BDS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 510
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 510
File number(s): MLG 597 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 16 June 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority –safe haven enterprise (subclass 790) visa – where the Applicant claims that it would be unreasonable for him to relocate to an urban area of Afghanistan– where the Applicant claims the Authority engaged in jurisdictional error by making and irrational and illogical finding that relocation was reasonable – where the Authority relied on an invalid s.473GB certificate – whether the invalid non-disclosure certificate impugned the reasoning of the Authority – whether it was legally unreasonable for the Authority to rely upon the invalid certificate and the material covered by it – application allowed. Legislation: Migration Act 1958 (Cth) ss.5J, 36(2)(a), 36(2)(aa), 36(2B), 48B, 65, 473CB, 474DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 473GD
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
CED16 v Minister for Immigration and Border Protection [2018] FCA 1415
CSZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 353
DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148
FKB17 v Minister for Immigration (2018) 343 FLR 337
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration v Eshetu [1999] HCA 21
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection vCED16 [2020] HCA 24
Minister for Immigration and Border Protection vSZMTA [2019] HCA 3
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
PQSM v Minister for Home Affairs (2020) 382 ALR 195
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of last submissions: 20 December 2022 Date of hearing: 1 August 2022 & 29 November 2022 Place: Melbourne Counsel for the Applicant: Ms S Finegan Solicitor for the Applicant: PLS Lawyers Counsel for the First Respondent: Ms L Mills Solicitor for the First Respondent: Mills Oakley
Table of Corrections 26 June 2023 In the catchwords, the words “where the Authority relied on an invalid s.473GB certificate – whether the invalid non-disclosure certificate impugned the reasoning of the Authority – whether it was legally unreasonable for the Authority to rely upon the invalid certificate and the material covered by it” added. ORDERS
MLG 597 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
1.The application (as further amended on 29 November 2022) be allowed.
2.A writ of certiorari issue, quashing the decision of the Second Respondent dated 28 February 2018 in case number IAA17/02761.
3.A writ of mandamus issue directing the Second Respondent to determine the application for review according to law.
4.The First Respondent pay the costs of the Applicant fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
This is an application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (protection visa) pursuant to s.65 of the Migration Act 1958 (Cth) (Act).
In summary, this application concerns the Authority’s finding that the Applicant could relocate to an urban area of Afghanistan to avoid the risk of significant harm the Authority found he faced in his home district of Afghanistan.
For the reasons that follow, the application is allowed.
FACTUAL CONTEXT
The Applicant is a citizen of Afghanistan. He is an ethnic Hazara and of Shia Muslim faith. In around 2001, soon after the death of his father, the Applicant and his mother, wife and three children left Afghanistan and resided in Pakistan.
On 10 September 2012, the Applicant arrived in Australia as an unauthorised maritime arrival. He attended a case assessment and biodata interview on 11 September 2012 and a transferee interview on 12 December 2012.
On 22 June 2016, the Applicant was invited to apply for a Temporary Protection (subclass 785) Visa or a Safe Haven Enterprise (subclass 790) Visa.
On 1 August 2016, the Applicant’s migration agent applied for a protection visa on his behalf.
On 2 May 2017, the Department of Immigration and Border Protection (Department) (as it then was) invited the Applicant to attend an interview on 16 May 2017.
On 11 May 2017, an Australian Transaction Reports and Analysis Centre (AUSTRAC) report was created which comprised 14 pages of “transaction details” and included various outgoing money transfers by date. Some transaction details were reflected in that report as “Details of payment: FAMILY SUPPORT”.
On 16 May 2017, the Applicant attended an interview with an officer of the Department. For the purposes of these proceedings, a partial transcript of that interview was prepared and is extracted at Annexure A to this decision. According to the partial transcript, the officer asked about how the Applicant’s family in Pakistan is able to support themselves to which the Applicant responded that he sends them money. During the course of the subsequent discussion, the officer put to the Applicant that there was information before the Department about money transfers he had made other than those he had already disclosed and said “I am now giving you the opportunity to come forward with any information”. The officer also put some specific examples of bank transfers to the Applicant.
On 19 May 2017, the Applicant’s migration agent made a written submission to the delegate in support of the Applicant’s claims for protection.
On 24 May 2017, a delegate of the First Respondent refused to grant the Applicant a protection visa and provided the Applicant with a decision record.
Also on 24 May 2017, the delegate made a notification addressed to the Authority which purported to be a certificate pursuant to s.473GB(5) of the Act (the purported 473GB non-disclosure certificate). On its face, the purported 473GB non-disclosure certificate provided:
(a)that s.473GB applied to a document or information in the document titled “ADD2017/1339766 Non-Disclosable – Transaction Report – CID: 59747261706” (non-disclosed report);
(b)the delegate’s view that the document or information should not be disclosed to the referred Applicant or the referred Applicant’s representative because:
(a)the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a Departmental working document.
(c)that the Authority’s use and disclosure of a document or information covered by the purported 473GB non-disclosure certificate was subject to ss.473GB(3) and (4) of the Act.
