BCJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 111
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 111
File number: PEG 295 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 24 February 2022 Catchwords: MIGRATION – judicial review of decision of Immigration Assessment Authority – whether Authority gave sufficient weight to evidence – whether Authority properly considered evidence - where Authority determined issue of credibility contrary to delegate – whether failure to exercise discretion in s 473DC to invite applicant to an interview to assess his demeanour was unreasonable – whether jurisdictional error arises based on recent developments in a country - Authority decision affected by jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth), ss 5AA, 36, 46A, 473CA, 473DC, 473DD, 476, 477(1)
Evidence Act 1995 (Cth) s 144(1)(a))
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BCJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1831
CRK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1070
CRK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 267
CRP17 v Minister for Immigration [2020] FCCA 3041
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
EGZ17: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
EKN17 v Minister for Immigration [2020] FCCA 3022
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 599; [2016] FCAFC 185
Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 4 October 2021 Place: Perth Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 295 of 2020 BETWEEN: BCJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision made by the second respondent on 7 September 2020.
2.A writ of mandamus issue requiring the second respondent to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LADHAMS:
INTRODUCTION
The application before the Court is an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act), filed on 8 October 2020. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 7 September 2020, affirming an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For reasons explained below, I have found that the Authority acted unreasonably in failing to exercise its discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to an interview before making adverse credibility findings that were not made by the delegate, in circumstances where the delegate had the opportunity to assess the applicant’s demeanour, but the Authority did not. I have therefore found that the Authority decision is affected by jurisdictional error and I issue writs.
BACKGROUND
The applicant is a citizen of Afghanistan. He entered Australia in June 2013 without a visa and is an ‘unauthorised maritime arrival’ within the meaning of s 5AA of the Migration Act.
On 25 July 2016 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in
s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 6 December 2016 the applicant lodged an application for a protection visa. The applicant claimed that he would face harm in Afghanistan from the Taliban and the Kuchi on the basis of his Shia Muslim religion and his Hazara ethnicity.
The applicant attended an interview conducted by an officer of the Minister’s Department on 4 April 2017 to discuss his claims for protection.
A delegate of the Minister made a decision on 12 May 2017 to refuse to grant the applicant a protection visa. The delegate accepted that the applicant would face a real chance of serious harm if he travelled to his home area in Wardak Province, but found that the applicant would not face a real chance of serious harm in Kabul or Mazar-e-Sharif. In assessing complementary protection, the delegate found that it would be reasonable for the applicant to relocate to Kabul or Mazar-e-Sharif where he would not face a real risk of significant harm.
The matter was referred to the Authority pursuant to s 473CA of the Migration Act.
On 6 February 2018 the Authority affirmed the decision not to grant the applicant a protection visa. The applicant sought judicial review of this decision and the Federal Circuit Court made orders on 6 July 2020 which had the effect of setting aside the decision of 6 February 2018 and remitting the matter to the Authority for reconsideration according to law. The Court found jurisdictional error on the basis that the Authority made a finding in relation to relocation that was not open to it on the evidence before it: see BCJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1831 at [39]-[46].
On 7 September 2020 the Authority, differently constituted, affirmed the delegate’s decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had significant concerns in relation to the applicant’s identity and lack of reliable documentation. It made adverse credibility findings against the applicant based on numerous inconsistencies and false information provided to the Department in relation to his living arrangements in other countries and contact with his family. Despite these concerns, the Authority was prepared to accept that the applicant is a Sayed/Hazara Shia from Afghanistan. The Authority accepted that the applicant and his family were originally from Maidan Wardak Province in Afghanistan but was not satisfied that the applicant had any intention to return to Maidan Wardak. Rather, the Authority found that if the applicant were returned to Afghanistan, he would choose to live and work in Kabul.
The Authority did not accept the applicant’s claim that he transported livestock from Maidan Wardak to Kabul and that, on one occasion while doing so, he was detained by the Taliban, beaten and tortured, and threatened not to do such work again. Given the applicant’s work background and experience, his claims to have no family connections in Maidan Wardak, his inexperience in living in Afghanistan and his lack of documentation, the Authority did not consider it plausible that the applicant would find work purchasing and transporting livestock between Kabul and Maidan Wardak. The Authority expressed concerns about the lack of consistency in the applicant’s accounts of having been attacked by the Taliban, noting that he had previously referred to the attackers as Kuchi at his arrival interview in 2013. Further, the Authority did not consider that the applicant’s oral evidence provided at the protection visa interview contained any level of detail that suggested it was obviously a true account. The Authority was not satisfied that the applicant’s claims regarding his work or the attack by the Taliban were plausible or credible.
The Authority did not accept that the applicant had any recent links to Maidan Wardak, or that he faced risks from the Taliban or Kuchi nomads while travelling in or near the area. The Authority did not consider that the applicant would face any chance or risk of harm from the Kuchi in Afghanistan.
In assessing the risk of harm that the applicant would face upon return to Afghanistan, the Authority considered that the applicant would return to Kabul and that the opportunities for accommodation and employment there would negate the need for the applicant to travel outside of the city. The Authority found that there was no information before it to suggest that Sayed people are specifically targeted for harm in Afghanistan. The Authority accepted that the applicant is Shia Hazara and would live and work in a Shia Hazara community, and it assessed the applicant’s profile on that basis.
