ANO16 v Minister for Immigration
[2017] FCCA 2633
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANO16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2633 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473.CA, 473DC, 473DD, Pt.7AA |
| Cases cited: CVK16 v Minister for Immigration & Anor [2017] FCCA 235 |
| Applicant: | ANO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 497 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 13 June 2017 |
| Date of Last Submission: | 13 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Kelly |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 497 of 2016
| ANO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (“the IAA”) made on 12 February 2016, affirming a decision of the delegate of the Minister not to grant the applicant a Protection visa.
The applicant is an Afghani Hazara who came to Australia by boat as an irregular maritime arrival in November 2012. In 2015, the applicant was invited to, and did apply for a temporary Protection visa, which application was refused on 28 January 2015.
On 18 January 2016, the decision to refuse to grant the applicant a Protection visa was referred to the IAA as required by s.473CA of the Migration Act 1958. The applicant’s registered migration agent made submissions to the IAA on his behalf on 8 February 2016, following which the IAA affirmed the delegate’s decision.
The IAA set out at para.12 a summary of the applicant’s claims for protection. The applicant was concerned that as a person from Ghazni Province in Afghanistan his life was in danger from Pashtun tribal and extremist groups like the Taliban, as a result of which his family moved to Kabul. The applicant also pointed to Hazaras such as himself being abducted and killed on their way to Ghazni. The applicant said that in 2007, his younger brother and a friend of his brother were badly beaten by the Taliban for being Hazaras, and that the friend subsequently died.
The applicant also relied upon an incident said to have occurred when he was a street seller in Kabul, where he was threatened by Sunni Pashtuns because he was a Shia Hazara. The applicant says he has been beaten up five or six times by powerful Pashtun men harassing shopkeepers. The applicant also said that in 2007, he was beaten up by Pashtun men because he was praying in a public mosque, and he was so badly beaten he was unable to move for three days. The applicant said that he approached the police about the incident, but the police were corrupt and asked for money, and that he believes the police are Pashtun tribe members themselves.
The IAA accepted that the applicant is a Shia Hazara, but noted that the applicant stated in his Protection visa interview that he did not know exactly what had happened to his brother, save that he “was found unconscious and badly beaten by his motorbike.” At the protection visa interview the applicant said that he did not know who was responsible and that his brother subsequently had no memory of what had occurred, and that his brother’s friend died from injuries. The IAA concluded that, aside from the applicant’s suspicions, there was no evidence that the injuries to his brother or his brother’s friend were the result of an assault by the Taliban (see para.20).
With respect to his claimed harassment as a street vendor, the IAA noted that there was no country information to indicate that Hazara street vendors in Kabul were suffering attacks of the kind described by the applicant (see para.23). The account of a particular attack differed significantly from written claims (noted by the IAA at para.24).
With respect to a claim that the applicant was pursued on Facebook even after he arrived in Australia, the IAA said:
25. The applicant claims to have been subsequently tracked down on Facebook by one of his harassers in 2012, following the applicant's arrival in Australia. Such an event would entail that a man who had been harassing him on the street, whose name was unknown to him, had searched for the applicant on social media, successfully located his profile, and sent him a friend request for the purpose of intimidating him. Such a claim is not credible.
Finally, with respect to the applicant’s claims of being beaten in the mosque, the IAA recounted a number of versions, the earlier versions describing the perpetrators as Tajik men or Tajik boys. When asked about this, the applicant had said that it makes no difference, as both Pashtuns and Tajiks had prejudice against him and that it was difficult to tell the Pashtuns from Tajik (see para.26). Not surprisingly, the IAA was dissatisfied with the explanation as to why the assailants would be described as Pashtuns in the visa application and Tajik in the visa interview, leading to rejection of the applicant’s evidence.
Ground 1
The applicant sets out his first ground as follows:
1. The second respondent’s decision was affected by jurisdictional error in that the IAA failed to consider an integer of the applicant’s claims.
PARTICULARS
(a) The applicant stated in his protection visa application dated 24 June 2016 that his brother suffers a mental illness as a result of being beaten by the Taliban in 2007, and that his brother’s friend was killed in the same attack, on account of their Hazara ethnicity (“the Taliban assault”).
(b) The second respondent did not accept this claim. At paragraph 20 of the decision, the second respondent found there was no evidence that the injuries sustained by the applicant’s brother and his friend were the result of an assault or an assault by the Taliban.
