BCJ18 v Minister for Immigration
[2020] FCCA 1831
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCJ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1831 |
| Catchwords: MIGRATION – Visas – protection visa – no incorrect construction of exceptional circumstances under s 473DD of the Migration Act 1958 – no unreasonable failure by Immigration Assessment Authority to consider whether to exercise its power to obtain new information – relocation finding not open on the evidence – inadequate consideration of relocation issue under complementary protection assessment – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 463EA, 473DC, 473DD, 476 |
| Cases cited: AXB17 v Minister for Immigration & Anor [2018] FCCA 514 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister For Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 |
| Applicant: | BCJ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 129 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 23 March 2020 |
| Date of Last Submission: | 23 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo of Counsel |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms Oliver of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application filed on 6 March 2018 and amended 13 September 2018 be allowed.
The decision of the Immigration Assessment Authority dated 6 February 2018 be quashed.
A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the sum of $6,667.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 129 of 2018
| BCJ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 6 March 2018, and amended 13 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’ or ‘the IAA’) made on 6 February 2018. The Authority’s decision affirmed a decision of a delegate (‘delegate’) of the first respondent (‘the Minister’) refusing to grant a Temporary Protection Visa (class XD) (subclass 785) (‘TPV’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 23 March 2020.
For the reasons which follow I have concluded that the application should be allowed.
Background
Much of the background to this matter is accurately set out in the submissions filed on 6 September 2018 on behalf of the Minister:
5. The Applicant, a citizen of Afghanistan, arrived in Australia as an unauthorised maritime arrival on 17 May 2013.
6. On 7 December 2016, the Applicant lodged a valid application for a TPV, together with a statement of claims. In the statement, the Applicant made the following claims:
(a) He feared harm from the Taliban and Kuchi people in Afghanistan as a result of his Hazara ethnicity and Shia Muslim religion;
(b) He was born in Afghanistan but his family moved to Iran when he was approximately six or seven years old. Although he had no recollection of the incident, he understood that his older brother died in an attack on their village prior to the family’s departure to Iran.
(c) In 2008 or 2009, he travelled to Europe illegally. He lived in a detention centre and had a passport issued in Germany that allowed him to travel within that country for two years.
(d) In 2012, he returned to Iran. He had a visa for Iran, however, was arrested in 2012 and was unable to return to his room to get his passport, which led to his deportation to Afghanistan.
(e) He stayed in Kabul for between nine months to a year, before travelling to Australia.
(f) In Kabul, he struggled to find work, had no family and his only friends were the men deported from Iran to Afghanistan with him. On one occasion, he and his friends were attacked by the Taliban on the road from Maydan Wardak to Kabul. Three weeks later he attended the burial of six Hazara people.
On 22 December 2016, the applicant sent a letter to the Minister explaining the incompleteness of his application and that he was engaging with the process to the best of his abilities.
On 31 January 2017 and on 9 March 2017, the applicant was invited to interviews with the delegate.
On 4 April 2017, the applicant attended the interview with the delegate without representation.
On 12 May 2017, the delegate refused to grant the TPV.
On 26 May 2017, the matter was referred to the Authority.
On 16 June 2017, the applicant’s representative sent written submissions to the Authority, including references to new information. Amongst the new information was a United Nations Assistance Mission in Afghanistan (‘UNAMA’) annual report entitled ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016’, and published in February 2017 (‘UNAMA report’).
On 6 February 2018, the Authority affirmed the delegate’s decision not to grant the applicant the TPV.
The Authority’s decision
The Authority excluded consideration of the UNAMA report, stating that the matters in s 473DD of the Act had not been established.
At [5] of its decision, the Authority explained that it refused to consider the UNAMA report because it:
5. […] was not before the delegate and is new information. It is not personal information. The information in the report - the attacks on Shias in Kabul during 2016, the increase in civilian casualties particularly in Kabul and Daesh's capacity to conduct attacks - were reported in other country information sources considered by the delegate. The applicant has not satisfied me that the document could not have been provided to the delegate prior to the decision or that it is credible personal information that may have affected the consideration of the applicant's claims. Nor am I satisfied that there are exceptional circumstances for considering it.
Grounds of review
By an amended application filed on 13 September 2018 the applicant sought review on the following grounds:
1. The IAA gave an incorrectly narrow construction of ‘exceptional circumstances’ under s 473DD of the Migration Act 1958 (Cth) (the Act) in relation to the consideration of the 2017 United Nations Assistance Mission in Afghanistan (UNAMA) annual report.
2. The IAA unreasonably failed to consider whether to exercise its power under s 473DC of the Act to independently obtain the 2017 UNAMA annual report.