The Authority considered the country information before it about the risk to Shia Hazaras from Islamic State-Khorasan Province (ISKP). The Authority concluded that ISKP’s ability to orchestrate attacks against Shias and other targeted groups had been substantially reduced in 2019 and there was not a real chance of the applicant facing harm from ISKP in Kabul in the reasonably foreseeable future. The Authority also considered that beyond the threat from ISKP, there is little indication that Shias and Hazaras face persecution from other groups in Kabul. The Authority was not satisfied that the Taliban was systematically targeting Shias or Hazaras in Kabul or throughout Afghanistan and, having regard to country information and the lack of profile of the applicant, the Authority found there was no real chance of the applicant facing harm from the Taliban in Kabul for reasons of his ethnic and religious profile, or any related imputed profile.
The Authority accepted that the applicant has a profile of a returnee from the west and a person who sought asylum in the west. However, the Authority was not satisfied that this would result in the applicant facing a real chance of harm upon his return to Afghanistan.
The Authority found that the applicant would face no more than a remote chance of serious harm from generalised violence in Kabul and Afghanistan. Further, any remote chance of harm the applicant may face in Kabul would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.
The Authority accepted that the applicant may face some discrimination but this would not amount to significant harm.
The Authority was not satisfied that the applicant met the refugee criteria in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant filed his application for judicial review on 8 October 2020. This is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application contains the following two grounds of review, reproduced without alteration:
1.The IAA did not give enough weight to the threat ISKP is to Shia Hazaras.
2.The IAA did not properly consider the evidence of the threat to Hazaras being targeted by armed groups.
On 29 October 2020 a Registrar of the Court made orders to progress this matter to hearing. The orders required the applicant to file and serve any amended application and any further affidavit by 19 January 2021, and to file submissions 28 days prior to the hearing. The applicant did not file any documents in accordance with the orders made on 29 October 2020.
The Minister filed submissions ahead of the hearing in accordance with the orders made on 29 October 2020. In addition to addressing the grounds raised by the applicant, the Minister raised two additional issues as a model litigant. The first additional issue raised by the Minister related to whether the Authority acted unreasonably in not inviting the applicant to attend an interview to assess his credibility, in circumstances where the Authority decided the review on the basis of issues different to those that were dispositive in the delegate’s decision. The second additional issue related to whether any jurisdictional error arose as a result of developments that took place in Afghanistan after the Authority decision, taking into account the recent decision in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (EGZ17).
The matter came before me for hearing on 4 October 2021. The applicant was self-represented at the hearing and the Minister was represented by Mr Greg Johnson.
CONSIDERATION
Jurisdictional error
In order to succeed before this Court, the applicant must show that the Authority decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1
Submissions
By ground 1, the applicant asserts that the Authority gave insufficient weight to the threat that ISKP poses to him as a Shia Hazara.
At the hearing I gave the applicant an opportunity to explain what he meant by this ground. The applicant said that his ground is that the Taliban is now ruling Afghanistan and they have been persecuting Hazaras and Shias for a long period of time. He said the Taliban are killing them, treating them badly and do not even consider them as human. It is his strong belief that if he is sent to Afghanistan he will be at high risk and the situation is now more dangerous than before.
Insofar as the applicant’s submission addresses the current situation in Afghanistan, it is more relevant to one of the issues raised by the Minister as a model litigant, and I consider the applicant’s submission in relation to that issue.
The Minister submitted that the ground does not give rise to jurisdictional error as it essentially takes issue with the Authority’s fact-finding and its assessment of the nature of the risk posed by ISKP. Such matters are for the Authority to determine within its jurisdiction, particularly in relation to country information. The Minister submitted that the Authority gave detailed consideration to the country information before it about the threat posed by ISKP and it gave logical and cogent reasons for its conclusion about the risk of harm in the reasonably foreseeable future.
Resolution
The Authority extensively considered country information about the risk of ISKP inflicting harm on Shia Hazaras at [62]-[70] of its reasons. The Authority considered attacks carried out by ISKP since July 2016. The Authority noted early assessments of the threat posed by ISKP and suggested that it remained a limited and unsophisticated threat, and acknowledged that the early assessments had proved conservative. The Authority considered the increase in attacks by ISKP throughout 2017 and 2018 and acknowledged that the 2019 Department of Foreign Affairs and Trade (DFAT) report suggested that Shias face a high risk of being targeted for attack by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. The Authority also acknowledged that the report by DFAT stated that the risk increased for those living in Shia majority or ethnic Hazara neighbourhoods in major cities such as Kabul. The Authority noted that the European Asylum Support Office (EASO) provided a similar assessment but found that both the DFAT and EASO reports did not fully account for the downturn in the number of attacks and developments in the security environment that followed in 2019. The Authority referred to country information that showed there was a significant decline in ISKP attacks throughout 2019. The Authority also noted that in November 2019 President Ghani claimed that Afghan security forces had obliterated ISKP in Afghanistan.
