AJS18 v Minister for Home Affairs
[2019] FCCA 1108
•1 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJS18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1108 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – whether conclusions open on the evidence – decision affected by error – writs issued. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 65,473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 474, 476 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | AJS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 51 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 21 September 2018 and 1 February 2019 |
| Date of Last Submission: | 1 February 2019 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Barnes |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the First Respondent: | Ms E. Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent dated 10 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 51 of 2018
| AJS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 25 January 2018, amended 10 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 10 January 2018.
The IAA affirmed a decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show jurisdictional error on the part of the IAA.
Background
The Court notes the factual overview provided in the Minister’s written submissions filed on 5 September 2018. The Court has reviewed the material in the Court Book (“CB”) in detail and adopts the Minister’s summary as its own, save for some minor amendments. That summary, which was not disputed, provides as follows.
The applicant is a young Afghani male. He first arrived in Australia at Christmas Island on 11 June 2013 as an unauthorised maritime arrival (CB 29).
On 20 December 2016, the applicant applied for the SHEV (CB 8-84).
The applicant’s claims were set out in a statutory declaration accompanying his SHEV application (CB 52-56), summarised as follows:
a)he is of Hazara ethnicity and Shia-Muslim religion;
b)in 2008, a Pashtun man (“N”) began to “cause problems” for his family. The dispute between N and the applicant’s family arose because of some issues related to the division of land;
c)in 2009, the applicant’s brother went missing while travelling towards Iran. He was never heard from again and is presumed dead;
d)later in 2009, the applicant’s mother passed away. The applicant believed she died as a result of the “intense feelings of grief (caused by [his] brother’s disappearance)”;
e)in 2011, the applicant and his siblings saw some Pashtun men, including N, walking around their family’s land. They became fearful because the Pashtuns appeared to be taking the land;
f)the applicant and his siblings fled to Pakistan with the assistance of a people smuggler and resided there until 2013;
g)the situation for Shia Hazaras deteriorated in Pakistan in 2013 and the applicant no longer felt he could live in Pakistan safely. He decided to flee and contacted a people smuggler and made his way to Australia to seek protection;
h)the applicant fears that if he returns to Afghanistan he will be “harmed/mistreated” by anti-Hazara and anti-Shia groups such as the Taliban, Islamic State of Iraq and Syria (ISIS) (or Daesh) and their supporters. The applicant believes the reasons he would be harmed/mistreated are because of his:
i)ethnicity (Hazara);
ii)religion (Shia-Muslim);
iii)political opinion (as he would be imputed with anti-Taliban/ISIS or pro-Western political opinion); and/or
iv)membership to a particular social group (namely, failed Afghan asylum seekers in Afghanistan).
i)the applicant also claimed to fear harm because:
I am not a practicing Shia-Muslim anymore. I have stopped practicing my religion since arriving in Australia because I have now the freedom to practice or not to practice religion.
j)the applicant claimed that the authorities will not be able to protect him and he also fears he may be persecuted by the Afghan authorities because he is no longer a practising Muslim; and
k)he would not be able to relocate to another area within Afghanistan to avoid harm.
On 16 May 2017, a delegate of the first respondent, the now Minister for Home Affairs, refused to grant the applicant the SHEV (CB 136-155).
On 19 May 2017, the decision of the delegate was referred to the IAA for review under pt.7AA of the Act (CB 156-157).
On 10 January 2018, the IAA affirmed the delegate’s decision (CB 160-175).
The IAA’s Decision
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
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”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. 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.
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 his or her decision was made.
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.
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
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 contained in s.473DD of the Act which 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.
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.
The Minister’s submissions filed on 5 September 2018 provided an accurate and comprehensive summary of the IAA’s decision. The applicant did not raise any concerns with the summary provided and, having reviewed the IAA’s decision in detail, the Court adopts that summary as its own, other than as amended below.
The IAA had regard to the material given to it by the Secretary under s.473CB of the Act (CB 161 at [3]) as well as two updated Department of Foreign Affairs and Trade (“DFAT”) reports it had obtained (CB 161 at [5]).
The IAA noted that these reports updated the reports that were before the delegate and was satisfied that there were exceptional circumstances to justify considering the new information (CB 161 at [5]).
The IAA otherwise noted that no information had been obtained or received from the applicant (CB 161 at [4]).
The IAA accepted that the applicant’s parents were both deceased and that his brother went missing while travelling to Iran (CB 163 at [10]). The IAA was not satisfied that the applicant faced a real chance of harm as a consequence of the circumstances surrounding the death of his parents or his brother’s disappearance (CB 163 at [11]).
The IAA accepted that in about 2008, “N” started to cause problems for the applicant’s family as he wanted to take the applicant’s family’s land (CB 163 at [15]). However, due to inconsistencies in the applicant’s evidence (CB 163-164 at [17]-[18]), as well as aspects of the claim that were considered unconvincing and implausible (CB 164 at [19]-[20]), the IAA did not accept that the dispute continued after the applicant’s father’s death (CB 163 at [16]).