On 29 May 2017, the matter was referred to the Authority for review of the delegate’s decision and, the following day, the Authority acknowledged receipt. In the acknowledgement letter, the Authority stated that the Department had provided the Authority with all documents they considered relevant to the Applicant’s case including any material that the Applicant had provided to the Departmental officer before they decided to refuse the protection visa. It also stated that the Authority would proceed to make a decision on the basis of the information sent by the Department, unless the Authority decided to consider new information which could only be considered in limited circumstances. It is not contentious in these proceedings that included in the review material given to the Authority by the delegate was the non-disclosed report and that the information earlier defined as the non-disclosed report included the 11 May 2017 generated AUSTRAC report.
On 26 June 2017, the Applicant’s legal representative (appointed on or about 16 June 2017, which is when the Authority was notified of such) provided the Authority with a written submission.
On 28 February 2018, the Authority affirmed the delegate’s decision.
On 1 March 2018, the Authority made a direction purportedly under s.473GD(1) of the Act (the purported 473GD non-disclosure direction). The direction provided:
Being satisfied that it is in the public interest, and pursuant to s.473GD(1) of the Migration Act 1958, I direct that the information referred to in paragraphs [10], [12] and [57] of the IAA decision of 28 February 2018 relating to evidence of ‘money transfers’ obtained by the Department of Immigration and Border Protection must not be published or otherwise disclosed by the applicant or his representative.
On 2 March 2018, the Authority emailed the Applicant and attached 3 documents: a notification of the 28 February 2018 decision, a statement of reasons for that decision (Reasons) and the purported 473GD non-disclosure direction.
The Authority’s decision
In its Reasons, the Authority stated that it had regard to: the material on the Departmental file and new country information which the Authority said it had obtained given developments in the security situation in Afghanistan since the delegate’s decision had been made: Reasons at [2] and [4]. The Authority did not have regard to the representative’s submission made to the Authority because it considered that submission did not constitute “new information” but rather was responsive to the delegate’s decision and reasserted claims, submissions and country information before the delegate: Reasons at [3].
The Applicant’s claims were summarised at paragraph [5] of the Reasons as follows:
•He fears harm from members of the Hezb-e-Wahdat and others (including a man called Hassani) because of his father and brother’s past political activities and associations with Hezb-e-Islami and the Taliban.
•He fears that if he were forced to return to Afghanistan he would be seriously harmed by armed groups, including the Taliban and Islamic State, because of his religious and ethnic profile.
•He fears harm from armed groups on the basis that he spent time in the west (Australia), sought asylum in Australia and an imputed political opinion or profile (e.g. he would be seen as a spy) arising from these factors. He would be at risk from the Taliban or other armed groups, as well as his fellow Afghans in his place of origin who would look at him with suspicion and hostility. Through the post-interview submissions, it was also contended that the applicant feared harm on the basis of his profile from his time in Pakistan.
The Authority set out some concerns about parts of the Applicant’s evidence and aspects of his claims and evidence which the Authority found were not credible or plausible – specifically, the Applicant’s evidence about money transfers, social media, and threats received in Pakistan. Among other things, the Authority found this to undermine the credibility of the Applicant’s claims to have little or no family and friends in Afghanistan and did not accept that he had received threat letters while living in Pakistan or that he was a suspect in a 2006 bombing: Reasons at [10]-[12] and [21].
A number of the Applicant’s refugee claims were accepted by the Authority, including as to the death of his father and brother, their involvement with Hezb-e-Islami and the Taliban and their departure from the country: Reasons at [22]. The Authority accepted there was more than a remote chance that the Applicant could face serious harm in Jaghori for reasons of his father’s past political profile, or as a result of an imputed political opinion or profile from his family’s past activities and associations with the Taliban and Hezb-e-Islami: Reasons at [23].
In conducting its refugee assessment, the Authority found there was a real chance of the Applicant facing serious harm in his home area but was not satisfied that the real chance of persecution related to all areas of Afghanistan and, accordingly, did not satisfy s.5J(1)(c) of the Act: Reasons at [24].
The Authority had regard to certain country information before it and made a series of findings before ultimately concluding, considering all the circumstances, that there was no real chance of the Applicant facing serious harm in Jaghori or Mazar-e-Sharif for reasons of his religion, ethnicity or any related profile: Reasons at [33].
The Authority also found that there was no real chance of the Applicant being seriously harmed on the basis of his time in the west (Australia), having sought asylum or in relation to any actual or imputed profile or political opinion: Reasons at [43]. Consideration was given to the security situation in Afghanistan, which the Authority accepted as serious and as having deteriorated in many parts of the country, but the Authority found the country information before it demonstrated a very low number of security incidents.
The Authority also found the security in Mazar-e-Sharif for civilians was better than other urban areas of Afghanistan including Kabul. Together with the Applicant’s absence of profile or proximity to those with a risk profile, the lack of evidence that a person with the Applicant’s profile would be at real chance or real risk of harm, and giving weight to the greater security and lower numbers of security incidents in these areas, the Authority found that the chance or risk of the Applicant being seriously harmed in generalised or insurgent violence was remote: Reasons at [46].
As it did not consider the Applicant to meet the definition of “refugee” in s.5H of the Act, the Authority found he did not meet s.36(2)(a): Reasons at [47].