(c) The second respondent stated that even if it did accept that the applicant’s brother was assaulted or targeted by the Taliban, it was “not satisfied for the reasons discussed below that this would give rise to a well-founded fear of persecution or real risk of significant harm for the applicant.”
(d) The second respondent did not give reasons for its findings, nor were there any reasons in the decision at first instance that could support the findings made.
(e) In the absence of reasons, it can be inferred that the second respondent failed to properly deal with an integer of the applicant’s claim, being the real chance or real risk of assault or targeted violence from the Taliban or other groups.
At the hearing, the applicant abandoned the particulars set out in the application, and instead pursued a case on the basis that the IAA had failed to deal with his claim with respect to his ethnicity (as an Hazara) and with respect to his religious identity (a Shia Muslim). It was argued that the IAA merged the applicant’s claims, dealing with them on the basis of him being a “Shia Hazara” (see paras.30 to 34 of the decision). It was argued that each of these bases for claim (being an Hazara and being a Shia) require independent consideration and that, by merging them, the IAA failed to properly consider both integers.
Counsel for the applicant referred to the answer given in question 90 of the application form (reproduced at court book p.67) where the applicant said:
Being a Hazara and Shia Muslim, my life was in danger by the various religious and Pashtun tribal extremist groups like the Taliban. Hazaras and Shias have been persecuted in Afghanistan because of their distinct race and religious beliefs for over a century…
In answer to question 91, he said:
Hazaras have been handpicked, abducted and killed on their ways to Ghazni in a number of recent incidents, only for being a Hazara and Shia. I will be targeted and killed if I were to return there.
It is apparent from para.31 that the IAA had regard to violence against Shia Muslims in Kabul, and they also had specific regard to ethnic Hazaras having been killed. The IAA noted that Kabul had seen very few incidents of ethno sectarian violence, but went on to discuss a religious attack on a Shia cultural centre. At para.32, the IAA considered the reported perception with Hazaras being affiliated with the government in the international community, not limiting this discussion to Shia Hazaras or their Shia religion. A similar discussion continued in para.33. It is clear that the IAA had regard to the issues both of being a Shia Muslim and of a Hazara in making their conclusion, saying:
34. As noted above, historically Hazaras have been harshly discriminated against and segregated from the rest of society for a combination of political, ethnic, and religious reasons, particularly under the Taliban regime which ruled much of Afghanistan prior to 2011 (USCIRF, “USCIRF Annual Report 2014: Afghanistan”, 30 April 2014, CX320771, DFAT, “DFAT Thematic Report – Hazaras In Afghanistan”, 8 February 2016, CIS38A8012186, 3.1.). However, DFAT reports that currently official discrimination on the basis of religion—including between Sunni and Shia Muslims—is low (DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016, CIS38A8012186, 3.4.) and that there is currently no evidence of any official policy of discrimination pursued by the Government on the basis of ethnicity (DFAT, “DFAT Thematic Report Hazaras in Afghanistan and Pakistan”, 26 March 2014, CIS27600, 3.10, DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016, CIS38A8012186, 3.10.). As noted above, DFAT has reported that Hazaras still face some societal discrimination, but that this discrimination tends to occur in the form of nepotism in favour of particular ethnic and religious groups, rather than negative discrimination against a particular group (DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016, CIS38A8012186, 3.11). Since the 2001 overthrow of the former Taliban regime Afghanistan's Hazara community has taken advantage of the opportunities available to them Hazaras are active participants in Afghanistan's civil society (DFAT, “DFAT Country Information Report – Afghanistan September 2015”, 18 September 2015, CISEC96CF13366, 3.9; DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016, CIS38A012186, 3.1.). The country information does not indicate that Shia Hazaras are subject to harassment or discrimination amounting to persecution in Kabul. Nor is there information to indicate that Shia Hazaras are denied access to basic services or to earn a livelihood. Nor is there information to indicate that Shia Hazara street sellers are subject to harm of this kind (DFAT, “DFAT Country Information Report – Afghanistan September 2015”, 18 September 2015, CISEC96CF13366; DFAT, “DFAT Thematic Report Hazaras in Afghanistan and Pakistan”, 26 March 2014, CIS27600; DFAT, ‘DFAT Thematic Report: Conditions in Kabul’, 18 September 2015; Alessandro Monsutti, “Comments by Professor Alessandro Monsutti on Hazaras in Afghanistan provided to the Independent Protection Assessment Office on January 2012”, 1 January 2012, CIS28579; DFAT, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016, CIS38A2012186.).
I am not persuaded that the applicant has established a ground for judicial review in this regard.
