AIV18 v Minister for Home Affairs
[2019] FCCA 553
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 553 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether conclusions open on the evidence – whether finding constitutes a jurisdictional fact – decision affected by error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 46A(2), 65, 473CA, 473CB |
| Cases cited: ABD18 v Minister for Immigration & Anor [2018] FCCA 3378 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Buchwald v Minister for Immigration & Border Protection (2016) 242 FCR 65 Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 Plaintiff M70/2011 v Minister of Immigration & Citizenship (2011) 244 CLR 144 SZNKV v Minister for Immigration & Citizenship [2010] FCA 56 |
| Applicant: | AIV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 46 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 February 2019 |
| Date of Last Submission: | 27 February 2019 |
| Delivered at: | PERTH |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Ms S. Oliver |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent dated 8 January 2018.
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 46 of 2018
| AIV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 24 January 2018, amended on 2 February 2019 (“Amended Application”), the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 8 January 2018.
The decision of the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 17 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.
In his Amended Application for judicial review, the applicant identifies one ground of review. In effect, the applicant raises a “no evidence” ground, contending that the IAA’s conclusion that the Applicant “is likely a low-level adherent of his Shia Islam faith” was not open on the evidence.
Background
The applicant is a 38 year old citizen of Afghanistan (Court Book (“CB”) 18). He is ethnically a Hazara and religiously a Shia Muslim (CB 1 q A8 and CB 11 q 18).
The applicant left Afghanistan on 7 February 2013 (CB 53 q 48-49). He arrived in Australia at Christmas Island on 2 April 2013 by sea as an unauthorised maritime arrival (CB 23 and 53).
By letter dated 17 March 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 SHEV (CB 25).
On 11 October 2016, the applicant lodged an application for a SHEV (CB 33-69).
In a statement accompanying his SHEV application (CB 70-73), the applicant made various claims for protection. These can be summarised as follows:
a)in approximately 2005, he started a taxi/minibus service carrying local Hazaras between West Kabul and the Turkman Valley. He would make the trip every 7-10 days;
b)on his second last trip before leaving Afghanistan, he was signalled to stop at a Taliban roadblock. He accelerated through the road block and the Taliban gave chase; however, he stopped as he approached the main highway back to Kabul;
c)he was told by a service station manager that the Taliban had recognised him and planned to set up a road block to “get him”; and
d)he subsequently sold his business and worked as a taxi driver within Kabul before travelling to Australia.
The applicant was invited to attend (CB 100), and did attend (see CB 104), an interview with a delegate of the Minister on 31 January 2017.
At that interview, the applicant claimed that he feared harm if he were returned to Afghanistan on the basis of his ethnic and religious background as a Shia Hazara and also as a failed returnee asylum seeker.
A transcript of that interview reveals the following conversation between the applicant and the delegate:
APPLICANT: And, obviously the current situation of Kabul is not safe – the attack, the suicide bombing that killed many people that is not a safe place any more. And, about Taliban, the Taliban has an issue with people that come from my background, if they want to chase you, they will chase you and they will find you and kill you.
DELEGATE: What background is that?
APPLICANT: What do you mean by that?
DELEGATE: Well, you said the Taliban have a problem with people of your background, what background is that?
APPLICANT: Because we are Shia, we are Hazara and we are infidel and we do not belong to that country anymore.
The applicant’s migration agent provided a submission to the delegate following the SHEV interview. The migration agent also provided further country information in support of the applicant’s arguments (see CB 103 and 117-193).
On 17 March 2017, the delegate refused to grant the applicant the SHEV (CB 197-209).
On 23 March 2017, the decision was referred to the IAA for review, pursuant to Part 7AA of the Act (CB 211-212).
On 8 January 2018, the IAA affirmed the delegate’s decision (CB 231-247).
The IAA’s decision
The delegate’s decision was referred to the IAA pursuant to s.473CA of the Act.
The IAA provided an extensive and well written decision spanning 17 pages (CB 231-247).
The Court notes the Minister’s summary of the IAA’s decision in written submissions dated 20 February 2019 at [9]-[11]. That summary was not disputed and is an accurate summary of the IAA’s decision. The Court adopts that summary which, other than as amended below, provides relevantly as follows.