Further, the IAA did not accept that in 2011 some Pashtun men and N came onto the applicant’s family’s land or that N had taken the land (CB 163 at [16]; CB 164 at [23]). The IAA found that there was no reasonable basis to suggest that there was a real chance that the applicant’s family’s past dispute with N would recommence on the applicant’s return to the district and that the circumstances arising from the past dispute did not give rise to a well-founded fear of harm (CB 165 at [24]-[25]).
The IAA found that the applicant had consistently claimed throughout his interactions with the Department and in his protection visa application and statement that he is a Shia Muslim and that his religion was one of the reasons he feared he would be harmed on return (CB 165 at [27]).
The IAA found that the applicant was a Hazara Shia and that the applicant’s claims to no longer be a practising Shia Muslim (the “non-practise claim”) had no credible basis and had been provided in order to enhance his claims for protection (CB 165 at [30]).
The IAA’s finding at [30] in relation to the non-practise claim is central to the applicant’s appeal to this Court and will be analysed further below.
Having regard to country information, the IAA was not satisfied that there was a real chance that the applicant would face harm from the Taliban or other Anti-Government Entities (“AGE’s”) in the district of Jaghori as a Shia Hazara (CB 166 at [36]).
The IAA further found, having regard to the applicant’s circumstances (CB 167 at [40]) and relevant country information (CB 167 at [38]-[39]), that it was not satisfied that the applicant would face a real chance of harm in Jaghori for reason of having lived in, and sought asylum in, a western country or any actual or imputed pro-western or anti-AGE political opinion (CB 167 at [41]).
Whilst the IAA accepted that the applicant may be subjected to nepotism and be restricted from accessing certain levels of government it was not satisfied that the applicant’s capacity to subsist would be threatened or that this would otherwise constitute serious harm (CB 168 at [44]-[45]).
The IAA was not satisfied that the applicant faced a real chance of harm on the basis of being a Hazara on the roads in Hazarajat and, in any event, found that the applicant could access Jaghori by air and that he would not face a real chance of harm during any brief period he may need to spend in Kabul to organise his travel (CB 169-170 at [52]-[55]).
The IAA accepted that the security situation in Afghanistan was serious and that there had been a deterioration in the security situation generally, but it was not satisfied that there was more than a remote chance of the applicant being harmed from generalised violence on return to his home area (CB 170 at [57]).
In assessing the applicant’s claims under the complementary protection criteria, the IAA relied on its anterior findings to conclude that the applicant would not face a real risk of significant harm the basis of his religion, ethnicity, the circumstances surrounding his parent’s death or his brother’s disappearance, his family’s past land dispute with N, any actual or imputed pro-western or anti-AGEs political opinion, any profile on the basis of having lived in, and sought asylum in a western country, his return to Jaghori district or generalised violence (CB 171 at [62]-[63]).
Proceedings in this Court
On 25 January 2018, the applicant filed his originating application in this Court.
The applicant subsequently obtained legal representation.
On 21 September 2018 the Court made orders which allowed the applicant to file an amended application, further evidence and submissions. The Minister was also given the opportunity to respond with any evidence or further submissions if deemed necessary.
Both the applicant and the Minister complied with these orders.
The applicant filed an affidavit of Kimya Gul Khan affirmed 17 September 2018 which annexed a transcript of the interview between the applicant and the delegate on 24 March 2017. The Minister relied upon the affidavit of Georgina Roberta Ellis affirmed 21 September 2018 which also annexed a copy of a transcript of the delegate’s interview on 24 March 2017. Ms Ellis noted “marked up” parts of the transcript which she had found were inaccurate in Ms Khan’s affidavit.
Neither party made any submissions on what version of the transcript the Court was to rely upon. The Court is of the view that nothing turns on this in the context of the applicant’s ground of review (discussed below) and will simply refer to page numbers of the Ellis Transcript.
The applicant filed his written submissions on 21 September 2018. The Minister provided further submissions in response to the amended application on 3 October 2018. The applicant also provided the Court with further written submissions at the hearing on 1 February 2019. The Minister did not object to these submissions being accepted by the Court and leave was granted for the applicant to rely on those submissions.
The Court also received and reviewed a Court Book filed on 3 April 2018 numbering 175 pages. On 5 September 2018 the Minister filed a Supplementary Court Book (“SCB”) numbering 19 pages. The Supplementary Court Book contained the full record of the Irregular Maritime Entry Interview which was only partially reproduced in the Court Book.
The Court also received a copy of two DFAT reports from the applicant prior to the hearing. The applicant emailed these reports to Chambers. At hearing, Counsel for the applicant indicated that he “simply put them forward as material which forms part of the global material before the Authority”. He indicated that he did not propose to refer to the reports in support of the judicial review application. The Court did not, in light of Mr Barnes’ submissions, receive these documents into evidence and that issue was not pressed at the hearing.
The matter came on for hearing on 1 February 2019. The Court has had regard to the transcript of the hearing before the Court in preparing these reasons.
Mr Barnes of Counsel represented the applicant and appeared by video-link from Adelaide. Ms Tattersall appeared for the Minister.