In conducting its complementary protection assessment, at [50] the Authority referred to its earlier findings:
I have found above that there is a real chance of the applicant being seriously harmed in his home area in Jaghori District in Ghazni Province, for reasons related to his father and brother’s past political profile, or as a result of an imputed political opinion or profile from his father and brother’s past activities and associations with the Taliban and Hezb-e-Islami. For the same reasons and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, I am also satisfied there are substantial grounds for believing that the applicant will face a real risk of significant harm for these reasons if he returns to and/or lives in his home area in Jaghori.
And, in considering the qualifications to the “real risk threshold” at s.36(2B), at [52]:
I have found the applicant would not face a real chance of being seriously harmed in Mazar-e-Sharif for reasons relating to his religion or ethnic group, as a former asylum seeker or on the basis of his time in the west (Australia), any related imputed political opinion or profile, for reasons related to his father and brother’s past political profile, as a result of an imputed political opinion or profile from his father and brother’s past activities and associations with the Taliban and Hezb-e-Islami, in generalised violence, or any of the reasons claimed. For the same reasons, I am satisfied the applicant would not face a real risk of significant harm for those reasons in Mazar-e-Sharif.
The Authority also addressed the consideration at s.36(2B)(a), specifically whether it would be reasonable for the Applicant to relocate to Mazar-e-Sharif, by reference to country information and the submissions before the Authority: Reasons at [54]-[63].
The Authority concluded it would be reasonable for the Applicant to relocate to Mazar-e-Sharif, and therefore s.36(2B)(a) applied and that there was taken not to be a real risk that the Applicant would suffer significant harm in Afghanistan: Reasons at [64]. Accordingly, the Applicant was deemed to have not met the requirements of complementary protection under s.36(2)(aa) of the Act: Reasons at [66].
APPLICATION BEFORE THIS COURT FOR JUDICIAL REVIEW
Procedural history
On 9 March 2018, the Applicant applied for judicial review of the Authority’s decision with an affidavit annexing: the Authority’s direction of 1 March 2018, the notification of decision and Reasons of 28 February 2018 and adducing no further evidence.
On 30 April 2018, a response was filed on behalf of the First Respondent. By that response, it was contended that the decision of the Authority was not affected by jurisdictional error and the grounds of the application were broad and unparticularised. The First Respondent sought to be heard on costs.
On 6 February 2019, procedural orders were made setting the matter down for hearing on a date to be advised.
On 15 February 2019, the First Respondent filed a Court Book.
On 16 November 2021, the Applicant filed and served an amended application (which was not opposed) and written submissions (Applicant’s First Submissions).
On 3 December 2021, the First Respondent filed written submissions (Minister’s First Submissions).
On 14 December 2021, the matter proceeded to hearing before another Judge of this Court and orders were made that further submissions be filed before a final hearing on 26 July 2022. By Notation C of those orders, it was noted that:
A series of recent decisions have addressed the implications, for the purposes of the exercise of judicial review of a decision respecting an application for a protection visa under the Migration Act 1958, of the Taliban now exercising control of the majority of that area known as Afghanistan: EGZ17 v MICMSMA [2021] FedCFamC2G 10 (2 September 2021); DVF18 v MICMSMA [2021] FedCFamC2G 135 (13 October 2021); COF17 v MICMSMA [2021] FedCFamC2G 145 (13 October 2021).
Notation F provided:
The proceeding was adjourned to enable consideration of the availability and exercise of the personal non-compellable powers under the Act including those afforded by ss 48B, 195A and 501J of the Act and to do so upon consideration of more recent country information including the risk posed to persons of Hazara ethnicity and in particular the risk posed to such persons by the Taliban.
On 31 March 2022 (stamped 5 April 2022), the First Respondent filed an outline of further submissions which annexed the Minister’s “Afghanistan Statement” media release of 17 August 2021 (Minister’s Second Submissions).
On 29 April 2022 (stamped 4 May 2022), the Applicant filed and served a further amended application (which was not opposed) and written submissions (Applicant’s Second Submissions). The further amended application comprised two new grounds of review.
On 5 May 2022, the parties were notified that the matter was listed for final hearing on 1 August 2022 before the Court as presently constituted.
On 31 May 2022, the First Respondent filed a further written outline of submissions (Minister’s Third Submissions) and on 28 July 2022 filed a list of authorities.
On 1 August 2022, the matter proceeded to hearing. The Applicant was represented by counsel, acting pro bono, and the First Respondent was also represented by counsel. At the hearing, counsel for the Applicant clarified that the Applicant sought to rely on the further amended application and the Applicant’s Second Submissions and all previous applications and submissions were no longer pressed by the Applicant. For its part, the First Respondent confirmed it continued to rely on the Minister’s Third Submissions in their entirety, the background to the Minister’s First Submissions (paragraphs 3 to 37 only) and no longer relied on the Minister’s Second Submissions. The Applicant also sought to clarify that the relief sought included that the Authority’s decision be quashed and set aside, there was no opposition to such amendment being made and to the extent necessary compliance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) was waived and such allowance was granted.
At the hearing on 1 August 2022, the parties were afforded further time to address the Court in written submissions about the relevance (if any) of a document subject of non-disclosure certificate which appeared in the Court Book at pages 198 and 241.