The IAA had regard to the material given to it by the Secretary under s.473CB of the Act (CB 232 at [2]), as well as submissions provided to it by the applicant insofar as those submissions related to the applicant’s existing claims, and country information and a report which was before the delegate (CB 232 at [3]-[4]). The IAA also had regard to two new Department of Foreign Affairs and Trade (“DFAT”) country information reports, which took into account relevant security developments in Afghanistan, finding that there were exceptional circumstances to justify considering the same (CB 232 at [6]).
In relation to the applicant’s claims for protection, the IAA:
(a)found that the applicant was a Shia Hazara from Kabul in Afghanistan (CB 233 at [11] and CB 235 at [22]);
(b)found that the applicant gave a consistent account of the incident involving the Taliban when he was working as a taxi driver (CB 234 at [13]) and accepted, as plausible, that if the applicant was flagged down by the Taliban and that he fled from them, he could have been pursued by the Taliban (CB 234 at [13]);
(c)accepted that the Taliban in the area may have made inquiries about his identity and vehicle, and may have sought to question or harm the applicant if he had returned to the area because of his refusal to stop his vehicle (CB 234 at [14]). In that context, the IAA considered that there would have been considerable risks to the applicant in the weeks that followed and, in particular, had he continued to transport people on the same route (CB 234 at [14]);
(d)considered that, if the applicant was returned to Afghanistan and travelled or worked on the roads around the Turkman Valley, there was a chance of him being re-identified by the local Taliban in the area (CB 234 at [15]);
(e)found that the risk of the Applicant being so identified was localised to the area of Turkman Valley, and was of low-level having regard to the applicant’s limited interaction with the Taliban in the past and his lack of any other past profile with the Taliban (CB 234 at [15]);
(f)found that the chance or risk of the applicant being identified and seriously or significantly harmed as being more than remote, given the rural aspect of the Turkman Valley and the frequency with which the applicant had travelled on those roads in the past (CB 234 at [15]);
(g)did not accept that, whilst there were ongoing risks in the Turkman Valley area, the one incident with the Taliban in that area had given the applicant any broader, higher or ongoing profile with the Taliban or any other insurgent group (CB 234 at [16]). The IAA did not consider that the applicant’s single interaction with the Taliban in the Turkman Valley would warrant ongoing and/or broader interest of the Taliban in other parts of Afghanistan and, therefore, the IAA considered that there did not exist a chance or risk of identification and harm outside the Turkman Valley (CB 234 at [16]);
(h)considered that the fact that the applicant had continued to work in a highly public occupation within Kabul for a further six months after the incident with the Taliban without repercussions, supported the finding that the applicant had no broader profile, and was not a person of interest, for the Taliban outside of the Turkman Valley (CB 234-235 at [17]);
(i)concluded that there was no real chance of the applicant being seriously harmed in his home area of Kabul from the Taliban, or any other person or group, in connection with the incident in the Turkman Valley and that sub-s.5J(1)(c) of the Act was not met in relation to this aspect of the applicant’s claims (CB 235 at [18]);
(j)noted that the applicant claims to fear harm based on his religious and ethnic background, accepted that he is a Shia Hazara, and assessed his claims to fear harm from the Taliban, Islamic State, and other Anti-Government Elements (“AGEs”) for reasons of his ethnic and religious background as a Shia Hazara (CB 235 at [22]);
(k)found that, outside of the threat of harm posed by Islamic State, the country information did not indicate that Shia Hazaras have an adverse risk profile in Kabul, or that there had been any escalation in other serious harm or other systemic persecutory conduct towards Shia Hazaras in Kabul by the Taliban or other AGEs (CB 235-236 at [23]);
(l)found that, with limited exception, the country information did not indicate that ordinary Shia Hazaras were targeted by the Taliban, or other AGEs, active in Kabul (CB 236 at [26]). Instead, the IAA noted that the country information indicated that persons and groups who remained at risk in Kabul from the Taliban and other AGEs were those associated with the government, the military, the media and the international community (CB 236 at [26]);
(m)relying on country information, found that the risks in Kabul and other parts of Afghanistan to Shia Hazaras had been Islamic State in Khorasan Province – a local iteration of Islamic State (CB 236 at [27]);
(n)noted a 2017 DFAT report that assessed that the number and scale of attacks in late 2016 and early 2017 demonstrated that Shia, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation. It was highlighted that DFAT assessed that Shias are particularly vulnerable when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shia religious festivals (CB 236-237 at [28]);