Mr Barnes and Ms Tattersall are gifted advocates. The Court thanks them both for their considerable assistance and for the curtesy they showed each other as lawyers. This cooperative approach to advocacy is well suited to hearings of this sort and is very much appreciated.
The sole ground of review
The applicant’s amended application relies on a single ground of review, as follows:
The IAA committed jurisdictional error in finding, at [30] that the Applicant’s claims that he is no longer a practising Shia Muslim and that he will be perceived as either an atheist or apostate and harmed or persecuted on this basis “have no credible basis and have been provided in order to enhance the Applicant’s claims for protection.”
(a) The IAA’s review of the Minister’s decision proceeded on the basis of the review material provided by the Minister under s. 473CB: [3]. No further information was obtained or received from the Applicant, and in particular the IAA did not exercise its discretion to invite the Applicant to give new information under s. 473DC(3).
(b) The review material included the interview conducted by the Minister’s delegate.
(c) Neither at the interview, or at any stage during the assessment of the Applicant’s eligibility for the SHEV visa, did the Minister attempt to ascertain the genuineness of the Applicant’s claim to having abandoned the Shia faith.
(d) There was no basis on which the IAA could find that the Applicant’s claim that he had abandoned his faith had no credible basis and the IAA’s conclusion in this respect was legally unreasonable.
Applicant’s submissions
In relation to the applicant’s submissions, the Court has extracted the submissions advanced in written submissions filed 21 September 2018 and 1 February 2019 and the oral submissions advanced at hearing.
Those submissions can be summarised as follows:
a)culturally the applicant identifies as a Hazara Shia Muslim, although he maintains that since arriving in Australia he has abandoned the practise of his religion. This distinction, between the acknowledgment of his cultural background, and the personal non-observance of his religion, is one of the issues in this application for review of the decision;
b)in the statutory declaration provided with his SHEV application, the applicant set out the basis of his claims for protection, which included his fear of harm as a non-practicing Shia-Muslim;
c)the Minister’s delegate interviewed the applicant on 24 March 2017.
d)during that interview, the delegate did not ask any questions about the applicant’s fear as a non-practicing Muslim;
e)the delegate accepted that the applicant was a non-practicing Muslim, but found that this did not create a risk of harm as:
Simply not actively practicing your religion does not make a person an atheist. As advised above under the courts’ interpretation of Islamic law, conversion from Islam to another religion is apostasy. I do not accept that the applicant is an atheist or an apostate as he has not converted to any other religion. Nor do I accept that he would be perceived to be an atheist or apostate;
f)on the claim of fear of harm arising from the applicant’s non-practise of his religion, the IAA disagreed with the delegate, finding instead that the claim had been fabricated:
30. Having regard to all the evidence, I am satisfied the applicant’s claim that he is no longer a practising Shia Muslim and the representative’s contentions that the applicant is a non-Shia, non- religious beliefs (sic) and that he will be perceived as having moved away from the strict doctrines of Islam and considered either an atheist or apostate and harmed or persecuted on this basis on return have no credible basis and have been provide in order to enhance the applicant’s claims for protection. I am satisfied the applicant is a Hazara Shia and is from a village in district of Jaghori in Ghazni province.”;
g)in his first statutory declaration outlining his claims, the applicant stated that he feared harm because of the non-practise of his belief: [17];
h)the post-interview submissions confirmed this and stressed that this amounted to an abandonment of the Islamic faith. The same submissions referred to the potential danger which persons who reject Islam might face in Afghanistan;
i)in assessing claims based on a particular belief, decision-makers must probe and ask questions rationally capable of leading to the conclusion as to the genuineness of the claimed belief. There must be an inquiry so as to ascertain whether the claim is genuine or raised merely to strengthen the prospects of success;
j)in this case the applicant expressed the lack of adherence to the tenets and practises of his Shia Islamic faith and claimed that he would be considered an apostate in Afghanistan. The delegate did not probe this claim by any questions during the interview, possibly due to the fact that she was satisfied – as she later concluded in her decision – that the mere non-practise would not be considered apostasy;
k)the applicant had raised this claim in his first statutory declaration. During the interview with the delegate he spoke of how those from whom he fears harm would know that he had returned from a western country/overseas;
l)no questions were put to the applicant by the delegate on this aspect of his claim, either during the interview, or in response to the post-interview submission in which the claim was reiterated. The submissions from the applicant’s representative provided a solid basis to suggest that a person who refused to practise the Islamic faith would be regarded as an apostate and suffer for doing so;
m)no assessment was made by either the Minister or the IAA of the extent to which the applicant had turned his back on his Shia faith and whether he would be able to continue to embrace the freedom from the practise of the religion, including the obligations imposed on all Muslims, including prayer and observance of codes of behaviour, and what might happen to him in Afghanistan if he did;
n)the IAA was engaged in a hearing de novo on the material provided to it under s.473CB. It was required to consider the applicant’s claim afresh, and to determine for itself whether the applicant was deserving of protection. This process should have included an assessment of whether the applicant’s claim that he would face harm as an apostate;
o)there was simply no evidence before the IAA that allowed it to conclude that the applicant’s evidence was inconsistent;
p)when examined closely, there is no inconsistency, and there is, therefore, no basis upon which the IAA could arrive at the conclusion that it did at [30]. Specifically:
i)there is no inconsistency between the applicant’s statement that he was a Shia Hazara, and that he was no longer a practising Shia Muslim;
ii)nor is there any inconsistency between the statements made in the applicant’s SHEV application that he was not a practising Shia Muslim and the postinterview submissions. The key question is whether non-observance by the applicant of the strict practises of the Shia religion would be perceived by those who might do him harm as representing him abandoning his religion; and
iii)nor is there any inconsistency between the applicant’s assertion that he was a nonpractising Shia Muslim and his statement at interview that he might be targeted as a Hazara Shia. In a country which at times has been a mono-religious theocracy (which powerful groups are fighting to reintroduce) persons are identified by their ethnic and religious origin; and
q)there is a fundamental failure of logic on the part of the IAA which is evident in the finding that the applicant cannot (at the same time) say that he is Hazara Shia and that he also fears ill-treatment due to his non-practising of the religion.