On 10 August 2022, the First Respondent filed written submissions in relation to the s.473GB certificate issue and an affidavit of Matthew Daly in support containing the (partially redacted) documents subject to the non-disclosure certificate (Minister’s First Supplementary Submissions).
On 19 August 2022 (stamped 22 August 2022), the Applicant filed written submissions in response to the s.473GB certificate issue (Applicant’s First Supplementary Submissions).
On 14 September 2022, the First Respondent filed written submissions in reply (Minister’s Second Supplementary Submissions).
On 25 October 2022, the Applicant’s case was referred by the Department to the Minister for consideration as to whether to exercise the Ministerial discretion pursuant to s.48B of the Act.
On 29 November 2022, the matter was listed for oral submissions in relation to the s.473GB certificate issue. Also on that day, the Applicant lodged a second further amended application (stamped 2 December 2022) (which was not opposed) containing 2 new grounds in relation to the certificate issued under s.473GD. The parties sought to file further written submissions in relation to the second further amended application which leave was granted.
On 6 December 2022, the First Respondent filed further supplementary submissions addressing the relevance of the material covered by the s.473GD certificate (Minister’s Third Supplementary Submissions) and an affidavit of Matthew Daly sworn 6 December 2022. Mr Daly’s evidence annexed a partial transcript of the Applicant’s interview with the delegate on 16 May 2017 (summarised at paragraph 10 above).
On 20 December 2022, the Applicant filed further submissions addressing the relevance of the material covered by the s.473GD certificate (Applicant’s Second Supplementary Submissions).
At the time of final hearing there was no decision of the Minister under s.48B of the Act and no timeframe for when such decision would be made.
Amended grounds of review
By the second further amended application lodged on 29 November 2022 (accepted for filing on 2 December 2022), the Applicant sought to rely on 4 grounds of review (Grounds 1 and 2 being the same grounds of the amended application filed on 29 April 2022):
1.The Immigration Assessment Authority (Authority) erred by not completing its statutory task in concluding that it was reasonable for the Applicant to relocate.
2.The Authority erred in finding that the Applicant was in a better position than the Internally Displaced People and urban poor, and in the circumstances, such a finding was irrational and illogical, and therefore the Authority fell into jurisdictional error.
3.The Authority erred in relying upon an invalid Certificate and Direction, which, in accordance with FKB17 v Minister for Immigration and Border Protection (2018) 343 FLR 337 renders the outcome of the reasoning ultra vires.
4.The Authority erred in having regard to an invalid s 473GB certificate/notification and related information, which raised new information, and relied upon this information without allowing the Applicant to respond, was legally unreasonable.
(sic, particulars of Grounds 1 and 2 omitted).
Relief sought
By the oral application made at the hearing on 1 August 2022, together with the subsequently filed second further amended application and the Applicant’s Third Supplementary Submissions, the Applicant was understood to claim primary relief in the following forms:
(a)An order that the Authority’s decision be quashed;
(b)A declaration that the direction purportedly made under s.473GD(1) of the Act dated 1 March 2018 is invalid;
(c)A declaration that the certificate purportedly issued under s.473GB(1) of the Act dated 24 May 2017 is invalid;
(d)An order that the First Respondent pay the Applicant’s costs or, in the alternative if the application does not succeed, that the Court depart from the usual order as to costs and order that there be no order in favour of the First Respondent as to costs.
The forms of relief sought on the face of the second further amended application also included injunctive relief in the nature of restraining the Minister (or their Department, officers, delegates or agents) from acting on or relying upon the Authority’s Reasons and from removing the Applicant from Australia until his claims had first been assessed according to law.
GROUNDS 3 AND 4 - THE NON-DISCLOSURE CERTIFICATE AND DIRECTION
It is convenient to begin with the third and fourth grounds of review which relate to the purported 473GB non-disclosure certificate of the delegate on the date of their decision (24 May 2017) and the purported 473GD non-disclosure direction of the Authority on the day following the date of its Reasons (1 March 2018).
Statutory framework
The Authority must review a “fast track reviewable decision” referred to it by the Minister under s.473CA of the Act.
Division 3 of Part 7AA of the Act, together with ss.473GA and 473GB, contains an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that the Authority must review a fast track reviewable decision based upon the “review material” provided to it by the Secretary at the time the decision was referred. With limited exceptions, the Authority must conduct its review without accepting or requesting “new information” and without interviewing the referred applicant: ss.473DB(1), 473DC and 473DD. And, where any “new information” has been, or is to be, considered by the Authority under s.473DD and would be the reason or a part of the reason for affirming the decision under review, the Authority is required to give it to a referred applicant: s.473DE. However, the Authority is not required to give a referred applicant any material that was before the Minister when the Minister made the primary decision: s.473DA(2).
Section 473GA provides a restriction on the disclosure of certain information:
(1) Despite anything else in this Act, the Secretary must not give to the Immigration Assessment Authority a document, or information, if the Minister certifies, under subsection (2), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
(2) The Minister may issue a written certificate for the purposes of subsection (1).