3. The IAA found that re-integration services had been provided to returnees to and in Mazar-e-Sharif, when such finding was not open on the evidence.
Applicant’s submissions
Ground 1 – Narrow construction of ‘exceptional circumstances’
The applicant says that the following matters concerning the UNAMA report were before the Authority, could have led it to be satisfied that there were ‘exceptional circumstances’ and were shown ‘no appreciation’ by the Authority:
a)the report was newer than both the 2016 UNHCR report and the Department of Foreign Affairs and Trade (‘DFAT’) report relied upon by the delegate;
b)the fact that DFAT regarded an earlier version of the report as a ‘highly credible’ source;
c)the applicant was effectively unrepresented at the delegate stage, with only very limited assistance from the Humanitarian Group; and
d)the Authority made its decision in February 2018, by which time the 2016 UNHCR report was almost 2 years old, and the DFAT report more than 15 months old.
The applicant submits that the Authority ‘simply asserted in a conclusory way there were no exceptional circumstances’.
The applicant also contends that the Authority considered there were ‘exceptional circumstances’ to accept other new information (e.g. a newer Afghanistan Analysts Network Report dated 19 May 2017), but ‘but only because these were not brought into existence until several days after the delegate’s decision.’ And at [25] of his submissions the applicant says that:
25. […]It is difficult to understand why the difference as to when the material came into existence should be taken as determinative of exceptional circumstances: it confirms that in approaching the ‘exceptional circumstances’ task in respect of other information, the IAA effectively treated the test as no different to examination of the matters in s 473DD(b)(i)-(ii).
Ground 2 – Unreasonable failure to consider whether to obtain ‘new information
The applicant submits that while there was no ‘duty’ under s 473DC(2) of the Act for the Authority to obtain the newer UNAMA report of its own accord, the relevant question is whether its failure to do so was reasonable. The applicant claims that the Authority’s failure to do so is unreasonable because:
28. […] attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction’ as to the criterion in s 36(2): Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [73]. Although MZYTS was a Tribunal and not an IAA case, the broader principle that ‘attention to current information … is a core aspect of lawful formation of a state of satisfaction’ is still relevant.
The applicant maintains that the requirement of reasonableness meant the Authority was required to consider (and to turn its mind to consideration of whether it should be proactively) obtaining the UNAMA report itself, because:
30. […]a. the IAA was on notice of the existence of a newer version of the information relied upon by the delegate;
b. the newer version was from a source that informed DFAT’s compilation of a document that was a mandatory relevant consideration for the delegate;
c. DFAT considered the earlier version of the document to be ‘highly credible’, and by inference, the UNAMA as a source to be so too; and
d. the IAA did not make its decision until some 8 months after the delegate (in circumstances where its own practice direction contemplated that it would make a decision within 6 weeks).
The applicant also asserts that the Authority should have done this, in particular, because the Authority did proactively obtain other information which was newer, and at [31] of his submissions says:
31. [...] The fact that it [the Authority] did so in relation to one source of new information but refused to consider whether to do so in relation to another is not capable of intelligible justification, and strains the bounds of reasonableness.
Ground 3 – Finding not open on the evidence
Ground 3 takes issue with the Authority’s finding that relocation to Mazar-e-Sharif was reasonable. The applicant submits at [35]-[36] that:
35. […] the sources cited by the IAA for this conclusion do not contain anything that supports such a finding. If anything, the IAA had before it new information (including as extracted in the submissions to the IAA) to the contrary, and which the IAA accepted should be considered pursuant to s 473DD. Yet when it came to its analysis at paragraph 52, none of that new information appears to have been taken into account.
36. Accordingly the finding that re-integration services were available in Mazar-e-Sharif is a finding of fact that was not open on the evidence, and therefore a jurisdictional error.
First respondent’s submissions
Ground 1 – Narrow construction of ‘exceptional circumstances’
The Minister submits that there is no jurisdictional error in the Authority’s approach in its assessment of the new information in the present case, noting that the Authority had the power to accept and consider the UNAMA report as ‘new information’ pursuant to s 473DD of the Act, and that the requirements in s 473DD(a) and (b) of the Act are cumulative requirements.
At [10] of his submissions the Minister says that:
10. […]the Court should not conclude that the IAA’s discussion at…[5] of the IAA’s decision was a complete statement of the IAA’s reasons for why it did not consider exceptional circumstances existed in relation to the UNAMA annual report. Section 473EA(1) of the Act does not require the IAA to give its reasons for any “procedural” decision that it makes, including a decision whether to consider new information under section 473DD (AXB17 v Minister for Immigration & Anor [2018] FCCA 514 at [29]).