Minister’s submissions
The Minister’s submissions, detailed in supplementary written submissions filed 3 October 2018 and oral submissions advanced at hearing, can be summarised as follows:
a)the applicant’s amended application relies on a single ground of review – namely that the IAA committed jurisdictional error in rejecting the applicant’s claim to no longer be a practising Shia Muslim and to have non-Shia, non-religious beliefs;
b)the ground contains three limbs namely, that the IAA’s finding was made in circumstances where the delegate did not attempt to ascertain the genuineness of the applicant’s claim; that there was no basis upon which the IAA’s finding could have been made; and, that the finding was legally unreasonable;
c)in relation to whether there was no basis upon which the IAA’s finding could have been made, the IAA’s findings were based on its assessment of the evidence before it – evidence which it found to be inconsistent; namely that:
i)the applicant had consistently claimed throughout his interactions with the Department and in his SHEV application that he was a Shia Muslim;
ii)the applicant then claimed in the statutory declaration submitted in support of his SHEV application that he was not a practising Shia Muslim anymore;
iii)the applicant’s post-hearing submissions stated that the applicant had abandoned the Shia religion and that he would face harm owing to his “non- religious beliefs” and would be perceived to be an atheist or apostate; and
iv)the applicant advised the delegate at interview that he considered that he would be specifically targeted by the Taliban or Islamic State because he was a Hazara and a Shia;
d)the IAA’s finding focused on these inconsistencies and was open to it;
e)the ground of review is focused on only the material in the applicant’s statutory declaration; however, the IAA reached the finding that it did on a number of further bases including the delegate’s interview (lacking in any further detail on the claim) and the fact that the post-hearing submission lacked specificity;
f)it cannot be said that only one conclusion was open to the IAA; namely, to accept the applicant’s claims. Nor can it be contended that the impugned finding was not open to the IAA; and
g)the IAA’s decision was not arbitrary or irrational. Nor did it constitute an unreasonable exercise of a discretionary power.
Jurisdictional Error
The applicant seeks the issue of constitutional writs. To obtain them, he must establish that the IAA fell into jurisdictional error.
The applicant’s sole ground of review states that “there was no basis on which the IAA could find that the Applicant’s claim that he had abandoned his faith had no credible basis and the IAA’s conclusion in this respect was legally unreasonable.”
The applicant states in written submissions (at [34]) that:
In this case, the challenge to the conclusion at [30] of the IAA Decision is that there is no logical connection between the evidence and the inferences or conclusions drawn, i.e. that the Applicant was not telling the truth and had invented his claim of having abandoned the Shia religion to strengthen his claim for protection …
This Court has recently had an opportunity to summarise the relevant jurisprudence on what is required of this Court in assessing claims of unreasonableness: EAT17 v Minister for Immigration & Anor [2018] FCCA 3036 (“EAT17”). The Court repeats that summary here and notes also the detailed summary provided by the Minister (both in EAT17 and here), with which the applicant agreed.
In Minister for Immigration & Citizenship v Li [2013] HCA 18 (“Li”), the plurality of the High Court stated (at [76]) that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
The jurisprudence in relation to reasonableness post-Li has received extensive judicial scrutiny. Oft cited cases in the Full Court include: Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200; Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”).
In Stretton, Allsop CJ explained:
11. … the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power…
In Minister for Immigration & Border Protection v Singh [2014] FCAFC 1, the Full Court stated that the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued:
48.…that is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.
The relevant statutory provision in this case is s.65 of the Act. That section requires the Minister either to grant or not grant a visa if satisfied (or not satisfied) that the applicant meets the relevant statutory criteria. As McKerracher J pointed out in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1, referring to Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165:
52.…it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is illogical, irrational or lacking a basis in finding or inferences supported on logical grounds”.
