AJK19 v Minister for Home Affairs

[2020] FCCA 1475

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJK19 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1475

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 473DC, 473DD

Applicant: AJK19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 89 of 2019

Judgment of: Judge Vasta

Hearing date: 29 April 2020

Date of Last Submission: 29 April 2020

Delivered at: Brisbane

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the Applicant: Mr R.I.E Lake

Solicitors for the Applicant: Salvos Legal Humanitarian

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. That the Applications filed 31 January 2019 and amended on 3 March 2020 are dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 89 of 2019

AJK19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 10 January 2019, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the Minister through his Delegate not to give the Applicant, AJK19 a protection visa.  On 31 January 2019, the Applicant asked this Court to review that decision.

2. The background to the matter is this.  The Applicant is a citizen of Afghanistan.  He is a Pashtun Sunni Muslim from Kandahar in Afghanistan. 

3. He claims that, in around May 2013, a government military vehicle arrived at his petrol station and it had its sirens on.  He filled their vehicle up and he could see that there were two people tied up in the back.  He assumed that these two were captured Taliban members.  He said there were about five government soldiers in the vehicle. 

4. He said that the persons in the vehicle stayed at the shop with the vehicle for about four to five hours.  He claims that, three days later, he was threatened by six Taliban members who confronted him on motorbikes.  He said that they asked him about what had happened three days earlier and demanded that he tell them where the two arrestees were taken. 

5. They told him to go away and think about it and threatened to take him if he did not tell them later.  He said that he knew that he could not meet their demands and he was of the view that he could not escape the Taliban in Afghanistan.  He said that his sister's husband advised him to leave the country, and he left two to three weeks after this threat was made.

6. He arrived at Christmas Island in 2013.  He said that he has been in touch with his mother since and his mother has told him that the Taliban patrolled their local streets numerous times in 2014.  The Applicant believes that the Taliban were looking for him during this time. 

7. He also claims that he fears being harmed and/or killed by the Taliban and the government.  He fears that the Taliban will harm him because of what happened in his shop and their suspicion that he was aligned with or working with the government. He fears that the government would harm him because they would suspect he was working with the Taliban, and because he left Afghanistan illegally. 

8. He said he also feared being harmed because he was Sunni and Pashtun.

9. The IAA went through those claims.  The IAA did not accept what the Applicant was saying about the petrol shop incident. 

10. In effect, the IAA accepted that a troop carrier may have pulled into the petrol station where the Applicant filled the vehicle up with petrol.  The IAA also accepted that the troop carrier may have stayed there a number of hours, and that they did have some prisoners that were tied up in the back who could well have been Taliban.  However, the IAA did not accept that the Taliban showed any interest in the Applicant following the event. 

11. The IAA found that it was implausible that the Taliban would have believed that the Applicant had some involvement or knowledge about the capture and whereabouts of these two prisoners.  Even if they did, the IAA found it implausible that they would have waited three days before approaching the Applicant for information, and then, if they had approached the Applicant for information, it was implausible that they would have released the Applicant so that he could think about it.

12. The Applicant gave evidence that the Taliban knew where he lived, they knew where he worked, and whilst he claimed that he did not return to his shop after this, there was no indication that the Taliban or anyone came looking for the Applicant in the week, or two, or three that he remained in Afghanistan. 

13. The Applicant also claimed that the Taliban were getting children to look in the house and the area for him.  The IAA found those claims to be vague and implausible.  The IAA also did not accept the suggestion that the Taliban were patrolling the streets in 2014 looking for him.

14. The Applicant claimed that his cousin was shot and injured in 2018.  The Applicant claimed that this was connected to him leaving Afghanistan, but the IAA, whilst accepting that the cousin was shot, found that it was an unrelated incident and did not result from the Taliban looking for the Applicant.  The IAA noted that the timeframe of several years after the Applicant left the country for this incident to be related to the Applicant to be implausible. 

15. The IAA found that the claims that the Applicant was, or continued to be, wanted by, or, in fact, was of any interest to the Taliban, were not credible and the IAA did not accept the Taliban had imputed the Applicant as someone aligned with, or working with the government.  The IAA did not accept the Applicant is personally known to the Taliban, nor did the IAA accept that he faced a real chance of harm arising from anything to do with what happened at his petrol shop or from any other matter or imputed pro-government or anti-Taliban profile.

