AWL18 v Minister for Home Affairs
[2020] FCCA 82
•17 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWL18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 82 |
| Catchwords: MIGRATION – Application for judicial review – protection visa refused by the Immigration Assessment Authority – where applicant’s refugee claims based on ethnicity, religion and as a returning asylum seeker – whether information considered by the Authority was “new information” – whether illogical, irrational or unreasonable finding – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD, 473DE |
| Cases cited: Blatch v Archer (1774) 1 Cowp 63 |
| Applicant: | AWL18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 74 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Darwin |
| Delivered on: | 17 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Ms Battiste |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs as taxed or agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 74 of 2018
| AWL18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 25 January 2018 to affirm a decision of the Minister’s delegate made on 30 March 2017 to refuse a protection visa.
The background is as follows. The applicant arrived in Australia by sea in 2011. He is a citizen of Afghanistan of Hazara ethnicity and Shia religion. His refugee claims centred on his claim that he had been employed as a driver by the International Security Assistance Force (“ISAF”) which is the name used by the US led military intervention in the country. His claims to the delegate were that he had been targeted by the Taliban as a result. He said that his cousins had been kidnapped and coerced into providing a photograph or photographs of him to the Taliban. He said he had then received threatening letters from the Taliban and he fled Afghanistan because he was afraid.
The delegate accepted that the applicant had worked for ISAF but did not accept his claim to have been threatened by the Taliban. The delegate also did not accept the applicant’s refugee claims based on his ethnicity, religion or as a returning asylum seeker.
The delegate’s reasons made no reference to the applicant’s arrival interview or the entry interview (interviews conducted by the Australian authorities relatively soon after the applicant’s arrival).
The Authority did not accept that the applicant was employed by ISAF as a driver or at all. It referred to inconsistencies between the applicant’s arrival interview, entry interview and his written refugee claims. In particular, the Authority observed that the applicant alleged in his arrival interview that his brother, who he claimed had also been employed as a driver by ISAF, had disappeared and he suspected he may have been killed by the Taliban. This claim was not repeated in the applicant’s written protection visa claims. The Authority also noted that the applicant claimed in his entry interview to have obtained his driver’s licence in 2008 and to have obtained his employment as a driver with ISAF in 2010. In his protection visa interview he claimed to have obtained his licence in 2011. He produced this licence and said it was the first he had obtained, that is, it was not a renewal. He said that until 2011 he had worked for ISAF without a driver’s licence.
The Authority also concluded there were other inconsistencies in the applicant’s claims and did not accept him as credible in relation to his claim of being employed by ISAF. The Authority did not accept his more general claims relating to ethnicity, religion and being a returning asylum seeker or a person imputed as having “Western” ideas.
The applicant’s amended grounds of review were as follows:
1. The Immigration Assessment Authority erred by considering the arrival and entry interviews, which were ‘new information’ within the meaning of s 473DC of the Act:
(a)without first determining whether it was satisfied that there were exceptional circumstances justifying their consideration; and
(b)without it complying with its obligations under s 473DE of the Act.
2. The Immigration Assessment Authority erred by making the illogical, irrational or unreasonable finding that Kabul was not a place where the Applicant would face a real risk of significant harm by reason of his imputed western links arising from any return from, or having lived in, Australia.
Particulars
(a)The Immigration Assessment Authority rejected the claim (at [36]-[38]) on the basis that country information it relied upon made no specific reference to Kabul as being a place where people fitting that description would face a real risk of significant harm.
(b)The illogicality, irrationality or unreasonableness arises from:
(i) the Immigration Assessment Authority acknowledging that country information did support the proposition, amongst others, that ‘simply being identified as a returnee has put persons at risk as returnees face a general assumption that they have adopted values and/or appearances associated with western countries while abroad’ (at [36]);
(ii) the Immigration Assessment Authority dismissing the country information on the basis that it did not specifically mention Kabul;
(iii)the logical implication of the reasoning being that no place in Afghanistan would be affected by such a risk, which is inconsistent with its acknowledgement set out above at (i).
The first ground relies on the applicant establishing that the “arrival interview” and the “entry interview” (in reality the transcripts of those interviews) were not “before” the delegate and thus was new information for the purpose of the s. 473DC and not able to be considered by the Authority unless the requirements of s. 473DE were met (including “exceptional circumstances”). It was submitted that if the Authority had realised that the transcripts were new information it may not have been satisfied that it was justified in considering them. If it was satisfied that it was justified in considering them it was required to meet the obligations under s. 473DE which, according to the applicant, included giving the applicant particulars of the new information, explaining the relevance of the information and inviting the applicant to give comments on the new information.
