Bek18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 9
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 9
File number: SYG 647 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 12 January 2024 Catchwords: MIGRATION – application for judicial review of decision made by Immigration Assessment Authority – whether Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – whether Authority made a finding that was illogical or irrational – whether Authority made a finding without evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AAA, 46A, 473CA, 473DC, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89
CKL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 918
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517 [2020] FCAFC 72
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 24 July 2023 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms N Gollan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 647 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
12 JANUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Afghanistan who applied for a protection visa in Australia. A delegate of the Minister made a decision not to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 20 February 2018. The applicant now seeks judicial review of the Authority decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application that raises three grounds. Each of those grounds relates to a finding by the Authority that it would be reasonable for the applicant to relocate to Mazar-e-Sharif where he would not face a real risk of significant harm. In reaching this finding, the Authority noted that the applicant had not indicated that his family, who currently reside in Pakistan, would travel to Mazar-e-Sharif if the applicant were to relocate there. The Authority found that the applicant would not need to find accommodation or meet other needs for his family in Mazar-e-Sharif. The applicant asserts that the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant about whether his family would relocate to Mazar-e-Sharif, that the Authority made a finding that was illogical or irrational and that the Authority made a finding in the absence of evidence.
For the reasons explained below, I have found that none of the applicant’s grounds establish jurisdictional error in the Authority decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant applied for a protection visa on 27 July 2016 after the Minister’s Department wrote to the applicant advising him that the Minister had exercised the discretion in s 46A(2) of the Migration Act to allow him to apply for a protection visa and inviting him to do so.
On 20 July 2017 the applicant attended an interview with an officer of the Department to discuss his claims for protection. Following that interview, his representative provided a submission to the Department in relation to the applicant’s claims for protection.
A delegate of the Minister made a decision not to grant the applicant a protection visa on 19 September 2017. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
The applicant appointed a different representative when his application was before the Authority and the new representative provided a submission dated 6 February 2018 to the Authority.
The Authority affirmed the delegate’s decision on 20 February 2018. Due to the nature of the grounds raised in this application, it is unnecessary to summarise in detail the applicant’s claims for protection or the Authority’s findings. It is sufficient for present purposes to note that the Authority accepted the applicant would face a real chance of serious harm and a real risk of significant harm in his home area within Afghanistan, but found that the risk did not extend to all parts of Afghanistan. For the purposes of considering whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority found that it would be reasonable for the applicant to relocate to Mazar-e-Sharif where he would not face a real risk of significant harm. The reasoning of the Authority relevant to the grounds of review is set out in greater detail below.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 13 March 2018, which is within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
When the matter came before me for hearing, I granted leave to the applicant to rely on an amended application filed on 13 May 2022. In that amended application, the applicant abandoned the ground in his original application and raised the following three grounds, numbered grounds 2, 3 and 4:
2.The Second Respondent (Authority) made a jurisdictional error by unreasonably failing to exercise its power under s 473DC of the Migration Act 1958 (Cth) to get information from the Applicant about whether his wife and 4 children would relocate to Mazar-e-Sharif to live with him.
Particulars
a.The Applicant has a wife and 4 children currently residing in Quetta, Pakistan.
b.The Authority determined that the Applicant was not eligible for the grant of a protection visa as he could relocate within Afghanistan to Mazar-e-Sharif (CB 192 [36], 195 [50]).
c.The Authority stated ‘[t]here is no information before me indicating that the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation or that they would travel to Mazar-e-Sharif’ (CB 195 [48]).
d.The Authority then determined that it was reasonable for the Applicant to relocate to Mazar-e-Sharif as, inter alia, he would ‘not need to find accommodation or meet other needs for his family in Mazar-e-Sharif’ (CB 195 [48]) (finding).
e.The Authority’s finding was critical to the outcome of the review and it was unreasonable for it to complete its review without getting or attempting to get information from the Applicant about whether his family would relocate with him.
3.The Authority made a jurisdictional error by illogically reasoning at [48] that because there was ‘no information before me indicating that the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation or that they were travel to Mazar-e-Sharif’ that ‘[t]he applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif’.
4.The Authority made a jurisdictional error by making findings at [48]-[49], namely that the Applicant’s family would not relocate to Mazar-e-Sharif from Quetta should the Applicant relocate to Mazar-e-Sharif, in circumstances where those findings had no basis in the evidence before it.
The only evidence before the Court in this matter is the court book filed by the Minister on 29 May 2018.
