because of the circumstances in which he found himself (namely, transporting cement behind an American military convoy). He also feared that his identity had been specifically provided to the Taliban.
e)Soon after, the Taliban came looking for the applicant in his home village. They could not find him and burnt his house down.
f)This incident prompted the applicant to leave the country via Kabul. He spent a short amount of time in Kabul in hiding while making preparations to leave the country entirely. His wife and daughter managed to flee.
g)In addition, the applicant referred to fears of ISIS and other militants who were targeting Hazara Shias.
h)These fears are compounded by his status as a failed asylum seeker returning from Australia, carrying with it an imputed political opposition to anti-government entities such as the Taliban and ISIS.
The delegate’s decision
As summarised by counsel for the applicant, on 14 March 2017, the delegate made a decision refusing to grant the applicant a SHEV (CB 100-110).
Overall, the delegate considered that there was a real risk that the applicant would suffer significant harm should he be returned to his home area from Kabul as a consequence of road insecurity outside Kabul but that the applicant could reasonably relocate to Kabul without facing harm.
In this regard, the delegate referred to various social media photos (CB 161-162):
As noted above the applicant claimed that his brother […] was killed in 2009 and soon after both of his parents went missing, presumed dead. When asked about the location of his family members during the SHEV interview the applicant stated his four brothers are living in […], Quetta, that they moved there around 2010 and have returned to Afghanistan once about six months prior in order to obtain taskeras. The applicant also stated that his wife and daughter were living in […] and his daughter was not going to school as they were both living in hiding. A number of serious credibility concerns were put to the applicant during the SHEV interview. This included that when his brother […] arrived he stated that […] was taken by the Taliban in […] and that both of his parents were alive and living in Afghanistan. It was further noted that in […]’s citizenship application lodged in March 2016 that he has stated that his father […] was alive and presently living in Afghanistan and that his mother […] was deceased. The applicant was shown a number of photos sourced from social media of individuals believed to be family members and confirmed they were photos of his father and brothers […]. It was then put to the applicant that information suggested […] had just finished studying at […] and is now studying philosophy and sociology at […]. It was also put to him that it appears that his brother […] is also studying at […]. It was put to the applicant that his brother […] seems to be doing well In Afghanistan, that he was very well dressed for his high school graduation and he does not present as someone who is living in poverty. Overall the information suggested the applicant's father and at least three youngest brothers were living in Kabul and doing quite well there. Further the applicant was shown a photo of his daughter in which she appeared to be wearing a school uniform and the applicant agreed that she was.
Following the natural justice break the applicant apologised for lying and stated that people had told him if he says his family are not living in Afghanistan then he will not be sent back there. The applicant confirmed […] was kidnapped in […] as his brother […] had stated and that his family are living in […], Kabul where they have lived for nearly five years. When asked if his family was doing well in Kabul the applicant stated that financially they have never had any problems. The applicant maintained that his wife and daughter are living in […] and that his daughter only went to school when she was in Kabul for 3 months, but living back in […] she is not going. When asked if he has lived in Kabul before the applicant stated he had for the final 3 months before he fled to Australia but he stated he did not stay with his family as is life was in danger. Overall I accept that the applicant's brother […] was killed by the Taliban in […]. I do not accept that his father and mother went missing in […] in search of […]. I find that the applicant's father and brothers are living in Kabul, have done for the past five years and are financially stable. I accept that the applicant's wife and daughter reside in […] with her parents.
The delegate accepted that the applicant was a truck driver whose truck was stolen by the Taliban and that the applicant's identity documents were in the truck at the time. However, the delegate did not accept that the Taliban later went looking for the applicant. This assessment was based on the delegate’s interpretation of country information which suggested that “the presence of insurgents (which includes the Taliban) in […] was very weak at the time” (CB 162). The delegate went on to conclude that, because of the passage of time, the applicant would no longer be of interest to the Taliban.
These findings were used to justify the conclusion that Kabul was safe and that it was reasonable for the applicant to relocate there. In that regard, the Court notes the delegate’s findings as follows (CB 163-166):
Refugee criteria assessment-s36(2)(a) of the Act
Fear of harm as a Hazara Shia
I am satisfied that the applicant will face a real chance of being kidnapped, subject to physical ill-treatment and even killed on his return trip to […] on the basis of his Hazara ethnicity and/or Shi'a faith. I am satisfied that such treatment amounts to serious harm.
Section 5J(1)(c) of the Act requires that the real chance of persecution relates to all areas of the receiving country. I have therefore considered whether the applicant could find safety in another area of Afghanistan, focusing my assessment on Kabul as Kabul is generally considered to have a higher level of security than other parts of Afghanistan.
…
There remain credible risks to those associated with the government, security and international bodies. In terms of the types of groups that are assessed by the country information as being at a high risk of harm in Kabul, the applicant has not claimed to be directly involved with, or have any association to, any government bodies, political figures, any defence or security forces, diplomatic organisations or international organisations. I find that the applicant has no profile or association that would link him to international or government groups, and I find he would not in the future. I accept that due to insecurity on the roads outside of Kabul, the applicant would likely be unable to travel safely elsewhere in Afghanistan, however I do not accept that that such a restriction on his freedom of movement would amount to serious harm.
…
Considering all the information before me, including the presence of security forces in Kabul, the size and diversity of the city, the limits on ISKP capabilities and the pressures the group is under from Afghan and International forces, as well as the Taliban, I find that ISKP has only a limited capacity to undertake further infrequent attacks in Kabul. While I accept future attacks may occur, I find that the threat is not of a scale or frequency, where the chance of the applicant being seriously harmed in an attack is more than remote.
Given the information above I find that there is not a real chance of the applicant being seriously harmed as a Hazara Shia due to the actions of the Taliban, ISKP or any other Anti Government Elements (AGEs) within Kabul.
Fear of harm as a failed asylum seeker/ Returnee from the West
DFAT assessed that persons returning to Afghanistan (either voluntarily or involuntarily) who have departed illegally are rarely punished unless they are suspected to have committed other crimes. As the applicant has no declared previous criminal history in Afghanistan, I find the applicant will not face a real chance of harm from the Afghan authorities on the basis of having left illegally or for having sought asylum in a western country.
DFAT advises that many Afghans travel abroad to Iran, Pakistan, Europe or other western countries to seek employment or educational opportunities. As Afghanistan's largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan. This applies to those displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan. Returnees from western countries are almost exclusively returned to Kabul where because of Kabul's size and diversity, returnees are unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. I have noted UNHCR's statement that individuals who are perceived to have adopted values or appearances associated with Western countries, are targeted due to their imputed support for the government and international community by AGEs. It cites two examples of returnees from Australia who were targeted by the Taliban on route between Kabul and Ghazni and accused of being infidels and spies. Of the other reports cited only one mentions an interviewee being the victim of targeted harm in Kabul when he was beaten unconscious by a gang. For the majority of returnees it appears that fear of (rather than direct) violence, that was affecting them. There is no indication that they were targeted by AGEs in Kabul on the basis of being westernised.