The Secretary is required to notify the Authority in writing if it provides the Authority with a document or information covered by a certificate: s.473GB(2). Once the Authority receives the material covered by a certificate, s.473GB(3) provides:
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
Section 473GD provides the Authority may restrict the publication or disclosure of certain information:
(1) If the President is satisfied, in relation to a review, that it is in the public interest that:
(a) any information given to the Immigration Assessment Authority; or
(b) the contents of any document produced to the Authority;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the President may give a written direction accordingly.
(2) A direction under subsection (1):
(a) must be in writing; and
(b) must be notified in a way that the President considers appropriate.
(3) If the President has given a direction under subsection (1) in relation to the publication of any information or of the contents of a document, the direction does not:
(a) excuse the Immigration Assessment Authority from its obligations under section 473EA; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Authority.
(4) A person must not contravene a direction given under subsection (1) that is applicable to the person
Penalty: Imprisonment for 2 years.
The respective contentions
By ground 3, the Applicant contended that the Authority erred in relying upon the purported 473GB non-disclosure certificate and the purported 473GD non-disclosure direction which were invalid. The error was said to render the outcome of the Authority’s reasoning ultra vires because the Authority proceeded and acted on an invalid certificate and had followed a process contrary to law being a jurisdictional error: see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ) per Beach J.
By ground 4, the Applicant contended that the Authority erred by having regard to the invalid certificate which raised “new information” and relied upon “this information” without allowing the Applicant to respond which was legally unreasonable. In this respect, it was argued that the Applicant would have had the opportunity to explain the full circumstances about his transferring money to Afghanistan were he afforded the opportunity to view the substance of the material in the AUSTRAC report and this may have caused the decision-maker to form a different view about the full circumstances about his transferring money to Afghanistan, which, in turn, would allow the decision maker to form a different view about the Applicant’s financial position. The Applicant submitted that the Authority’s reliance on the invalid certificate means it did not discharge its duties under s.473CB(1), and therefore s.473DE(1) had been breached.
Initially the Applicant contended that an invalid non-disclosure certificate (and perhaps also the non-disclosed report covered by it) would need to be treated as new information, in reliance on the Federal Court decision in CED16 v Minister for Immigration and Border Protection [2018] FCA 1415 which was overturned by the High Court. The Applicant also sought to distinguish CSZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 353 from this matter where Jackson J outlined what jurisdictional error occurs when the Authority relied upon an invalid certificate (see [55]-[56]).
The First Respondent conceded that the non-disclosure certificate purportedly issued under s.473GB of the Act was invalid but maintained that there was no jurisdictional error on account. Primarily because the non-disclosure certificate itself did not constitute “new information” pursuant to s.473DC(1) and s.473GB(3) is the extent of the procedural fairness required of the Authority therefore the Authority was under no obligation to consider disclosing the existence of the non-disclosure certificate or to invite the Applicant’s response to it or its contents.
Also that the direction under s.473GD is not limited to when a disclosure pursuant to s.473GB(3) occurs so the Court should not infer that the fact a direction was issued means the Authority unreasonably relied on the certificate as valid.
The First Respondent argued the Court cannot be satisfied that the Authority exercised its discretion and had regard to the material under the certificate. It was submitted that because the certificate was invalid, the powers conferred by s.473GB have no application to the information purportedly covered by the certificate and accordingly, there can be no error by reason of any failure by the Authority in relation to the exercise or lack thereof of the s.473GB powers and even where the certificate is invalid, the Authority is not required to disclose the contents of the document to the Applicant due to s.473DA(2). But in any event it was not legally unreasonable to rely on information in the money transfer evidence since that was disclosed to the Applicant in his visa interview and the Applicant was invited to comment.
Further or in the alternative, the First Respondent asked the Court to infer that the Authority ignored the non-disclosure certificate because it was so obviously defective and, in any event, such error would not be material as the disclosure of the information not relied on by the Authority could not realistically result in a different outcome.
Consideration
Subject of grounds 3 and 4 of this review was the delegate’s notification of 24 May 2017 regarding the disclosure of certain information – purportedly covered by s.473GB of the Act (the purported 473GB non-disclosure certificate). The purpose of the notification was to alert the Authority that s.473GB of the Act applied to a document or information in the document titled ADD2017/1339766 Non- Disclosable - Transaction Report - CID: 59747261706. Specifically, accordingly to Mr Daly’s unchallenged evidence, an AUSTRAC report which was generated on 11 May 2017 and contained information about money transfers by the Applicant to various Afghani sources.
The delegate’s purported 473GB non-disclosure certificate provided that the AUSTRAC report should not be disclosed to the Applicant or the Applicant’s representative because:
...the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a Departmental working document.
The Authority’s decision was published on 28 February 2018 and included the issue of a direction purportedly under s.473GD(1) of the Act (the purported 473GD non-disclosure direction), specifically that paragraphs [10], [12] and [57] of the Authority’s Reasons relating to:
evidence of ‘money transfers’ obtained by the Department of Immigration and Border Protection must not be published or otherwise disclosed by the applicant or his representative.
It is not contentious that the delegate’s purported 473GB non-disclosure certificate was invalid.