16. The IAA then looked at the fact that the Applicant was a Sunni and a Pashtun, and looked at a number of items of country information as well as what the Applicant, himself, had said. The IAA was satisfied that the Applicant did not face a real chance of harm on account of any racial or religious reasons. 

17. The IAA then looked at whether the Applicant faced any danger as a western returnee, failed asylum seeker or an illegal departee, notwithstanding that there were no specific claims made about this.  The IAA used country information.  That country information was from an ESO report and from a DFAT report, but also from a United Kingdom Home Office report, of which I will say something a little later in these Reasons.

18. At paragraph 20, the IAA said this:

    DFATs 2017 report considered by the delegate notes that there were occasional reports of returnees from western countries (including two Hazaras from Australia in 2014) allegedly being targeted for having spent time in a western country.  However these incidents occurred in Ghazni province which is removed from the applicant's home area, and unlike the applicant who was Pashtun, these incidents involved persons of Hazara ethnicity, a factor which the United Kingdom Home Office (UKHO) considers relevant.  Consistent with other reporting before the delegate from EASO and earlier reports from the UKHO, in January 2018, in its Country Policy and Information Note on “Afghanistan:  Afghans perceived as Westernised”, the UKHO described the reports of harmed returnees as isolated reports about a small number of returnees.  It also noted the motivations for such attacks have often been unclear and factors such the person's ethnicity appear to have been significant.  There have been no reports of individual returnees from Australia being targeted since the two incidents in 2014, and no such incidents recorded as occurring in Kandahar province.

19. The IAA then also spoke of other aspects of the country information that it had noted so as to come to a conclusion that the Applicant would not face harm there simply because he was a returnee from a western country. 

20. The IAA found as well that the Applicant would not face harm on return on account of his illegal departure, and the IAA had already found that the Applicant would not be imputed with any particular political opinion, so that there would not be any harm because of that. 

21. The IAA then looked at the generalised violence and criminality and certainly spoke about the situation that was occurring in the Applicant's home area of Kandahar province. The IAA noted that the attacks that occur there from insurgents are often targeting only military, police, government officials and people associated with the international community, or NGOs such as human rights defenders, journalists, lawyers, judges, aid workers and civil servants.  The IAA noted the Applicant had no links to any of those groups, and because the attacks had been sporadic, the IAA found that the chance of the Applicant being inadvertently caught up in such an attack, was very remote.

22. The IAA looked at criminality throughout Afghanistan, but noted that a lot of the targeted crime is towards people who are seen as being wealthy.  The IAA was not satisfied the Applicant would face a real chance of harm in Afghanistan as a consequence of criminality. 

23. The IAA then looked at how the Applicant would get to his home area if it is that he were returned to the Kabul Airport.  The IAA was satisfied that the Applicant could stay at Kabul until it was that he could make his onward journey to his home town and that, whilst sometimes there are risks on the roads from insurgents and criminals, the Applicant would only be making the single journey.  The IAA also noted that the trip could actually be taken by air between Kabul and Kandahar. But, if he takes the road, he does not hold the profile of those that are mainly targeted, so the chance of him being harmed returning to the area were remote.

24. The IAA took into account that the Applicant's mother, siblings, uncle, aunt and family were now all in Quetta in Pakistan, but noted that the uncle, aunt and cousins were planning to return to Afghanistan very soon.  The IAA said that they had no update whether that part of the family had actually returned. 

25. The IAA considered that the Applicant may be returning to his home area without family.  The IAA accepted that this could be challenging, but there was nothing to indicate that the Applicant, who had extensive amount of familiarity with the area and has run a business before, would face a real chance of harm in the event that his family remained in Pakistan and he was alone.

26. The IAA then concluded that the Applicant did not meet the criteria for refugee protection. 

27. The IAA then looked at the complementary protection criteria and, after some discussion, concluded that there were not substantial grounds for believing, that as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, that there was a real risk that the Applicant would suffer significant harm.