The Authority set out its conclusions in relation to the threat posed by ISKP at [69]-[70]:
69. I have had regard to the risk assessments provided by DFAT and EASO in mid-2019, however I consider they are strongly informed and offset by more recent developments in 2019. When considering the range of security assessments and data before the IAA, including the sharp reduction in number of ISKP attacks in Kabul and Afghanistan through 2019, and the significant impact of military action against ISKP’s forces in late 2019, I consider the group’s capabilities have been reduced considerably, and that is reflected in the substantial decrease in attacks claimed by the group through 2019. In a real sense, I consider the forecasts from 2016 and 2017 cited above have ultimately proven correct, albeit over a longer timeframe than expected.
70.Looking to the reasonably foreseeable future, I find that ISKP remains a credible, but diminished threat to Shia Hazaras and other risk profiles living in Kabul. I accept the applicant would live in Shia Hazara neighbourhoods in Kabul and that this brings an added risk. However, while I accept the risks from ISKP are not ‘obliterated entirely’, I consider the group’s ability to orchestrate attacks against Shias and other targeted groups has been substantially reduced. It follows that I am not satisfied there is a real risk of the applicant facing harm from ISKP if he were to return to live and work in Kabul, now or in the reasonably foreseeable future.
It is well-established that the choice of country information and the weight to be given to country information is a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. It is clear that the Authority carefully considered a range of country information in the course of conducting the review. The Authority has provided logical and rational reasons for its conclusion that, although there remains some risk of harm from ISKP, that risk did not, at the time of the Authority’s decision, amount to a real chance of serious harm or a real risk of significant harm. The Authority’s finding was open to it on the material before it.
Ground 1 is not established.
Ground 2
Submissions
By ground 2, the applicant asserts that the Authority did not properly consider the evidence of the threat to Hazaras being targeted by armed groups.
At the hearing, the applicant submitted that the Taliban and Daesh and other anti-Shia groups are killing and enslaving Hazaras and the Authority did not consider these threats.
The Minister submitted that ground 2 should be dismissed for similar reasons to ground 1. The Minister submitted that it is clear from the Authority’s reasons that it gave detailed and careful consideration to available information before it about the threats to Hazaras such as the applicant. The Authority addressed the risk from ISKP and from the Taliban. These were matters of fact for the Authority to determine.
Resolution
To the extent that this ground asserts that the Authority did not properly consider the evidence before it of threats to Hazaras from ISKP (or Daesh), it overlaps (at least in part) with ground 1 and is dismissed for the same reasons. The applicant has not identified any specific evidence that the Authority failed to consider, but as indicated above, the choice of and weight to be given to country information is a matter for the Authority.
The Authority also quite clearly considered whether any other insurgent groups posed a threat to Hazaras. The Authority commented at [71] that, beyond the threat from ISKP, there was little indication that Shias and Hazaras face persecution from other groups in Kabul. The Authority considered that, outside of the risk from ISKP, the reports of Hazaras being targeted in recent years relate to incidents on insecure roads in Afghanistan. The Authority commented that the motivation for these incidents is often complex, but to the extent that there is a risk to Hazaras, who might be imputed with the pro-government opinion, the risk is very limited and would be connected to insecure roads and regional areas. The Authority had earlier found that the applicant would not need to travel outside of Kabul.
The Authority also specifically considered whether the applicant would face harm from the Taliban, as the applicant had expressed fear of harm from the Taliban in his protection visa application. The Authority concluded at [79]-[80]:
79.Lastly, in his visa application, the applicant claimed he feared harm on the basis of his religious and ethnic profile from the Taliban specifically. I accept the Taliban remains engaged in a longstanding insurgency against the Afghan government and security forces, and that it regularly targets other high-profile groups (e.g. NGOs). I accept it maintains significant control in the country. I accept the Taliban was responsible for the persecution of Shia Hazaras in the past. As do I accept that incidents do occur between the groups at times, typically in regional areas. However, I am not satisfied the group is systematically targeting Shias or Hazaras in Kabul or throughout Afghanistan, or presently has an ethnic or sectarian agenda. I acknowledge there is not complete consensus in this regard, however other than the complex situation on the roads (discussed above) and occasional localised conflicts, I consider there is little indication of any departure from that assessment in more recent reporting before me, or data indicating a resurgence of Taliban attacks on Shia Hazaras, particularly in the context of Kabul.
80.On the basis of the advice before me, and having regard to his lack of any other profile, I find there is no real chance of the applicant facing harm from the Taliban in Kabul for reasons of his ethnic and religious profile, or any related imputed profile.
The Authority considered a variety of country information in reaching this conclusion, and the applicant has not identified any way in which the Authority failed to ‘properly consider’ the evidence before it, nor has he identified any evidence that the Authority was required to, but did not, take into account.
I am satisfied that the Authority has appropriately considered the evidence before it in relation to the risk of harm to the applicant from armed groups. Ground 2 is dismissed.
Additional issue raised by the Minister: whether the Authority acted unreasonably in not inviting the applicant to attend an interview to assess his credibility
Submissions
The Minister raised an issue as to whether the Authority might have erred in failing to consider exercising its power under s 473DC(3) of the Migration Act to invite the applicant to an interview to assess for itself the applicant’s demeanour. The Minister raised this issue in circumstances where the Authority formed a different view to the delegate about the applicant’s credibility in relation to certain aspects of his claims and background. In raising this issue, the Minister referred to the High Court’s judgment in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17), where the High Court held that the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which the account was given.
