AJS23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 182
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJS23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 182
File number(s): BRG 71 of 2023 Judgment of: JUDGE EGAN Date of judgment: 18 February 2025 Catchwords: MIGRATION – Whether the Tribunal failed to evaluate and consider a report purporting to constitute new country information – where report irrelevant to considerations - where no jurisdictional error established – where application dismissed. Legislation: Migration Act (1958) (Cth), s. 65 and s. 477(2) Cases cited:
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 11 December 2024 Date of hearing: 21 November 2024 Place: Brisbane Counsel for the Applicant: Mr A. Shah of Counsel Solicitor for the Applicant: Allens Counsel for the Respondents: Mr J. Byrnes of Counsel Solicitor for the Respondents: Clayton Utz ORDERS
BRG 71 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJS23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Further Amended Application for Review filed on 25 November 2024 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the Further Amended Application for Review fixed in the amount of $4,189.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
On 31 October 2022, a Senior Member of the then Administrative Appeals Tribunal (“the Tribunal”) handed down a decision affirming a decision of a delegate of the Minister to refuse to grant to the primary applicant a protection visa. The Senior Member further decided that the Tribunal had no jurisdiction in relation to the secondary applicant as she had died prior to the Tribunal hearing.
The applicant was a citizen of Ethiopia who applied for a protection visa under s. 65 of the Migration Act (1958) (Cth) (“the Act”).
On 13 September 2019, a delegate of the Minister refused to grant the visa application.
On 10 October 2019, the Applicant sought review of the delegate’s decision by the Tribunal.
The hearing before the Tribunal took place on 20 October 2022. The applicant’s claims before the Tribunal were as follows:
•He is from the Oromo ethic group.
•That currently he faces many problems in his country and the problems are widespread affecting all areas of the Oromo region.
•He was a supporter of the former political party and refused to accept a request to support the ruling party and that is why he cannot live in his country peacefully.
•The Oromo people are the largest ethnic group in Ethiopia and have been oppressed by consecutive Ethiopian regimes for over the last century and they are protesting against the Addis Ababa integrated development masterplan.
•In 2004 his daughter was arrested, and he later travelled to Egypt and then to Australia.
•He got a chance to visit three countries, but he did not wish to seek asylum at any of them because the Ethiopian situation was not as aggravated then, as it is now, when the time of his application.
•After receiving his Australian visa, he was on 26 July 2016 taken from his home to prison where he spent seven days in a difficult situation due to his Oromo ethnic background and the suspicions of government that he was an initiator of insurgency. On 1 September 2016 the government released him by accepting a bail payment which was the equivalent of $125 Australian.
On 31 October 2022, the Tribunal affirmed the decision of the delegate.
The applicant filed an Originating Application for Review of the decision of the Tribunal on 14 February 2023. The application was filed 71 days out of time, and accordingly, the applicant sought an extension of time for the filing of the application under s. 477(2) of the Act.
Factors which are considered on an extension of time application include the extent of the delay, an explanation of the reasons for delay, the interests of the public, as well as the merits of the substantive application. [1]
[1] MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 per Murphy J at [30].
It has been held that a Court hearing an application for extension of time should not readily disturb what has been provided for as a time limit in relevant legislation. [2]
[2] BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 per R. Derrington J at [3].
In the present matter, it was submitted on behalf of the first respondent that the Minister did not press any specific prejudice by the 71 day delay. Rather, the first respondent submitted that the application for extension of time should be refused because the substantive grounds for review lacked merit.
The Application for Review
The hearing before the Court took place on 21 November 2024. At the time of the hearing before the Court, the applicant was granted leave to rely upon a Further Amended Application for Review which was subsequently filed on 25 November 2024.
The grounds of review as set out in the Further Amended Application for Review were as follows:
•Failing to form the state of satisfaction (one way or the other) required by s.36(2)(a) and (aa) of the Migration Act 1958.
Particulars
Failing to take into account (and evaluate) the most recent material available to it being the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).
•Denial of procedural fairness.
Particulars
Failure to consider the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).
Orders of the Court made on 21 November 2024 were published on 22 November 2024. Orders 4 – 7 inclusive of the orders of the Court so published were as follows:
4. The parties provide a set of updated consolidated written submissions on the question as to whether the report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 9 September 2022, as reproduced in Exhibit 1, was relevantly a country information report which fell into the category of “ ... the most recent country information before the Tribunal ...”, in circumstances where, at [15] of such report, when the Court was considering that the applicant’s home area within Ethiopia was geographically referred to as “Oromia”, the report provided:
“15. The Commission’s time and resource constraints obliged it to select a
specific and manageable group of incidents and themes for which it could
complete investigations in two months with limited resources. Although its
selection reflects some of the most significant violations of international human rights and humanitarian law, while illustrating broader patterns, it does not allow the Commission to present a comprehensive picture. Although its mandate authorizes it to investigate incidents throughout the territory of Ethiopia, the Commission confined its investigations for this report to the hostilities in Tigray and Amhara regions. It acknowledges that its selection will frustrate many, especially in light of the broad and troubling range of allegations of violations in Ethiopia since 3 November 2020. The Commission hopes that it will have the opportunity to expand its investigations and findings with additional time, resources, and cooperation to include further incidents and themes, such as those set forth in section VII.”, the Court noting that areas for further investigation in section VII of the report
related to specific geographical areas within Ethiopia which included Oromia.5.The applicant have leave to file and serve a set of updated consolidated written submissions on or before 4.00pm on 27 November 2024.
6.The first respondent have leave to file and serve a set of updated consolidated written submissions on or before 4.00pm on 3 December 2024.