28. The grounds of the application before this Court are contained in the amended originating application that was filed on 3 March 2020.  That one ground is:

    The Second Respondent fell into jurisdictional error in that its decision to get and consider new information was legally unreasonable. 

29. The background to the matter is this: as I have already said during my recitation of the reasons of the IAA, the IAA had regard mainly to three pieces of country information; especially when looking at what would occur to the Applicant upon return to Afghanistan.  Those three pieces of information, as I have already said, are the EASO report, the DFAT report and the UKHO report.

30. At paragraph 6 of the reasons of the IAA, the IAA have said this:

    I have obtained new information from the United Kingdom Home Office (UKHO) about the situation in Afghanistan for returnees and persons perceived of being westernised.  The information is recent and relevant to the applicant's claims and the UKHO is an authoritative source which I note the delegate drew other country information from. I am satisfied that there are exceptional circumstances to justify considering this new information.

31. The Applicant has submitted to me that, in finding that there were exceptional circumstances to justify considering this new information, that the IAA have acted unreasonably.  That is, that upon the material before the IAA, it simply was not open for the IAA to have come to the conclusion that there were exceptional circumstances present to justify considering this new information. 

32. The Applicant submits that there must be, as it were, some form of threshold that the information meets before it can be considered.  This threshold can only be decided upon a generalised overview of what the information is.  The Applicant submits that what the IAA has done is looked at the information, looked at the specificities in the actual report itself, looked at the information that is contained in that, and then, upon looking at specific information that is contained in that, decided then that it would consider that information.

33. The applicant described this process as a form of reverse engineering to get to the decision that there were exceptional circumstances to consider that material.  In effect, the Applicant is saying that the IAA must have already considered the material before it decided that there were exceptional circumstances to justify its consideration.

34. One has to look at the legislative framework. Section 473DC of the Migration Act 1958 (Cth) (“the Act”) is headed “Getting new information”. Subsection 473DC(1) reads as follows:

    (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…

35. Now, having received or gotten that new information, the regime of s.473DD of the Act then takes over. That section is headed “Considering new information in exceptional circumstances”. It reads:

    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…

36. I do note that there is ss.473DD(b), but because of this particular matter, ss.473DD(b) is not particularly relevant.

37. The legislative regime then is that, whilst the IAA may get new information, it cannot consider that new information unless there are exceptional circumstances to justify considering that new information. 

38. The Applicant submits that the IAA has used the reasoning that would, in effect, lift itself up by its own bootstraps to say that there are exceptional circumstances.  The Applicant has noted that the UKHO report is dated January 2018.  The Delegate did not make their decision until October 2018.  The information, if the Delegate had wanted it, was certainly a document that could have been before the Delegate if anyone had put it before the Delegate.  The Applicant says that it is therefore not particularly recent information, even though January 2018 does post-date the September and December 2017 dates of the other two reports. 

39. The IAA also notes that, at the beginning of the UKHO report, it is obvious that it has been very much influenced as well by the same reports, the EASO report and the DFAT report.  Therefore, when one looks at what the IAA was saying, (that the information was recent and relevant to the Applicant's claim and the UKHO was an authoritative source), that those matters in and of themselves could never have gotten to the point of being exceptional.

40. The Applicant has submitted that usually when an IAA does, of its own motion, look for new material, it does look for updated information and information that has post-dated the Delegate's decision.  The most common example of this is where an updated report from DFAT has become available in between the time when the Delegate makes the decision and the IAA has to consider its assessment. 

41. The Counsel for the Applicant has said that there is never any concern with the IAA considering that material because it would, necessarily, have to be exceptional. 

42. The problem, however, with the submission of the Applicant, is that what it does is to look at the report as a “document” itself and then ask whether the report becomes exceptional because it is simply new information.  It seems to me that the fact that a document is a report from a particular NGO, or even government operative, does not give it any special circumstance. 

43. The reality of the situation is that the IAA needs to still go back to the legislative regime and to decide whether the document/information is new information, and then, if it is new information, decide whether there are exceptional circumstances that would justify the IAA considering it. 

44. Whilst it may be that the High Court and the Federal Court (as well as this Court) have talked about what is needed to be “exceptional”, one has to again look at how the word "exceptional" is used. The regime that applies in Part 7AA of the Act is that there is generally a prohibition upon any new material being considered.