The Minister submitted that:
16.Whilst the Authority in the present case formed a different view about the applicant’s credibility on certain matters it identified, it is clear that the basis for the credibility concerns arose from his revision of claims during the interview about his family ([27]-[28], [31]), and his willingness to maintain what he admitted to be false claims until the delegate contradicted him: [32]. Further, the Authority was concerned about the applicant’s claims regarding his deportation from Germany to Afghanistan because the applicant did not exhaust all options to recover his Afghan passport: [37]. The Authority also did not accept the applicant had land in Maidan Wardak as he claimed: [45], or that his employment history was as he claimed because of inconsistencies: [47]-[48]. Importantly, the Authority did not find credible the applicant’s claim (which the delegate had accepted) that he had been attacked by the Taliban, because of inconsistencies in how that claim was presented in the applicant’s written claims compared with his arrival interview, and because the claims as developed at the protection visa interview with the delegate did not contain any level of detail that suggested it was obviously a true account: [50]. On a fair reading of the Authority’s reasons, its concerns about aspects of the applicant’s history and claims were based upon an objective appraisal of the information before it, including questions and answers the applicant provided during his interview with the delegate.
17.This was not a case where the Authority formed a different view about certain claims because of the manner in which the applicant had addressed or developed the claim at the interview with the delegate. This is the type of case, as the plurality identified in ABT17, where it was open to the Authority to form a different view of the applicant’s credibility from that formed by the delegate, and without inviting the applicant to an interview. It was open to the Authority in conducting a Part 7AA review to disagree with the delegate’s evaluation of the material without providing to the applicant the opportunity to respond: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12, [76]. Unlike the circumstances in ABT17, the Authority here did not reject the applicant’s claims wholly or substantially on the basis of its own assessment of the manner in which that account was given.
The applicant did not make any submissions about this issue.
Consideration of relevant case law
The following principles can be derived from the High Court’s judgment in ABT17:
(a)In some cases, compliance with the implied condition of reasonableness can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of our review: ABT17 at [4].
(b)An informational gap may arise where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. The Authority will not have in the review material a visual impression of how the referred applicant appeared during the interview — his or her demeanour: ABT17 at [13].
(c)This type of informational gap has the potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview, and this in turn has the potential to impact on the Authority’s assessment of the referred applicant’s overall credibility: ABT17 at [14].
(d)The Authority has the power to get and consider new information to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order for the Authority to assess and consider the referred applicant’s demeanour for itself: ABT17 at [16].
(e)Determining when the complied condition of reasonableness compels the Authority to invite a referred applicant to an interview in order to assess the referred applicant’s demeanour requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the delegate’s decision to determine for itself whether the criteria for the grant of the protection visa have been met and where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate: ABT17 at [18]-[21].
(f)The mere existence of an informational gap will not necessarily result in the Authority being disadvantaged compared to the delegate. The credibility of a referred applicant will not necessarily have a significant bearing on the Authority’s determination of whether the criteria for the grant of a protection visa have been met, when one takes into account the country information and other information before the Authority. Also, having regard to country information and other information in the review material, how the referred applicant may have presented in the interview with a delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake: ABT17 at [22].
(g)Where credibility is relevant to the determination of whether a referred applicant meets the criteria for a protection visa, and to the extent that his or her demeanour in an interview might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the delegate’s reasons. Taking into account any such description or impression of the referred applicant’s appearance, it would ordinarily be open to the Authority to reach an assessment of the referred applicant’s credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility. Therefore the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate: ABT17 at [23]-[24].
(h)The Authority will act unreasonably if, without good reason, it does not invite the referred applicant to an interview to gauge his or her demeanour for itself before deciding to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted on the basis of its own assessment of the manner in which the account was given: ABT17 at [25].
The applicant in ABT17 claimed to have faced past harm in Sri Lanka. He attended an interview with a delegate of the Minister, during which he discussed his claims for protection, including a claim that he had been sexually tortured. The delegate found that the applicant’s evidence during the interview was plausible and broadly consistent with country information. Upon review, the Authority accepted some of the applicant’s claims, but found that others were exaggerated and embellished. It was not satisfied that the applicant had been detained and sexually tortured in May 2011, in part because, based on the Authority’s review of the audio recording of the interview, the Authority found that the applicant’s evidence before the delegate was lacking in detail, the applicant had been unable to expand in any detail on a number of his claims and, at times, the applicant sounded vague and hesitant. Applying the principles summarised above, the High Court found that the Authority acted unreasonably in failing to invite the applicant to an interview to assess his demeanour for itself, before rejecting the applicant’s claim to have been detained and sexually assaulted in May 2011.
I have also considered other matters where the courts have applied ABT17 and found jurisdictional error in the Authority decision.
