ADW18 v Minister for Immigration

[2020] FCCA 895

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADW18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 895

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether the IAA was biased – where the same IAA reviewer determined the applicant and the applicant’s brother’s application – whether the IAA failed to put new information to the applicant – jurisdictional error established – writs issued.

Legislation:
Migration Act 1958 (Cth), pt.7, 7AA, div.3, ss.5, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473DE, 473GA, 473GB, 476

Cases cited:

CNY17 v Minister for Immigration & Border Protection [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

EII17 v Minister for Immigration & Border Protection [2018] FCA 1863
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZGWH v Minister for Immigration & Citizenship [2007] FCA 543
SZQMZ v Minister for Immigration & Citizenship [2012] FCA 1005
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: ADW18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 19 of 2018

Judgment of: Judge Kendall

Hearing date: 15 April 2020

Date of Last Submission: 15 April 2020

Delivered at: Perth

Delivered on: 23 April 2020

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms A Ladhams

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 13 December 2017.

2. 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 19 of 2018

ADW18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is a Tajik Sunni citizen of Afghanistan (Court Book (“CB”) 39). He arrived in Australia as an unauthorised maritime arrival on 7 September 2013 (CB 116).

2. On 26 September 2016, the first respondent (the “Minister”) lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Safe Haven Enterprise Visa (“the visa”) (CB 18-19).

3. On 15 March 2017, the applicant applied for the visa (CB 23-68).

4. After describing incidents that had occurred in Afghanistan and Pakistan, the applicant summarised his claims for protection as follows:

   In summary, I fear harm throughout the whole of Afghanistan, including in Baghlan and Kabul, including abduction, torture and murder at the hands of the Taliban on the basis of my family being believed by the Taliban to have been helping people who are anti-Taliban, my family not wanting to join the Taliban and my ethnicity as Tajik. I have personally feared for my safety from the Taliban, my feared persecutors. I cannot rely on the protection of the Afghani state and cannot safely relocate anywhere else in Afghanistan.

5. The applicant attended an interview before a Ministerial delegate on 21 April 2017 (CB 79-80).

6. On 24 May 2017, the Ministerial delegate refused to grant the applicant the visa (CB 113-130). The delegate found that the applicant could relocate to Kabul where he would not suffer a risk or chance of harm.

7. The applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) on 29 May 2017 (CB 144-145). Included in the material referred to the IAA was a s.473GB certificate (CB 112).

8. On 16 June 2017, the applicant’s migration agent forwarded a submission to the IAA (CB 160-164).

9. On 13 December 2017, the IAA affirmed the delegate’s decision (CB 177-197). On 14 December 2017, the IAA provided a corrigendum to the decision which amended an error in the phrasing of the decision (CB 200).

10. The applicant now seeks judicial review of a decision of the IAA’s decision. 

11. This proceeding is brought pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.

The IAA’s Decision

1. It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.

2. Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:

   a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;

   b)material provided by the “referred applicant” to the delegate before a decision was made;

   c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and

   d)the referred applicant’s contact details.

3. The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.

4. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.

5. When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act. That section 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.

6. Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.

7. In relation to this matter, the IAA’s decision is 21 pages long and spans 75 paragraphs. The Minister’s submissions at [14]-[24] accurately summarise the IAA’s decision. The Court adopts that summary as its own, with some additions, as follows.

8. At [1]-[3], the IAA detailed the background to the matter. This included an overview of the applicant’s claims and the delegate’s findings.

9. The IAA confirmed that it had had regard to the material given by the Secretary pursuant to s.473CB of the Act (at [4]).