THE APPLICANT’S CLAIMS IN RELATION TO RELOCATION AND RELEVANT REASONING OF THE DELEGATE AND THE AUTHORITY
The applicant’s claim that it would be unreasonable for him to relocate within Afghanistan, and the Authority’s findings in relation to that claim, at least insofar as it related to the applicant’s family, are relevant to all of the grounds of review.
Applicant’s submission in relation to the reasonableness of relocation
The applicant acknowledges that he never expressly claimed to the delegate or the Authority that his family would need to relocate to be with him if he were returned to Mazar-e-Sharif.
In the post-interview submission prepared by the applicant’s first representative and provided to the delegate, the representative acknowledged that the applicant’s wife and children are presently in Pakistan. Under the heading ‘Relocation’, the representative submitted that the applicant would be at risk of serious harm in all parts of Afghanistan and that it would be unreasonable for the applicant to relocate noting that nowhere in Afghanistan is durably safe. The submission then addressed country information regarding the security situation in Afghanistan and the vulnerability, including economic vulnerability, of internally displaced persons, and continued:
Our client is responsible for his wife and children. He has been unable to find employment in Australia. He is illiterate. In this context there is a real risk that, not only would our client be placed in a vulnerable situation but also his family, were he to be returned to Afghanistan.
The reasoning of the delegate
The delegate accepted that the applicant may face a real chance of serious harm or a real risk of significant harm in his home area but was not satisfied that he would face that same level of risk in Kabul. In addressing whether it would be reasonable for the applicant to relocate to Kabul, the delegate said (footnotes omitted):
The applicant’s wife and children and reside in Quetta, Pakistan, and while [United Nations High Commissioner for Refugees] states that an individual must have access to a traditional support network, the exception to this requirement is single able bodied men and married couples of working age without identified specific vulnerabilities. I acknowledge the applicant’s submission that he is illiterate and has been unable to find employment in Australia. I consider however that as the applicant is otherwise able-bodied and of working age and has many years’ experience running a successful mechanic business in his home country and given his familiarity with the language and culture I expect that whilst he will likely experienced some difficulty, given his vocational skills the applicant would be able to find employment in Kabul. Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city also there will be a sizeable Sunni community to provide support to the applicant.
Furthermore, while I acknowledge it would be somewhat difficult for the applicant to return to Kabul, given he has resided in Australia since 2012 and he will be returning to a city where he does not have a traditional or family support network; I find the applicant will be returning to his home country where he speaks the local language and is familiar with its culture and that once there his family may reunite with him should they so choose.
The applicant’s submission to, and the relevant findings and reasoning of, the Authority
The applicant’s new representative provided to the Authority a submission dated 6 February 2018, which commented on the delegate’s decision. That submission made no reference to the applicant’s wife and children and did not in any way suggest that it would be unreasonable for the applicant to relocate taking into account his family circumstances.
The Authority’s reasoning in relation to the reasonableness of the applicant relocating within Afghanistan appears at [44]-[50] of its reasons. The Authority’s consideration of the applicant’s family circumstances in the context of the reasonableness of relocation appears at [48]-[49] of its reasons, where the Authority said:
48.The applicant’s immediate family, parents and sister are residing in Pakistan, and the applicant does not have any family members in Mazar-e-Sharif and would be arriving there as a single man of working age. The applicant indicated that he has to support his family who I note reside in Pakistan and the applicant has not otherwise indicated his family would return to Afghanistan. He indicated at the SHEV interview that his family are supported by his sister in law in Pakistan and his father also borrows money when needed to survive. There is no information before me indicating that the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation or that they would travel to Mazar-e-Sharif. The applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif. I am satisfied that the applicant has the skills, life experience and resilience to relocate and establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to him despite a lack of family and other connections.
49.The applicant has lived apart from his family since his departure from Pakistan in 2012 for Australia. I accept that the applicant’s relocation to Mazar-e-Sharif would require him to continue to be separated from his family in the reasonably foreseeable future. However the applicant has demonstrated a capacity and willingness to live apart from his family for an extended period whilst in Australia. Although I accept that the continued separation from his family may be difficult, he has demonstrated resilience and life experience, and would be returning to his home country where he speaks the official language, and is familiar with the culture.
GROUND 2: DID THE AUTHORITY UNREASONABLY FAIL TO EXERCISE ITS DISCRETION TO GET NEW INFORMATION?