In CRK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 267 (CRK18), Judge Heffernan found jurisdictional error of the type identified in ABT17 in circumstances where the applicant raised a new claim at his protection visa interview that he had delivered fuel to the LTTE. The delegate accepted that the applicant had been involved in making deliveries to the LTTE and this imputed his involvement with the LTTE. The Authority, without inviting the applicant to an interview to assess his demeanour, rejected the applicant’s claim to have transported fuel. Judge Heffernan summarised the Authority’s reasons for this finding as including the applicant’s failure to raise the fuel delivery claim at his entry interview or in his written statement of claims, the inconsistencies in the version he gave to the delegate, and that his explanation of being frightened as the reason for not having raised the matters earlier was not objectively plausible given the amount of time which had elapsed since his arrival in Australia: CRK18 at [36]. Judge Heffernan acknowledged that there was no reference to demeanour or other similar terms in the delegate’s decision (at [33]) and noted that the High Court did not in ABT17 place any emphasis on the seeming lack of reliance by the delegate on considerations of demeanour: CRK18 at [36]. Judge Heffernan considered it to be apparent that it was the content and circumstances of the account itself that gave rise to the Authority’s finding. An appeal from the judgment in CRK18 was dismissed: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1070.
In EKN17 v Minister for Immigration [2020] FCCA 3022, Judge Obradovic referred to ABT17 in finding that the Authority acted unreasonably in failing to exercise its powers in s 473DC of the Migration Act to get new information by inviting the applicant to an interview. In that matter, the Authority rejected a claim by the applicant that he had expressed certain political views to three passengers when he was working as a taxi driver, and that his views caused the passengers to become angry and threaten him. The delegate accepted the claim, but the Authority considered that the applicant’s oral account was rote learnt and not spontaneous. Judge Obradovic considered that the Authority’s view as to the rehearsed nature of the verbal narrative presented by the applicant at the interview permeated all other findings made by the Authority and was central and crucial to the Authority’s decision.
In CRP17 v Minister for Immigration [2020] FCCA 3041, Judge Driver found that the Authority acted unreasonably in failing to exercise its discretion to invite the applicant to provide further information in circumstances where the delegate accepted the applicant was from Location A, and the Authority instead found that he was from Kabul. Judge Driver advanced four reasons for reaching this conclusion, one of which related to the applicant’s interview with the delegate. Judge Driver said at [47]:
… the Authority’s decision was coloured by its adverse credibility conclusions concerning the applicant’s claims, based upon what occurred at the applicant’s interview with the delegate. That approach was flawed in at least two respects: the Authority made no allowance for the fact that it had access to only the audio recording of the interview and hence that record was incomplete and, perhaps more importantly, the interview was itself truncated as the delegate was forced to terminate it.
Resolution
In the present case, I find that the Authority’s findings in relation to the applicant’s contact with his family and the rejection of his claim to have been attacked by the Taliban were made substantially, but not wholly, based on the manner in which the applicant gave his evidence at the protection visa interview. The Authority’s findings were different to those of the delegate. I further find that, in relation to these two issues, there was an ‘informational gap’ of the type described in ABT17, as the delegate had the opportunity to visually assess the applicant’s demeanour, and the Authority did not. In this regard, there is information in the court book which suggests that the Authority had access to an audio recording of the protection visa interview, and there is no suggestion that the protection visa interview was conducted by a person other than the delegate. In the particular circumstances of this case, I find that the Authority has acted unreasonably in failing to exercise its discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to attend an interview so that the Authority could assess for itself the applicant’s demeanour. My reasons for these findings are explained below.
In relation to the applicant’s contact with his family, the delegate said:
… I note that in his Entry interview as well as his Protection visa application the applicant claims he did not know the whereabouts of his wife and his four children. At the TPV interview the applicant stated that he has not seen his family for about seven and a half years. It was put to the applicant that the department had information that he has been in contact with his wife’s family in Australia, the applicant admitted that he is in contact with his former brother in law (his former wife’s sister’s husband) and that he is aware that his wife and four children currently reside in Australia. However the applicant stated that they live separately and that his wife has threatened him that if he tells the department about his knowledge of his wife’s whereabouts, she will prevent him from seeing her and his children forever. Although the applicant and his spouse have been separated for quite some time, he claims that he has not given up on his family and his marriage. Notwithstanding the inconsistencies about the knowledge of his wife and children’s whereabouts, I accept the applicant has been separated from his wife and children for seven years and that he has not seen his family since they all resided in Athens, Greece in 2010.
The Authority highlighted a number of inconsistencies in relation to the applicant’s information about his family and contact with his family and then made the following comments about the applicant’s evidence given at his protection visa interview:
26.Following this line of questions, the applicant was asked in the visa interview whether he knew where his family was. He paused for some time before answering ‘yes’. When asked why he was not telling the truth, the applicant said he could not talk about these things.
27. The applicant eventually revised his claims to state that he and his wife were separated. He had last spoken to her three weeks before the visa interview. He confirmed she and his children were in Australia. He initially contended that he had not seen his children for seven years. He implored the delegate not to tell his wife or X he provided this information as he would be in trouble. He claimed to be at threat and that he would not be able to see his children again.
28.The applicant then revised his claims further and said his wife had gone to Greece with him. He confirmed, again contrary to his earlier evidence, that he always remained in contact with her. The applicant was again asked when he last saw his children, to which he stated he had seen them about three weeks prior to the visa interview, but they did not talk to him and they do not accept him as their father.
The Authority then made the following comments in relation to the applicant’s credibility:
31.The applicant has provided little evidence of his identity, beyond the document from the Afghan Embassy. In that context, his credibility is important in assessing his identity, history and claims. The applicant has provided false information at multiple points in this process; during his arrival interview in 2013, his visa application and statement from 2016, and in the initial stages of his visa interview in early 2017. Significantly, the applicant did not revise and provide true and correct information until he was presented with adverse evidence by the delegate that squarely contradicted his claims.
