BNK18 v Minister for Home Affairs
[2019] FCCA 1037
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1037 |
| Catchwords: MIGRATION – Protection Visa Application – review of decision of Immigration Assessment Authority – whether failure to consider claim – whether denial of procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5J, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| Applicant: | BNK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 159 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 January 2019 |
| Date of Last Submission: | 23 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant’s application for judicial review is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 159 of 2018
| BNK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore; Revised from transcript)
Background
The applicant in these proceedings is a young male from Afghanistan. He is a Shia Muslim of Hazara ethnicity.
On 19 December 2012, the applicant arrived in Australia via Christmas Island as an unauthorised maritime arrival.
On 6 October 2016, the Minister for Home Affairs (“Minister”) lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Act”).
The applicant then applied for a Temporary Protection Visa (the “visa”).
The applicant’s protection claims were as follows in his visa application:
a)he is a Shia Muslim of Hazara ethnicity, and fears harm from the Afghan government and the Taliban on account of his religion and ethnicity (Court Book “CB” 58 at [2]);
b)he was born in Turghman, Afghanistan and his family moved to Kabul when he was “very little” (CB 59 at [13]-[14]);
c)he was beaten and abused a number of times because of his Hazara ethnicity, including in 2012; and on one occasion he was hospitalised (CB 60 at [16]-[18]) (at a later interview with the delegate the applicant claimed that in 2010, a fight had erupted between he and his brother and a group connected with, and protected by, the Afghanistan government and that following the fight a member of the group, Zubair, threatened revenge (see CB 93));
d)following his departure, his family had been threatened by the same people that had beaten him, particularly because his father worked for an American (CB 60 at [19]). These people have asked where he was, and his family (particularly his mother) is very stressed (CB 60 at [19]);
e)in 2011 in Maien Shaher near Kabul, his father was threatened by a militant group (that were given information about his father by the same people who had harmed the applicant) and his father’s documents and car were confiscated (CB 60 at [20]);
f)in 2011, he was arrested and spent a night in jail. He was accused of being a thief (CB 60 at [21]);
g)if returned to Afghanistan, he might have to undertake compulsory military service (CB 61 at [22] and [25]); and
h)if returned to Afghanistan, he would be physically assaulted on the basis of his Hazara ethnicity and Shia Muslim religion by the Taliban and Pashtun people (CB 61 at [24] and [26]-[27] and [29]), and he is unable to rely upon the Afghan government for protection (CB 61 at [24]) either in Kabul or in any area of Afghanistan (CB 51 at [27]).
On 15 May 2017, a Ministerial delegate refused to grant the visa to the applicant (CB 89-105).
On 18 May 2017, the decision was referred to the Immigration Assessment Authority (the “IAA”) for review pursuant to pt.7AA of the Act.
On 10 January 2018, the applicant was invited by the IAA to comment on the chance of harm in, as well as the reasonableness of relocation to, Mazar-e-Sharif (CB 117).
The applicant provided written submissions in response to the invitation on 9 February 2018 (CB 125-134).
On 13 March 2018, the IAA affirmed the delegate’s decision (CB 138-154).
Proceedings in the Federal Circuit Court
On 26 March 2018 the applicant filed an application in this Court for judicial review of the IAA’s decision.
This proceeding is brought pursuant to s.476(1) the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
By his application, the applicant alleges jurisdictional error as follows:
1.The Assessor failed to properly consider all of my claims.
2.The Assessor didn’t give me a chance to comment on one aspect of my claims.
No particulars in relation to the above were provided.
A directions hearing before a Registrar to program the matter forward was held on 25 May 2018.
A Court Book (“CB”) was served on 18 June 2018 and was before this Court as evidence. A supplementary Court Book was served on 10 August 2018 and this was also before the Court.
Detailed written submissions were received from the Minister on 21 December 2018. No written submissions or further particulars were provided by the applicant. This is despite orders of a Registrar of this Court that permitted him to do so.
The applicant appeared the assistance of an interpreter. The Court thanks the interpreter for his assistance today.
The applicant was not legally represented. He does not appear to have ever received legal representation in relation to his protection visa application. This is regrettable given the complexity of the issues that arise in relation to a matter of this sort. In the circumstances, the Court has done what it can do to assist the applicant better understand the nature of these proceedings. This is discussed further below.
The IAA Decision
The nature of Fast Track Decisions
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: Act, s.473DC(1).