By this ground, the applicant asserts that the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant about whether his wife and children would relocate to Mazar-e-Sharif to live with him.
The Authority has a discretion conferred by s 473DC of the Migration Act to get new information that it considers may be relevant to the review. Section 473DC provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Both parties accept that the Authority is required to act reasonably in the exercise of its discretionary powers: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3] . Although s 473DC(2) of the Migration Act states that the Authority does not have a duty to get new information, both parties accepted that compliance with the condition of reasonableness can compel the Authority to exercise its powers to get and consider new information: ABT17 at [4].
The applicant submitted that the Authority’s conclusion that it was reasonable for the applicant to relocate to Mazar-e-Sharif was dependant, in part, on the applicant relocating there alone. The applicant submitted that the Authority knew he contended that relocation within Afghanistan was not reasonable as he was responsible for his wife and children, and that returnees and displaced persons are often impoverished. The applicant submitted that it was unreasonable for the Authority not to invite him to provide further information about whether his family would relocate with him to Mazar-e-Sharif in the following circumstances:
(a)it is unnatural and perhaps contrary to common sense to infer that the applicant would continue to live separately from his family into the future;
(b)the applicant was not necessarily on notice that the issue of whether or not his family would relocate with him was something he would need to address, noting that the delegate concluded that it was reasonable for the applicant to relocate to Kabul in the context where the delegate accepted that the applicant’s family may join him there; and
(c)the Authority must have known that the applicant could have addressed and provided information about whether his family would relocate with him to Mazar-e-Sharif and there was a gap in the information provided by the applicant about this issue.
The Minister submitted that the Authority’s conclusion that it was reasonable for the applicant to relocate to Mazar-e-Sharif on his own proceeded from the Authority’s understanding that the applicant did not intend to reunite with his family if he returned to Afghanistan, because ‘the applicant has not otherwise indicated that his family would return to Afghanistan’. The Minister submitted that the Authority’s reasoning at [48] was therefore not legally unreasonable, but instead had a clear and rational foundation in circumstances where the applicant had not made any claim that if he was returned to Afghanistan, his family would also relocate to Afghanistan. The Minister submitted that the applicant’s submission to the delegate referring to his wife and children (see [14] above) was that he was ‘responsible for his wife and children’, not that they would relocate to Afghanistan if he was returned there, and when considered in context, it is clear that the point that the applicant was making in that paragraph is that his family would be vulnerable because he may not be able to provide for them and he was responsible. In these circumstances, the Minister submitted that it was not legally unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act to get information from the applicant about whether his family would relocate with him.
I do not consider that the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant about whether his family would relocate to Afghanistan with him in the circumstances of this particular case.
In the present case, there is no suggestion that the applicant was not aware that the reasonableness of relocation within Afghanistan to a place where the applicant would not face a real risk of significant harm may be an issue before the Authority. The applicant addressed the possibility of relocation in his statement that accompanied his visa application, his submissions to the delegate and the Authority and at his protection visa interview.[1] It was the responsibility of the applicant to specify all particulars of his claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act. The objections that an applicant makes to relocation can provide a framework for the consideration of the reasonableness of relocation, although the task of the Authority remains to form a state of satisfaction on the basis of all the material before it: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [58].
[1] A transcript of the applicant’s protection visa interview is not in evidence before the Court, but I infer from the Authority’s references to the applicant’s claims regarding relocation at the protection visa interview that relocation was discussed: see, for example, [44] and [45] of the Authority’s reasons.
The applicant provided information about his family’s circumstances in Pakistan and, based on that information, the Authority found that the applicant’s family are supported by his sister-in-law and that his father borrows money when required: see [48] of the Authority’s reasons. The applicant did not, in his written claims or in his written submissions to the delegate or the Authority, claim that his family would return to Afghanistan if he were returned there and there is no suggestion that he claimed this in his protection visa interview. Based on the material before the Authority, it was open to the Authority to interpret the applicant’s assertion that he was responsible for his family in the manner that it did at [48] of its reasons.
I do not accept the applicant’s submission to this Court that it is unnatural or contrary to common sense to infer that the applicant would continue to live separately to his family in the future. It may be the case that many families would not wish to live apart. However, the Authority was required to consider the particular circumstances of the applicant. To the extent that the applicant’s submission that he was responsible for his family may have been seen by the Authority to be ambiguous, it was open to the Authority to resolve any ambiguity in the applicant’s submissions taking into account the particular information before it, including that his family were residing and supported in Pakistan and that the applicant had not claimed that his family would relocate with him to Afghanistan. It did not need to resolve any ambiguity in favour of what many families may wish and it was not unreasonable to resolve any ambiguity based on the materials before it, without seeking additional information from the applicant.