10. The IAA then made the following findings in relation to the “new information” before it:

    a)the IAA noted that the applicant’s submission referred to a report by the Department of Foreign Affairs and Trade (DFAT) dated 5 September 2016. The delegate had relied on two DFAT reports from 2015. Given that the security in situation in Afghanistan is fluid, the report covered recent developments that were relevant to the applicant’s claim and that the delegate was required to, but did not, consider the report (as required by Ministerial Direction No.56), the IAA was satisfied that there were exceptional circumstances to justify considering the report (at [6]);

    b)the IAA noted that the applicant’s submission referred to recent terrorist attacks in Kabul that occurred after the delegate’s decision was provided. Given that the information relating to the events could not have been given to the delegate and the information might have impacted on the applicant’s claim for protection, the IAA was satisfied that there were exceptional circumstances to justify considering this new information (at [7]);

    c)the IAA noted that the applicant’s submissions referred to a 2003 report from the United Nations High Commissioner for Refugees (“UNHCR”) which was not before the delegate. The IAA was not satisfied that there were exceptional circumstances to justify considering this report because there was no explanation given as to why the report was not before the delegate or why it was credible personal information. Hence, the requirements of s.473DD(b) were not met. Further, the delegate had considered more recent information from the UNHCR (at [8]);

    d)the IAA also considered a country report issued by DFAT in September 2017. The IAA was satisfied that there were exceptional circumstances to justify considering this report (at [9]);

    e)the IAA noted that the delegate’s decision referred to information in a document that related to contact between members of the applicant’s family and his grandfather in Kabul. It was this information which was the subject of the certificate issued under s.473GB(5) of the Act. The IAA found that this information was of no assistance and gave it no weight as it did not identify or refer to the applicant or to any of his four brothers (who travelled to Australia with him) (at [10]); and

    f)the IAA stated that the applicant’s brother also had an application before the IAA. The IAA explained that as a part of the applicant’s claims rely on incidents involving the applicant’s brother and the applicant’s brother’s evidence relates to a period of time when the applicant was 6 years old, the IAA considered that the information was relevant and there were exceptional circumstances to justifying considering this information (CB 179 at [11]).

11. At [12], the IAA summarised the applicant’s claims. The IAA determined that the applicant was a Sunni and a Tajik from the Baghlan province (at [15]-[16]).

12. The IAA accepted the applicant’s claims in relation to the arrests in 2000. It considered the evidence provided by the applicant’s brother and found that his evidence was consistent with the applicant’s evidence (at [17]). The IAA considered the applicant’s claims that the reason behind the arrests was that the Taliban perceived the applicant’s family as anti-Taliban as it was selling medicines to people who were anti-Taliban. The IAA considered it implausible that the applicant’s family was perceived as anti-Taliban (given that they did not suffer any further incidents between the arrests and 2011) (at [18]-[19]). The IAA was not satisfied that the applicant’s father, grandfather, uncle or family were perceived to be anti-Taliban.

13. The IAA referred to country information that indicated that forcible and coercive recruitment by the Taliban was rare. The IAA referred to its decision relating to the applicant’s brother, stating that it accepted that the applicant’s brothers were approached and asked to voluntarily join the Taliban and that the kidnapping was for the purposes of ransom.

14. The IAA was satisfied that the applicant was not of any adverse interest to the Taliban for any reason, including because his family members refused to join the Taliban (at [20]-[21]). The IAA was also not satisfied that the applicant faced any more than a remote chance of being targeted for forcible recruitment or abducted for ransom now or in the foreseeable future (at [25]).

15. In relation to the claimed assault on another of the applicant’s brothers in Pakistan, the IAA observed that the applicant was not present at the assault and had heard the story from this brother. It accepted that this brother may have told the applicant that he was assaulted by the same person who had kidnapped the applicant’s other brother. However, it was not satisfied that this assault, if it occurred, was perpetrated by the Taliban (at [23]).

16. The IAA did not accept the applicant’s claim in relation to his family being targeted by a powerful commander of the Taliban called “AG” as the only evidence before it on this point was the applicant’s visa application statement and the IAA had already found that the applicant and his family had no adverse profile with the Taliban (at [26]).