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s Reasons
The Court notes the Minister’s written summary of the IAA’s decision in his written submissions at [9]-[17]. The Court has cross-checked all references and adopts the summary provided, other than as expanded upon below.
As correctly summarised by the Minister, and not disputed, in relation to this applicant the IAA considered the materials referred by the Secretary under s.473CB.
The IAA also noted that on 10 January 2018 it had invited the applicant to comment on information that was not before the delegate relating to whether the applicant faced a real chance or risk of harm in Mazar-e-Sharif. As outlined above, in response to this invitation, on 12 February 2018, the applicant’s representative emailed the IAA attaching a submission, including country information.
The IAA explained at [3] that this information was not before the delegate and is new information. However, as it transpires, the IAA found it unnecessary to consider the question of relocation to Mazar-e-Sharif. As such, the IAA was not satisfied there are exceptional circumstances to justify considering this new information and did not consider it.
Further, the IAA also obtained new information published in three updated reports on Afghanistan from the Australian Department of Foreign Affairs and Trade and European Asylum Support Office. The reports are an update to the reports which were before, and relied upon by the delegate and were published within the last five months. These updated reports take into account relevant security developments in Afghanistan in the second half of 2016 and through 2017. These include attacks against the Shia Hazara population and the risks to returnees to the country. Having regard to the changing security situation in Afghanistan, the IAA was satisfied that there were exceptional circumstances to justify considering this new information.
The IAA then summarised (at [5]) the applicant’s claims as follows:
•The applicant is a Hazara Shia who was born in Khadri village, Sorkh Parsa District, Parwan Province in Afghanistan
•In 2008, the applicant’s family moved from Parwan Province to the capital, Kabul in Afghanistan.
•In 2010, there was physical altercation between his brother and the brother of a person named, Zubair at a restaurant. In retaliation for his brother being physically assaulted, the applicant physically assaulted Zubair’s brother. Arising from these events, the applicant and Zubair became enemies. His family started to receive daily threats and his younger brother was attacked. In one incident, the applicant was physically assaulted and as a result of his injuries he required hospitalisation.
•In 2011 in Maiden Shahr, the applicant’s father was threatened and his documents and car confiscated by Al Qaeda while undertaking his work as a driver for the “Americans”. While his father was stopped there was crossfire between Al Qaeda and the Afghan forces and his father was able to run away.
•In 2011, the applicant was arrested and detained over night by the police. He was released after a payment of a bribe.
•Since the applicant’s arrival in Australia, the same people that harassed and physically assaulted him have threatened his family and his whereabouts have been sought.
•The applicant fears that on return he will be harmed by;
-Zubair, Zubair’s friends and family the gang Zubair is a member of because of his issues and dispute with Zubair;
-his father’s past work for the Americans;
-the Taliban, Islamic State and other anti-government elements (AEGs) because of his Hazara ethnicity, Shia Muslim religion and his return from and connection to a western country and considered an informant or spy.
•The applicant also fears he will be subjected to societal discrimination on the basis of his ethnicity and religion. He claimed that he also fears he will be forced to undertake compulsory military service by the Afghan government.
This is an accurate summary of the applicant’s claims.
The IAA then relevantly outlined the evidence before it in relation to the claimed events in Kabul surrounding the applicant being physically assaulted.
The Court notes, in particular, the IAA’s credibility findings at [24]-[25] as follows:
24. Furthermore, the applicant’s evidence at the protection visa interview expanded from the claims he had provided in his protection visa statement. The protection visa statement was absent of any mention of the issues between himself and Zubair, instead he stated he was targeted because of his ethnicity and religion. Nor did he mention that a person named Zubair was the person who was targeting him, rather his evidence were “they were Pashtuns and Tajik”. The applicant also made no mention in his protection visa statement that he moved to Parwan Province for 3 to 4 months to avoid the issues with Zubair in Kabul, nor was this period of time included as part of his residential history in his protection visa application or entry interview. I note that the protection visa statement was prepared with the assistance of a community legal organisation and that it has been contended that any missing information in the protection visa statement “is a result of a lack of resources and adequate legal assistance available to me”, however I find this explanation lacks any intelligible basis given that the obligation to provide the claims is borne by the applicant and the organisation merely records the claims provided. Nor am I satisfied that the mere use of a community legal organisation to assist the applicant to prepare his protection visa statement validates the absence of any reference by the applicant to his issues with Zubair from his protection visa statement.