While there is evidence that returnees may face difficulties in reintegration and may be treated with suspicion at a community level due to their extensive absence, the applicant would be returning to a city where there is a diversity of people including other returnees who have resided for a significant period in other countries, or have not previously lived in Afghanistan and who face similar difficulties. I accept that as a person who has lived for nearly 4 years in a western country, the applicant may be viewed as such by the locals, but there is a significant displaced population living in Kabul who have relocated from other areas of Afghanistan or have returned from Iran, Pakistan or western countries. Further the applicant has significant family ties in Kabul with his father and brothers and also his uncle all residing in Kabul. It is expected that this family support would provide the applicant with assistance in reintegration and therefore limit the suspicion he may be treated with. There is no evidence to indicate that returnees like the applicant who have lived overseas for a significant period of time, and in a western country are targeted in Kabul by insurgents or that the applicant would be targeted on return to Kabul as a returnee with an imputed pro-Western political opinion.
I accept that if the applicant were to travel outside Kabul there is a risk of him being targeted on the roads. However the applicant could access Kabul through its international airport without having to access roads which are reported as being unsafe for returnees. I find that the chance the applicant will face serious harm from AGEs, the community or the Afghan authorities in Kabul on the basis of having returned as a failed asylum seeker or as a returnee from a western country to be remote.
Fear of harm as a truck driver
I have accepted that the applicant worked as a truck driver whilst living in Afghanistan. As noted above travel on the roads outside Kabul in Afghanistan is dangerous, particularly for Hazara's. However I find that being a truck driver is not an innate or immutable characteristic. The applicant stated during the SHEV interview that he could work as a plasterer or a tailor if he relocated to Kabul. I therefore find it would be reasonable for the applicant to modify his behaviour and find employment in a profession that would not require travel on the roads outside Kabul and therefore would avoid the risk of serious harm faced by truck drivers.
Refugee: conclusion
I acknowledge that the security situation on return to Afghanistan is a challenging one, however, I find that there is not a real chance that the applicant would be seriously harmed should he return to Kabul on the basis of his ethnicity, his religion, as a returnee from the west, failed asylum seeker, as a truck driver or for any other reason related to the characteristics, whether considered singularly or cumulatively.
Therefore, I find the applicant does not have a well-founded fear of persecution as required by paragraph 5J(1)(b). The applicant is not a refugee as defined by section 5H(1) of the Act.
The delegate then assessed the complementary protection criteria, finding as follows (CB 167):
Reasonableness of relocation to Kabul
Whilst I have found that there is no real risk of significant harm in Kabul, I have turned my mind as to whether it would be reasonable, in the sense of practicable, for the applicant to relocate to Kabul. Having considered available country information and the applicant's circumstances I am satisfied that it is reasonable for the applicant to relocate to Kabul. On the evidence before me I am satisfied that the security situation in Kabul is such that it is reasonable for the applicant to relocate to this city.
The country information indicates that relocation to Kabul is more successful for single young men of working age, provided they can use family and tribal connections in the city. The applicant’s immediate family reside in Kabul and are established there, along with an uncle. Whilst I acknowledge the applicant is married, he would be returning to Kabul as a single male, considering his wife and child are residing in […]. The applicant himself has stated his family has never had any financial problems and the empirical evidence discussed above in Findings of Fact supports the applicant's statement. When asked during the SHEV interview if he could provide for himself in Kabul, the applicant stated he would have no problem finding a job. Given this admission by the applicant and the significant family support he has in Kabul, I also find it reasonable for his daughter and wife to relocate to Kabul if they choose to and if it is safe to do so. I note my finding above that travel between Hazarajat and Kabul is particularly dangerous for Hazaras. Therefore I consider at this time it may not be safe for the applicant's wife and child to relocate to Kabul, however I do not consider such separation to be unreasonable for the applicant. The applicant has not lived in Afghanistan since early 2013 and he has applied for a SHEV visa. Were the applicant to be granted the SHEV visa it would be valid for five years and he would not be able to travel to Afghanistan. It is therefore expected that the applicant has applied for the SHEV visa with the intention of being separated from his wife and child for at least another five years. I therefore do not find it unreasonable for the applicant to be separated from his wife and child should he return to Kabul and seek to establish himself, until such time as the road security improves.
I have found above in Part 6 that low level societal discrimination of Hazara Shias and a restriction of freedom of movement does not amount to serious harm. Kabul is the capital of Afghanistan and is considered to have greater economic, security, education and health care conditions than in other areas of Afghanistan. I therefore find that restriction on the applicant's ability to safely travel outside of Kabul does not amount to significant harm. Further I find that low level societal discrimination of Hazara Shias in Kabul does not meet the threshold of significant harm.
I am satisfied that it would be reasonable for the applicant to relocate to Kabul, an area of the country where there would not be a real risk that he will suffer significant harm.
The IAA’s decision
The delegate’s decision was referred to the IAA pursuant to s.473CA of the Act.
By letter dated 22 March 2017 the IAA advised the applicant of that referral and provided him with a practice direction given under s.473FB of the Act (CB 114-115). Paragraph 20 of the practice direction states:
Submissions and new information
20.For the purposes of the review, you may provide a written submission on the following:
•why you disagree with the decision of the Department
•any claim or matter that you presented to the Department that was overlooked.
On 11 April 2017, the applicant’s migration agent provided a written submission to the IAA addressing the delegate’s findings, primarily in relation to the finding that the applicant could reasonably relocate to Kabul (CB 121-126). The Court notes, relevantly, as follows:
CREDIBILITY- Truck Incident
The delegate has accepted that [the applicant’s] truck, which contained cement and construction material was stolen by the Taliban, and that by doing so, the Taliban may have come into possession of [the applicant’s] identity documents which had been stored in the vehicle. However, they do not accept that the Taliban pursued [the applicant] and burnt down his home as 'Country Informations suggests that the Taliban were very weak in […] district at this time.' However we submit that based on relevant country information its both plausible and reasonable to believe that the Taliban would have pursued [the applicant]. […] is just over 110km away from […] which the delegate has described as an area where the Taliban were 'dominant'. However we submit that given the Taliban's ability to track and pursue individuals of interest, […]’s close proximity to their acknowledged stronghold, and their possession of [the applicant’s] identity documents, it would remain plausible they would have sought [the applicant] and in the event of not finding him, set alight his home. The UNHCR published a 'Note on Burden and Standard of Proof in Refugee Claims.' Credibility is established where the applicant has presented a claim which is coherent and plausible, not contradicting generally known facts, and there is, on balance capable of being believed. Additionally, the immigration department's policy guidance notes that: Asylum seekers often rely on claims that cannot be verified or are lacking in supporting evidence. There is no requirement that evidence provided by asylum seekers must be independently corroborated before it can be accepted by decision makers. Further, The immigration department's policy guidance on Assessing Credibility, states that "decision makers should be sensitive to the difficulties often faced by asylum seekers and may need to give the benefit of the doubt if the asylum seeker is generally credible but is unable to substantiate their claims".