17. At [27], the IAA found:

    Having regard to all of the above, I am not satisfied that the applicant faces a real chance of harm arising from his and his family’s previous interactions with the Taliban. Furthermore, while I accept that members of his family may have been asked to join the Taliban in 2011 and that his older brother was kidnapped for ransom, I am not satisfied that the applicant or any member of his family has been targeted for forcible recruitment or that he will be targeted for forcible recruitment or extortion in the future

18. The IAA was not satisfied that the applicant would face a real chance of harm arising from his Sunni Tajik profile as Tajiks are the second largest ethnic group in Afghanistan, the bureaucracy has traditionally been dominated by the Tajik and Sunnis make up 80 per cent of the population in Afghanistan (at [28]-[29]). The IAA considered the applicant’s history and the country information that indicated that Tajiks and Sunnis do not face a risk of harm generally on the basis of ethnicity or religion.

19. There was no information supporting the applicant’s claim that he would face harm as a result of being a returned asylum seeker (at [30]).

20. The IAA was not satisfied that the applicant would face a real chance of harm as a result of the data breach (at [31]).

21. However, the IAA was satisfied that there was a small, but nevertheless real chance, that the applicant would face serious harm on the basis of his imputed political opinion arising from his time in the west or his westernised appearance and persona if he was returned to his province in Afghanistan (at [33]-[34]).

22. The IAA went on to consider the possibility of the applicant relocating, particularly to Kabul. It referred to country information concerning Kabul in some detail (at [35]-[42]).

23. At [42], the IAA found:

    The applicant has not claimed to have any profile connected to the government or international community, nor any proximity to persons who do. The applicant is a Sunni and has not claimed that he has ever attended any Shi’a places of worship or that he would do so in the future. While I accept that there remains a possibility of the applicant being caught up in violence, including extremist attacks in Kabul, I am not satisfied that he would be targeted personally, or as a result of holding any particular political profile.

24. Further, the IAA was further not satisfied that there was a real chance that the applicant would be harmed in Kabul as a result of him being a Tajik Sunni (at [43] and [45]), any interest in him by the Taliban (and [44]), generalised violence (at [46]), while transiting to Kabul (at [51]) or because he speaks Dari (as opposed to Pashtun) (at [52]).

25. At [47]-[50], the IAA took into account the applicant’s circumstances and his ability to find accommodation and employment. The IAA found that the applicant’s circumstances meant that there was not a real chance that the applicant’s capacity to subsist would be threatened.

26. The IAA was not satisfied the applicant met the criteria in s.36(2)(a) of the Act as he was able to relocate to Kabul.

27. In relation to the complementary protection provision, the IAA found that whilst the applicant would face a real chance of being seriously harmed if he returned to his home region in the Baghlan province, it was not satisfied that the applicant would face a real risk of harm should he return to Afghanistan and reside in Kabul (at [59]).

28. The IAA then assessed whether it would be reasonable for the applicant to relocate to Kabul. The IAA:

    a)confirmed that it placed no weight on the applicant’s English language abilities (at [60]);

    b)detailed the country information on the economic, employment and living conditions in Kabul (at [61]-[65]);

    c)accepted that it would be challenging for the applicant to relocate. However, on the information before it, the IAA was satisfied that Kabul offered a greater range of employment opportunities than many other areas of Afghanistan and that the government control, relative stability and greater economic opportunities would be conducive to the applicant finding employment (at [67]). The IAA was also satisfied that health care services would be available to the applicant (at [68]);

    d)noted that, despite the applicant having no immediate family in Kabul, there is a sizeable Tajik and Sunni population and there was no information that these groups are ostracised or that the applicant would not be able to link up with these groups (at [71]). The IAA was also satisfied that, as the applicant had been separated from his family since 2013, it would not be unreasonable for him to live separately (at [72]);

    e)was satisfied that the applicant would have access to the necessary infrastructure to sustain himself and would find support in the community from the Tajik population (at [73]); and

    f)found that the risk that the applicant would be harmed through generalised or insurgent violence was remote. When taking into account the applicant’s overall circumstances and the foreseeable livelihood and security situation in Kabul, the IAA was satisfied that relocation to Kabul was reasonable in the applicant’s circumstances.