The Authority did not disclose the purported 473GB non-disclosure certificate to the Applicant or provide the Applicant with the non-disclosed report. The Authority’s Reasons confirm that it considered all material on the Departmental file. Although there is no express reference to the purported 473GB non-disclosure certificate in the Reasons or reference to consideration given to the exercise of the discretion under s.473GB of the Act, the Reasons plainly disclose consideration to some of the information covered by the purported 473GB non-disclosure certificate – namely:
(a)At [10], where the Authority referred to “money transfer evidence” that confirmed payments to Pakistan and indicated 2 or 3 other recipients in Afghanistan before finding that the Applicant’s evidence on these matters was vague and inconsistent, that the amounts of money transferred were not consistent with providing “support” for his friends to return to Iran and did not accept that he would forget that he had made such payments or that those payments were to assist friends to return to Iran.
(b)At [12], where the Authority found that the Applicant’s evidence about the money transfer and his social media was inconsistent and not forthright and considered the evidence before it to undermine the Applicant’s credibility and his claims about having little or no family or friendship connections in Afghanistan.
(c)At [57], where the Authority referred to:
(i)the Applicant’s demonstrated capability of providing financial support to his family; and
(ii)concluded that the Applicant was in a far better position than the Internally Displaced People (IDP) described in the country information reports before the Authority who may have more difficulty reintegrating elsewhere; and
(iii)that in contrast the Applicant has some finances evidenced by the extent of his money transfers, among other factors the Authority found to be differentiating from other IDPs and the urban poor.
The Authority’s purported 473GD non-disclosure direction, which it made the day after the date of its Reasons and related wholly to the same material and the same reason as that of the purported 473GB certificate, was subject of a broader discretionary power of non-disclosure and according to the First Respondent, not necessarily invalid.
It falls to be determined whether there was an error(s) of jurisdiction.
Resolution of the third ground
By the third ground, the Applicant asked the Court to find that the Authority engaged in an error of jurisdiction by its reliance on the invalid certificate and the invalid direction and that to do so rendered the reasoning ultra vires: FKB17 v Minister for Immigration (2018) 343 FLR 337.
An invalid non-disclosure certificate purported to have been issued under s.473GB of the Act does not, of itself, impugn the reasoning of the reviewing tribunal.
Indeed, as the First Respondent submitted, the Authority is not obliged to involve the Applicant in the Authority’s consideration of whether a purported s.473GB certificate is valid: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) at [97].
The reasoning in MZAFZ does not assist the Applicant as contended because that case concerned a Part 7 visa and s.438 certificate, which was held in BBS16 (and subsequently affirmed in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34) to have no application to a Part 7AA and s.473GB certificate.
The legislature has limited the rules of natural justice and codified the procedure that applies to the Authority’s review: s.473DA of the Act. Provided that the discretionary power is exercised within the bounds of legal reasonableness, there is no additional obligation of procedural fairness attracted by notification of a discretionary obligation: for example, see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174) at [86]; BVD17 at [35]. That is a matter raised by ground 4 and considered below.
The third ground as it was plead can not succeed.
Resolution of the fourth ground
The fourth ground essentially contained 2 components:
(a)First, the Authority erred in having regard to the invalid certificate and related information which raised “new information”; and
(b)Second, it was legally unreasonable for the Authority to rely upon “this information” (the invalid certificate and the non-disclosed report covered by it).
On the High Court of Australia’s reasoning in Minister for Immigration and Border Protection vCED16 [2020] HCA 24 (CED16), the non-disclosed report that was purportedly covered by the certificate is not “new information” as defined by the legislature because it was previously before the delegate: CED16 at [21]-[25]. Accordingly, the first component of the fourth ground has no merit.
However, there remains to assess whether the Authority’s Reasons were infected by legal unreasonableness in its reliance on the invalid certificate and the non-disclosed report covered by it. The First Respondent asked the Court to find that this ground contended that it was legally unreasonable for the Authority to rely on “this (new) information” in the sense of the statutory meaning of “new information”. When regard is had to the entirety of the Applicant’s case as plead and argued, I consider the better view is that this ground was not so limited but rather contended that it was legally unreasonable for the Authority to rely on the purported 473GB certificate and the non-disclosed report covered by it. To find otherwise would be to read in to the pleading an additional word with special statutory significance that would unduly narrow the claim and is not consistent with how the claim was argued before the Court.
As a starting point, it may be accepted that the Authority would have received the purported 473GB non-disclosure certificate issued by an officer of the Minister as valid as it were in Minister for Immigration and Border Protection vSZMTA [2019] HCA 3 (SZMTA), which was a Part 7 visa case about a s.438 certificate, but relevant to the extent of this proposition. The absence of reasons to indicate that the Authority considered whether to exercise the discretionary powers available to it under s.473GD (if the certificate was valid) or otherwise that it considered the certificate invalid might ordinarily lend to a finding that the Authority did not pay regard to the purported 473GB certificate. However, on the facts of the present case, the purported 473GD non-disclosure direction gives a contrary indication. Whilst not necessarily or relevantly invalid as to impugn the Authority’s Reasons (it was made after the Reasons were dated), the purported 473GD non-disclosure direction reflects that the Authority considered paragraphs [10], [12] and [57] of the Reasons relating to evidence of ‘money transfers’ obtained by the Department to be non-disclosable in the same way as the purported 473GB certificate provided.