25. Having regard to all the evidence, including the evolution of these claims over time, I am not satisfied the applicant has been a truthful witness regarding these claims. I do not accept that the applicant nor his family members had issues with or were involved in a dispute with a person named Zubair. I do not accept that the applicant or any of his brothers were involved in a physically altercation with Zubair or his brothers at a restaurant in Kabul. Nor do I accept that arising from this event the applicant or his family were harassed, threatened, physically assaulted by Zubair or Zubair’s relatives, friends or the gang Zubair was a member of. I do not accept on one occasion the applicant was attacked by Zubair and his relatives and arising from his injuries hospitalised or that the scar the applicant now bears arose from this event. I also do not accept the applicant was involved in any altercations with some Pashtuns or Tajiks at any time. I am satisfied these claims have no credible basis and have been provided to enhance his claims for protection.
In relation to the applicant’s claims, the IAA found that the applicant’s evidence in relation to his claims of having been physically assaulted had varied over time, and did not accept his explanations for the identified inconsistencies (CB 142 at [22]-[24]). The IAA ultimately concluded that it was not satisfied that the applicant had been a truthful witness (CB 143 at [25]).
The IAA did not accept that:
a)the applicant or his family members had been involved in a dispute with a person named Zubair, that there had been a physical altercation between them or that the applicant or his family were harassed, threatened or physically assaulted as a result of any such incident (CB 143 at [25]), including after his departure (CB 145 at [40]);
b)the applicant had been arrested and imprisoned by Police at any time prior to his departure from Afghanistan, or that he had been released following the payment of a bribe (CB 143 at [29]);
c)the applicant’s father had previously worked with the Americans, had been threatened as a result, or that he had been stopped in 2011 and had his documents and car confiscated (CB 145 at [37]);
d)the applicant faced a real chance of harm from his father’s employment (CB 145 at [37]); and
e)based on country information, the applicant would be forced to undertake military service (CB 145 at [42]).
In assessing the applicant’s chance of harm as a result of his religion and ethnicity, the IAA had regard to country information and found that there was not more than a remote chance that the applicant would be harmed by insurgent groups (CB 145-146 at [44]-[47]). Whilst the IAA accepted that Hazara Shias may be subjected to nepotism, it was satisfied that the applicant’s particular circumstances were such that it would be highly unlikely that he would be affected by such discrimination and that, in any event, any such nepotism or restrictions in accessing senior government employment would not constitute serious harm (CB 147 at [50]). Accordingly, the IAA was not satisfied that the applicant faced a real chance of serious harm in Kabul on the basis of his religion and/or ethnicity (CB 147 at [51]).
The IAA accepted that the applicant would be returning from a western country (CB 147 at [53]), however, having regard to country information, it did not accept that the applicant would face a real chance of serious harm on the basis of being a Hazara Shia returnee from a western country who had applied for asylum, or due to any actual or imputed pro-western political opinion (CB 148 at [57]).
The IAA also found that there was not more than a remote chance that the applicant would be harmed as a bystander, inadvertently caught up in an attack or otherwise harmed through generalised violence (CB 148 at [58]). In any event, the IAA found that any harm as a result of generalised violence would not meet the requirements of ss.5J(1)(a) and 5J(4)(a) of the Act (CB 148 at [59]).
In assessing the applicant’s claims under the complementary protection provisions, the IAA found that any discrimination the applicant may face would not constitute significant harm (CB 149 at [64]). The IAA otherwise relied on its anterior findings to find that the applicant would not face a real chance of significant harm on the basis of his religion, ethnicity, any actual or imputed pro-western political opinion, any profile on the basis of having lived in and sought asylum in a western country, or from generalised violence (CB 149 at [65]-[66]).
On a separate and independent basis, the IAA was also satisfied that any risk of generalised violence was a risk faced by the population generally and not the applicant personally, and therefore was not taken to be a real risk (CB 149 at [66]).
Does Jurisdictional Error Arise here?
As noted above, there are two grounds of review outlined in the applicant’s application for judicial review.
The applicant’s two grounds of review are best described as “vague”. Despite being given an opportunity to provide particulars in relation to his grounds for judicial review by a Registrar of this Court on 9 May 2018, the applicant did not provide any particulars or further written submissions.
A failure to particularise provides a basis for each of the grounds to be dismissed (AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J).
The Court notes that more recently, however, the decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] in which His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Noting that the applicant is not legally represented and this case relates to protections claims, the Court asked that the applicant to explain what he believes the IAA “did wrong”.
In this context, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]; Salahuddin v Minister for Immigration & Border Protection [2013] FCAFC 141 at [22];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court could not engage in “merits review” of the IAA’s decision and what “merits review” means.