(o)relying on country information and having regard to the lack of persecutory conduct towards Shia Hazaras, the IAA also noted that the capacity of Islamic State of Khorasan Province in Kabul was limited in nature (CB 237 at [29]);
(p)noted that, beyond occasional high casualty attacks, the country information did not indicate that Shia Hazaras were facing other serious harm or systemic discrimination on the basis of their religion or ethnicity within Kabul – whether from Islamic State or any other person or group (CB 237 at [29]);
(q)was satisfied that the applicant did not have a higher profile, such as links to the government or the international community (CB 237 at [30]), and considered that the applicant’s ethnic profile was not a significant factor in terms of the risks to him on return to Kabul – whether from Islamic State or any other person (CB 237 at [30]);
(r)then assessed a further factor of religion in the context of these attacks and made the following findings:
31. A further factor here is the context of these attacks, which have focussed principally on protests and religious celebrations. The applicant claimed to be Shia, but did not claim to be a regular adherent of his faith, nor did he claim to be politically active. He also did not claim to fear harm through his religious observance, or suggest he would be harmed in that context or prevented from doing so. In fact, the applicant’s claims were articulated in terms of the risks to him from his ethnicity, rather than his faith. I am satisfied he is not politically active, and I consider the applicant is likely a low-level adherent of his Shia Islam faith, and this would further reduce the potential risks to him on return to the country, as he is less likely to be involved in or have proximity to protests and religious ceremonies.
32. Lastly, an additional consideration is the frequency of such attacks in the context of a large city. Kabul has an estimated population of around four million people, and the Hazara population is estimated to be around half that number. According to DFAT, there were three major attacks against Shias in Kabul in 2016, and at least two in 2017. There were also two attacks in Herat, and an attack against Shias in Balkh, the last for which ISKP did not claim responsibility. In that context, the risks to Shias in Kabul must be seen as credible, however the likelihood of a Shia being harmed in the context of such an attack must also be seen to be low, particularly where the applicant’s activities are low level - i.e. he is not politically active and is not a high level adherent of his faith.
(Footnotes omitted)
(s)found that, weighing all of the information before it, there was only a remote and, therefore, not a real chance, of the applicant being seriously harmed for reasons of his religion and/or ethnic profile as a Shia Hazara or any related profile (CB 237-238 at [33], CB 238 at [34] and CB 239 at [38]). In this context, the IAA again highlighted the applicant’s “limited religious adherence” (CB 238 at [33]);
(t)was not satisfied that the applicant would have an additional or adverse profile (and, therefore, found that he would not be of interest to the Taliban or any other person or groups) as a returnee form the west or due to the fact that he had sought asylum in Australia (CB 240 at [44]). Further, the IAA was not satisfied that there is a real chance of the applicant being seriously harmed as a returnee from the west, as a person that had sought asylum or for any other related opinion or profile, in Kabul or elsewhere in Afghanistan (CB 240 at [45]);
(u)was satisfied that, insofar as there was acknowledgement by DFAT that people who have been identified as having international associations face a high risk of being targeted by AGEs (CB 240 at [46]), the applicant could take reasonable steps to modify his conduct to avoid what the IAA considered to be a remote chance of persecution (CB 240-241 at [47]-[48]). The IAA considered that such steps would be reasonable and relatively minor inconveniences (CB 240 at [48]). The IAA was satisfied that if the applicant took these steps, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in any way or do any of the things contemplated by sub-ss.5J(3)(c)(i)-(vi) (CB 240 at [48]);
(v)concluded that there was no real chance of the applicant being seriously harmed as a returnee from the west, as a person that sought asylum, or for any other related profile, and found that his fears of harm for these reasons was not well founded (CB 241 at [49]);
(w)relying on country information in relation to the risks associated with generalised and insurgent violence, was not satisfied that the current security environment, or that projected in the country information, varied the IAA’s assessment that there is not a real chance of the applicant being seriously harmed on the basis of his ethnic and/or religious profile – whether from the Taliban or any other AGEs (CB 241 at [52]). In this regard, the IAA:
(i)accepted that the situation in Afghanistan was serious (CB 241 at [50]-[52]), that there had been a deterioration in the security situation throughout the country (CB 241 at [50]), and that the Taliban had gained control, or had a strong influence, in a number of districts in Afghanistan (CB 241 at [51]), although the IAA noted that the country information did not indicate, or indicate with confidence, that the government in Afghanistan or the city of Kabul was likely to fall to the Taliban insurgency, or that the Taliban would recommence targeting Shias in the reasonably foreseeable future (CB 241 at [51]);
(ii)whilst accepting there were credible and serious security risks in Kabul, found that the chance or risk of the applicant being seriously harmed in generalised or insurgent violence within Kabul was credible but remote, having regard to his lack of any other profile or proximity to those with a risk profile that would give rise to a real chance or real risk of harm (CB 241 at [53]); and
(iii)on a separate and independent basis, whilst acknowledging that many low profile civilians had been victims of generalised and insurgent violence, was satisfied that any remote chance of harm that the applicant may face in relation to generalised or insurgent violence would also not be for the essential and significant reasons of his race, religion, nationality, or membership of a particular social group or political opinion, but rather a consequence of the ongoing insurgency and insecurity present in Kabul and Afghanistan more generally (CB 241-242 at [54]). The IAA, accordingly, found that, in terms of the remote chance of the Applicant being harmed in generalised violence, ss.5J(1)(a) and (4)(a) would not be satisfied (CB 242 at [54]);
(x)was satisfied that the applicant did not meet the requirements of the definition of a refugee in s.5H(1) of the Act, and that he did not meet s.36(2)(a) of the Act (CB 242 at [55]); and
(y)relying on its anterior findings in relation to the complementary protection criterion, found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned, there was a real risk that the applicant would suffer significant harm (CB 243 at [61]). The IAA also found that any societal discrimination would not amount to significant harm (CB 242 at [59]). The IAA, therefore, found that the applicant did not meet the requirements of s.36(2)(aa) of the Act (CB 243 at [61]).
Judicial Review Application
The applicant relies on one ground of review in support of his Amended Application as follows:
The Assessor failed to properly consider all of my claims. The Immigration Assessment Authority’s conclusion that the Applicant ‘is likely a low-level adherent of his Shia Islam faith’ was not open on the evidence.
Applicant’s Submissions
In relation to the applicant’s sole ground of review, the applicant submitted as follows:
(a)the IAA made a finding of fact for which there is no supporting evidence and that this constitutes an error of law;
(b)a key aspect of the IAA’s reasoning that the applicant did not face a real chance of being harmed as a result of his Shia religion in Kabul was because it found that the applicant was “likely a low-level adherent of his Shia Islam faith” and would, therefore, be less likely to be involved in religious ceremonies;
(c)specifically, the IAA stated that although the DFAT has advised that “Shias are particularly vulnerable when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shia religious festivals”, the applicant “is likely a low-level adherent of his Shia Islam faith, and this would further reduce the potential risks to him on return to the country, as he is less likely to be involved in or have proximity to […] religious ceremonies”;
(d)throughout its decision and the reasons thereof, the IAA carefully cited a wide array of sources for the various conclusions it drew. However, it did not cite anything in support of its proposition that the applicant is “likely a low-level adherent of the Shia Islam faith”. Further, nothing in the transcript of the ministerial delegate’s interview with the applicant reveals any information which could be construed as supporting this proposition;
(e)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 applicant was “a low-level adherent of his Shia Islam faith”. Nor was it open to conclude that the applicant did not face a real risk of harm in Kabul for reasons of his religious beliefs, since this relied on the conclusion that the applicant was “a low-level adherent of his Shia Islam faith”. In this regard, the IAA’s conclusion was, in reality and at best, an unsupported assumption about the applicant’s level of religious observance;
(f)a finding without evidence can amount to a jurisdictional error if the finding concerns a jurisdictional fact. The applicant applied for a protection visa, so the relevant jurisdictional fact is the IAA’s “state of satisfaction” that the relevant visa criteria are met; and
(g)the IAA’s finding that the applicant was a low-level adherent of the Shia faith (and, therefore, that he would be less likely to be involved in religious ceremonies) was a “finding” as to the “satisfaction” of the criteria in s.65 of the Act. This finding of fact (made with no evidence) concerns a jurisdictional fact and, as such, the IAA’s decision is vitiated by jurisdictional error.