Further, in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135 …Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 (“ARG15”), the Court (after referencing SZMDS) said:
[47] Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(Citations removed)
As correctly noted by the Minister, SZMDS sets a very high threshold for findings of irrationality or illogically (citing also Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172 at [34]-[36] and DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 1 at [30]).
It is not enough, in this context, for the question of fact to be one on which reasonable minds may come to different conclusions: ARG15 at [47]. Further, even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was not critical to the ultimate conclusion or end result: Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] and Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 at [55].
In circumstances where the applicant has raised illogicality as a ground of review, the Court must not transgress the lines of judicial review and slide into impermissible merits review: SZMDS at [96] per Crennan and Bell JJ; Minister for Immigration & Citizenship v SZJSS (2010) 43 CLR 164 at [30].
On the basis of the arguments advanced here, and the claim as articulated, the Court must determine if it was open to the IAA to reject the applicant’s claim of being a non-practising Muslim on the basis of the materials before it. The Court accepts the Minister’s submissions that, even if the Court emphatically disagrees this does not evidence illogicality of a sort that goes to jurisdictional error.
In light of what has been contended is the IAA’s error here, it is necessary to examine in some detail how the non-practise claim was addressed throughout the SHEV process. This will assist the Court in understanding what material was before the IAA when it made the conclusion it did at [30] of its decision.
The “non-practise” claim
Before embarking on an exposition of the non-practise claim, it should be noted that the claim is not a claim to fear harm on the basis of “religion”. “Religion” requires an element of manifestation or practise of a religious faith in community with others -- something which, as a non-practicing Muslim, the applicant in this case would not possess: WAEW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 260 at [14]. Rather, this is a claim to fear harm as a member of a particular social group.
The applicant first articulated his claims for protection in the irregular maritime arrival entry interview conducted on 13 July 2013. In that interview the applicant indicated that he was a Shia (SCB 1-19). His claims largely focussed on his assertion that Afghanistan is very dangerous and that there was an act of violence against his family that made him fearful (SCB 9).
As already noted, in his statutory declaration the applicant stated (CB 55-56):
17. I also fear harm because I am not a practicing Shia-Muslim anymore. I have stopped practicing my religion since arriving in Australia because I have now the freedom to practice or not to practice a religion.
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20. I also fear I may be prosecuted by the Afghan authorities because I am not a practicing Muslim anymore.
No pre-hearing submissions were provided to the delegate.
At the interview before the delegate, nothing was asked of the applicant in relation to the non-practise claim.
Nor did the applicant raise the claim. The applicant was advised, and prompted, on four occasions that he should provide all of his information as early as possible. He was also provided a short adjournment to confer with his representative to ensure that he had raised everything he wanted to raise: Transcript, pp.4, 6 and 22. The applicant provided the delegate with information of the experience he had with N (Transcript, p.9).
The bulk of the applicant’s evidence to the delegate (relevant to the proceedings in this Court) is as follows:
D: Alright - Now you have not lived in Afghanistan for approximately four years. Why do you fear returning?
A: It was not peaceful when I left the country. I was young, I was scared and I had to leave. But now since I am living here, I am considered that I, I support this country so that is one of the reason that If I return back to that country and I will be more in danger and you can see the situation in Afghanistan that the Hazara’s had been persecuted.
D: Okay, alright - so you say you’ve being persecuted - I know that you’re a Hazara Shi’a, so what do you say you’ll, you face persecution because of your race and religion?
A: Okay these are the facts, and you can see all these attacks on the rally when Hazara took that peaceful rally towards presidential palace and it came under attack and the Muharam congregation came under attack. The miners were killed, the roads were blocked, the Hazaras are being killed on the roads
D: Okay- and what persecution have you experience yourself?
A: Okay - as I said before I support, I live in this country and support this this is one of the reason that it can take me to risk, if I return to that country. And I cannot get back my land because it has been already been confiscated by this person. Obviously the roads are…. and the roads are very dangerous so it is impossible for me to go back safely to my area.
D: Okay - Alright - now in relation to persecution of Hazaras – I’ll just give some country information - you can comment on or not. While Hazaras continue to face a risk of discrimination in Afghanistan the community has not been persecuted on any consistent basis.
A: I do not agree with that because the Hazaras are being persecuted, because they are Hazara- and because they are Shi’a and there are many- many examples that we can give of these persecutions and there are only a couple of buildings in Afghanistan are a bit safe because they have tightened security. Since the Americans left then the situation we can see that it is getting worse
D: Okay Alright - now you say, you will targeted by the Taliban or ISIS. Can you tell me why you would be specifically be targeted by the Taliban or ISIS?
A: Okay, I believe that these groups will target me as I am going…or coming from a western country, it is a free country here but because I am Hazara and I am Shi’a and they never accept me or our identity and our religion so that will put my life in danger.
D: Okay now - why do you think that you will be targeted or considered to have a pro-western political opinion?
A: Ok as I said the routes are dangerous, and people are questioned on way to their home or village, you have to tell the truth even if you don’t tell the truth, they are still going to kill you.
D: But how they would know that you have come from a western country?