(citations omitted)
The Minister responds to the applicant’s claims, citing the decisions in AXB17 v Minister for Immigration & Anor [2018] FCCA 14 and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 that held that the Authority does not need to give its reasons for any procedural decision that it makes, including a decision whether to consider new information under s 473DD.
The Minister at [14] of his submissions relies on White J’s decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9] to support the proposition that:
14. […] it is entirely appropriate for the IAA to consider the matters in section 473DD(b), as well as any other relevant matters, when considering whether the circumstances in a particular case are exceptional, for the purposes of section 473DD(a) of the Act. In particular, White J saw no error in the IAA relying on a finding as to whether new information is credible personal information when deciding whether exceptional circumstances exist.
At [17] of his submissions the Minister responds to the applicant’s claims that there were matters that the Authority could have considered and could have led to the Authority being satisfied that there were ‘exceptional circumstances’ in relation to the UNAMA report. The Minister alleges that such submissions are inviting the Court to engage in impermissible merits and at [22] of his submissions states that:
22. […] the UNAMA annual report predated the delegate’s decision but was not provided to the delegate. In those circumstances, it was open to the IAA to find that section 473DD(b)(i) was not satisfied in relation to this document. The matters referred to in the applicant’s submissions at [26] were not advanced on behalf of the applicant in the submissions provided to the IAA by his representatives, despite those submissions specifically addressing why the IAA should consider the new information (see CB 132- 141). In the circumstances, it would not be appropriate for the Court to assess the IAA’s decision by reference to the matters raised in that paragraph of the submissions, as to do so would be to engage in impermissible merits review.
The Minister maintains that the Authority’s findings under s 473DD(a) in relation to the UNAMA report were open to it on the material before it.
Further, the Minister submits that, even if there was an error in relation to the Authority’s consideration of s 473DD(a), that error was of no material effect, given the Authority’s findings in relation to s 473DD(b) of the Act regarding the UNAMA report.
Ground 2 – Unreasonable failure to consider whether to obtain new information
The Minister says that, having regard to the Authority’s statutory obligations of in Part 7AA of the Act, it cannot be said that Authority had any obligation to consider exercising its power under s 473DC to independently obtain a copy of the UNAMA report. With regards to unreasonableness, the Minister notes that where a statutory power is conferred, the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
At [32] of his submissions, the Minister refers to the decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (‘Plaintiff M174’) whereby Gageler, Keane and Nettle JJ observed the difference between the review provided by the Authority compared to reviews by other Tribunals.
And at [34] the Minister submits that it is a matter for the Authority as to how much weight it gives to country information as part of its fact-finding function, noting that the Authority had updated country information before it relating to the applicant’s capacity to relocate Kabul or Mazar-e-Sharif.
Ground 3 – Finding not open on the evidence
The Minister claims that the Authority adequately considered the issue of relocation under its complementary protection assessment. With respect to the reasonableness of considerations for relocation, the Minister at [39]-[40] of his submissions says:
39. In considering the complementary protection claims, the IAA was obliged to consider whether it is reasonable, in the sense of being practicable, for the Applicant to relocate. What is “reasonable”, in the sense of being “practicable”, must depend upon the particular circumstances of the person and the impact upon the person of relocation within their country of nationality (SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24] per Gummow, Hayne and Crennan JJ).
40. Whether relocation is reasonable is a matter of fact for the decision-maker, and this may be affected by the “framework dictated by the evidence and claims advanced” by an applicant (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [123]-[124] per Tracey and Foster JJ).
In relation to the updated country information, the Minister contends that the Authority carefully considered and discussed the material at [29]-[38] of its decision. And at [44]-[45] of his submissions the Minister provides:
44. In any event, even if the country information cited did not specifically support that particular finding, the first respondent submits that any error was not material and did not affect the decision of the IAA. Whether support services were available to returnees was just one of the matters that the IAA considered. The IAA’s decision record reveals that the IAA carefully considered whether relocation was reasonable, in the sense of practicable, having assessed the particular circumstances of the applicant, and the relevant country information. In particular, the IAA considered the applicant’s claims in relation to his lack of family ies and availability of employment and housing, his employment history and history of living independently, his education and skills, and his ability to engage in work upon return.
45. […] the IAA properly considered the applicant’s claims
and submissions and, taking into consideration the applicant’s personal circumstances, made findings as to relocation that were open to it on the evidence before it, for the reasons it gave. Even if there was an error in relation to the finding as to relocation support services, any such error was immaterial to the ultimate finding by the IAA that the applicant could reasonably relocate to Mazar-e-Sharif.
(citations omitted)
Consideration
Ground 1 – No narrow construction of ‘exceptional circumstances’
The information which the applicant maintains the Authority should have considered in the UNAMA report was not personal information. The Authority was only required to consider whether there were ‘exceptional circumstances’ to justify considering the new information that was not and could not have been provided to the Minister before the decision was made by the delegate.