32.It is not implausible that the applicant could find himself in a quandary where he felt he had to conceal the whereabouts of his wife and children and/or their status in Australia. However, over a four-year period, including before his family’s arrival in Australia, the applicant continued to advance false information that he did not know where his family was. In fact, his family’s unknown whereabouts was a key aspect of his visa statement and how he came to be deported from Iran to Afghanistan. During this period, the applicant was always in contact with his wife. Yet, he elected not to clarify his circumstances or revise his claims until contradicted by the delegate. Even when this information was put to him he was not consistent as to whether he had seen his children since he left Iran, first stating that he had not, before claiming he had seen them some weeks earlier but they do not acknowledge him as their father.
33.In consideration of all the circumstances, I find the applicant is not a witness of credit. I find he has provided false information in relation to his family, background and history prior to coming to Australia, and has done so in ways that are material to his claims. The applicant has not satisfied me, and I do not accept his explanations for not providing that information prior to the visa interview.
It is clear that the primary concern of the Authority was inconsistencies in the applicant’s evidence about contact with his family. However, the Authority has also taken into account the manner in which the applicant gave his evidence. This can be seen, for example, by the reference in [26] to the applicant pausing for some time before answering a question. The type of jurisdictional error identified in ABT17 can arise in circumstances where the Authority’s assessment of the manner in which an applicant presents an account of a claim, accepted by the delegate, at an audio recorded interview is ‘wholly or substantially’ the basis for its adverse finding. The assessment of the manner in which the applicant gave evidence does not need to be the only basis for the Authority’s finding. Both ABT17 and CRK18 are examples where the Authority’s assessment of the manner in which the applicant gave evidence was just one of two or more reasons for rejecting the applicant’s account.
The divergence in the Authority’s reasoning and the delegate’s reasoning in relation to the applicant’s contact with his family is significant. It appears that the Authority has focused on different aspects of the evidence the applicant gave in the protection visa interview to those aspects that the delegate focused on. For example, the delegate did not mention the applicant’s evidence that he saw his children only three weeks before the interview, and instead accepted that he had not seen them since 2010. It is apparent that much of the discussion at the protection visa interview comprised of the applicant being invited to comment on inconsistencies, and providing information as to why he did not disclose his knowledge of his wife and family’s whereabouts previously. Having witnessed the applicant’s demeanour in giving this evidence, the delegate accepted that the applicant had been separated from his family for seven years notwithstanding the inconsistencies. The delegate made no adverse credibility finding against the applicant and implicitly accepted the applicant’s credibility.
The Authority, on the other hand, made a significant adverse credibility finding against the applicant based on his account of his knowledge of his family’s whereabouts and recent interactions with his family. As indicated above, it appears that these findings were based not only on inconsistencies in the information, but also on the manner in which the applicant gave his account. It is significant that the delegate, who witnessed the applicant’s demeanour in giving his account, including his reasons for not providing accurate information earlier, appears to have accepted the applicant’s credibility, or at least not made adverse credibility findings. On the other hand, the Authority, without acknowledging the advantage the delegate had in being able to witness the applicant’s demeanour, not only made a factual finding different to the delegate about his contact with his family, but made an adverse credibility finding that undermined the applicant’s claims for protection. I find that the manner in which the applicant presented his account in relation to his contact with his family was a substantial consideration in the Authority’s decision.
Had the Authority confined its adverse finding to matters relating to the extent of the applicant’s contact with his family, the finding may not have been significant enough in the context of the decision overall to make it unreasonable for the Authority to fail to invite the applicant to an interview to assess his demeanour. This is because the applicant’s contact with his family or knowledge of their whereabouts was not one of the reasons advanced by the applicant for fearing harm in Afghanistan. However, the Authority made clear at [33] of its reasons (extracted above) that the adverse credibility findings it made in relation to the applicant’s contact with his family impacted its consideration of his claims for protection. The Authority found that the applicant provided some false information about his contact with his family, but also, and more significantly, found that he was not a witness of credit.
Two examples of the way in which the Authority’s adverse credibility findings affected its consideration of other evidence provided by the applicant can be seen in its findings in relation to his employment history and his claim to have been attacked by the Taliban in 2012.
In relation to the applicant’s employment history, which the delegate accepted on the basis that the applicant had provided ‘generally consistent information’ about it, the Authority noted that ‘it again appears the applicant was not completely truthful’: at [47]. This was because the form the applicant provided to the delegate at the protection visa interview did not include ‘baker’ as a past occupation and the applicant confirmed that he had worked as a baker in Iran in his protection visa interview in response to a question from the delegate noting that his wife and sister-in-law had, in earlier visa applications, suggested he was a baker. This was the only reason given by the Authority to support its finding that ‘the applicant has not been credible in his evidence about his employment history’. I infer that the general adverse credibility finding made by the Authority contributed to its finding that the omission of his work as a baker on his employment history was more than a simple omission corrected at the interview, and instead meant that the applicant was not credible in relation to his employment history.
Notwithstanding that the Authority considered the applicant had not been credible in his evidence about his employment history, the Authority then relied on the applicant’s ‘work background and experience’ as one of several reasons for finding it implausible that the applicant would find work purchasing and transporting livestock in Afghanistan, and for finding that the applicant was not credible about his work while in Afghanistan.