29. Overall, the IAA was not satisfied that the applicant met the criteria of s.36(2)(aa) of the Act.

30. The IAA affirmed the decision not to grant the applicant the visa

Proceedings in this Court

1. The application for judicial review dated 11 January 2018 provides three grounds of review, as follows:

   1. I believe the assessment is unfair as there is possible bias/administrative unfairness as the reviewer was the same reviewer as my brothers

   2. I believe there is further administrative error thus am seeking legal advice regarding this

   3. I am seeking legal advice to review my case to determine merit.

2. Despite an opportunity to provide an amended application, supporting affidavit evidence and an outline of written submissions, no further materials were provided by the applicant.

3. Before this Court, the applicant appeared without legal representation. He was assisted by a Dari interpreter.

4. This matter was first heard on 10 March 2020. Unfortunately, the applicant claimed not to have copies of either the Court Book or the Minister’s written submissions. The matter reconvened on 15 April 2020.

5. Noting recent comments from the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline what he thought the IAA “did wrong”.

1. To assist the applicant, the Court explained that its jurisdiction is limited to determining whether the IAA had engaged in jurisdictional error.  It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

   a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];

   b)where the decision-maker ignores relevant material: Craig at [198];

   c)where the decision-maker relies on irrelevant material: Craig at [198];

   d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];

   e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];

   f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and

   g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

2. The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa the applicant now seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.

3. Against this background, the Court asked the applicant to explain what he thought the IAA did wrong.

4. The applicant indicated that there “was information that was not looked at”. When asked what information was not looked at, the applicant indicated that the IAA did not ask him to provide information and he wanted to do so. He also said he could not understand any of the correspondence that was sent to him.

5. The applicant was the subject of a pt.7AA review. There was, accordingly, no obligation on the part of the IAA to seek any information from the applicant or ask him to provide any information: the Act, s.473DB. As for the applicant’s statement that he could not understand the correspondence that had been sent to him, there is no obligation on the part of the IAA to provide correspondence in the applicant’s native language: SZGWH v Minister for Immigration & Citizenship [2007] FCA 543 at [12]. It is also the case here that the applicant was directed to Translating and Interpreter Services.

6. The applicant further stated that the decision was “unfair”. He stressed that he has been living in Australia for 7 or 8 years and that his brother is in immigration detention and he is “under a lot of pressure”. 

7. Unfortunately, these latter oral submissions also do not identify any jurisdictional error. While the Court is sympathetic to the situation the applicant now finds himself in, the only issue before this Court is whether the IAA’s decision demonstrates jurisdictional error.

8. Having assessed the applicant’s oral submissions, the Court will now assess the applicant’s grounds of review.  The Court will also remain astute to the identification of any errors generally: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16].

Consideration

1. Grounds 2 and 3 provide:

   2. I believe there is further administrative error thus am seeking legal advice regarding this

   3. I am seeking legal advice to review my case to determine merit.

2. These are not grounds of review. They indicate that the applicant was going to seek legal advice. The applicant appeared before the Court without any legal representation.

3. In light of the above, the sole ground of review now before this Court is:

   I believe the assessment is unfair as there is possible bias/administrative unfairness as the reviewer was the same reviewer as my brothers

4. The applicant says that the fact that the same reviewer determined both his and his brother’s cases evidences bias or unfairness.

5. It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, the applicant must establish that:

   a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

   b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].

6. It was accepted in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 (“CNY17”) that the principles of bias extend to reviews conducted by the IAA and include circumstances where there may be irrelevant or prejudicial material before the IAA.

7. In SZQMZ v Minister for Immigration & Citizenship [2012] FCA 1005 (“SZQMZ”), the Court considered whether there was an apprehension of bias in a decision by the Administrative Appeals Tribunals in circumstances where the same Tribunal member had also determined the applicant’s sister’s visa application. The Court found there to be no reasonable apprehension of bias.