In keeping with the generally credible finding, the ability to provide spontaneous details about the incident, and the available country information which does not contradict [the applicant’s] claims, we contend that the Delegate erred in the assessment of the plausibility in this claim. We urge the IAA to apply the "benefit of the doubt" principle favourably in [the applicant’s] case. Given that this is a 'future test', [the applicant’s] personal past experience informs his fear which will now be exacerbated by his seeking asylum and time spent in a western country. We submit that this incident would continue to be a contributing factor to escalate [the applicant’s] risk of harm should he be returned. The Taliban, as discussed in the Post Interview submission, are actively targeting those who are engaged in construction work and are perceived as 'pro-government' along with targeting Shia muslims. On return the Taliban having identified him as an individual who works in the construction industry and has been seen tailing an American convoy and therefore imputed with assisting US troops in Afghanistan which would serve to acutely heighten his risk of harm from insurgents should his identity be discovered. As the Taliban have possession of his identity document and also considering the sophisticated network of informants and spies in Afghanistan we submit this would not be a remote possibility.
REASONABLENESS OF RELOCATION
Whilst the delegate satisfied that the applicant will face a real chance of being kidnapped, subject to physical ill-treatment and even killed on his return trip to […] on the basis of his Hazara ethnicity and/or Shi'a faith, and that they are satisfied that such treatment amounts to serious harm, the delegate has considered relocation primarily to Kabul as a reasonable option. We submit that the delegate has erred in finding that our client would not be persecuted in Kabul, would not face a real risk of significant harm in Kabul and that it would be reasonable for [the applicant] to relocate to Kabul. Our reasons are discussed below.
…
GENERAL SECURITY SITUATION IN KABUL
We submit that considering the general deterioration of security in Afghanistan and the security forces significant challenges with operation capacity, the declining economic situation and also the ability of the Taliban to investigate and pursue individuals of interest we submit that [the applicant’s] ability to relocate is flawed. The ability for a person like [the applicant] to subsist in Kabul is only likely to get harder with up to 7,400 forced Afghan returnees from Pakistan streaming over the border every day, fuelling the fire for a humanitarian crisis. This is on top of the already appalling conditions for Hazaras in Kabul as documented in UNHCR's latest April 2016 Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, which was referenced in the delegate's decision'… Kabul has reportedly received close to 40 per cent of all new conflict-induced IDPs in Afghanistan since 2002. Some estimates put the percentage of Kabul's population living in informal settlements at 70 per cent. The financial situation of Kabul residents and their employment opportunities are reportedly worsening. In the Kabul Informal Settlements (K/S), designated sites of protracted /DPs, returnees and other urban poor targeted for humanitarian assistance, 80 per cent of a population of about 55,000 people are reportedly severely or moderately food insecure.'
[the applicant] will on return need to be able to provide financial support not only for himself but also needs to be able to provide for his family. We submit that in light of the dire conditions, meaningful employment which would allow him to submit and provide for this family would be extremely limited. With limited to no prospects of finding housing to accommodate himself and his family limited to no prospects of finding employment that will enable him to provide food and support, combined with the significantly deteriorating security situation and intentional targeting of Shia Hazaras in Kabul, we submit that it would be unreasonable for [the applicant] to relocate to Kabul. Further our client would be returning from a wealthy western country where he has resided for a considerable amount of time whilst seeking asylum. Being a new settler to an area, along with mannerisms he has picked up in Australia would instantly identify him as distinctive from the general population. We submit that in an area where resources are scare and crime is increasing, [the applicant] will be at acute risk of kidnapping for reasons of extortion. His conspicuousness will also place him at risk from AGE's, given the Taliban's ability, through their network of spies and informants be able to gain information about [the applicant’s] past, including that his previous encounter with the Taliban and imputed political opinion will serve to heighten the risk of harm. We submit that considering the general deterioration of security in Afghanistan and the security forces significant challenges with operation capacity, the declining economic situation14we submit that [the applicant’s] ability to relocate is inaccurate and unsubstantiated by country information available.
On return, our client will need to be able to provide financial support not only for himself but also needs to be able to provide forms siblings as following the death of both his parents will now be the head of his family. We submit that in light of the dire conditions, meaningful employment which would allow him to submit and provide for this family would be extremely limited. With limited to no prospects of finding housing to accommodate himself and his family, limited to no prospects of finding employment that will enable him to provide food and support, combined with the significantly deteriorating security situation and intentional targeting of Shia Hazaras in Kabul and individuals of his profile, we submit that it would be unreasonable for [the applicant] to relocate to Kabul.
On 18 December 2017, the IAA affirmed the delegate’s decision not to grant the applicant a SHEV, but for different reasons than those provided by the delegate.
The IAA summarised the applicant’s claims as follows (CB 239):
19.The applicant claims he fled Afghanistan due to an incident involving the Taliban in December 2012. He claims that after collecting a load of cement in Kabul bound for […], he got stuck behind an American convoy between Ghazni and Qarabagh. He claims he was forced to follow along slowly behind them with his cement load and as a result, was delayed in his journey and stopped to spend the night in Qarabagh. He claims he temporarily left his vehicle to prepare for prayer and while he was gone the Taliban came surrounded his vehicle, shouted for the owner to reveal themselves and then searched the area for the next two hours looking for him while he hid behind some barrels in a nearby toilet area, and that they eventually left in his truck. He claims he then caught a lift and went and stayed in Kabul while his wife and daughter fled to […]. He claims that a week later the Taliban came looking for him in […] and when they couldn't find him, they burnt down his house. He believes the Taliban may have suspected he was working with an NGO because his truck was filled with construction materials and he had been seen following an American convoy. He believes other people at the bazaar may have disclosed his identity as the truck's owner to the Taliban.
Overall, the IAA found that the possibility of the applicant being harmed in relation to his being Hazara or any type of returnee to be remote and that as a consequence he could safely return to his home area.
This assessment differed from that provided by the delegate, who found that the applicant could not return to his home area but could reasonably relocate to Kabul.
The IAA found that that the applicant was merely a “low-level construction worker” (CB 240 at [23]), that the Taliban had not interrogated the applicant's family as to his whereabouts and that there was “no evidence that the Taliban has been trying to locate the applicant in the last five years since they found his truck in the bazaar” (CB 242 at [33]).
Of relevance here is the IAA’s assessment of the applicant’s family’s use of social media and the ability of the Taliban to locate them as a result of their social media use.