A: Okay - they come, they will come to know that I am coming from a western country or from overseas. Even I can give you an example of this Niamat, if he knows that I have returned back to the village and I was missing for a few years so definitely, it is a common believe that I was in a foreign country.
D: Okay, Okay - but you could have been in Pakistan.
A: I don’t know, I really can’t go to that country, it is not safe for me.
(Transcript, pp.20-21)
The applicant’s representative also made oral submissions to the delegate. The substance of these oral submissions was directed toward relocation and the country information the delegate put to the applicant concerning Hazaras (Transcript, p.22-26). These oral submissions did not address the non-practise claim.
The applicant’s representative then provided post-hearing written submissions to the delegate on 3 April 2017. Those submissions did address the non-practise claim.
The following portions of those written submissions are relevant here:
NON-RELIGIOUS BELIEFS
2. In the Applicant’s SHEV application and at interview, the Applicant provided evidence that he no longer practises Islam. Having abandoned the Shia religion, the Applicant fears that, if forced to return to Afghanistan, he would face harm / mistreatment for reasons of his lack of religion. Owing to non-religious beliefs, the Applicant will be perceived as having moved away from the strict doctrines of Islam and will be perceived as either an atheist or an apostate.
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6. … The Applicant’s abandonment of Islam places him at risk of being accused of blasphemy or apostasy in Afghanistan, which would lead to him facing a real chance of serious harm.
11. … legal protections do not extend to atheists, apostates or other forms of non-religious persons (such as the Applicant).
12. … The Applicant fears that his non-religious beliefs will also render relocation to all other places in Afghanistan unreasonable.
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15.The information above strongly indicates that:
a. owing to his non-Shia, non-religious beliefs, the Applicant will be perceived as having moved away from the strict doctrines of Islam and will be perceived as either an atheist or an apostate; and
b. unless he behaves discreetly, he will face a real chance of serious harm and a real risk of significant harm for these reasons in every part of Afghanistan…
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87…Consideration must be given to the following personal circumstances of the Applicant including, inter alia:
a. his ethnicity as a Hazara;
b.his imputed Shia religion (and his actual non-Shia beliefs);
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Approximately six pages of country information concerning apostasy and non-practise of Islam, and the consequences of such, was also summarised in the representative’s submissions (CB 97-103).
The delegate, in a decision dated 16 May 2017, made the following findings (CB 143-144):
The applicant advised he fears harm because he has stopped practicing his religion since arriving in Australia because he now has the freedom to practice or not to practice a religion. As a result he fears he may be prosecuted by the Afghan authorities.
The applicant’s representative submitted in a submission received on 3 April 2017, country information regarding this issue.
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Country information also indicates there have been no recent prosecutions for apostasy or blasphemy but converts from Islam claimed to fear repercussions for leaving the faith. Minority religious groups maintain that the courts do not recognise non-Muslims as having the same rights as Muslims, and frequently subject non-Muslims to Sunni jurisprudence law.
The USSD IRF Report for 2015 noted ‘Under the courts’ interpretation of Islamic law, conversion from Islam to another religion is apostasy. If someone converts to another religion from Islam, he or she shall have three days to recant the conversion. If the person does not recant, then he or she shall be subject to the punishment for apostasy:
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The applicant is a non-practicing Muslim. Simply not actively practicing your religion does not make a person an atheist. As advised above under the courts’ interpretation of Islamic law, conversion from Islam to another religion is apostasy. I do not accept that the applicant is an atheist or an apostate as he has not converted to any other religion. Nor do I accept that he would be perceived to be an atheist or Apostate.
(Country information excerpts omitted)
The material that was before the IAA and relevant to the non-practise claim is that which the Court has outlined above.
The IAA acknowledged that the delegate had determined that the applicant was a non-practising Shia Muslim (CB 161 at [2]). However, after referring to the statutory declaration, the applicant’s evidence with the delegate at interview and the post-hearing submissions to the delegate (CB 165 at [26]-[29])), the IAA found as follows:
30. Having regard to all the evidence, I am satisfied the applicant’s claims that he is no longer a practising Shia Muslim and the representative’s contentions that the applicant is a non-Shia, non-religious beliefs and that he will be perceived as having moved away from the strict doctrines of Islam and considered either an atheist or apostate and harmed or persecuted on this basis on return have no credible basis and have been provided in order to enhance the applicant’s claims for protection. I am satisfied the applicant is a Hazara Shia and is from a village in district of Jaghori in Ghazni province.
Consideration
Before this Court, the applicant argued that the High Court case of Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”) applies to the facts of this case.
Appellant S395
enshrined in law the principle that a person claiming harm as a refugee because of a central part of their personal or cultural identity (such as their sexuality or religious faith) should not be denied protection because they are seen to have the
“option” of concealing that part of their identity. Hence, it should not be assumed, for example, that a gay male can avoid harm by acting “discreetly”.
To require concealment of that sort is both offensive to the individual and, given what concealment/invisibility often requires, harmful in its own right. Appellant S395 makes that clear.