45. The rationale of Part 7AA is that the IAA is a fresh and independent set of eyes that will look upon exactly the same material that the Delegate has looked upon, to ensure that there has not been anything that has not been properly assessed or looked at by the Delegate. It is not meant to be a merits review regime in the way that the Administrative Appeals Tribunal would conduct a merits review hearing, with the Applicant being able to give new material and to make totally new submissions in a face-to-face hearing if they have complied with the other conditions of the Part 7 reviews.

46. Therefore, it seems that exceptional circumstances must really be circumstances that justify the considering of new information, notwithstanding that there is a prohibition on considering new information.  That is what is exceptional. 

47. In this case, what the Applicant has said is that until the IAA can categorise the report, in and of itself, as being “exceptional”, then the IAA cannot look into what is contained in the report.  I do not agree with this submission. 

48. The new information is simply that: new information, whether it is contained in a report or whether it is contained in any other document or other vessel in which it is.  The “information” itself may not necessarily be the whole report, but the fact is that if there is “information” that is relevant in a report, then the IAA can consider the whole report. 

49. Whether, in their consideration, there has been a use of every bit of the report is a matter for the IAA itself, but as long as there is something in that report that is both new and is relevant, and it is able to be categorised by the IAA as a circumstance that justifies the consideration of that material, then, notwithstanding the prohibition, it will be “exceptional”. 

50. In this case, both the Applicant and the Minister have identified that what the IAA said at paragraph 20 is based upon what is in the UKHO report.  More particularly, what is contained in paragraphs 2.3.3 and 2.3.4.  Those paragraphs read as follows. 

    2.3.3. In 2014, it was reported that two Afghan Hazaras were targeted and attacked by the Taliban.  It was alleged that because, having recently returned from Australia, they were perceived as ‘Western’.  It has been widely reported that Hazaras - who are predominantly Shia Muslim and form the majority of Shia Muslims in Afghanistan - have been targeted by militants in Afghanistan.  Evidence suggests that Hazaras may be at risk because of their ethnicity and/or religion.  It is therefore like that the reported incidents were due to the returnees' Hazara ethnicity as opposed to their perceived connections with a western country, political opinion, or because they had adopted Western values or appearance.

    2.3.4. There are anecdotal accounts of experiences of returnees, some of which reportedly included violent incidents.  However, there is no evidence that these alleged violent incidents were a consequence of being “Westernised”.  There is no general indication that incidents of violence against returnees are due to any apparent ‘Westernised’ demeanour.

1. The Applicant argues that this information was obviously used in paragraph 20. The Applicant points out that the IAA have come to a conclusion that the Applicant faces a low risk is because he is a Sunni Pashtun, and the attacks upon returnees do have the ethnic overtones that would not be present in the Applicant's case. 

2. The Applicant argues that if the IAA had not looked at this material, then the information before the IAA simply would have been that there are some returnees who have come to harm, and therefore the IAA may have been satisfied that the Applicant, being a returnee, had a real risk of significant harm occurring because he was a returnee. 

3. The Applicant submits that that is what the country information position must be, if one only considers the DFAT report and the EASO report. 

4. It seems to me though, that this is exactly why the information from the UKHO report has that quality of being an “exceptional circumstance”.  That is, because it is relevant information, it is reliable information, it is still recent information; but what it does is, it paints a more qualitative picture on what is happening to returnees and why it is happening. 

5. In ensuring that the IAA has the proper material before it so that it can make a proper assessment, it seems to me that the IAA must be permitted to look at the actual information and dig down into each of these reports to decide whether that new information, that is contained in the reports, is information that would amount to, in all of the circumstances, being exceptional to the prohibition not to consider new information so that it could be considered.

6. I do not accept that the IAA is prohibited from drilling down and looking at the specific contents of any document, whether that be a report or any other matter before it looks at the information to decide whether there are exceptional circumstances for considering it. 

7. Because of that, I do not find that there has been a jurisdictional error in the manner in which the IAA has decided to deal with this new information. 

8. I dismiss the application with costs in the sum of $5,600.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  5 June 2020