In concluding that the Taliban had not interrogated the applicant's family as to the applicant's whereabouts, the IAA asserted that the Taliban had the “capability to locate persons of interest” but that they had not targeted the applicant's family in Kabul despite the family having “been active on social media and their publicly assessable [sic] profiles have included relevant location indicators such as their high schools, universities and what appears to be their home or possibly their uncle's home” (CB 242 at [32]).
This use of the social media information before it differed to the use made of it by the delegate. The delegate’s reasons show that she relied on social media photographs to conclude that the applicant’s family members were alive in Kabul and “doing well” (CB 238 at [15]). This allowed her to conclude that it was reasonable for the applicant to relocate to Kabul. When interviewing the applicant, the delegate put to him that his family members appeared in the social media evidence to be “doing well” and raised “concern regarding [his] credibility” as well as suggesting that the applicant’s “father and at least [his] three youngest brothers are living in Kabul and doing quite well there” (CB 162). The delegate did not suggest that the social media posts were relevant for any purpose other than to assess whether the applicant could relocate to Kabul.
The IAA, on the other hand, used the social media information to conclude that the Taliban could have located the family members from the posts but did not do so. This, the IAA determined, was evidence that the applicant was not likely to be harmed by the Taliban if he returned to his home region.
As to the broad fears of harm due to religion and ethnicity, the IAA concluded that while Hazara Shias are at risk of harm in Kabul (a finding that was contrary to the finding of the delegate), the applicant's home areas were free from “ethnic or religious targeting” (CB243 at [36]). The IAA went on to say that while the roads the applicant would have to use as a truck driver were dangerous, he could change jobs and thus stay in his home areas.
The IAA accepted that the applicant was a truck driver, that the Taliban had searched for him when he stopped in Qarabagh and that they stole his truck. Relying on country information, the IAA did not accept that that the Taliban went looking for the applicant or that the Taliban burnt the applicant’s house.
Having considered the applicant's evidence, the IAA relevantly concluded as follows (CB 241-248):
29.The applicant's truck and identity documents were stolen by the Taliban five years ago, in 2012 and while I accept the Taliban imputed the applicant as having an association with an NGO at that time, I am not satisfied they maintained their interest in finding the applicant after they drove away in his truck.
…
31.I give weight to the fact that the applicant's wife and child reside in neighbouring […] and his father and brothers reside in […] and two sisters live in […] and there is no evidence to suggest any of them have received threats or faced harm, or have even been questioned by the Taliban in the applicant's absence. I have not accepted the Taliban came to the village and burned his house and there is no other evidence that other villagers in […] have been questioned at any time. I am not satisfied the applicant's family or neighbours have been of any adverse interest to the Taliban. I note it was the applicant who the Taliban fixated on, however I consider it relevant that the Taliban have not turned their attention to the applicant's other family members for any reason, even obtaining information, and nor on the evidence have they turned to other villagers to track down the applicant.
32.I have considered that while the Taliban have the capability to locate persons of interest, the Taliban may have had difficulties gaining access to the applicant's wife and daughter (whom I do not accept are in hiding) in […] and to the villagers in […] due to the relative security and protections which exist in […] and the broader […] region (discussed below). Even if his family members in […] have been protected from Taliban interactions, the applicant also has family in other parts of Afghanistan, including […] and […]. There is no indication before me that the Taliban has at any time sought to locate the applicant through any member of his family in any part of Afghanistan. I note also that the applicant spent around three months in Kabul while the arrangements were being made for his trip to Australia. While he claims he lived in hiding and kept a low-profile during that time however there is no evidence before me to suggest that anyone was looking for him during this time, nor at any time subsequently. Relevantly, the applicant's family in […] have been active on social media and their publicly assessable profiles have included relevant location indicators such as their high schools, universities and what appears to be their home or possibly their uncle's home. The applicant has also been active exchanging comments on his brother's pages. Yet there is no evidence to suggest that the applicant's father or brothers or any of their neighbours in the Kabul community have ever been approached or questioned about the applicant, or that they have been of any interest to the Taliban during these months or in the five years since he departed and nor is there any evidence that any threats have been issued to the applicant in any manner since 2012.
33.There is no evidence that the Taliban has been trying to locate the applicant in last the five years since they found his truck in the bazaar. While I accept they had his identification, I do not accept the applicant would be returning to Afghanistan as someone still wanted by the Taliban for any imputed assistance given to, or work done for, the American forces or NGOs. I am not satisfied the Taliban still has an adverse interest in the applicant stemming from the incidents in 2012 nor for any other reason. I do not accept the applicant faces a real chance of being harmed by the Taliban for these reasons in […] or […].
…
36.I have had regard to the representative's submissions made about ISIS and other insurgent groups targeting Hazaras and Shi'as and to the other information considered by the delegate and which I obtained. While I accept Hazara Shi'as are at risk of harm in Kabul, there are no reports of an Islamic State presence in […], […] or other parts of the […] region or of ethnic or religious targeting in […] or […] districts against Hazaras/ Shi'as. The Taliban has a presence in parts of Ghazni province, but in a shift of the organisation's ideology, the Taliban has specifically condemned the recent mass casualty attacks against Shi'as in Kabul, Herat and Balkh province. Neither the United Nations Assistance Mission in Afghanistan (UNAMA) nor other credible sources highlight […], […] or other parts of the […] as being areas of particular concern in relation to conflict-related abductions. Relevantly, there have been no such abductions in any part of Ghazni province in 2016 or 2017.
…
43.I accept that there may be limited work opportunities in his immediate home area and I am mindful that the applicant used to travel at least monthly for his work. However I do not accept the applicant is of interest to the Taliban or any other insurgents or armed persons and I do not accept he will face a real chance of harm from armed Pashtuns or any insurgents in […], […] or elsewhere in the Hazarajat on the basis of any imputed profile arising from the events of 2012, for being a Hazara Shi'a returnee of any kind and I am satisfied he can freely travel around the Hazarajat. While Hazaras outside the Hazarajat face societal discrimination affecting hiring decisions, I do not accept that as a member of the dominant ethnic and religious group in […], […] and the broader Hazarajat, the applicant will be denied employment in this region on the basis of his Hazara Shi'a profile or because he has lived outside for a significant period including in the west. Nor do I accept there are other reasons he would be denied such opportunities, or would otherwise suffer discrimination. The applicant has varied work skills, in farming, construction (bricklaying, tiling, plastering) in Iran, as a truck driver and doing plastering and rendering in Australia. His family still own land in […]. While I note the applicant's comments about not being close to his family, I have not accepted they would not support him and I do not accept they would prohibit him from tending to this land, which he confirmed at the SHEV interview is vacant. I am satisfied the applicant could return and work this land and that with his varied work experience, his long term residence in […], through his wife's or his wife's family's connections in […] (or his own connections on the basis of his previous truck driving work and his short period living in […]), the applicant will also be able to find other work in his home area or […], or […] or within the Hazarajat which for the reasons given earlier do not pose a risk. I do not accept he will suffer discrimination or a threatened capacity to subsist for any reason in the reasonably foreseeable future upon return.