In relation to the applicant’s submission that he was not necessarily on notice that whether his family would relocate with him was something that he would need to address before the Authority, I do not accept that this is a matter that made it unreasonable for the Authority not to have sought further information from the applicant.
The delegate’s decision, in so far as it was based on the reasonableness of relocation, was not based on a finding that the applicant’s family would relocate with him. Rather, the delegate simply made an observation that once the applicant is returned to Afghanistan his family may reunite with him if they chose to do so.
As indicated above, the applicant was on notice that relocation may be an issue and he had several opportunities to explain why it would be unreasonable for him to relocate within Afghanistan. On the four occasions where he addressed relocation, he does not appear to have made any claim that his family would relocate with him or that this would make it unreasonable for him to relocate. While I acknowledge that the applicant did not make any express representation one way or the other as to whether his family would join him in Afghanistan if he was required to relocate within Afghanistan, I do not accept that this created a gap in the information before the Authority that required the Authority, in furtherance of its obligation to act reasonably in the exercise of its discretionary powers, to take steps to get new information from the applicant. It was open to the Authority to infer that the applicant would have raised his family’s potential relocation with him as a reason why it was not reasonable to relocate if it was something that he was relying on.
Taking into account all of the circumstances of this case, I do not consider that the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant about whether or not his family would relocate with him if he relocated within Afghanistan. Ground 2 therefore does not establish jurisdictional error.
GROUND 3: WAS THE AUTHORITY DECISION ILLOGICAL OR IRRATIONAL?
The applicant submitted that the fact that there was no information before the Authority about whether the applicant’s family would join him in Mazar-e-Sharif could not logically lead to a finding that he would not need to find accommodation or meet other needs for his family in Mazar-e-Sharif. The applicant submitted that this was particularly so where he had claimed that he was responsible for his family in the context of the reasonableness of him relocating and the natural common-sense position that the applicant would reside with his family. The applicant accepted that it would have been open to the Authority to find that it was not satisfied that the applicant would need to find accommodation or meet other needs of his family, but submitted that it was not open to the Authority to make a positive finding that he would not have to meet those needs.
The Minister submitted that it was not illogical for the Authority to conclude that, given the applicant had not indicated that his family would return to Afghanistan if he relocated to Afghanistan, the applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif. The Minister further submitted that the Authority’s reference to there being no information before it indicating that the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation was consistent with the fact that the applicant had not indicated that if he was relocated to Afghanistan, his family would also relocate to Afghanistan, and was consistent with the multiple submissions that the applicant made during the review process which did not include any claim that his family would relocate to Afghanistan if he were returned to Afghanistan. The Minister referred to the applicant’s circumstances at the time of the Authority decision being that he was unemployed and his family were being supported in Pakistan by the applicant’s sister-in-law and father.
Relevant authorities
Justices Crennan and Bell explained when a decision will be illogical or irrational in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS), where their Honours said at [131] and [135]:
131.…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
The applicant also referred to the summary of illogicality and irrationality in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, where the Full Court of the Federal Court (Perram, Murphy and Lee JJ) said at [45]:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
Was the Authority’s finding illogical or irrational in the present case?
The applicant’s ground, in the way that it has been explained in submissions, draws a distinction between a lack of satisfaction and a positive finding. In other words, in the applicant’s submission, in circumstances where there was no indication that the applicant’s family would travel to Mazar-e-Sharif, it would not have been illogical or irrational for the Authority to say, ‘I am therefore not satisfied that the applicant would need to find accommodation or meet other needs of his family in Mazar-e-Sharif’, but it was illogical or irrational for the Authority to find that the ‘applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif’. This distinction is not without significance.
However, when the Authority’s reasons are read in context, I am satisfied that the Authority’s decision is not illogical or irrational. The Authority’s observation that there was ‘no information’ before it to indicate that ‘the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation or that they would travel to Mazar-e-Sharif’ was made immediately following the Authority’s summary of the applicant’s family’s current circumstances, namely, that they are living in Pakistan where they are supported by his sister-in-law and with his father also borrowing money when needed to survive. Essentially, the Authority identified the current situation of the applicant’s family, noted that there was nothing to suggest that the current situation of his family would change and implicitly drew an inference that the applicant’s family’s situation as identified would remain unchanged, even if the applicant were to relocate to Mazar-e-Sharif. It cannot be said that there is no logical connection between the evidence before the Authority that showed that the applicant’s family were residing in another country, supported by persons other than the applicant, and the inference that that situation would continue where there was nothing before the Authority to suggest that it would change.