Minister’s Submissions
The Minister, in turn, submitted that:
(a)decisions are not to be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”. Further, a particular statement or conclusion by the IAA cannot be viewed in isolation but must be considered in the context of the entire decision and the whole case as it was before the decision-maker;
(b)the IAA was correct in the observation that the applicant’s claims “were articulated in terms of the risks to him from his ethnicity, rather than his faith”. So much is apparent from the SHEV application and the statement of claims provided in support of the application;
(c)the IAA was also correct in the observation that the applicant did not claim:
(i)to be a regular adherent of his faith, nor did he claim to fear harm through his religious observance, or suggest he would be harmed in that context or prevented from doing so; or
(ii) to be politically active;
(d)no such claims were made in the applicant’s entry interview, in his application for the SHEV, in his statement of claims provided with the SHEV application, or in the post interview submissions made to the delegate. In the absence of any such claims, it was open to the IAA to consider, by inference, that the applicant is likely a low-level adherent of his Shia Islam faith;
(e)it cannot be accepted that there was no evidence at all upon which the finding could have been based or that the inferences drawn from the material before the IAA were not otherwise open;
(f) in any event, the IAA’s satisfaction that the applicant did not face a real risk of harm in Kabul for reasons of his religious beliefs was not contingent on the conclusion that the applicant was “a low-level adherent of his Shia Islam faith”;
(g)the IAA’s satisfaction that the applicant did not face a real risk of harm in Kabul for reasons of his religious beliefs was based on a number of logical and clearly articulated matters, including that:
(i)whilst there were ongoing risks to the applicant in the Turkman Valley area, the one incident with the Taliban in that area had not given the applicant any broader, higher or ongoing profile with the Taliban or any other insurgent group (CB 234 at [16]);
(ii) outside of the threat of harm posed by Islamic State, the country information did not indicate that Shia Hazaras had an adverse risk profile in Kabul, or that there had been any escalation in other serious harm or other systemic persecutory conduct towards Shia Hazaras in Kabul by the Taliban or other AGEs (CB 235-236 at [23]);
(iii)with limited exception, the country information did not indicate that ordinary Shia Hazaras were targeted by the Taliban or other AGEs active in Kabul (CB 236 at [26]). The IAA noted that, instead, the country information indicated that persons and groups who remained at risk in Kabul from the Taliban and other AGEs were those associated with the government, the military, the media and the international community (CB 236 at [26]);
(iv)beyond occasional high casualty attacks, the country information did not indicate that Shia Hazaras were facing other serious harm or systemic discrimination on the basis of their religion or ethnicity within Kabul – whether from Islamic State or any other person or group (CB 237 at [29]); and
(v)the applicant did not have a higher profile, such as links to the government or the international community (CB 237 at [30]), and that his ethnic profile was not a significant factor in terms of the risks to him on return to Kabul – whether from Islamic State or any other person (CB 237 at [30]);
(h)the IAA’s finding, “I am satisfied he is not politically active, and I consider the applicant is likely a low-level adherent of his Shia Islam faith” went only, as the IAA observed, to “further reduce the potential risks to him on return to the country”;
(i)the applicant’s level of observance of the Shia Islam faith was not the sole, or a significant, matter that the IAA relied upon in reaching its level of satisfaction that there was only a remote and, therefore, not a real chance, of the applicant being seriously harmed for reasons for his religion and/or ethnic profile as a Shia Hazara or any related profile and, therefore, that the particular finding was not a “jurisdictional fact”;
(j)whilst the IAA’s satisfaction as to whether the applicant was a non-citizen to whom Australia has protection obligations is a jurisdictional fact, its comments on the level of religious adherence was not a “jurisdictional fact” to which the jurisdictional fact approach to a “no evidence” ground could apply; and
(k) the IAA’s comments on the level of religious adherence of the applicant was not a finding that was a critical step in its ultimate conclusion, such as to give rise to a “no evidence” jurisdictional error.
Consideration
The applicant asserts a “no evidence” argument, namely 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 (“AUG17”) per Judge Driver (at [70]) citing Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 (“Kostas”) (at [91]).