…
46.I have considered the applicant's claims overall and I am not satisfied the applicant faces a real chance of harm in his home region of […] or […] and its surrounds on account of the events of […] where the Taliban stole his construction vehicle containing his identity document, his race, religion, because he has spent a significant time in overseas countries and would returning having sought asylum in the west - nor for any cumulative profile.
…
50.Country information indicates there is insecurity on roads passing through areas contested by insurgents, where the Taliban and other insurgents as well as criminal elements set up unofficial checkpoints, targeting those who appear wealthy or are associated with the government or the international community. All ethnic groups are reported to be vulnerable to these attacks. However it can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity. I am not satisfied that should he resume driving in the same areas upon return that this work would impute him with a government profile. Nevertheless if he were to resume driving in the areas where he previously travelled, I accept given the frequency of his travel there is a more than remote chance he will be stopped and harmed, although the motivations may not be immediately evident.
51.I am satisfied the applicant could take reasonable steps to modify his behaviour so as to avoid the real chance of harm by not driving through contested areas outside the Hazarajat region. The applicant has not indicated that he worked as a driver between […] and […] for any political or ideological reasons, or any other specific reasons beyond earning a living and when discussing the possibility of relocation to Kabul in the SHEV interview, the applicant stated he has never had any work issues, that he could work in construction, painting or as a tailor. I consider the applicant could undertake driving or other types of work within […], […] or the Hazarajat which would not require him to travel on the insecure roads of his previous work route.
52.As noted above, I am satisfied the applicant will be able to find work and support himself and his family in […], […] and the Hazarajat, where he can travel freely around and will not face a real chance of harm in that region. I do not accept that undertaking work within the Hazarajat would expose him to a real chance of generalised violence or to harm of any other kind and I found above that in […] and the Hazarajat he will not suffer discrimination or a threatened capacity to subsist. I am not satisfied he would be required to leave the Hazarajat in the course of his employment and I consider that avoiding work as a driver on roads outside the Hazarajat is a reasonable step that the applicant can take to avoid a real or any chance of roadside harm. I am not satisfied that such driving work is an innate or immutable characteristic or a characteristic fundamental to his identity or conscience, or a modification that falls within any other s.5J(3) limitation.
…
57.Considering all the information before me, I find there is not a real chance of the applicant being harmed on the basis of any imputed political profile. I also find there is not a real chance of the applicant being harmed on the basis of his profile as a Hazara Shi'a returnee from the west who has lived outside of Afghanistan and sought asylum in Australia. I also find there is no real chance of the applicant facing discrimination or a threatened capacity to subsist and that he can safely return to either of his home areas. I have considered the applicant's claims individually and cumulatively and I am not satisfied the applicant's fear of persecution is well founded.
58.The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).
The IAA then undertook a complementary protection assessment, finding (CB 248-249):
61.For reasons given above, I have found there is not a real chance of the applicant being harmed on the basis of any imputed political profile arising from the incident in 2012, nor due to his profile as a Hazara Shi'a returnee from the west who has lived in a western country and sought asylum. I have found he can safely return to his home area. I also found there is no real chance of the applicant facing discrimination or a threatened capacity to subsist. Applying the same reasoning, and because 'real chance' equates to 'real risk', I am also not satisfied that the applicant faces a real risk of suffering significant harm in or in accessing his home area upon return.
62.I am not satisfied the applicant's mental health would contribute to his having a risk profile or that treatment for such conditions in Afghanistan would be intentionally withheld for any reason. I am not satisfied that these factors would lead the applicant to be arbitrarily deprived of his life, have the death penalty applied, or be tortured. I am also not satisfied that through any act or omission the applicant would be subject to intentionally inflicted pain or suffering, or severe pain or suffering such as to meet the definition of cruel or inhuman treatment or punishment, nor intentionally caused extreme humiliation. I am not satisfied that the applicant would, as a result of his mental health or psychological state, be subject to acts or omissions which would constitute significant harm, as defined under s. 36(2A) and s.5 of the Act upon return.
63.As noted above, I am not satisfied the applicant would take on employment that would require him to drive on insecure road routes outside […] and […] or the Hazarajat, nor do I accept that there are not jobs available in the driving or other industries in which the applicant has experience whose tasks are confined to the Hazarajat. I am satisfied the applicant will be able to draw on his previous work experience, former long term residence in […], his previous work in both […] and […] and his wife's connections to obtain employment in […], […] or in other parts of the Hazarajat either as a driver or in a different industry. I am not satisfied he would be required to leave the Hazarajat in the course of his employment. Further, I am not satisfied that working only within the Hazarajat would expose the applicant to a real risk of significant harm or that restricting himself in such manner would otherwise amount to significant harm in itself. I am also not satisfied the applicant would face any discrimination or other mistreatment arising from any specific circumstances or vulnerabilities that would lead the applicant to be subject to acts or omissions which would constitute significant harm, as defined under s. 36(2A) and s.5 of the Act upon return.
64.I have found the applicant will not face a real chance of being harmed through generalised violence or criminality in Afghanistan. For the reasons discussed above and because 'real chance' equates to 'real risk', I am satisfied that the applicant does not face a real risk of suffering significant harm in that manner upon return. Further I am also satisfied these risks are faced by the population of the country generally and are not faced by the applicant personally, and as such under s.36(2B)(c) there would be taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.
65.Given that I have found there is no real risk of the applicant facing significant harm in either […] or […], his home areas, including the surrounding roads and area when returning to either of those areas, I have not considered whether the applicant could reasonably locate to Kabul.
66.There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
Judicial Review Application
The applicant lodged a judicial review application on 4 January 2018. He amended his application on 3 August 2018 (“Amended Application”).
The applicant relied on three grounds of review in support of his Amended Application. At the hearing of this matter, ground 3 was abandoned by counsel for the applicant. As such, two grounds of review are relevant to this judgment:
1.The IAA’s failure to consider whether to exercise its power under s 473DC of the Act to invite the Applicant to comment on a use of certain information from Facebook was legally unreasonable.
Particulars
The IAA relied on social media posts to conclude that the Taliban could have used them to locate the Applicant's family members. This was not how the delegate explained why the posts were relevant to the consideration of the Applicant's visa application, nor how the delegate used the information. The failure to consider whether to invite the Applicant to comment on this different use was legally unreasonable.
2. The IAA’s conclusion that the Taliban had the capability to find the Applicant's family members was not open on the evidence.
Fast Track Applications
To succeed in this Court the applicant must demonstrate jurisdictional error on the part of the IAA.