The delegate gave reasons for not considering that information at [5] of the decision, in particular that the information in the UNAMA report was reported in other country information sources considered by her.
In my view, the Authority has not taken an unduly narrow view of what constitutes ‘exceptional circumstances’ and has made its own judgement on the scope of the UNAMA report as against the 2016 UNHCR report and the DFAT report that was before the delegate. The Authority’s consideration was not limited to the question of whether the UNAMA report was or could have been before the delegate but also included consideration of whether the information contained in the UNAMA report would materially affect the decision.
For these reasons there is no error apparent in the Authority’s approach to the question of whether ‘exceptional circumstances’ existed to justify considering the new information.
Ground 2 – No unreasonable failure to consider whether to obtain new information
This ground asserts that the Authority unreasonably failed to consider whether to exercise its power under s 470DC of the Act to independently obtain the UNAMA report. For this ground to succeed the applicant must establish that the Authority’s failure to do this was unreasonable as that term is explained in Minister For Immigration and Citizenship v Li [2013] HCA 18. It is plain from that decision and Plaintiff M174 that the question of whether the failure of a decision-maker to do something is unreasonable will depend on the legislative context in which the decision was made. Section 473DC(2) of the Act provides that the Authority is not under any duty to get, request or accept any new information, even if requested to do so by a referred application, another person, ‘or in any other circumstances’.
In circumstances where the Authority had other updated country information before it (as outlined in [9]–[10]) and having regard to the statutory scheme created under Part 7AA of the Act, the Authority’s failure to consider whether to exercise its power under s 470DC of the Act does not constitute an unreasonable failure to exercise jurisdiction.
Ground 3 - Finding not open on the evidence
The Authority considered complementary protection and the capacity for the applicant to relocate in [43]–[55] of the decision. The applicant made submissions through his representative that relocation to Mazar-e-Sharif was unreasonable because, amongst other things, there is a lack of reintegration services and resources available to returnees. Those submissions go beyond whether or not there are organised offices to assist in addressing the hardships faced by many returnees: see Court Book pp 139–141.
At [52] of the decision the Authority found that:
[…] despite the strain on services, housing and support from mass returns, local and international organisations have managed to provide some support to both voluntary and involuntary returnees including in Mazar –e-Sharif.
The applicant submits that the sources cited by the Authority in support of this conclusion fail to support such a finding.
The Authority was satisfied that there were ‘exceptional circumstances’ for considering an Afghanistan Analysts Network Report dated 19 May 2017: see final dot point at [9] of the decision. That report states amongst other things:[1]
[1] Court Book pp 198 and 200.
IOM post arrival humanitarian assistance to forced returnees is a basic package, which includes a transportation fee from the airport to the person’s residence and temporary accommodation if required. German authorities, for example, provide a small amount of pocket money to deportees. Some are also eligible for reintegration assistance similar to the one for those returning voluntarily. According to Laurence Hart, the head of IOM Afghanistan, in most cases this is only “a parachute package,” an immediate form of post-arrival survival help, rather than sustainable and long-term assistance. As AAN interviews have shown, this is not sufficient to allay considerable fears deportees have regarding their future.
[…]
Although the Afghan government and local and international organisations managed to organise some kind of first response to both voluntary and forced returnees, it seems that services available to those returning are patchy and in many cases insufficient to provide a realistic chance to start a new life in Afghanistan. There is also no convincing approach yet on what to do in particular with ‘returnees’ who have spent years in Iran and are out of touch with life in Afghanistan
It does not appear that the Authority took into account this information notwithstanding the finding that ‘exceptional circumstances’ existed to take that information into account. I accept the applicant’s submission that the Authority’s finding at [52] of its reasons is not open on the evidence before it and is therefore a jurisdictional error: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].
I do not accept that this error immaterial to the decision. It is said on behalf of the Minister that the Authority made other findings regarding relocation and, in particular, made reference to the applicant’s capacity to read and write in German and English and to read, write and speak Hazaragi. The Authority also makes reference to:
a)the applicant’s work in a variety of occupations;
b)the fact that he has travelled to and lived in Greece and Germany; and
c)the fact that he managed to establish new networks upon his return to Kabul in 2012.
Whilst the Authority has given consideration to those matters, I do not think that corrects its error regarding the very important issue of (a lack of) supports available in Afghanistan, especially given the applicant’s lack of family support in Mazar-e-Sharif.
For these reasons the applicant is successful in Ground 3 of his application and the Court will make orders in accordance with those sought by the applicant in his amended application.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 6 July 2020
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