8. While the Court recognises that SZQMZ arises in a different context (under pt.7 of the Act), the Court nonetheless considers that that case demonstrates, clearly, that the mere fact that the applicant and his brother’s applications were determined by the same IAA member cannot itself give rise to a finding of bias on the part of that member.

9. Here, where the IAA refers to the applicant’s brother, the IAA resolves many factual issues in favour of the applicant. For example, at [17] the IAA accepts the applicant’s claim that his father and grandfather were arrested by the Taliban, noting that as the applicant was only seven at the time this event occurred, he may not have had full knowledge of all the details. The applicant’s brother was 17 at the time. The IAA considered the brother’s evidence and was satisfied that the event occurred. At [20]-[21], the IAA again referred to the applicant’s brother and accepted that he had been kidnapped.

10. The IAA did not rely on any adverse view as to the credibility of the applicant’s brother to undermine the evidence provided by the applicant. Were that the case it may well be that a reasonable apprehension of bias could have arisen.

11. There is nothing on the materials to indicate that the IAA approached the applicant’s review without partiality or had predetermined the applicant’s application on the basis of the brother’s application.

12. Further, the Court is not satisfied that the IAA relied on, or had before it, any irrelevant or prejudicial materials that may have resulted in the IAA consciously or subconsciously forming a preconceived view: CNY17 at [51].

13. In terms of the applicant’s argument that the fact that the same individual reviewed both his and his brother’s application evidenced a denial of procedural fairness, the Court notes that the obligations of procedural fairness imposed on the IAA are found in div.3 of pt.7AA.

14. The Court has some concerns in this regard.

15. At [11], the IAA stated:

    The applicant’s oldest brother, who he claims was kidnapped by the Taliban, also has an application before me (applicant IAA 17 /02769). As part of the applicant’s claims rely on incidents directly involving applicant IAA 17 /02769 and further, as much of applicant IAA 17/02769’s evidence relates to a period of time when the present applicant was aged about six, I consider that this information is relevant to the review before me and I have obtained it for the purposes of this review. Further, I am satisfied that there are exceptional circumstances to justify considering this information.

16. Here, the applicant’s brother’s application was “new information”. The Court is prepared to infer that when the IAA referred to the applicant’s brother’s application, it was also referring to its findings made in relation to the brother’s application (i.e., not just the brother’s file from the Department but the IAA’s own determination of the applicant’s brother’s claims).

17. Here, the findings made in relation to the brother’s application were referenced by the IAA in its decision.

18. The question that arises is whether the IAA was required to put this “new information” to the applicant pursuant to s.473DE of the Act, which provides as follows:

    (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.

19. In this context, the Court needs to address is whether the new information was information that can be seen to be the reason, or a part of the reason, for affirming the decision under review.

20. At [20]-[21], the IAA found as follows:

    20. The applicant claims that in 2011, the Taliban started to pressure the applicant’s older brothers and his father, trying to get his brothers to join. When they did not do so, the Taliban kidnapped his older brother and held him until a ransom was paid. Country information indicates that in 2012, the European Asylum Support Office (EASO) reported that most Taliban recruits joined voluntarily and that while there were cases of forced recruitment, these were exceptional. I am satisfied that forcible recruitment is not widely used by the Taliban and that other methods are more likely to be deployed. The claimed voluntary recruitment attempts are not themselves implausible and I accept that the applicant’s brothers were approached and asked to volunteer. In the reasons for decision in the application of applicant IAA 17 /02769 which I have delivered at the same time, I have accepted these claims but found that applicant IAA 17 /02769’s kidnapping was for the purposes of a ransom and not for the purpose of forcible recruiting.

    21. While I have accepted that his older brother was kidnapped for ransom, the applicant has not claimed that there were any attempts to kidnap the applicant himself, or that he was threatened or harassed in any way by the Taliban. I also take into account my findings in relation to applicant IAA 17 /02769 that once the ransom was paid, the brother was of no further adverse interest to the Taliban. Having regard to all of this information, I am satisfied that the applicant in the present matter was not of any adverse interest to the Taliban for any reason, including because members of his family refused to join.