This matter relates to a fast track application. This is important because it affects what does and does not amount to jurisdictional error in relation to an IAA assessment.
It is not in dispute that the applicant is an unauthorised maritime arrival within the meaning of s.5AA(1) of the Act and that the applicant satisfies the criteria for a “fast track applicant” under s.5(1) of the Act.
Section 473BB of the Act defines “fast track reviewable decision” as a “fast track decision” in relation to a “fast track review applicant”. That definition applies to this case as the decision of the delegate was to refuse to grant a protection visa to a person who is a fast track applicant.
Section 473CA of the Act provides that the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made.
The IAA is to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant: s.473DB of the Act.
Subdivision C of Division 3 of Pt.7AA, allows the IAA to obtain additional information in limited circumstances. Sections 473DC and 473DD of the Act set out the circumstances in which the IAA can get and consider new information as part of its review.
Specifically, s.473DC of the Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act, in turn, provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Where the IAA does obtain new information (other than from the applicant) the particulars of certain new information must generally be given to the applicant. Subsections 473DE(1) and (2) of the Act provide:
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
Section 473DA(1) of the Act stipulates that Division 3, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that authority.
It is well established that jurisdictional error can occur in circumstances where a decision made within the context of these provisions is found to be “unreasonable”(Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26] – [28]) and can be seen to lack an intelligible justification.
Consideration
Ground 1
The IAA’s failure to consider whether to exercise its power under s 473DC of the Act to invite the Applicant to comment on a use of certain information from Facebook was legally unreasonable.
Particulars
The IAA relied on social media posts to conclude that the Taliban could have used them to locate the Applicant's family members. This was not how the delegate explained why the posts were relevant to the consideration of the Applicant's visa application, nor how the delegate used the information. The failure to consider whether to invite the Applicant to comment on this different use was legally unreasonable.
It is accepted that the discretionary powers conferred on the IAA by s.473DC of the Act are to be exercised reasonably (Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 (“CRY16”) at [81]-[82]) and that there are circumstances in which it may be legally unreasonable not to consider the exercise of the discretionary power under s.473DC(3) of the Act (Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 at [88]).
In relation to ground 1, counsel for the applicant submitted:
19.As set out above, the delegate’s reasons show that she relied on certain social media photographs.
20.Section 57 of the Migration Act 1958 (Cth) (the Act) constrained how the delegate could use those photographs, being information that came from other than the Applicant himself. In particular, s 57(2)(b) required the delegate to ensure that the Applicant understood why the photographs were relevant to the consideration of his visa application.
21.There appears to have been compliance with s 57: the delegate’s reasons show that she relied on the photographs for the conclusion that the Applicant’s family members were alive in Kabul and ‘doing well’, as a step towards the conclusion that it was reasonable for the Applicant to relocate there. She put to the Applicant in the interview that the fact the family members appeared in social media to be ‘doing well’ raised ‘concern regarding [his] credibility’ as well as suggesting that his ‘father and at least [his] three youngest brothers are living in Kabul and doing quite well there’. She did not suggest that the posts would be relevant for any other purpose.
22.However, the IAA, used the social media for a different reason: to conclude that the Taliban could have located the family members from the posts.
23.It was legally unreasonable for the IAA to have used the photographs in this different way without first considering whether to invite Applicant to comment on that new use pursuant to s 473DC of the Act: compare Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16) at [77]-[82]. The matters going towards legal unreasonableness include the statutory context reasons as identified in CRY16 that the review by the IAA is automatic under s 473CA and 473CC, without any right to a hearing.
24.The additional statutory context on these facts arises from s 57—specifically, s 57 limiting the delegate’s permissible use of the posts, and requiring her to explain to the Applicant why the posts may be relevant to the application. That conditioned how the Applicant might reasonably expect the IAA to use the photographs—which in turn affected his assessment as to whether and what submissions he needed to make submissions about the photographs (noting that the IAA Practice Direction only provides one very limited opportunity for him to make any submission at all).
25.Further still, the photographs were not provided by the Applicant, but apparently obtained by the Department. The Applicant was also never given a copy of them by anyone (he was just shown them momentarily during the interview with the delegate). Had he been given copies in advance of the IAA’s decision, there is every possibility that he could have made a submission as to why the photographs could not support the proposition that they could be used to locate the family members in them, which was the conclusion the IAA ultimately drew.
26.For all these reasons, it was legally unreasonable for the IAA’s failure to consider whether to invite the Applicant to comment pursuant to s 473DC of the Act.
The Minister, in turn, contended:
16.The applicant claims that it was legally unreasonable for the Authority to have used the Facebook photographs in a different way from the delegate without first considering whether to invite the applicant to comment on that new use pursuant to s 473DC of the Migration Act: see the particulars to Ground 1 and paragraph 23 of the Applicant's Written Submissions dated 3 August 2018 (the applicant's submissions).
17.The applicant's reliance upon the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [77]-[82] is misplaced: see paragraph 23 of the applicant's submissions.
18.The circumstances in which the Full Court in CRY16 held that it was legally unreasonable for the Authority not to consider getting documents or information from the respondent are far removed from the circumstances here. In CRY16 the issue of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate, but the Authority considered the issue of relocation to Beirut. As the Full Court stated at [82]:
The failure to consider the exercise of that discretionary power [in s 473DC] lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut.
19.By contrast here, the applicant's circumstances were that he had family living in Kabul, but the applicant had made no claim that as a result of the incident with the applicant's truck at […], the Taliban had approached members of his family in Kabul seeking the applicant's location.
20.The Authority stated at [32], inter alia, that:
...There is no indication before me that the Taliban has at any time sought to locate the applicant through any member of his family in any part of Afghanistan. I note also that the applicant spent around three months in Kabul while the arrangements were being made for his trip to Australia. While he claims he lived in hiding and kept a low-profile during that time however there is no evidence before me to suggest that anyone was looking for him during this time, nor at any time subsequently. Relevantly, the applicant's family in Kabul have been active on social media and their publicly assessable profiles have included relevant location indicators such as their high schools, universities and what appears to be their home or possibly their uncle's home. The applicant has also been active exchanging comments on his brother's pages. Yet there is no evidence to suggest that the applicant's father or brothers or any of their neighbours in the Kabul community have ever been approached or questioned about the applicant, or that they have been of any interest to the Taliban during these months or in the five years since he departed and nor is there any evidence that any threats have been issued to the applicant in any manner since 2012.
21.The Authority then concluded its reasons in relation to the applicant's claim to have a well-founded fear of persecution as a result of the truck incident in […] by stating at [33] that:
There is no evidence that the Taliban has been trying to locate the applicant in [the] last five years since they found his truck in the bazaar. While I accept they had his identification, I do not accept the applicant would be returning to Afghanistan as someone still wanted by the Taliban for any imputed assistance given to, or work done for, the American forces or NGOs. I am not satisfied the Taliban still has an adverse interest in the applicant stemming from the incidents in […] nor for any other reason. I do not accept the applicant faces a real chance of being harmed by the Taliban for these reasons in […] or […].