The applicant accepted that he bore the onus of showing that the interview transcripts were not before the Minister’s delegate but relied on the absence of reference to the transcripts in the delegate’s reasons and a document headed “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (“the checklist”). This document had been provided to the applicant by the first respondent. One column of the checklist was headed “TRIM Reference for records that are NOT contained in the TPV/SHEV client file”. This column was checked for both the arrival and entry interviews and departmental reference numbers provided. The applicant submitted that this showed that the arrival and entry interviews and/or transcripts had not been included in the “TPV/SHEV client file” which, the court was asked to accept, was the file of material considered by the Minister’s delegate.
The applicant also relied on the absence of evidence from either the delegate or a departmental officer with direct knowledge of the matter. The applicant referred to a passage from Blatch v Archer (1774) 1 Cowp 63:
… all evidence is to be weighed according to proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
This is an earlier application of the principle known in Australia as the rule in Jones v Dunkel (1959) 101 CLR 298: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112, [89].
The first respondent did not consider it necessary to file an affidavit from the decision-maker. There was no explanation for this. It may be that it was thought that the issue could be dealt with in another way. The first respondent relied on an affidavit of Mr Retallick, a lawyer employed by the Australian Government Solicitor, who had the conduct of the matter. Mr Retallick deposed that the Department’s electronic document management system, TRIM, showed the date and time that documents in the system had been “viewed, changed or extracted”. He did not specifically depose as to his own familiarity or knowledge of the TRIM system. He did not provide any detail as to the meaning of words “viewed, changed or extracted” in the context of the TRIM system. He said that a department officer had provided him with “screen shots” from the TRIM system which showed that, on 21 March 2017 at 12.20 pm, a document with the reference number ADD2013/512030 had been “extracted” by Dana Estephan and that, on the same date at 11.59 am, a document with the reference number ADD2015/498251 had been “viewed” by the same officer. These were the TRIM reference numbers for the arrival and entry interviews (or transcripts) and are the same reference numbers for those documents in the checklist. There was also a screen shot of another document which indicated Ms Estephan was the delegate who made the decision on 30 March 2017. That was not in dispute.
Mr Retallick’s affidavit went on to assert that this material showed Ms Estephan had “accessed” this material at the time and date shown. I allowed the applicant’s objection to that assertion. Mr Retallick did not profess to any particular knowledge of the TRIM system used in the department and it seemed that he was in no better position than me to draw inferences from a business record on that subject.
In my view the most probable interpretation of this material is that Ms Estephan had regard to the arrival and entry interviews and/or transcripts in the lead up to her decision on 30 March 2017. As the decision-maker it is unlikely that she would have an interest in the material for any other purpose than to assist with her decision. Whether there was some difference between her having “viewed” or “extracted” the documents I cannot say and whether the material was on a computer screen or in paper form I do not know. Nevertheless, I am satisfied that she had regard to those documents as part of her decision-making process.
The applicant made further submissions in oral argument, without objection, that were not raised in the grounds of review or written submissions. It was said that s. 473DC meant that unless the information was physically “before” the decision maker “when” the decision was made the information was “new information” which could not be considered unless the requirements of ss. 473DD and 473DE were satisfied. It was submitted that where the decision maker had regard to the material a week before the decision was made on 30 March 2017 that did not satisfy the requirements of s. 473DC. In my view this submission has no merit. Any complex decision involving weighing of evidence or information is a process unfolding over time. While the decision was finalised or published on 30 March 2017 it is obvious that the decision maker must have considered the relevant information in the period leading up to that date. The object of the provision is ensure that information not previously considered is excluded from consideration by the Authority unless the specified criteria are met. The applicant’s interpretation of the section leads to the absurd conclusion that consideration and decision must coincide instantaneously.