This Court most recently addressed “no evidence” arguments in ABD18 v Minister for Immigration & Anor [2018] FCCA 3378 (“ABD18”). In ABD18, the Court outlined that in Buchwald v Minister for Immigration & Border Protection (2016) 242 FCR 65 (“Buchwald”), Bromberg J, sitting as a single judge, addressed the issue of “no evidence” findings as follows:
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.
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.
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.
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 …
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].
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]).
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. …
As in ABD18, the Court accepts here that Bromberg J’s summary in Buchwald of the law as it relates to a “no evidence” ground is the correct approach.
Accordingly, the Court proceeds on the basis that a finding without evidence can be found to amount 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: ABD18 citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ (with whom Brennan J agreed).
In Plaintiff M70/2011 v Minister of Immigration & Citizenship (2011) 244 CLR 144, French CJ explained the scope of the term “jurisdictional fact” 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. …
In this matter, the applicant applied for a SHEV. This means that the relevant jurisdictional fact here is the IAA’s “state of satisfaction” that the relevant visa criteria are met: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) per Gummow ACJ and Kiefel J (at [20]) and AUG17 per Judge Driver (at [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[1]. 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)).
(Footnotes omitted)
In this matter, the applicant contends that as he applied for a protection visa, the relevant jurisdictional fact is the IAA’s “state of satisfaction” that the relevant visa criteria are met: citing SZMDS per Gummow ACJ and Kiefel J (at [20]); ABD18 per Judge Kendall (at [77]); AUG17 per Judge Driver (at [70]).
The Minister contends that, whilst the IAA’s satisfaction as to whether the applicant was a non-citizen to whom Australia has protection obligations is a jurisdictional fact, the IAA’s comments on the level of religious adherence was not a “jurisdictional fact” to which the jurisdictional fact approach to a “no evidence” ground could apply. This argument appears to be based on the belief that the applicant’s level of religious adherence was not a central claim advanced by the applicant in his SHEV application or before the IAA as a core argument relevant to whether the applicant should be afforded the legal protections he seeks.
The Court disagrees with the Minister’s contention.
It is hard to understand how it can be claimed that the applicant’s religious adherence cannot be anything other than central to the applicant’s claims, when the IAA, itself, specifically stated (CB 235):
22. Beyond that specific profile, the applicant also claims to fear harm based on his religious and ethnic background. Based on his limited, but consistent evidence, I accept the applicant is a Shia Hazara and have assessed his claims to fear harm from the Taliban, Islamic State, and other Anti-Government Elements (AGEs) for reasons of his ethnic and religious background as a Shia Hazara.
The IAA then addressed the applicant’s fears of religious persecution throughout much of the refugee assessment that follows. The Court notes, for example, that the IAA focused on recent DFAT reports to assess whether “Shia Hazaras are facing other serious harm or systematic discrimination on the basis of their religion or ethnicity within Kabul, whether from Islamic State or any other person or group” (CB 237 at [29]). Further, the IAA, while noting evidence of attacks in Kabul, stated that “a further factor here is the context of these attacks, which have focussed principally on protests and religious celebrations” (CB 237 at [31]).
The IAA then specifically addressed the applicant’s religious adherence as follows (CB 237):
31. […] The applicant claimed to be Shia, but did not claim to be a regular adherent of his faith […] I consider the applicant is likely a low-level adherent of his Shia Islam faith, and this would further reduce the potential risks to him on return to the country, as he is less likely to be involved in or have proximity to […] religious ceremonies.
32. Lastly, an additional consideration is the frequency of such attacks in the context of a large city. Kabul has an estimated population of around four million people, and the Hazara population is estimated to be around half that number. According to DFAT, there were three major attacks against Shias in Kabul in 2016, and at least two in 2017. There were also two attacks in Herat, and an attack against Shias in Balkh, the last for which ISKP did not claim responsibility. In that context, the risks to Shias in Kabul must be seen as credible, however the likelihood of a Shia being harmed in the context of such an attack must also be seen to be low, particularly where the applicant’s activities are low level – i.e. he is not politically active and is not a high level adherent of his faith.