22.Having regard to the applicant's claims regarding the truck incident in […] and the absence of any claims by the applicant that the Taliban had endeavoured to find his whereabouts by making approaches to his family in Kabul, the Authority's reference to the applicant's family in Kabul having been active on social media merely highlighted the fact that there was no evidence that the Taliban had approached any of the applicant's family members in Kabul in an attempt to locate the applicant. In those circumstances the Court should conclude that it was not unreasonable for the Authority not to consider exercising its power in s 473DC of the Migration Act, because of its use of the social media photographs. No jurisdictional error is disclosed.
The applicant relies to a considerable extent on the decision in CRY16 to support his argument that the IAA should have considered exercising its discretionary powers.
In CRY16, the delegate made findings that that respondent (a citizen of Lebanon) was not a credible witness. The delegate was unwilling accept that the respondent had been approached by Hezbollah to work for them, or that he had ever been directly targeted or threatened by them. As a result, the delegate did not accept that the respondent would face a real a chance of persecution or be at real risk of serious harm if he were to return to Lebanon.
There was no discussion in the delegate’s decision about the potential relocation of the respondent within Lebanon.
The IAA affirmed the delegate’s decision but on a different basis (at [5]). The IAA instead found that the respondent’s fear of harm from sectarian violence did not relate to all areas of Lebanon and that he could relocate to Beirut. This meant he was not a refugee for the purposes of s.5H(1) of the Act.
The IAA then considered the respondent’s claims for complementary protection finding that as a Sunni Muslim he faced a real risk of significant harm in his place of habitual residence but this did not extend to all areas of Lebanon, namely to Beirut, and that he could reasonably relocate to Beirut (at [6]).
On appeal from the Federal Circuit Court of Australia (CRY16 v Minister for Immigration & Anor [2017] FCCA 1549), the Full Court dismissed the Minister’s appeal, concluding that:
[82]Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
In this context, the Court also notes the decision of DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 (“DGZ16”).
In DGZ16, the delegate accepted that the respondent was an ethnic Hazara and Shia Muslim from Qarabagh district in Afghanistan.
As a consequence, the delegate was satisfied that the respondent faced a real chance of suffering serious harm amounting to persecution, and significant harm, if he returned to his home area Qaragagh, Afghanistan (at [19]).
Despite this finding, the delegate was not satisfied that the respondent would face a real risk of persecution in Kabul and that it was reasonable for the respondent to relocate to Kabul.
The matter was referred to the IAA, which considered that the respondent could relocate to the city of Mazar-e-Sharif. The delegate had not considered whether the respondent could relocate to the city of Mazar-e-Sharif (at [19]-[20] and [40]).
On appeal from the Federal Circuit Court of Australia (DZU16 v Minister for Immigration & Anor [2017] FCCA 851), the Full Court dismissed the Minister’s appeal concluding:
[94]Further, the exercise of the power to decide lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
Both CRY16 and DZU16 support the proposition that s.473DC of the Act is to be exercised reasonably and any failure to consider exercising the discretion must be intelligible within the factual circumstances of the case.
Here, the applicant argues that, in the particular factual and statutory circumstances of this case, the IAA should have considered exercising its discretionary powers under s.473DC of the Act by allowing the applicant to comment on the extent to which the social media in question stood as evidence that he could return home without fear of harm from the Taliban. Further, it is suggested that the failure to do so cannot be justified on the particular facts of the case.
The Court does not agree.
This matter can be distinguished from both CRY16 and DZU16. Those cases criticise the IAA for not exercising its discretion in a context where the IAA addressed a new issue and new evidence that had not been dealt with by the delegate. That is not the case here. Here, the prospects of the applicant returning to his home region was always alive. It was central to whether or not he could be given a SHEV. Further, the applicant was aware that social media posts were in evidence before both the delegate and the IAA. To suggest that he was not aware that the IAA would assess those media posts is not sustainable on the evidence.
The IAA reassessed the material which the delegate had considered (social media photographs that showed that the applicant’s family lived without fear in his home region). Ultimately, the IAA agreed with the delegate that the applicant was not a refugee but for a different reason. The IAA was not required to provide the applicant an opportunity to comment. As explained in DGZ16, Pt.7AA of the Act contemplates that the IAA will evaluate for itself the material considered by the delegate. The fast track statutory regime of Pt.7AA does not require the IAA to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. The IAA is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to comment. This is particularly so when the same material and the same issues are being assessed.
The Court agrees with the Minister’s submissions that DGZ16 is applicable to the facts of this case in a way that both CRY16 and DZU16 are not. Those cases, which criticise the IAA for not exercising its discretion, involve the IAA addressing a new issue that had not been dealt with by the delegate. That is not the case here. The factual circumstances which led the Federal Court in CRY16 and DZU16 to conclude that it was legally unreasonable for the IAA not to exercise its discretion under s.473DC(3) do not exist in this matter. Here, having regard to the applicant's claims regarding the truck incident and his claim that he would be harmed by the Taliban if he returned to Afghanistan, the IAA’s reference to the applicant's family in Kabul having been active on social media highlighted the fact that there was no evidence that the Taliban had approached any of the applicant's family members in Kabul in an attempt to locate the applicant and that the applicant could, on the evidence, reasonably be expected to return to Afghanistan without risk of harm from the Taliban.
Having regard to the circumstances in this matter, and in light of the circumstances in CRY16, DZU16 and DGZ16, the IAA’s decision does not involve jurisdictional error by reason of legal unreasonableness simply because the IAA did not exercise its discretionary power under s.473DC(3) of the Act.
Accordingly, ground 1 fails.
Ground 2
The IAA’s conclusion that the Taliban had the capability to find the Applicant's family members was not open on the evidence.
In relation to ground 2, the applicant contended as follows in written submissions:
27.It is uncontroversial that conclusions of a decision-maker must be open on the evidence before it.
28.A key part of the IAA’s reasoning that the Applicant was not at risk was because his family had not been questioned by the Taliban as to his whereabouts. This reasoning is based on the conclusion that ‘the Taliban have the capability to locate persons of interest’, and the assumption that the Applicant’s family members were persons of interest to the Taliban. The substance of the conclusion was also expressed in various other formulations.
29.The IAA carefully cited a wide array of sources for the various conclusions it drew throughout its reasons. However, it did not cite anything in support of its proposition that ‘the Taliban have the capability to locate persons of interest’. Further, nothing in the 839 pages worth of country information cited elsewhere appears to support the proposition.