It is also argued that the IAA had failed to consider the risks of violence when travelling between Kabul and Ghazni. As a matter of principle, it is difficult to see how this could change the applicant’s case, unless he was putting a case that he was required to travel on those roads. Whether he lives in Kabul or Australia, the issue with respect to travel on the road to Ghazni would be the same. The case would be quite different if he were required to travel to Ghazni when living in Kabul, but such a case was not put to the IAA. I am therefore not persuaded that this amounts to a ground for judicial review.
Grounds 2 and 3
Grounds 2 and 3 of the application are as follows:
2. The decision was affected by jurisdictional error in that the second respondent acted on the decision of the delegate in circumstances where that decision was itself affected by error arising from the denial of procedural fairness to the applicant.
PARTICULARS
(a) The applicant’s first language is Hazaragi.
(b) On 13 September 2015, the applicant attended a protection visa interview with a delegate of the first respondent. The interview was conducted in the English and Dari languages with the assistance of an interpreter.
(c) The interpreter was not fluent in Hazaragi.
(d) The lack of an interpreter in the Hazaragi language resulted in the applicant failing to properly understand questions put to him and/or to adequately communicate his responses. In consequence of these difficulties, the delegate formed an adverse view of the applicant’s credibility.
(e) In making the Decision, the second respondent had regard to the material referred by the Secretary under s 473CB of the Migration Act 1958 (Cth) (the Act), which included a recording of the applicant’s interview.
(f) The second respondent did not conduct its own interview with the applicant but relied on the interview conducted by the delegate. In doing so, it failed to remedy the lack of procedural fairness in the conduct of that interview and acted on information that was affected by that lack of procedural fairness.
(g) The applicant refers specifically to, for example, paragraphs 26 and 27 of the Decision.
3. The decision was affected by jurisdictional error in that the second respondent acted on the decision of the delegate in circumstances where that decision was itself affected by error arising from the denial of procedural fairness to the applicant.
(a) The applicant repeats the particulars at paragraph 2 above.
(b) A reasonable reading of the transcript of the interview with the delegate identifies that the applicant failed to understand that the delegate was challenging the credibility or veracity of his narrative on the question of the alleged deaths of two close friends of the applicant on the road to Ghanzi.
(c) The delegate was obliged, by operation of s 57, to clearly identify to the applicant information that is considered by the delegate, or might be so considered, to be adverse and to afford the applicant an opportunity to comment on that information.
(d) The transcript at 1:29:10 and following identifies that the delegate failed to adequately identify the information said to be adverse, or potentially adverse, and that the applicant was thereby denied a proper opportunity to comment on that information.
(e) At paragraph [15] of the Decision, the second respondent concluded that despite the exchange ‘trailing off’, the applicant was not denied an opportunity to comment.
(f) That conclusion is unsound in light of the transcript and the relative importance that this issue assumes in the decision-making process.
(g) Further, at [26] and [27], the second respondent relies on an alleged failure by the applicant to adequately explain an alleged discrepancy arising from his identification of the ethnicity of the people responsible for an attack in 2007. This issue was clarified by the applicant at transcript 1:37:15. It was not put to the applicant that this evidence was considered a ‘discrepancy’, nor that a failure to adequately explain it might affect his credibility.
(h) The findings at [26] and [27] cannot stand in the face of the failure to afford the applicant a proper opportunity to comment on the alleged discrepancies.
The substance of these grounds is that the applicant was denied procedural fairness before the delegate as a result of the use of an interpreter who was not fluent in the applicant’s first language. The IAA was aware of these issues and concluded:
13. In the submission to the IAA states that the evidence given by the applicant at the 2015 Protection visa interview was not heard as a Dari interpreter was provided and the applicant is a Hazaragi speaker, and Dari is not his main language.
14. Prior to the 2015 Protection visa interview the applicant indicated (in Part C of his Protection visa application at questions 30 to 31) that his only language is Dari and that if called for an interview he would require an interpreter in the Dari language. At his Irregular Maritime Arrival Entry Interview conducted on 17 November 2012 (the 2012 entry interview) the applicant also indicated that his only language was Dari. At the 2015 Protection visa interview the applicant indicated that he understood, and had no objections to, the interpreter provided. Asked what languages he speaks applicant replied Dari Hazaragi. He was asked why on his application form he has stated that he speaks only Dari. He replied that he speaks Dari with the accent of Hazaragi. At this point the interpreter stated the applicant was speaking Dari with an accent the same as his own.