The IAA then concluded that, on the basis of its findings that the applicant does not meet the definition of a refugee in s.5H(1) of the Act, the applicant does not, accordingly, meet s.36(2) (CB 242 at [55]). The IAA also concluded that no complementary protections are owed to the applicant because (CB 242):
58. […] I have also found there is no real chance of the applicant facing serious harm for reasons of his religion […] For the same reasons, and having regard to the above considerations, I find there is no real risk of the applicant facing significant harm for [this] reason in Kabul.
Given this context, the Court agrees with the applicant that the IAA’s finding that the applicant was a low-level adherent of the Shia faith (and, therefore, that he would be less likely to be involved in religious ceremonies) was a “finding” as to the “satisfaction” of the criteria in s.65 of the Act. This finding of fact concerns a jurisdictional fact.
The Court also rejects the Minister’s contention that, in any event, the IAA’s conclusions about the applicant’s religious adherence did not simply “float” – rather, they were made on the basis of a reasonable inference drawn from the other evidence before the IAA. Here, the Minister submits, the “other evidence” is found in the IAA’s observation that the applicant:
·did not specifically claim to be a regular adherent of his faith;
·did not specifically claim to fear harm through his religious observance; and
·did not suggest he would be harmed in that context or prevented from doing so.
With respect, it is a rather big ask to expect an applicant who clearly identifies as a religious minority and who:
(a)fears persecution and is seeking protection within the context of the procedurally limited statutory environment of a Fast Track regime;
(b) possesses little or no grasp of the English language; and
(c)has limited (or often, no) legal assistance,
to articulate, in detail and with precision, just how “religious” he or she is on any given day and why that particular degree of religious observance makes him or her a target for harm.
In this context, all sorts of inferences can be drawn from the fact that an applicant does not outline, in detail, the extent of his or her religious observance. It cannot be said, however, that the applicant’s silence amounts to “evidence” that proves that the applicant is not an adherent.
Here, it is not doubted that the applicant claimed to be a Shia. The IAA assessed his claims for protection with that in mind. It concluded that he was not an adherent of a sort that might, arguably, result in harm. It made that assessment, it appears, because the applicant did not detail his level of religious adherence. Beyond that, there is simply no evidence that the applicant was not a strict religious adherent.
While it is certainly the case that decisions are not to be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [45])), legal fairness, at its core, also requires that decisions not be scrutinised with an eye to finding something that is not actually there/in evidence.
The IAA’s conclusion here cannot, on the evidence, be sustained. There is simply no reliable evidence to support it. The fact that the applicant failed to detail his degree of religious adherence does not amount to sufficient evidence for a finding that he was not an adherent of the sort that might be harmed. The “failure” on the part of the applicant “to speak” when the IAA believed he should have, is the only “evidence” that would allow the IAA to make the finding that the applicant was not a religious adherent. In the circumstances of this case, the Court is not satisfied that there was evidence available to the IAA to make that finding: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 per Murphy J (at [59]).
Nor does the Court accept, as advanced by the Minister, that the IAA’s comments as to the applicant’s religious adherence was not a finding that was a critical step in its ultimate conclusion such as to give rise to a “no evidence” jurisdictional error of the sort considered in SZNKV v Minister for Immigration & Citizenship [2010] FCA 56 per Kenny J (at [38]).
Here, it is simply unclear whether the IAA’s findings about the applicant’s religious adherence did not play a significant or central role in the IAA’s overall assessment of whether he was a refugee in need of protection. What is clear is that a considerable amount of the IAA’s decision focused on harm resulting from religious affiliation. The IAA rejected any suggestion that the applicant is a strict adherent to his faith and, ultimately, within the context of other evidence, found that he will not be harmed if returned to Afghanistan. There is no factual or evidentiary hierarchy evident in the IAA’s decision. It is simply not clear whether the IAA’s findings in relation to religious adherence are less “central” to the IAA’s overall refugee assessment than any of the other evidence or conclusions drawn.
Conclusion
The IAA’s finding that the applicant was a low level adherent to his faith and would not, accordingly, face harm, 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 IAA’s decision was vitiated by jurisdictional error.
The IAA’s decision of 8 January 2018 affirming a decision of a delegate of the Minister not to grant the applicant a SHEV was affected by jurisdictional error as alleged by the applicant in ground 1 of his Amended Application.
The IAA’s decision is set aside and the matter is remitted to the IAA for determination according to law.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 8 March 2019
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