In written submissions to this Court, the applicant argued:
a)the fact that an applicant for protection might successful avoid harm by concealing belief in a religion or an aspect of the person such as sexual identity, does not disentitle a person from fulfilling the test as someone entitled to the state’s protection. The question in such cases is whether they have a well- founded fear that unless they act in this way they will suffer harm; and
b)the same must logically apply to the lack of a belief. To deny a claim for protection based on the possibility that a person could avoid harm by engaging in practises of a religion in which they had no belief is no different in principle to being forced, out of fear, to pretend to practise one religion when believing in another.
For the reasons that follow, the Court finds that Appellant S395 is not applicable here and that, as such, the Court need not address this aspect of the applicant’s submissions.
In finding that the applicant’s non-practise claim was not credible (ie, by not believing that the applicant had, in fact, abandoned his faith) there was no need for the IAA to embark upon a consideration of whether the applicant would be forced to, in effect, “hide” his identity as a non-adherent and engage in the practise of the Shia religion so as to avoid harm and avoid disclosure.
As correctly outlined by the Minister, a plain consequence of rejecting the applicant’s non-practise claim was that no “modifying behaviour” (ie, pretending to be that which he says he is not) would be required. That is so because the basis on which the claim that the applicant would be required to modify his religious practise out of fear of harm and persecution was subsumed into the IAA’s rejection of the non-practise claim: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630 at [47].
Once it was determined that the non-practise claim was not credible (and it was, by inference, determined that the applicant was, in fact, still an adherent to his faith) the issue of identity modification fell away.
Turning to the central issue in this matter (ie, whether the IAA’s finding that the applicant could safely return to Afghanistan because he was still a religious adherent was unreasonable, illogical or irrational on the evidence before the IAA), the applicant acknowledged and accepted that it was for him to present the evidence and arguments he wished to advance in support of his protection claims: Abebe v Commonwealth (1999) 197 CLR 510.
It was stressed, however, that in MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436 at [47] it was stated:
The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge.
The applicant here submitted that the “evaluation and testing” of the applicant’s religious non-practise was not properly undertaken by the delegate. As such, (while accepting that the delegate’s decision is immune from review by this Court under s.474 of the Act) on the basis of the other materials it was unreasonable for the IAA to make the finding it so did at [30] in relation to whether the applicant did or did not practise his faith.
The Court accepts that the delegate did not “probe” or make inquiries in relation to the applicant’s non-practising claim. However, this, by itself, does not point to jurisdictional error on the part of the IAA.
As the Court understands the applicant’s claims, he feared that he would be harmed on the basis of being an identifiable Muslim because of his ethnicity. That is, his claims to fear harm on the basis of his “Shia religion” were made on the basis of it being an imputed or perceived religious belief as a result of his Hazara ethnicity.
It is accepted that a person may face persecution on the basis of perceived religious beliefs: WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [34]-[39] per Mansfield, Jacobson and Siopis JJ.
The Court finds that the statement “I’m a Hazara Shia” is not contradictory or inconsistent with the statement “I’m not a practising Shia Muslim”. A statement of this sort is akin to someone who no longer attends church or synagogue nonetheless identifying as a “Catholic” or “Jewish” when asked “what religion are you?”. The individual may, culturally, identify as a Catholic (albeit “lapsed”) or Jewish and find great comfort in a community of Catholic or Jewish friends, while at the same time having decided that they are atheist.
To the extent it was argued that, in this case, it would be illogical or unreasonable for the IAA to reason that it was inconsistent for an applicant to claim to fear harm based on religion in circumstances where the applicant identifies that they no longer practise the said religion or hold those beliefs, the Court agrees.
The question here is whether that is what occurs at [30] of the IAA’s decision.
Paragraph [30] must be placed in context, particularly as the IAA states “having regard to all the evidence …”.
Relevantly, at [26]-[29] the IAA summarises the evidence it has reviewed in relation to the non-practise claim:
26.The applicant claimed that on return he will be persecuted by the Taliban and other AGEs for being a Hazara, Shia Muslim, his imputed political opinion arising from this ethnicity and religion, his return from a western country and because he will be a returning as a failed asylum seeker, and other matters which I have found not to be well-founded or credible above.
27. The applicant has consistently claimed throughout his interactions with the Department and in his protection visa application and statement that he is a Shia Muslim and that his religion was one of the reasons he feared he would be harmed on return.
28. In the protection visa statement, the applicant stated that “I am not a practising Shia-Muslim anymore. I have stopped practising my religion since arriving in Australia because I have now the freedom to practice or not to practice a religion”. He further stated that he feared being prosecuted by the “Afghan authorities because I am not a practising Muslim anymore”. In the representative’s post-interview submission, it was contended that “owing to [the applicant’s] non-Shia, non-religious beliefs, he will be perceived as having moved away from the strict doctrines of Islam and will be perceived as either an atheist or an apostate on return.
29. At the protection visa interview, the applicant was asked why he thought he would be specifically targeted by the Taliban or Islamic State on return. He stated “I believe these groups will target me as I am coming from a western country it is a free country here but because I am a Hazara and a Shia and they have never accepted our religion this will put my life in danger’’.