The applicant was asked to outline what, in his opinion, he felt the IAA did that was wrong. He did so to the best of his abilities, as discussed below.
Ground 1
1.The Assessor failed to properly consider all of my claims.
Submissions
The Court notes the Minister’s written submissions at [23]-[24] as follows:
23.In relation to Ground 1, the First Respondent contends that a review of the IAA’s decision reveals that it carefully considered each of the Applicant’s claims, individually and cumulatively, and gave genuine consideration to his claims (Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [57] per Stone, Foster and Nicholas JJ, citing Ticker v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462). It cannot be said that the IAA failed to “engage in an active intellectual process” in relation to the Applicant’s claims (Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]- [46] per Griffiths, White and Bromwich JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2013] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ).
24The findings made by the IAA were open to it on the evidence before it, and do not lack a logical connection to the evidence. In particular, the adverse credibility findings made by the IAA are findings of fact open to be made on the evidence before the IAA, and as such are findings that ought not be interfered with on judicial review (Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
The applicant was asked to comment. Unfortunately (as is, regrettably, all too common with applicants who don’t speak English and who have no legal assistance of any kind), the applicant was unable to speak to the issue of jurisdictional error in a way that assisted him.
In effect, what the applicant was able to say to the Court was that he strongly disagreed with the IAA’s conclusions and its assessment that he could return safely to Afghanistan.
Consideration
On one level, what the applicant appears to be asking the Court to undertake is a merits review of the evidence before the IAA in the hope that the Court will ultimately come to a different conclusion and give him the protection visa that he seeks.
The Court cannot undertake a review of that sort, as this amounts to an impermissible merits review Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
It is also arguable that the applicant has concerns about the way in which the IAA used the country information before it to determine that the applicant could return safely to Afghanistan.
In relation to the use of country information, the Court notes that the following legal principles:
a)the accuracy of country information is a matter for the IAA, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; AUV15 v Ministerfor Immigration & Border Protection (2018) FCA 812;
b)the choice and interpretation of country information is a factual matter for the IAA alone: Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419; and
c)there is no error of law in the IAA making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510; SZIJG v Ministerfor Immigration & Citizenship [2007] FCA 1652.
In relation to this particular issue, no “error” was actually identified here. Nor, on the evidence and in light of the principles articulated above, can it be said that jurisdictional error in relation to the use of country information arises.
The IAA assessed the country information and, applying that information to the evidence and facts before it made findings in relation to harm that were open to it on the evidence. While this Court might have come to a different conclusion that is not test here. Referencing the principles above, if the Court were to make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that.
To the extent that the applicant alleges “irrationality, illogicality or unreasonableness” on the part of the IAA, the Court does not find that the IAA’s decision was unreasonable, illogical or irrational.
Here, the applicant has not identified any aspect in the IAA’s decision or the approach adopted which he believes is illogical or lacking in intelligibility or which might be seen as unreasonable.
On the evidence, the IAA discharged its function in the way required by Act. It correctly applied correctly the criteria contained in the Act for the grant of a protection visa under both of the relevant legislative limbs. Taking into account the elaboration of the expression “a well-founded fear of persecution” and the criteria for complementary protection, the IAA considered the applicant’s claims against the country information and the applicant’s evidence. Its findings flowed logically from its assessment of the material before it and provides a sound basis to support its decision: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [59]-[61].
No error can be identified in relation to ground 1.
In the circumstances, ground 1 fails.
Ground 2
2.The Assessor didn’t give me a chance to comment on one aspect of my claims.
Submissions
In relation to ground 2, the Court notes the Minister’s submissions at [26]-[34]:
26. … the Applicant contends the IAA failed to give him an opportunity to comment on one aspect of his claims. This ground of review is misconceived when one has regard to the statutory obligations of the IAA in Part 7AA of the Act. Pursuant to section 473DB of the Act, the IAA is to conduct a review and make a decision on the papers – expressly without the need to provide an opportunity for the Applicant to provide further information or to interview the Applicant and provide an opportunity for comment. The Applicant’s claim is misconceived in the sense that there was no obligation for the IAA to provide him an opportunity to comment on any aspect of his claims.
27 In so far as the IAA may have had an obligation to put ‘new information’ before it to the Applicant for his comment under section 473DE(1) of the Act, in the present case, the IAA only had regard to new country information. This information falls within the exception in section 473DE(3)(a) of the Act, and therefore there was no obligation on the IAA to invite the Applicant to comment on that new country information.