21. The Minister submits that the IAA did not rely on the new information as a reason or part of the reason for affirming the fast track reviewable decision. The Minister submits that at [21] the IAA accepted that the applicant’s brother was kidnapped for ransom and there was therefore no obligation to put the information to the applicant pursuant to s.473DE.

22. Here, what the IAA relied upon as a reason for affirming the decision was:

    …findings in relation to applicant IAA 17 /02769 that once the ransom was paid, the brother was of no further adverse interest to the Taliban.

23. This was “new information” that was a part of the reason for the IAA finding that the applicant was not of adverse interest to the Taliban and, in turn, a part of the reason for the IAA affirming the delegate’s decision (i.e., for finding that the applicant was not of adverse interest to the Taliban which, if it determined he actually was, could give rise to a real risk or chance of harm).

24. The IAA relied on the finding that the applicant was not of adverse interest to the Taliban at [44] as follows:

    I have accepted that the Taliban attempted to voluntarily recruit the applicant’s brothers in Baghlan and later kidnapped one brother for the purpose of obtaining a ransom. I am satisfied that these events were opportunistic and isolated events. I am not satisfied that the applicant will now be personally sought by the Taliban for any reason and I do not accept that the Taliban has any ongoing adverse interest in him. I am not satisfied he would be pursued to or in Kabul or that he would face a real chance of harm in Kabul or anywhere else in Afghanistan on account of any past encounters with the Taliban.

25. The Court is satisfied that the new information formed part of the reason for the IAA affirming the delegate’s decision.

26. The Minister submitted that this was only “a small part” of the reason for the IAA affirming the decision. It was further stated that, in this case, the failure to put the information to the applicant could not realistically have deprived him of a successful outcome as per Minister for Immigration & Border Protection v SZMTA [2019] HCA 3. The basis of this submission appears to be that the IAA found that the applicant was at risk of adverse interest in his home town but could safely relocate to Kabul. Hence, the reason for affirming the decision was based on “relocation”.

27. The Court disagrees.

28. It cannot be said here that the failure to put the information to the applicant was not material to the outcome of the review. While the IAA did determine the review on the basis of relocation, the IAA was not satisfied that the applicant would be “pursued to or in Kabul or that he would face a real chance of harm in Kabul or anywhere else in Afghanistan on account of any past encounters with the Taliban” because it had found that the interest shown in his brother was “opportunistic and isolated”.

29. Hence, the finding made in relation to the brother’s application (that the events were “opportunistic and isolated events” and that “that once the ransom was paid, the brother was of no further adverse interest to the Taliban”) formed parts of the IAA’s reason for finding that the applicant was not of any adverse interest to the Taliban for any reason, including because members of his family refused to join and would not pursue him in or to Kabul.

30. In the Court’s view, the IAA was required by s.473DE of the Act to put to the applicant the new information arising from the IAA’s determination in the brother’s application that the kidnapping was for the purpose of ransom and that once the ransom was paid there was no further interest in the brother.

31. The claim was, fundamentally, that the applicant would be targeted by the Taliban because of events that had previously happened to his brothers. Hence, the applicant would have a profile with the Taliban. At [44], the IAA expressly relies on its findings at [21]-[22] to conclude that the applicant would not face a real chance of harm in Kabul or anywhere else in Afghanistan on account of any past encounters with the Taliban. The basis of the finding relating to Kabul was, therefore, a consequence of a finding based on new information that was not put to the applicant.

32. The error was material in the sense that it realistically deprived the applicant of responding to information that was adverse to his application. This is so in circumstances where the IAA either did or did not consider relocation.

33. The IAA has, therefore, failed to afford the applicant procedural fairness.

Conclusion

1. The applicant’s sole ground of review has identified a jurisdictional error in the IAA’s decision. It cannot be said that that error was not material.

2. Accordingly, the application will be remitted for re-hearing.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  23 April 2020