The Reasons plainly disclose that the Authority had regard to the substance of the non-disclosed report and the Applicant’s evidence given at the delegate’s interview about those matters and made key findings (at paragraphs [10], [12] and [57]) on the basis of that material (detailed at paragraph 75) above.
It is apparent and, in my view, able to be inferred by its conduct, that the Authority mistakenly treated the purported 473GB non-disclosure certificate as valid and the non-disclosure discretionary powers as applicable. And, it can reasonably be said, that the Authority did exercise its discretion under s.437GB(3)(a) and did have regard to the non-disclosed report when conducting its review.
The proper exercise of statutory functions by an administrative decision-maker are subject of an implied standard of reasonableness: Minister for Immigration v Eshetu [1999] HCA 21 at [126]. It is well-settled that legal unreasonableness, as a ground of judicial review, is a high hurdle for an applicant to overcome.
Legal unreasonableness “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: PQSM v Minister for Home Affairs (2020) 382 ALR 195, cited in Douglas McDonald- Norman ‘The Curate’s Egg: when illogical premises infect ultimate conclusions’ [2022] 45(1) UNSW Law Journal 113. Jurisdictional error would only be shown if the breach were material in the sense that it operated to deny the applicant an opportunity to present evidence and argument and as such deprived him of the possibility of a favourable decision: SZMTA at [45] as applied in a Part 7AA context in DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148 at [43].
It is true that the Authority, whether or not it believed it had a valid s.473GB certificate before it, was not required to disclose the material to the Applicant: s.473GB(3)(b). Equally, the non-disclosure provisions of the Act and the discretions that the statute affords in circumstances of non-disclosable documents did not apply. Put another way, the non-disclosed report was concealed from the Applicant’s Departmental file under cover of s.473GB and on the inference I have drawn the Authority then purported to exercise the discretions that would otherwise have been available to it were there a valid s.473GB certificate. In these circumstances, the Authority would not have turned its mind to whether to exercise its regular powers to obtain “new information” pursuant to ss.473DC and 473DD.
In my opinion, in the particular circumstances of this case, the result was material in the sense that there is a realistic possibility that the decision-maker could have made a different decision were it not for the error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and SZMTA. That is particularly so given the detailed nature and volume of the contents of the non-disclosed report and the non-specific and in many respects vague questions asked at the Department’s interview (wherein the Applicant was plainly not taken to the non-disclosed document and asked to comment on it). It was with regard to this information before it that the Authority found the Applicant had financial means and support of friends and family in Afghanistan and, further, made an adverse credibility finding which infected its impression of the Applicant’s evidence about his other claims which were also rejected. That is, even though other reasons were given for why the Applicant was found to be able to relocate elsewhere within Afghanistan, these findings were “intermingled” with other matters as to result in jurisdictional error: cf SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [64].
It was legally unreasonable for the Authority to proceed as it did. By proceeding in this way, the Authority acted so unreasonably as to result in an injustice and I find this was legally unreasonable in the sense described by the authorities: Plaintiff M174/2016;ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [125] (Edelman J).
Ground 4 therefore succeeds. In light of this conclusion, it is unnecessary to determine the remaining grounds and I decline to do so.
CONCLUSION
For the above reasons, the application for judicial review is allowed. I will order accordingly and that the First Respondent pay the Applicant’s costs in the scale amount of $8,371.30.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 16 June 2023
Annexure A
(1)Officer: So how is your family in Pakistan able to support themselves...how are they able to support themselves?
(2)Applicant: I send them money
(3)Officer: You send them money, okay. How often do you send them money?
(4)Applicant: Around three or four months ago I sent them 200,000 rupees, which turns out to be around 2,000, 2,500, 2,600 dollars.
(5)Officer: Who did you send it to?
(6)Applicant: Next to us there is someone who lives near us - I sent it to them.
(7)Officer: You sent it to your wife’s neighbour, your mum's neighbour?
(8)Applicant: Yes.
(9)Officer: What's his or her name.
(10)Applicant: Tahir.
(11)Officer: Why don’t you send it to your family?
(12)Applicant: They need some kind of ID...for the money...so I can’t send it to them.
(13)Officer: Oh, because they don’t have ID?
(14)Applicant: Yeah because they don’t have any form of ID so I can’t really send it to them to pick it up.
(15)Officer: I see, I see, Tahir, that’s his only name?
(16)Applicant: Yeah, that what he’s called, Tahir that’s what the name I was given to use Tahir.
(17)Officer: Does he go by any other name?
(18)Applicant: No, I don’t think so.
(19)Officer: Okay, so three or four months ago you sent about 2,600 dollars to Tahir?
(20)Applicant: Yeah, so like every two months, three months I send.
(21)Officer: Every two or three months you send, ok, and is that to an address in Qatar
(22)Applicant: Yes.
(23)Officer: Okay, do you send money...do you support anyone else?
(24)Applicant: No, no.
(25)Officer: Have you sent money to anyone else?
(26)Applicant: Sometimes if someone asks for help, I might send some money, I have a friend in Herat I send him money once.