7.The applicant have a right of reply by way of providing a further set of updated consolidated written submissions on or before 4.00pm on 6 December 2024.
The Court subsequently received consolidated submissions filed on behalf of both the applicant and the first respondent.
Consideration of Grounds of Review
Each ground of review is based upon an assertion that the Tribunal either failed to take into account and evaluate, or failed to consider, what was submitted to be the most recent country information report of relevance relating to Ethiopia – namely a report dated 19 September 2022 which was a Report of the United Nations International Commission of Human Rights Experts on Ethiopia (“the ICR report”).
The question of how the Tribunal ought to have considered recent country information provided to it was considered in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 where at [45] – [46] the Court (Kenny, Griffiths and Mortimer JJ) held as follows:
45. The absence of any evaluation of the post-hearing submission on the point and the material said to support it is all the more telling given the Tribunal did not make its decision until November 2011. It was at that date the statute, read in light of the authorities, required the Tribunal to consider whether or not it was satisfied that the visa applicant’s fear of persecution in Zimbabwe by reason of being an actual or perceived supporter of the MDC was objectively well founded. Where the Tribunal’s reasons disclose no evaluation at all of the latest information or evidence available to it, we do not consider it can be inferred that it formed the state of satisfaction required of it.
46. Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
In finding that a failure to consider the most recent available information available to a decision maker constituted jurisdictional error, the Court in MZYTS at [72] – [77] found as follows:
72.As we observed at the outset of these reasons, to say the flaw in the Tribunal’s decision is “failing to consider most recent information” is an inapt description. In this context something must be said of using the language of “considering” a matter or issue. The statutory task here in issue differs from the one in Tickner v Chapman (1995) 57 FCR 451 (Tickner), where the verb “consider” appeared in the statutory obligation itself. In that circumstance, some construction must be given to what Parliament meant when it used that verb in describing a ministerial function, and that is what the Full Court did in Tickner. Here, the statutory task is described at a broader level and the question whether the state of satisfaction about whether a person is owed protection obligations under Art 1 was lawfully formed will not necessarily be answered by expansive definitions of what the word “consider” means.
73.Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
74.That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
75.We agree, with respect, with the approach taken by Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [36]-[42]. That approach is consistent with what we have identified as the Tribunal’s statutory task under the Migration Act in relation to s 36(2)(a) and Art 1 of the Refugees Convention. The Minister submitted that the distinction drawn by Rares J at [37] between two statements by Mason J in Peko-Wallsend (162 CLR 24 at 39-42 and 45 respectively) was wrong. We reject that submission. Recalling first that Mason J was considering these matters in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and not s 39B of the Judiciary Act 1903 (Cth) or s 75(v) of the Constitution, we consider his Honour was articulating two separate, but related, principles. In introducing that part of his reasons dealing with this, his Honour said (at 42):
In the present case, the respondents submit that the Minister, in failing to consider the submissions which they had made to his predecessors, neglected to take into account a consideration which he was bound to take into account in making his decision. It is convenient to divide this central issue into two separate, but related, questions. The first is whether the Minister is bound to take into account the comments on detriment which the Commissioner is required by s 50(3)(b) of the Act to include in his report to the Minister. The second is whether he is also bound, as opposed to merely entitled, to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment.
76.Having found (at 44) by implication from the statute that the Commissioner’s comments on detriment were a relevant consideration, Mason J then described it as “but a short and logical step” to find that consideration of that factor must be based on the most recent and accurate information to hand. After applying that approach to the facts before him, Mason J continued (at 45):
In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
77.In that passage it is clear Mason J makes a separate statement of principle about the use by administrative decision-makers of the most current material available. Of course we have found that the subject matter, scope and purpose of s 36(2)(a) of the Migration Act requires such an approach in any event, so it is unnecessary to rely on any more general implication. Nevertheless, we agree with Rares J that Mason J’s judgment does articulate two distinct principles.
Inherent in any requirement to consider the most recent information available is the necessity that such information be relevant to questions in issue. The Court’s requirement for the provision of updated consolidated submissions, as set out in Order 4 of the Orders of the Court published on 22 November 2024, arose because on the face of the ICR report, at [15], [3] it was recorded that those responsible for the preparation of the ICR report confined their investigations to alleged hostilities in regions other than the applicant’s own region of Oromia, namely the regions of Tigray and Amhara.
[3] See Exhibit 1, Court Book (CB) p. 213
Though the ICR report made passing reference to the requirement for an investigation to be conducted at some future time into reported killings in the Oromia region, [4] the report understandably made no findings in relation to such allegations.
[4] [100], [103] and [104] of the ICR report.
The Court accepts the submission made on behalf of the first respondent that the ICR Report was irrelevant to the issues required to be determined by the Tribunal, and that even if the Tribunal had failed to consider the ICR report, any such failure was immaterial, and therefore not jurisdictional in nature.
The Court respectfully adopts what was held by Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [6], [7], [13], [14], and [35] where it was said as follows:
6.In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.
…
13. The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14.The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
…
35.Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal's assessment of Primary Consideration 1, and in that the Tribunal's assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant's visa. The Tribunal's error in its process of reasoning in these respects alone established that the error was material.
Conclusion
Each of the grounds of review are prefaced upon the ICR report being of relevance to the applicant’s claims. The Court finds that the ICR report was irrelevant to the applicant’s claims because it did not address relevant country information in relation to Oromia. Any failure to consider the report was therefore immaterial and of no consequence.
Even if the Tribunal had read the ICR Report, it could not realistically have resulted in the Tribunal arriving at a different decision which would have been favourable to the applicant.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The substantive grounds of review are without merit, and accordingly, the application for extension of time for the commencement of the proceeding is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 February 2025
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