30.It follows that it was not open to the IAA to conclude on the evidence (because the evidence did not provide any basis to find) that ‘the Taliban have the capability to locate persons of interest’. Nor was it open to conclude that the Applicant was not at risk after the Qarabagh incident by reason of his family never having been interrogated as to his whereabouts, since that relies on the conclusion that the Taliban could have done so. The conclusion is, in reality (and at best) an unsupported assumption that the Taliban operates an effective, omnipresent surveillance network across Afghanistan. Whatever might be popularly feared about the violent militant group, the conclusions relied upon by the IAA still needed to be grounded in evidence.
The Minister, in turn, responded:
23.This ground of application cannot be made out.
24.The applicant's principal claim to have a well-founded fear of persecution arose as a result of the truck incident in […], and his fear of harm by the Taliban no matter to which area or city of Afghanistan he returned. Implicit in this claim is a claim that the Taliban will be able to locate him upon his return to Afghanistan.
25.The Authority's statement at the commencement of [32] that "while the Taliban have the capacity to locate persons of interest", amounts to an acceptance of the applicant's claim that the Taliban would be able to locate him. However, for the reasons which it subsequently gave, the Authority did not accept that the applicant would now still be of interest or wanted by the Taliban as a result of the truck incident.
26.The Authority was quite entitled to accept a claim made by the applicant that the Taliban would be able to locate him if he returned to Afghanistan, and the Authority's failure to cite any specific country information to support that acceptance cannot constitute jurisdictional error.
In essence the applicant asserts a ‘no evidence’ argument – i.e. that the IAA made a finding of fact for which there is no supporting evidence and that this constitutes an error of law: AUG17 v Minister for Immigration & Anor [2017] FCCA 1874 per Judge Driver at [70] citing Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 ([91]).
The Court notes that in Buchwald v Minister for Immigration (2016) 242 FCR 65, Bromberg J, sitting as a single judge, addressed the issue of ‘no evidence’ findings, stating at paragraphs [33] – [39]:
33.The reasons for decision of Kenny J in SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] disclose what appear to be two approaches in the authorities to the “no evidence” ground. A number (there cited) suggest that jurisdictional error lies where the decision-maker “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding”. One of the cases her Honour cited, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19], has been many times relied upon for that proposition. On the other hand, a number of authorities (again, set out in SZNKV at [38]) stand broadly for the proposition that, for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact. However, Kenny J expressly did not determine “whether these two approaches co-exist” nor, if a choice had to be made between then (sic), which was the preferred approach.
34.A number of High Court authorities seem to me to support the jurisdictional fact approach. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said this, at [39]:
To return to the first ground identified in the Federal Court, the “no evidence” ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a “no evidence” ground of jurisdictional error arises.
35.In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Gummow A-CJ and Kiefel J said the following, at [31]:
In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514, 519-520, Wilcox J carefully, and with respect correctly, distinguished a “no evidence” ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an “error of law” within the meaning of the AD(JR) Act.
36.One of Wilcox J’s observations in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, which Gummow A-CJ and Kiefel J approved in the above extract, was this (at 514):
All of the cases, of which I am aware, in which “no evidence” has been treated as a separate ground were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact … .
37.In Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [108], I expressed reservations as to the correctness of SFGB and the line of authority following it. That reservation was also expressed by Jessup J at [50].
38.Finally, in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this, at [46]:
The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to UMAs. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts ([SGLB] (2004) 78 ALJR 992 at 998-999 [39]; 207 ALR 12 at 21; [SZMDS] (2010) 240 CLR 611 at 622 [31]).
39.Especially in the light of what was said in the last-mentioned case by a unanimous High Court, it seems that the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review. And, Mr Buchwald accepted in the course of oral submissions that in order to establish a “no evidence” ground it was necessary that the fact of which there is no evidence be a jurisdictional fact. …
The Court accepts that Bromberg J’s summary of the law on the no evidence ground in Buchwald is thorough and correct. Accordingly, the Court proceeds on basis that a finding without evidence only amounts to a jurisdictional error if the finding concerns a jurisdictional fact.
Determining whether a particular inference can be drawn from facts is a question of law: AUG17 per Judge Driver at [72] citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 355 (Mason CJ (with whom Brennan J agreed)).
Chief Justice French explained the term “jurisdictional fact” in Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) 244 CLR 144 as follows:
57. “The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be ‘a complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.”
The applicant applied for a SHEV, meaning that the relevant jurisdictional fact in this matter is the IAA’s “state of satisfaction” that the relevant visa criteria are met: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(“SZMDS”), per Gummow ACJ and Kiefel J at [20] and AUG17 per Judge Driver at paragraph [70].
In SZMDS Gummow ACJ and Kiefel J explained:
1. A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) (the Act) is that the applicant be a non-citizen of Australia to whom the Minister ‘is satisfied’ that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides (14). If the Minister ‘is satisfied’ that this and other criteria ‘have been satisfied’ then the Minister ‘is to grant the visa’; if ‘not satisfied’, then the visa must be refused (s 65(1)).
2.The term ‘satisfy’ has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition.
3. Upon review by the Refugee Review Tribunal (the RRT) of a refusal by the minister (or the delegate of the minister), the RRT exercises all the powers and discretions conferred by the Act upon the minister: s 415(1).
In relation to this ground of review, the Court agrees with the submissions made on behalf of the applicant that the IAA carefully cited a wide array of sources for the various conclusions it drew but did not cite anything in support of its proposition that the Taliban have the capability to locate persons of interest.
The IAA relied on this finding to conclude that the applicant was not at risk because his family had not been questioned by the Taliban as to his whereabouts.
The Court notes the argument advanced by the Minister that the IAA’s statement in paragraph [32] of its reasons that “while the Taliban have the capacity to locate persons of interest” amounts to an acceptance of the applicant's claim that the Taliban would be able to locate him. However, the Court is unwilling to accept that this is sufficient evidence for a finding that the Taliban have the capacity to locate persons of interest given that the applicant only ever implicitly suggested that the Taliban can locate him.
Given that these implicit claims were the only ‘evidence’ the Minister says was available to the IAA to make the finding that the Taliban have the capacity to locate persons of interest, the Court is satisfied that there was no evidence available to the IAA to make that finding: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59].
The IAA’s finding that the Taliban have the capability to locate persons of interest was a “finding” as to the “satisfaction” of the criteria applicable under s.65 of the Act. Given that this finding of fact, made with no evidence, concerns a jurisdictional fact, the Tribunal’s decision was vitiated by jurisdictional error.
For the reasons given above, ground 2 has been made out.
Conclusion
The IAA’s decision of 16 November 2017 affirming a decision of a delegate not to grant the applicant a SHEV was affected by jurisdictional error as alleged by the applicant in ground 2 of his Amended Application.
In the circumstances, the IAA fell into jurisdictional error and the IAA’s decision should be set aside and the matter remitted to the IAA for determination according to law.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 November 2018
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