28 In the First Respondent’s submission, there has not been any error by the IAA in its conduct of the review, and it has complied with the provisions of Part 7AA of the Act. The First Respondent notes that the codification of the natural justice hearing rule by section 473DA(1) is complete and exhaustive in relation to reviews conducted by the IAA.
29 The First Respondent notes that, where the IAA does invite an Applicant to provide new information under section 473DC of the Act (as occurred in the present case), the IAA is subject to, and the new information must satisfy the statutory criteria in section 473DD of the Act in order for the IAA to consider the new information in making its decision. In the present case, ‘new information’ in the form of submissions were received by the IAA from the Applicant, in response to the IAA’s invitation.
30 The requirements in section 473DD(a) and (b) are cumulative requirements – the IAA must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of section 473DD are satisfied. It self evidently follows from the fact that the requirements in paragraphs (a) and (b) of section 473DD are cumulative that if one of those requirements does not exist, then the IAA must not consider the new information.
31 In the present case, by letter dated 10 January 2018, the IAA invited the Applicant to comment on new information (as particularised in the IAA’s letter), which may lead the IAA to conclude that the Applicant “did not face a real chance or real risk of serious or significant harm in Mazar-e-Sharif and that it would be reasonable for [him] to relocate to there”. The IAA’s letter further advised the Applicant that, “[s]ubject to your comments, this new information would be the reason, or part of the reason, for affirming the decision not to grant you a protection visa”.
32 The IAA advised the Applicant that if comments were not received by 24 January 2018, the IAA may make a decision without taking any further action to obtain his views on the information. The Applicant provided submissions on the issue of risk of harm in Mazar-e-Sharif and on the issue of relocation on 9 February 2018. In its decision, the IAA said this of the Applicant’s submissions provided in response to the invitation:
“…on 12 February 2018, the applicant’s representative emailed the IAA attaching a submission, including country information. The information was not before the delegate and is new information. However, as it transpires I have found it unnecessary to consider the question of relocation to Mazar-e- Sharif. I am therefore not satisfied there are exceptional circumstances to justify considering this new information and have not considered it.”
34 In this case, the IAA did not make any finding in relation to whether section 473DD(b) was satisfied, finding only that there were not exceptional circumstances to justify considering the new information. However, the failure to consider section 473DD(b) of the Act in relation to the Applicant’s submissions does not constitute jurisdictional error in the First Respondent’s submission.
(Citations omitted, emphasis in original)
The applicant was asked to comment. He responded, in effect (although it was not entirely clear) that he had not been given enough time to prepare, and, importantly, was more focused on the safety and welfare of his family.
The Court is, of course, sympathetic. It would be hard to find anybody hearing this young man’s life story who is not sympathetic. It cannot be disputed that if this young man is returned to Afghanistan his life will be difficult. That, however, is not the test before the Court, regardless of what the Court might personally feel.
The question here, in the context of what is raised in ground 2, is whether or not procedural fairness was afforded and whether or not the applicant was given the opportunity to say what he wanted to say.
In this case, the Court accepts the Minister’s submissions as outlined above. To summarise those submissions, there is nothing to suggest that the IAA acted unfairly or failed to look at information it should have or sought further comment. The only new information assessed was country information. That, legislatively, need not be put to the applicant for comment. Further, once the issue of relocation fell away, that information and the evidence relevant to it did not require comment or further analysis.
Overall, the IAA complied with the procedural fairness obligations in div.3 of pt.7AA of the Act. The Court is satisfied that, here, procedural fairness was provided within the confines of a very strict legislative regime.
There is no jurisdictional error on the evidence in relation to ground 2.
Conclusion and orders
While the Court is, as indicated, sympathetic to the concerns raised by the applicant, there is no merit in any of the grounds of review advanced by him today.
The IAA conducted a review, pursuant to the terms of pt.7AA of the Act. Its core task was to determine whether there was a real chance that the applicant would suffer persecution if returned to Afghanistan, or a real risk of significant harm if returned. After considering all of the evidence that had been referred to it, and after reviewing the relevant country information, it determined that a real chance or risk did not arise. Those findings were open to it on the evidence before it.
There is no jurisdictional error demonstrated by the two grounds of review, or otherwise apparent in the IAA’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
The Minister seeks costs in the amount of $6,000. Noting this is below the current costs scale that guides this Court, a further order that the applicant pay the first respondent’s costs set in the amount of $6,000 will be made.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 16 April 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
-
Jurisdiction
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Natural Justice
0
24
2