15. The submission to the IAA states that an exchange during the 2015 Protection visa interview is evidence that the applicant was not properly heard. In this exchange the applicant is asked about a statement he made at the 2012 entry interview. The applicant does not initially appear to comprehend that this is what is being put to him. However, the applicant then reaches an understanding of what is being said and asks for the statement to be read back to him. The applicant states that he never made the statement in question. The exchange trails off with an apparent misunderstanding regarding the delegate's asking for confirmation that Nawabad is on the road to Ghazni, while the applicant confirms his own preceding assertion that many of his friends have been killed on the way to Kabul and Ghazni. It is evident in this exchange that there are moments when the applicant required clarification from the delegate in order to understand some of his questions and statements. But I am satisfied from that the applicant understood the Dari interpreter, and that the interpreter understood the applicant, and that he was able to put forward his claims.
As counsel for the Minister points out, an error by the delegate is not a basis for judicial review in this Court when considering the decision of the IAA. Importantly, for these proceedings even if there had been difficulties in the delegate’s process, it is the process and decision of the IAA that is the subject of judicial review.
It may be that in some cases the conduct of the proceedings before the delegate gives rise to issues that require the IAA to take particular steps in order to be properly informed or properly deal with the matter before it, or at least to consider the method by which it should proceed.
In this case, the IAA was aware of the issues relating to the interpreter, and clearly had taken time to carefully review the materials, setting out the reasons for ultimately concluding that the applicant sufficiently understood the interpreter and the interpreter the applicant, that the applicant was able to put forward his claims.
The applicant has not filed a transcript of the relevant interview in this Court, nor has the applicant filed an affidavit addressing these issues. It is difficult to conclude that the IAA failed in its obligations or in some way acted unreasonably in circumstances where the IAA clearly had careful regard to the nature and quality of the evidence given through an interpreter (as set out in its reasons) and formed a view that it was able to rely upon that evidence, albeit with a critical eye as to parts that may not be satisfactory because of some difficulties with interpreting.
The IAA was clearly aware of the issue, considered it, and gives reasons which appear adequate to explain why the IAA proceeded to adopt the approach that it did, and the reasoning upon which it relied to utilise some parts of those interviews. Whilst the IAA has the power to obtain new information (s.473DC) it cannot be said that the IAA has failed to consider the nature and quality of the information in this case, and following those considerations the circumstances did not give rise to the need to obtain new information, no doubt as a result of the findings at para.15 and at para.8. In the circumstances, I am not satisfied that the applicant has made out these grounds.
Ground 4
The applicant claims ground 4 as follows:
4. The decision was affected by jurisdictional error because the IAA proceeded on a wrong legal principle and failed to take into account relevant information.
PARTICULARS
(a) At paragraph 11, the IAA concluded that it was not able to take into account information placed before it in a submission to the IAA because it did not fall within s.473DD(b)(i) or s.473SS(b)(ii) of the Migration Act.
(b) In fact, the information referred to constituted relevant information that should have been taken into account by the delegate, but was not.
(c) In those circumstances, s 473 had no application to the information.
(d) The delegate’s decision was affected by the delegate’s failure to take in to account relevant information. By failing to remedy that error on the basis that the question fell to be determined by s 473, the IAA proceeded on a wrong legal principle.
Section 473DD provides as follows:
473DD. 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.
The applicant relies upon the statement of the IAA in para.11, where the IAA said:
11. The submission to the IAA the also states that delegate should have had regard to number of other pieces of information. These are: 2005 and 2012 studies of Afghanistan; news reports published in October 2015 on an attack which took place in that month upon a Shia religious hall in the Kabul locality of Chindawol on 9 October 2015, responsibility for which was claimed by Islamic State (or Daesh); information published in November 2015 on the beheading of abducted Hazara hostages; and September and April 2015 information regarding the activities of foreign fighters from Pakistan and Uzbekistan in Afghanistan. It is submitted that the applicant could not have provided information regarding the October 2015 attack, the November 2015 beheadings, or the reports on foreign fighters, because these reports were not available to the applicant at the time of his Protection visa interview of 13 September 2015. All of the aforementioned information was published before the delegate refused to grant the visa on 18 January 2016. The applicant was not limited to providing information to the Minister following the Protection visa interview of 13 September 2015, and could have done so at any time after that until the time the decision was made. It is evident that the information pertains to reporting on the security situation in Afghanistan and for Shia Hazara, and that it is not personal information. As such it does not satisfy s.473DD(b)(ii). I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), I therefore have not considered this new information.