The applicant made a further oral submission not raised in the grounds or written submissions. It was submitted, relying on Minister for Home Affairs v Omar [2019] FCAFC 188, that the Minister’s delegate had not engaged in an “active intellectual process” in considering the relevant information. It was said that the evidence of the decision-maker having “viewed” or “extracted” did not amount to “consideration” in the legal sense required by s. 473DC, with the consequence that the information was not “before” the Minister’s delegate and should not have been considered by the Authority unless the requirements of s. 473DD were satisfied. It was submitted the first respondent’s failure to call the decision-maker permitted such an inference to be made more easily. In my view this submission fails also. First, it is for the applicant to bring forward evidence or argument to make out his case. Where the argument has not been made in the grounds of review or written submissions Jones v Dunkel does not, in my view, assist the applicant to have an adverse inference drawn from the Minister’s failure to provide detailed evidence of the nature of the delegate’s decision making process. Secondly, Omar is different factually. The “active intellectual process” described by the Full Court concerned the need for a decision-maker to grapple with centrally important representations regarding the harm likely to be suffered if a mentally ill person was returned to Somalia. It does not suggest that a decision-maker must engage in an “active intellectual process” with every piece of information regardless of relevance or importance. In this case the Minister’s delegate had regard to the information but did not consider it of sufficient relevance or importance to refer to it in her reasons for decision. Omar has no application to the facts of this case.
The second ground of review claims that the Authority’s finding, relying on country information, principally a Department of Foreign Affairs and Trade (DFAT) report, that the applicant was not at risk of harm were he to return to Kabul was irrational or unreasonable.
The Authority’s consideration of the risks to the applicant should he return to Kabul, which was found to be his “home area”, is set out in a number of paragraphs.
At paragraph 9 the Authority said:
I have also obtained country information on the recent security situation for Shia Hazaras in Kabul, specifically as it relates to the threat from Islamic State. This information was not before the delegate and is new information. The information relied upon by the delegate did not refer to the recent attacks against Shias in Kabul in 2017 and is pertinent to the applicant’s claims for protection. I am satisfied that there are exceptional circumstances for considering this information.
At paragraphs 17 and 18 the Authority noted that the applicant’s father had been a candidate in provincial council elections in Ghazni (another city in Afghanistan) in 2009 and had received threats from the Taliban as a result. At paragraph 27 the Authority noted that the applicant’s father had ceased all political activity following his failure to be elected in 2009 and concluded that he thereafter ceased to be of interest to the Taliban.
At paragraphs 29 to 40 the Authority considered in detail the risks to the applicant should he return to Kabul. At paragraph 30 the Authority observed that there were no recent reports of attacks on the Hazara and/or Shia population in Kabul by the Taliban but there had been attacks by other groups in recent years. In 2016 a demonstration by Hazaras had been attacked, apparently by Islamic State, leading to up to 80 people being killed. In the same year a gunman killed 19 Shia Muslims at a Shia shrine in Kabul. Later that year 40 worshippers were killed by a bomb attack on a Shia mosque. Islamic State claimed responsibility for both attacks. In 2017 Islamic State carried out further mass casualty attacks in Kabul on mosques and a Shia cultural centre. DFAT country information demonstrated that Shias are vulnerable to attack when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shia festivals. DFAT also assessed that the Afghan government lacks the ability to adequately protect vulnerable groups in some areas of the country, particularly outside major urban areas.
The Authority accepted that there had been attacks against the Shia community in Kabul in 2016 and 2017 by Islamic State directed at Shias or Hazaras attending political demonstrations, mosques, religious commemorations or cultural centres. The Authority observed that the applicant, while of the Shia faith, had not claimed to fear harm in Afghanistan on account of his religion or religious observance. It also noted that the applicant did not practise his faith in Australia nor had he ever claimed to have been politically active. In his protection visa interview he told the delegate that he had prayed daily in Afghanistan but never attended a mosque. He said that he did not agree with the radical and strict teachings of the Shia clergy in Afghanistan. The Authority concluded that the applicant was not politically active and was a “low level” adherent of the Shia faith. The Authority found that the applicant was not at real risk of harm through attendance at a mosque, participation in a religious festival or participation in political demonstrations.
At paragraph 36 the Authority referred to DFAT country information assessing that in general returnees from the west were not specifically targeted on that basis. The Authority also referred to other, contradictory, information mentioned in the DFAT and UNHCR reports that returnees had been targeted for kidnap or because they had spent time in a western country or because they may be viewed as foreigners or spies. It was an agreed position that neither report identified any specific geographical area as of greater risk in that regard. The Authority said:
DFAT advises that many Afghans travel abroad to Iran, Pakistan, Europe or other Western countries to seek employment or educational opportunities, and that between 2002 and 2013 an estimated 5.8 million refugees returned to Afghanistan from Iran, Pakistan, as well as western countries. DFAT assess that in general returnees from western countries are not specifically targeted on the basis of being failed asylum seekers, although there were some reports in 2014 of returnees from western countries alleging that they had been kidnapped or otherwise targeted on the basis of having spent time in a western country. Some reports indicate that simply being identified as a returnee has put persons at risk as returnees face a general assumption that they have adopted values and/or appearances associated with western countries while abroad and are reportedly at risk of being mistaken for collaborators with the government and the international community. Other reports indicate that returnees from the west may be viewed as foreigners or spies and targeted. However, the reports and incidents cited by the United Nations High Commissioner for Refugees (UNHCR) and DFAT do not refer to Kabul as an area where returnees, or Shia Hazaras, are targeted on the basis of being perceived as western. Further, there have been no reports of individual returnees from Australia being targeted since the two incidents in 2014 involving returnees of Hazara ethnicity (both in Ghazni, removed from Kabul).