The second example of the Authority relying on its general adverse credibility finding based on the applicant’s inconsistencies in his contact with his family and knowledge of their whereabouts relates to the applicant’s claim to have been attacked by the Taliban in 2012 while transporting sheep between Maidan Wardak and Kabul. The Authority expressly stated that it had regard to its concerns about the applicant’s overall credibility in assessing the claim.
In any event, the applicant’s claim to have been attacked by the Taliban in 2012 is another claim in relation to which the Authority reached a different finding to the delegate, based substantially on the account given by the applicant at the protection visa interview.
The delegate accepted the applicant’s claim to have been attacked by the Taliban in 2012. The delegate said:
The applicant has resided in Iran as an Afghan refugee since the age of six or seven and beside one claimed incident with the Taliban in 2012 the applicant has not claimed to have had any personal experiences or incidents of past persecution in Afghanistan. He claims that the incident happened on the road outside Kabul while transporting sheep from Wardak to Kabul. He stated that five or six members of the Taliban stole his sheep and physically attacked the applicant and his friends. I note that the applicant has been consistent with this claim throughout his interactions with the Department, and there is no evidence suggesting this claim has been fabricated, I accept this incident as plausible.
On the other hand, the Authority rejected this claim. The Authority said:
50.In terms of his account of being attacked by the Taliban, I note the applicant has not been consistent in this regard. The applicant referred to the attackers as Kuchi in his arrival interview in 2013. In his written statement and visa interview, he claimed they were Taliban. I have weighed his claims in his written statement about the arrival interview, but I do not accept these discrepancies are explained by interpreting or the limited time of that interview. Even if there was some confusion in that regard, I do not consider his oral evidence provided in the visa interview contained any level of detail that suggested it was obviously a true account. For example, the applicant stated at the interview that he had been tortured, but when questioned, he could not detail in what way he was tortured.
51.Looking to the circumstances, including my concerns about his overall credibility, I am not satisfied the applicant’s claims regarding this work, or the attack by the Taliban, are plausible or credible. The applicant has not satisfied me, and I do not accept, that he has worked between or has any recent links to Maidan Wardak, or that he has faced risks from the Taliban or Kuchi nomads while travelling in these areas, or on the roads that connect these areas. I consider these claims are a contrivance designed to link his profile to that of Hazara farmers working in Maidan Wardak. I am satisfied this is a profile he does not hold and do not consider he would face any chance or risk of harm from the Kuchi in Afghanistan.
As can be seen from these extracts, the delegate found the claim by the applicant to be plausible, including because the applicant had been consistent in relation to the claim throughout his interactions with the Department. In contrast, the Authority rejected the claim based on one identified inconsistency, a lack of detail in the applicant’s oral evidence and its earlier adverse credibility assessment. The reference to the lack of detail in the oral evidence shows that the Authority’s decision was based in part on the manner in which the applicant gave his account, and I find that this was a substantial aspect of the Authority’s reasoning on this claim. I also note that the reference to the absence of ‘any level of detail that suggested it was obviously a true account’ is not dissimilar to one of the concerns of the Authority in ABT17, namely, that the applicant’s evidence in that case was generally lacking in detail: ABT17 at [15], [27].
The Authority again did not acknowledge that the delegate had the advantage of being able to witness the applicant’s demeanour when giving his account of this claim. The manner in which the applicant gave his account of the incident was a substantial reason for the Authority rejecting this claim. This claim was the applicant’s only claim to have personally experienced past harm from the Taliban and it was important to his claims as a whole. I cannot identify any good reason for the Authority’s failure to invite the applicant to an interview to assess his demeanour for itself. I find that the Authority has acted unreasonably in failing to invite the applicant to an interview to assess his demeanour before rejecting his claim to have been attacked by the Taliban in 2012.
I note that there are other findings of the Authority identified by the Minister as being different to those made by the delegate, and other instances of the Authority making adverse credibility findings. These include the Authority’s concern about the applicant’s deportation from Germany to Afghanistan because the applicant did not take all steps to recover his Afghan passport, and the Authority’s finding that the applicant did not have land available to him in Maidan Wardak. Also differing to the delegate, the Authority found that the applicant would return to Kabul rather than Maidan Wardak. It is not necessary for me to consider these aspects of the Authority’s reasons in circumstances where I have already found that the Authority acted unreasonably in failing to exercise its discretion to invite the applicant to an interview to assess his demeanour before making adverse credibility findings in relation his contact with his family and his claim to have been attacked by the Taliban, based substantially on its own assessment of the manner in which the applicant presented those claims at his protection visa interview.
The unreasonable failure of the Authority to invite the applicant to an interview in the circumstances of this case amounts to jurisdictional error.
Additional issue raised by the Minister: whether any jurisdictional error arises based on recent developments in Afghanistan
Submissions
The Minister also drew to the Court’s attention the recent decision of Judge Street in EGZ17, in which his Honour relevantly:
(a)admitted new evidence which was not before the Authority about the takeover of Afghanistan by the Taliban and the declaration of the Islamic Emirate of Afghanistan;
(b)held that the Authority’s power of review was ‘conditioned upon the exercise of the country in the receiving country of which the applicant is found to be a national’ and found that, while the finding about whether the applicant is a national of a particular country is a matter of fact for the Authority to determine, the existence of the country is a jurisdictional fact: EGZ17 at [37]-[38]; and
(c)found that the reasoning of the Authority and the conclusion that the applicant did not meet the protection visa criteria was illogical and irrational in circumstances where the country of Afghanistan no longer exists: EGZ17 at [40].