The applicant argues that the phrase used in the legislation “could not have been provided” should be read as meaning “could not have reasonably been provided” and be construed in a practical fashion, such as in circumstances where an applicant is unaware of the information, and thus on a practical level could not provide it. In the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) it is said:
918. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the component of the test outlined in paragraph 473DD(b) in addition to the component in paragraph 473DD(a).
919. The purpose of imposing an additional component where a referred applicant gives or seeks to give new information to the IAA is to reinforce the policy position that fast track applicants must be forthcoming with all of their claims and provide all available information to the Minister before a fast track decision is made under section 65 of the Migration Act.
This particular phrase must be read in light of the fact that s.473DD(a) requires “exceptional circumstances” to be shown, which is discussed in the Explanatory Memorandum where it said:
914. Under this component of the test, the IAA would not be able to consider any new information in relation to making a decision fast track reviewable decision unless the Authority was satisfied that there are exceptional circumstances to justify considering the new information. Exceptional circumstances has not been defined and will provide a reviewer of the IAA with discretion to ascertain what he or she thinks are exceptional dependent on the characteristics of each fast track reviewable decision. It will be a matter for the IAA to develop guidelines to assist in the interpretation of this phrase, which has been deliberately left undefined as circumstances will differ from case to case.
915. Examples of exceptional circumstances that may justify the consideration of new information may include, but are not limited to:
- a material change in the referred applicant‘s circumstances which occurred after the Minister made the section 65 decision including a factual event, such as significant and rapidly deteriorating conditions emerging in the referred applicant‘s country of claimed protection, for example, a change in the political or security landscape; or
- credible personal information that was not previously known has emerged which suggests a fast track review applicant will face a significant threat to their personal security, human rights or human dignity if returned to the country of claimed persecution.
916. Examples of circumstances that would not justify the consideration of new information may include, but are not limited to:
- information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons;
- a general misunderstanding or lack of awareness of Australia‘s processes and procedures; or
- a change in personal circumstances within the control of the applicant.
The significant difficulty confronting the applicant in this regard is that there is no affidavit evidence as to when he became aware of the material, nor why it was not available to him beforehand. It was argued that it was sufficient that he was self-represented. To approach the provision on the basis that it could be satisfied simply because somebody was self-represented would undermine the wording of the provisions.
In the absence of evidence of the particular circumstances leading to the applicant saying that the material was not available to him to provide to the delegate, it is not an appropriate case to discuss what may be the metes and bounds of the operation of s.473DD. It is sufficient to note that in the absence of some evidence as to why the material was not provided (which must necessarily come from the applicant or his advisers on affidavit, in most cases) the applicant cannot succeed on this ground.
Ground 5 and 6
Ground 5 and 6 are framed as follows:
The Decision was affected by jurisdictional error in that the second respondent mistook the facts and/or acted on a wrong legal principle.
PARTICULARS
a) At [12], the IAA found that the applicant had advanced a claim to protection on the basis that he was a Shia Hazara (the religion claim).
b) At paragraph [13] of the submission dated 8 January 2016 from the applicant’s legal representative, the representative stated that the applicant had “raised specifically a fear of harm from Sunni extremist groups opposed to the Taliban as well as a fear of harm because of suicide bombings.”
c) In response to that submission, the second respondent, at paragraph [10] of the
Decision, found that the applicant had previously raised a fear of harm from the Taliban, Pashtun groups, and Pashtun and Tajik men in Kabul. In that paragraph, the second respondent also found that “a fear of harm from Sunni extremist groups opposed to the Taliban is not raised.” The second respondent found that the claim as particularised in the submissions of 8 January 2016 constituted new information and therefore declined to consider the claim under s 473DD of the Act.
d) The fear of harm from Sunni extremist groups opposed to the Taliban falls within the religion claim, because the reason the applicant fears harm from such groups is on the basis of his Shia religion.
e) The submission of 8 January 2016 was therefore not ‘new information’ but argument and submissions in relation to a ground already advanced. Accordingly, it was not new information within the meaning of s 473DD of the Act, and the IAA was bound to take it in to account when making the Decision.
6. In the alternative to ground 5 above, the second respondent denied the applicant procedural fairness by failing to inform the applicant that it intended to exclude the information particularised above under s 473DD of the Act.
PARTICULARS
a) The submission from the applicant’s legal representative referred to above did not raise the claim relating to Sunni extremist groups opposed to the Taliban as new information. As such, the submission did not address the grounds for consideration of information under s 473DD.
b) In refusing to consider the information, the second respondent stated that the submission “does not explain why this information could not have been provided prior to the Minister before the decision under s.65 was made. The applicant has provided no reason as to why this information should be considered credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
c) The second respondent did not invite the applicant to comment on why the information fell within s 473DD and in doing so denied the applicant procedural fairness.