At paragraph 38 the Authority said:
Country information does not indicate that in Kabul there is systematic targeting of returnees, or Hazara returnees in Afghanistan, including those who return from Australia, or who are failed asylum seekers. Kabul is a large urban centre with a diverse ethnic population. There have been no reports of people being targeted for returning from a foreign or western country or for being a returnee asylum seeker on that basis in Kabul.
At paragraph 39 the Authority referred to country information that indicated that the population in Afghanistan, irrespective of ethnicity and religion, is exposed to generalised and indiscriminate violence relating to conflict in the country. The Authority accepted that the government did not exercise control over all parts of the country, particularly rural areas, but that there was no evidence that the Afghan government was losing control of Kabul.
The ground of review asserts that it was irrational for the Authority, “after acknowledging” that there were risks to returnees from abroad, to dismiss that risk by claiming that the UNHCR and DFAT reports referred to in paragraph 36 did not specifically refer to Kabul as an area where returnees were targeted (thus implying that the risks only occurred elsewhere). This was said to be irrational because neither report actually made any reference to a specific geographic locality and therefore a failure to refer to Kabul could not logically be of any relevance to the question of whether the applicant was at risk were he to return to Kabul.
I agree that were the Authority to have reasoned in this way it would be illogical. However, the particular in 2(b)(i) of the ground of review significantly misstates the Authority’s findings. Further, the reasons are to be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.
I do not accept that, fairly read, the Authority acknowledged in paragraph 36 that returnees from abroad were at risk on that basis. The Authority’s reasoning was more nuanced. The Authority referred to DFAT’s assessment that in general returnees were not at risk on that basis but acknowledged that there were countervailing reports. The relevant DFAT report, DFAT Country Information Report Afghanistan, 18 September 2017, was put into evidence. That report identified “people associated with the government or international community” as being at “high risk of being targeted by anti-government elements”. The report said that this category “may possibly include returnees from western countries” but went on say that such people usually concealed their association or kept a low profile and did not face a significantly higher risk of violence or discrimination on that basis.
The Authority also referred to a specific instance of Hazara returnees from Australia being targeted in 2014 in Ghazni, which, as the Authority noted, is a city “removed from Kabul”. The Authority also observed at paragraph 38 that country information, citing another DFAT report, Thematic Report Hazaras in Afghanistan 2015 – 16 update, did not indicate that there was any “systematic targeting of returnees” in Kabul.
In my view, fairly read, the Authority accepted the DFAT assessment that in general returnees were not targeted on that basis; that there was specific information about returnees from Australia being targeted in 2014 but in Ghazni, not Kabul; and that there was no indication of systematic targeting of returnees on that basis in Kabul, a large urban centre with a diverse ethnic population. In my view, the Authority accepted the DFAT assessment, which itself acknowledged countervailing reports about the risks to returnees but did not assess those risks as significantly higher than to others of a similar ethnic or religious profile. The Authority referred to one such report and emphasised that it concerned Ghazni, not Kabul, and that Kabul was a large urban centre with a diverse ethnic population, controlled by the government and where there was no indication of systematic targeting of returnees.
In this context, where there was information that returnees had been targeted in Ghazni, a reference to Kabul was relevant. The Authority went on to give other reasons why the applicant was not likely to be targeted in Kabul as a returnee: it is a large urban centre, ethnically diverse (with 40% to 50% of the population being Hazaras) and under government control.
I do not accept that the Authority has reasoned in the way the applicant claims. The Authority accepted DFAT country information, substantially without qualification, that returnees were not a significant risk of harm because they were returnees. It was relevant to refer to Kabul as there was information, nevertheless, that returnees had been targeted in 2014 in Ghazni. It was also relevant to refer to Kabul because country information did not indicate systematic targeting of returnees in that city.
The grounds of review are not made out and the application will be dismissed with the applicant to pay the first respondent’s costs as taxed or agreed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 17 January 2020
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