It then appears that, on the basis of the above summary of the evidence before it, the IAA determined that the non-practise claim was not credible. Again, [30] provides:
30. Having regard to all the evidence, I am satisfied the applicant’s claims that he is no longer a practising Shia Muslim and the representative’s contentions that the applicant is a non-Shia, non-religious beliefs and that he will be perceived as having moved away from the strict doctrines of Islam and considered either an atheist or apostate and harmed or persecuted on this basis on return have no credible basis and have been provided in order to enhance the applicant’s claims for protection. I am satisfied the applicant is a Hazara Shia and is from a village in district of Jaghori in Ghazni province.
The applicant says the matters expressed at [26]-[29] are insufficient for the IAA to find at [30] that the non-practise claim was not credible and that the applicant had only made the claim to enhance the applicant’s claims for protection.
The Court agrees.
The material before the IAA in relation to the non-practise claim was:
a)evidence that the applicant had consistently claimed throughout his interactions with the Department and in his SHEV application that he was a Shia Muslim;
b)evidence in the applicant’s statutory declaration submitted in support of his SHEV application that he no longer practised as Shia Muslim;
c)oral evidence before the delegate in which the applicant states that he is a Hazara and is Shia and that various terror groups will never accept him or his community’s religion;
d)no specific reference before the delegate in relation to the non-practise claim;
e)the applicant’s post-hearing submissions in which it was stated that that the applicant had abandoned the Shia religion and that he would face harm owing to his “non- religious beliefs” and would be perceived to be an atheist or apostate.
The Court must not review a decision with an eye keenly attuned to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
With this in mind, the Court nonetheless finds that the IAA’s conclusions at [30] do not flow logically from the evidence it has canvassed. Indeed, it is difficult to determine from what the IAA has actually written why it finds itself able to conclude as it does.
On one level, it does appear that the IAA has done precisely what the applicant claims it has done when it writes:
I am satisfied the applicant is a Hazara Shia…
Here, the IAA appears to equate “being a Hazara Shia” with “being a practicing Muslim”. There is no logic in that reasoning. The conclusion (albeit unclear) links cultural identity with religious adherence and borders on cultural essentialism – ie, an assumption that because you “identify as Muslim”, you must also “attend a Mosque and engage in prayer”.
There is no evidence that this is the case and there is no logical connection between the evidence and the inferences or conclusions drawn in this regard.
Further, to the extent that the IAA is suggesting (and, again, it is unclear from what is written in four brief paragraphs) that the applicant’s evidence is “inconsistent” because he claims fear from both religious persecution and protection as a non-adherent, the Court does not understand how this can, in any way, be contradictory and thus central to a finding that the applicant was untruthful and simply wanted to bolster his protection claims. It is not at all inconceivable that someone could be targeted because of their religious and ethnic origin and because they had abandoned their faith.
Further, to the extent that the IAA is concluding that the fact that the applicant did not verbally address non-adherence before the delegate evidences that it was not actually a legitimate concern (and, again, it is somewhat unclear if that is what the IAA is saying) there is nothing in the IAA’s decision as written that explains why that is a logical conclusion or why that assumption outweighs the other clear evidence before the IAA that the applicant had always claimed to be a non-adherent. There are myriad of reasons why the applicant may not have raised the issue. It is hard to understand why, however, silence on the facts of this case equates with deception.
Finally, to the extent that the IAA is relying on statements made to the delegate to support a finding that the applicant is in fact an adherent and that that evidence somehow overrides all of the other evidence before it (evidence that clearly and unequivocally points to the opposite conclusion), that should have been spelt out. It was not. Rather, the conclusion simply “floats” and does not appear to be connected to anything.
The Court can only hypothesise here about what the IAA is actually thinking and what it relies on. If, for example, the IAA is suggesting that the applicant’s statement that he is “a Hazara and a Shia and they have never accepted our religion” is some sort of admission that he is an adherent, with respect, that inference is not open on the evidence. That statement simply supports the Court’s finding that an individual can identify (and be identified) culturally with a religious grouping and face serious harm because of it. It does not equate with an admission that he is a religious person who attends mosque and prayers.
As noted above, the decision in SZMDS sets a very high threshold for findings of irrationality or illogically. That threshold has been met here. There is no logical connection between the evidence before the IAA and the inferences or conclusions it draws in relation to the applicant’s non-practise claim. The evidence that does exist simply does not support a finding that the applicant was not telling the truth and had invented his claim of having abandoned the Shia religion to strengthen his claim for protection. That is a powerful statement with serious consequences for a young man seeking protection. To make it without evidence amounts to jurisdictional error.
Conclusion and Orders
For the reasons outlined above, the Court finds that the IAA fell into error in concluding that the applicant’s claim to have abandoned his faith was not credible and had been advanced to bolster his protection claims. There is a want of logic or rationality in the IAA’s findings. The conclusion drawn cannot be substantiated and was not open to the IAA.
The IAA’s decision of 10 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 his sole ground of review.
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 one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 1 May 2019
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