The Authority’s finding that the applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif logically follows from the implicit inference that the applicant’s family’s relevant circumstances would not change if the applicant relocated to Mazar-e-Sharif. Given that I have found the implicit inference that the applicant’s family’s circumstances as identified would not change with the applicant’s relocation to Mazar-e-Sharif was an inference that was open to the Authority on the evidence before it, it follows that I also accept the Authority’s finding that the applicant would not therefore need to find accommodation or meet other needs for his family in Mazar-e-Sharif was open to it.
Ground 3 is not established.
GROUND 4: DID THE AUTHORITY MAKE A FINDING FOR WHICH THERE WAS NO EVIDENCE?
Relevant finding(s) of the Authority
Ground 4 as pleaded asserts jurisdictional error on the basis that the Authority found that the applicant’s family would not relocate to Mazar-e-Sharif from Quetta should the applicant relocate to Mazar-e-Sharif where that finding had no basis in the evidence before it.
In his written and oral submissions, the applicant treated this ground as an alternative to ground 3 and treated the relevant finding allegedly made with no evidence as the finding that the applicant would ‘not need to find accommodation or meet other needs for his family in Mazar-e-Sharif’.
In his written submissions, the Minister submitted that in circumstances where the Authority noted that ‘the applicant has not otherwise indicated his family would return to Afghanistan’, there was a basis in the evidence for the Authority to infer that ‘the applicant’s relocation to Mazar-e-Sharif would [not] change his family’s current circumstances or that they would travel to Mazar-e-Sharif’.
In oral submissions, Counsel for the Minister submitted:
… the applicant had never raised the possibility that his wife and children would relocate to Afghanistan if he were to relocate there. So in these circumstances, in my submission, it was permissible for the Authority to infer that the applicant’s wife and children would not necessarily relocate to Afghanistan if the applicant did so.
As can be seen from this, there are differences in how the relevant finding of the Authority has been articulated and addressed by the parties. The different ways in which the parties have articulated the relevant finding of the Authority has not affected the conclusion that I have reached.
I note both parties, in the way that they have respectively identified the finding, have treated the finding as a positive finding, namely that the applicant’s family would not relocate, or that the applicant would not need to provide accommodation or meet the other needs of his family in Mazar-e-Sharif, rather than a negative finding, for example, that the Authority was not satisfied that the applicant’s family would relocate or that he would need to provide for their accommodation or other needs in Mazar-e-Sharif. The distinction is significant because the no evidence ground of judicial review is not available in relation to negative findings: Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21 at [43]-[45].
The relevant finding referred to in the applicant’s submissions, namely, that the applicant would not need to provide accommodation or meet the other needs of his family in Mazar-e-Sharif, is expressed in the Authority’s reasons as a positive finding. However, the finding referred to in the applicant’s ground as it is articulated in the application is based on the applicant’s characterisation of the Authority’s finding. The Authority did not make any express finding in the form in which that finding is expressed in the applicant’s ground, and rather used the following words at [48] and [49] of its reasons:
(a)‘There is no information before me indicating that the applicant’s relocation to Mazar-e-Sharif would change his family’s current situation or that they would travel to Mazar-e-Sharif. The applicant would therefore not need to find accommodation or meet other needs for his family in Mazar-e-Sharif’: at [48]; and
(b)‘I accept that the applicant’s relocation to Mazar-e-Sharif would require him to continue to be separated from his family in the reasonably foreseeable future: at [49].
For the purposes of considering this ground, I proceed on the basis that the finding as articulated in the applicant’s ground is an implied positive finding, based on [48] and [49] of the Authority’s reasons. In circumstances where the Minister’s rearticulation of the implied finding is also expressed as a positive finding, and in the absence of submissions to the contrary, I proceed on the basis that the Minister accepts that the implied finding of the Authority is appropriately characterised as a positive finding.
Relevant authorities
To succeed on a ‘no evidence’ ground of judicial review, an applicant will usually be required to show that there was ‘not a skerrick of evidence’ to support the relevant finding: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [28].