The Minister submitted that EGZ17 is plainly wrong and should not be followed for the following reasons:
(a)Judicial review of administrative action concerns the legality of an exercise of a power or the performance of a duty and events which take place after an exercise of power can play no part in assessing whether or not the decision contained an error when it was made. A decision that is valid at the time it was made does not subsequently become invalid because of the change in circumstances after the decision is made.
(b)The only relevant jurisdictional fact in the review of the Authority’s decision is the decision-maker’s state of satisfaction (or non-satisfaction) about the refugee and complementary protection criteria in ss 36(2)(a) and (aa) of the Migration Act at the time of the decision. The identification of a receiving country is not itself a jurisdictional fact which could be the subject of judicial review. The identification of a protection visa applicant’s receiving country is part of the fact-finding function of the decision-maker.
(c)Judge Street was wrong to receive evidence that post-dated the Authority’s decision. Generally speaking, evidence which was not before the primary decision-maker is not admissible in judicial review proceedings and none of the limited exceptions to that general rule applied in EGZ17. Whether an administrative decision is legally unreasonable is determined by reference to the facts and circumstances as they existed at the time the decision was made.
(d)Judge Street erred in taking judicial notice of the matters described in the relevant country information article before him. It was common ground before Judge Street that the Taliban had taken control over the majority of Afghanistan. But the declaration by the Taliban of the ‘Islamic Emirate of Afghanistan’ was not common ground. It was not ‘common knowledge’ within the meaning of s 144(1)(a) of the Evidence Act 1995 (Cth).
The applicant’s submissions in relation to ground 1 above, to the effect that the Taliban is now ruling Afghanistan and that the risk is higher to him now than previously, are relevant to this ground.
Resolution
On 11 February 2022, while judgment in this matter was reserved, the Full Court of the Federal Court allowed an appeal from the judgment in EGZ17: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 (EGZ17 appeal). In summary, the Full Court found that:
(a)Whether or not the Authority exceeded its statutory authority in reaching its decision is to be assessed by reference to the circumstances as they existed at the time the decision-making authority was exercised: EGZ17 appeal at [28].
(b)The primary judge erred by concluding that evidence of recent developments in Afghanistan was relevant to the issue for the Court’s determination: EGZ17 appeal at [29].
(c)It was not open to the primary judge to take judicial notice that one country (Afghanistan) had ceased to exist and a different one (Islamic Emirate of Afghanistan) had come into existence: EGZ17 appeal at [30].
(d)The primary judge was wrong to conclude that the power vested in the Authority was ‘conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national’ and that the existence of the receiving country is a jurisdictional fact: EGZ17 appeal at [31].
(e)The Authority’s exercise of its decision-making power depends on the existence of a jurisdictional fact, namely the reaching of a state of satisfaction or non-satisfaction by the Authority as to the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) of the Migration Act at the time the decision was made. But the various factual matters which the decision-maker must address in reaching a state of satisfaction, including whether the visa applicant has met relevant visa criteria, are not themselves jurisdictional facts simply because those facts necessarily need to be addressed in reaching the state of satisfaction leading to the grant or refusal of the visa: EGZ17 appeal at [32].
(f)The Authority’s power is not conditioned expressly or impliedly on the existence of the relevant country of nationality or the objective existence of the receiving country the subject of the decision being reviewed: EGZ17 appeal at [33].
The EGZ17 appeal judgment is binding on me and provides a complete answer to the issues raised by the Minister in relation to this ground. The matters considered by Judge Street in EGZ17 do not give rise to jurisdictional error.
I indicated above that some of the applicant’s submissions in relation to ground 1 were based on developments in Afghanistan that post-date the Authority’s decision, and were conveniently dealt with in conjunction with this issue raised by the Minister. These submissions include that the Taliban now controls Afghanistan and that the danger the applicant would face if he returns to Afghanistan now has increased. These submissions, based on events that post-date the Authority’s decision, cannot establish jurisdictional error. Referring to Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118 and Parker v Minister for Immigration and Border Protection (2016) 247 FCR 599; [2016] FCAFC 185 at [77], the Full Court in the EGZ17 appeal judgment said at [28]:
The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision.
I find that there is no jurisdictional error in the Authority decision based on the recent events in Afghanistan.
Of course, in circumstances where I am remitting this matter to the Authority on a different basis, it may be open to the Authority to have regard to recent developments in Afghanistan when it reconsiders the matter, subject to the Authority being satisfied of the matters in s 473DD of the Migration Act in relation to any new information. That is a matter for the Authority, not the Court.
CONCLUSION
I have found that there is jurisdictional error in the Authority decision based on its unreasonable failure to exercise its discretion to invite the applicant to an interview to assess his demeanour before making adverse credibility findings contrary to those of the delegate, based substantially on its own assessment of the applicant’s account of certain matters in an audio recorded interview. It follows that I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 February 2022
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