The applicant relied upon the findings in para.10 of the decision, which provides:
10. The submission to the IAA also states that the applicant has raised specifically a fear of harm from Sunni extremist groups opposed to the Taliban. I have reviewed the applicant's Protection visa application of 30 June 2015, his Protection visa interview, and also his 2012 entry interview with the department. The applicant speaks of fearing the Taliban, Pashtun groups, and also of harassment from Pashtun and/or Tajik men who have harassed him in Kabul. A fear of Sunni extremist groups opposed to the Taliban is not raised. As such this claim constitutes new information. The submission does not explain why this information could not have been provided prior to the Minister before the decision under s.65 was made. The applicant has provided no reason as to why this information should be considered credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii). I therefore have not considered this new information.
It was argued that whilst, in his entry interview, the applicant referred to fear of extremist groups “like the Taliban” (court book p.67 at question 90) he should not be taken to have limited himself to groups who were not opposed to the Taliban. The applicant goes on to argue that his fear of Sunni extremist groups opposed to the Taliban should be treated as a separate integer of his claim and should have been dealt with by the IAA as such, despite the operation of ss.473DC and 473DD.
In the alternative, it is argued that he was denied procedural fairness as a result of the IAA failing to inform him that it intended to exclude the submissions as not being “new information” under these provisions of the Act and allow further submissions to be made. In this case, the new information sought to be placed before the IAA, if accepted as new information, appears to give rise to a separate integer of the claim. Whether or not an integer that must be dealt with arises in a particular case is a question of law based upon the facts and circumstances discernible from the evidence placed before the decision-maker. In the absence of any claims or factual material before the decision-maker, an integer does not arise.
The purpose of ss.473DC and 473DD is to restrict applicants to the material that they put before the delegate, save in exceptional circumstances. As Judge Driver pointed out in CVK16 v Minister for Immigration & Anor [2017] FCCA 235, the IAA does not review decisions of delegates in the same way as the Administrative Appeals Tribunal, and clearly the facts and circumstances sought to be placed before the IAA which give rise to a separate integer (at least arguably, in this case) must be information for the purposes of the provisions, and therefore must pass the test of new information before they can be relied upon.
It is undoubted that this information could have been placed before the delegate should the applicant have sought to do so, as identified by the IAA at para.9, saying:
9. The submission states that on 14 December 2015 the Department of Immigration and Border Protection (the department) published an updated 'Protection Assessment Guidance Note No.5 - Afghanistan - Hazara ethnicity and/or affiliation with government or international organisations' (PAGN No.5). The submission states that this this specific report does not constitute new information not available at the time of application, but rather relevant information the Delegate failed to consider. The decision record of 18 January 2016 lists a number of the department's Procedures Advice Manual 3 products as being before the delegate, but the department's PAGN No.5 is not listed. Based on the information before me, the department's PAGN No.5 was not before the delegate at the time of the decision. Given that the department's PAGN No.5 is only available to subscription users of the department's Legend database, and given that the applicant was not represented by a migration agent at the time of the decision, I am satisfied that in this instance the information could not have been provided. Given that the necessity of referring to the most relevant and current country information on Shia Hazara, the class of persons of which the applicant is a member, I satisfied that there are exceptional circumstances for considering this new information.
In these circumstances, this ground must be rejected.
To the extent that it is argued under ground 6 that the decision of the IAA not to accept the new information under the provisions should have been communicated to the applicant to allow further submissions to be made, overlooks the scheme of the legislation, and overlooks the fact that the applicant’s agent did address these criteria (see court book p.145). In these circumstances, were the IAA required to provide the applicant with a further opportunity to address it in this regard, it would effectively be to expose the IAAs internal reasoning processes, rather than simply giving an opportunity to be heard.
In any event, the operation of the provisions, in the context of pt.7AA, do not, in my view, give rise to a requirement to foreshadow to an applicant that information or submissions may not be new information or may not be considered as a result of s.473DD, rather, these matters should be addressed by an applicant seeking to place new information before the Tribunal. In the circumstances, the alternative argument under ground 6 must fail.
Ground 7
In this case, ground 7 was not pressed in argument.
Conclusions
As I have not accepted any of the grounds raised by the applicant as being made out, it is appropriate that I dismiss the application in this case.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 October 2017