The only case cited by the applicant in support of this ground is DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517 [2020] FCAFC 72 (DNQ18). In that case, the Full Court of the Federal Court held that the Authority’s finding that ‘Country information does not indicate that children are prosecuted’ reached well beyond the material before it and amounted to a finding for which there was no evidence: DNQ18 at [53]. The applicant has not elaborated on the relevance of this case to the present matter and I infer that it is simply cited as authority for the proposition that making a finding for which there is no evidence can amount to jurisdictional error.
The Minister relied on the observations of Bromberg J in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89 at [118], where his Honour said (emphasis in Minister’s submissions):
An insufficiency of evidence or other material does not sustain a “no evidence” finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]- [37] (Spender, Tamberlin and Kenny JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J). The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: [Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12] at [41] (Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]); Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; (2012) 205 FCR 227 at [31] (Tracey J).
Was there evidence to support the Authority’s finding in the present case?
In advancing their submissions on this ground, both parties have referred to the observation made by the Authority that the applicant did not indicate that his family would travel to Mazar-e-Sharif. The applicant’s case is essentially that this is not an evidentiary basis to find that the applicant’s family would not join him in Mazar-e-Sharif and that the applicant would not need to provide accommodation or other needs for them in Mazar-e-Sharif and the Minister’s case is essentially that the applicant’s failure to raise the possibility of his family relocating with him to Mazar-e-Sharif is an evidentiary basis for finding that they would not do so.
Neither party has referred to any authorities that address the circumstances in which an applicant’s failure to assert that a particular circumstance exists may provide an evidentiary basis for inferring that that particular circumstance does not exist, or explained in any meaningful detail why I should find that the absence of evidence that the applicant’s family’s circumstances would change or that the applicant’s family would travel with him to Mazar-e-Sharif does or does not support the finding or inference made by the Authority in the present matter.
In L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15, Basten JA (with whom McColl JA and Whealy JA agreed) observed at [34] that a ‘decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view’. In a migration context, in CKL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 918, Jackson J accepted that the appellant’s evidence that he did not know whether the Sri Lankan authorities visited or questioned his family since his departure from Sri Lanka supported an inference that the authorities had not made inquiries of his family. His Honour said at [35]:
… The appellant did not know whether the authorities had made inquiries about him of his family after he left Sri Lanka. That was in circumstances where he had regular contact with his family. If the authorities had come around asking about him, one would expect that his family would have told him about that. So the inference is open that they had not made inquiries of his family. That provides support for the broader inference that no inquiries had been made…
In the present case, the evidence before the Authority in relation to the present circumstances of the applicant’s family, in conjunction with the absence of any evidence that those circumstances would change, provides an evidentiary basis for the Authority’s findings that the applicant’s family would not reunite with him in Mazar-e-Sharif and that the applicant would not need to provide accommodation or other needs of his family in Mazar-e-Sharif. The Authority had before it evidence that:
(a)during the time the applicant had been in Australia, his wife and children resided, and continued to reside at the time of the Authority’s decision, in Pakistan;
(b)the applicant’s wife and children were supported by the applicant’s sister-in-law in Pakistan, with his father also borrowing money when needed to survive;
(c)the applicant had not been working in Australia.
This evidence allowed for an inference to be drawn that the applicant’s family did not depend on him, at the time of the Authority’s decision, to meet their day-to-day needs. If the applicant’s relocation to Mazar-e-Sharif would change his family’s circumstances, or would cause them to relocate with him, and this was something that, in the applicant’s view, would make it unreasonable for him to relocate, one would expect that he would have provided this information to the delegate or the Authority. In circumstances where the Authority had before it evidence in relation to the applicant’s family’s existing circumstances, which suggested that the applicant’s family were supported by people other than the applicant, it was open to the Authority to also rely on the absence of any information to suggest that the applicant’s possible relocation to Mazar-e-Sharif would change his family’s circumstances or cause them to relocate with him to find that they would not relocate. It cannot be said that there was not a skerrick of evidence to support this finding.
If, as I have found, there was an evidentiary basis for the Authority to find that the applicant’s family would not relocate with him to Mazar-e-Sharif, it follows as a matter of logic that there was an evidentiary basis for the Authority to find that the applicant would not need to meet his family’s accommodation or other needs in Mazar-e-Sharif.
Ground 4 is not established.
CONCLUSION
I have not accepted that any of the grounds advanced by the applicant establish jurisdictional error in the Authority decision. It follows that the judicial review application is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 January 2024
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