ADU18 v Minister for Home Affairs

The appellant, a citizen of Afghanistan, appealed against a decision of the Federal Circuit Court of Australia (FCC) which dismissed his application for review of a decision of the Immigration Assessment Authority (the Authority). The Authority had affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa. The appellant’s application for a Temporary Protection (Subclass 785) Visa was refused, and he sought review by the Authority under the Migration Act 1958 (Cth) (the Act). The Authority considered the appellant’s background, accepting that he was an Afghani national who had lived in the Muqur district all his life, and that he was of the Hazara ethnic group and a Shia Muslim. However, the Authority found the appellant’s evidence concerning various events in his past, including the circumstances of his parents’ death and his inability to contact his siblings, to be inconsistent, vague, and not credible. The Authority also concluded that the appellant and his family were not targeted or harmed because of their ethnicity or faith.

The legal issues before the court were whether the Authority had failed to consider the appellant’s claims or integers of claims, and whether this constituted a failure to comply with the statutory duty under the Act. The appellant argued that the Authority had not considered certain claims which were clearly and squarely raised on the material, while the Minister contended that there existed a distinction between matters which required consideration, being claims or integers of claims, and mere pieces of evidence in respect of which the same active intellectual engagement was not required. The court considered the principles governing the conduct of a review by the Authority under Part 7AA of the Act, particularly those relating to allegations that a decision maker failed to consider an important matter.

The court found that the Authority had failed to consider the appellant’s claims that the rockets which had killed his parents had been fired by the Taliban and that such attacks occurred regularly. The court also found that the Authority had not considered a claim that clearly arose on the information before it, and on its finding that the applicant would return to work in his family business, that claim being that he would have to travel on the roads around Muqur District and elsewhere to procure supplies for that business. Additionally, the court found that the Authority had failed to consider information that it was required to consider pursuant to s 473DB of the Migration Act, and that it had not considered the risk to the applicant in the future, as opposed to merely having considered the past and the present. As a result, the appeal was allowed, and the first respondent was ordered to pay the appellant’s costs of the appeal.