(27)Officer: Herat - isn’t that a province of Afghanistan?
(28)Applicant: He’s in Herat yeah, it’s in Afghanistan somewhere.
(29)Officer: Yeah, it’s a province of Afghanistan, so you have a friend in Herat?
(30)Applicant: Okay, so, I don’t have a friend that is in Herat, sometimes when he’s around there somewhere he says can you send me money here so I can return back to Pakistan or wherever it was...yeah because sometimes because you get deported and stuff so I send him money.
(31)Officer: Who is this person?
(32)Applicant: He’s just a friend that I met in Qatar, we were friends in Qatar, so we hang out.
(33)Officer: Okay, so every two or three months he sends money to Tahir in Pakistan to give to your family and you have sent money to your friend who isn’t based in Herat but who is in Herat at the time?
(34)Applicant: Yes.
(35)Officer: Have you sent money to anyone else?
(36)Applicant: No.
(37)Officer: Even recently, are you sure?
(38)Applicant: No.
(39)Officer: How about this year, have you sent any money?
(40)Applicant: I haven’t sent it, maybe someone sent it in my name or something, but I haven't.
(41)Officer: What do you mean by that?
(42)Applicant: I am just saying that for example maybe, but I haven’t sent anything.
(43)Officer: Okay, because there is information before the Department that you have made money transfers to other people.
(44)Applicant: I don’t remember but...
(45)Officer: I am now giving you the opportunity to come forward with any information.
(46)Applicant: I don’t remember.
(47)Officer: You don’t remember?
(48)Applicant: No.
(49)Officer: Okay, because there is information before the Department that you have made in ...in March...middle of March this year you sent close to 4,000 dollars to an account in Afghanistan, not in Herat.
(50)Applicant: I haven’t sent any other money.
(51)Officer: Okay, because the details that are attached to that payment, match your details including your mobile phone number, previous mobile phone number.
(52)Applicant: No, I don’t think it’s mine.
(53)Officer: There is information before the Department that on several occasions you have made transfers to this account in Kabul, Afghanistan...the beneficiary whose name is Mehdi M-E-H-D-I.
(54)Applicant: That is the person I was referring to, the one I sent money to once or twice, Mehdi.
(55)Officer: Okay, so this wasn’t an account in Kabul, sorry Iran, this was an account in Kabul?
(56)Applicant: Maybe.
(57)Officer: Yeah.
(58)Applicant: No, I haven’t sent any money to Kabul in the name of Mehdi.
(59)Officer: So who is Mehdi?
(60)Applicant: Mehdi is my friend, the one I was talking about before.
(61)Officer: Yeah the friend that was around Herat and that you would send money to?
(62)Applicant: Yeah yeah that one.
(63)Officer: And he would pick up the money in Herat, is that correct?
(64)Applicant: Yes.
(65)Officer: Right, so you have sent money to Medhi is that correct?
(66)Applicant: Yes.
(67)Officer: Okay, so, but based on this information the account, the address was in Kabul?
(68)Applicant: You are talking about Medhi right.
(69)Officer: Yeah.
(70)Applicant: No, I have never sent money to Kabul.
(71)Officer: Okay, there’s also information before the department that you have sent money to... sorry, before I put that to you - do you know any by the name of Kadim Hussain Shareefra?
(72)Applicant: Okay, so yeah, he is, uh, my old tenant’s son.
(73)Officer: Your old tenant’s son?
(74)Applicant: Yep, so, when I was younger? his father helped me out a lot because I was young and no one trusted me enough to give me accommodation to stay in because they thought I wouldn't be able to pay the rent but they did so I send him money.
(75)Officer: Where is this, is this in Afghanistan or somewhere else?
(76)Applicant: Yep, so it’s the address I gave you, the first address I was at.
(77)Officer: A place in Pakistan?
(78)Applicant: Yeah, the place in Pakistan, so that tenant was from Pakistan. Oh, sorry the landlord, he owned the land.
(79)Officer: So, it’s the landlord’s son, not the tenant’s son.
(80)Applicant: No, no, no, the landlord’s son, sorry.
(81)Officer: Okay so Kadim Hassain Shareefra, is he Afghani?
(82)Applicant: Yes.
(83)Officer: Is he is Hazara?
(84)Applicant: Yes.
(85)Officer: Okay, so he is your old landlord’s son, okay, so you sent money to him, is that correct?
(86)Applicant: Yes.
(87)Officer: Okay, so I don’t understand, why did you send money to him?
(88)Applicant: So, he found my contact details somehow, he called me through Facebook and asked me to help him because he need to return back to Iran, and that time I didn’t have money, but he asked me to please do something for him.
(89)Officer: Sorry, so he needed to return back where?
(90)Applicant: Iran.
(91)Officer: Oh, okay, okay.
(92)Applicant: So when he got deported he asked me for help because he wanted to go back.
(93)Officer: To Iran?
(94)Applicant: Yes.
(95)Officer: Where is he now?
(96)Applicant: Yeah, he’s in Iran.
(97)Officer: He’s in Iran ... yeah and have you sent money to anyone else?
(98)Applicant: I can’t really remember, I just remembered this one because you mentioned it.
(99)Officer: That’s okay.
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