BON17 v Minister for Immigration
[2019] FCCA 1456
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BON17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1456 |
| Catchwords: MIGRATION – Relocation to different part of Afghanistan ordered by Independent Assessment Authority (“the IAA”) of Shia Muslim married man who has five children – consideration regarding the IAA”s failure to carry out its statutory task by ignoring two expert reports regarding the security situation in Afghanistan and the likely employment and other prospects faced by returnees – jurisdictional error established – relief sought by the Applicant granted. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1)(c), 5J(5), 36(2A), 36 (2B), 473CB, 473CC, 473DC, 473DD, 473DE, 473FA(1) |
| Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 BMV16 v Minister for Home Affairs [2018] FCAFC 90 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431 Minister for Immigration and Border Protection v DZU16 (2017) 253 FCR 526 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | BON17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 14 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 1 September 2017 |
| Date of Last Submission: | 4 June 2018 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms G Costello |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration, Adelaide |
| Counsel for the Respondents: | Mr BD Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The decision and recommendation of the Immigration Assessment Authority dated 7th February 2017 be set aside, and the matter be remitted for further assessment by a different reviewer.
Absent any Application within 14 days, the First Respondent is to pay the Applicant’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 14 of 2017
| BON17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is an Afghani national of Hazara ethnicity and Shia religion. He was born in the Jaghori District of the Ghazni province in Afghanistan. He fled that country in 2001 and lived unlawfully in Iran for approximately 11 years prior to arriving in Australia. He is married and has five children who reside with his siblings in the Jaghori District of Ghazni Province.
Having unsuccessfully applied for a Protection Visa in 2013 and 2014, on 16th September 2015 he applied for a Safe Haven Enterprise Visa (“SHEV”).
On 29th August 2016, a Delegate of the Minister refused to grant the Applicant the SHEV he sought. On 7th February 2017, the Immigration Assessment Authority (“the IAA”) affirmed the Delegate’s decision. [1] According to that decision, it is reasonable for the Applicant to relocate to Mazar-e-Sharif, which is the capital of Balkh Province in the north of Afghanistan. Among other things, the IAA found (reasons, par.45; emphasis added) that -
… [although] there is evidence of sporadic attacks [in Mazar-e-Sharif], generalised violence in the city is rare. On this basis I am not satisfied that there is a real risk of the Applicant facing significant harm on the basis of the general security situation in Mazar-e-Sharif for any reason.”
[1] The reasons of the IAA are at Court Book (“CB”) at pp.229 – 248.
By Application, filed 9th March 2017, the Applicant (who was then self-represented) challenges, and seeks review of, the IAA’s decision.
An Amended Application was filed on 20th July 2017. Although formally out of time, the First Respondent Minister (“the Minister”) did not oppose that Amended Application.[2]
[2] See the First Respondent’s Submissions, filed 25th August 2017, footnote 1.
A Further Amended Application was filed on 5th September 2017, which contained two additional Grounds of Review. The Minister opposed leave being granted to the Applicant to rely upon this Further Amended Application because (a) the additional two Grounds of Review (it was said) have no merit, and (b) there was no explanation why these additional Grounds were not included in the Amended Application.[3]
[3] Ibid., par.2.
Properly, as befits a “model litigant”, the Minister provided detailed submissions in relation to each of the four Grounds of Review set out in the Further Amended Application. This at least suggested that the Minister has occasioned, and perceives, no relevant prejudice if leave were to be granted to the Applicant to rely upon the additional two grounds. Notwithstanding that there was no explanation by the Applicant’s lawyers, and that the Minister properly questioned why these additional grounds had not be raised earlier, in all of the circumstances, I granted leave to the Applicant to rely upon the additional two Grounds of Review. I did so because, in my view, (a) the additional grounds are not so dissimilar to the grounds of review already set out in the earlier Amended Application filed on 20th July 2017, (b) the additional two grounds could be seen as a re-formulation of the “particulars” set out in the earlier filed Amended Application, and (c) there is no evidence of prejudice to the Minister. Further, the Minister was given additional time at the hearing to address the Applicant’s longer written submissions.
Grounds of Review
As set out in the Further Amended Application, filed 5th September 2017, the Grounds of Review were as follows:
Grounds of Application
1. The IAA failed to form the correct state of satisfaction by failing to apply the correct statutory provisions when it considered whether the Applicant would be subject to economic hardship that would threaten his capacity to “exist”, rather than to “subsist” (see [28] of the IAA decision and c.f. s5J(5) of the Migration Act 1958 (Cth)).
2. In considering and assessing the chance of harm to the Applicant if he were to relocate to Mazar-e-Sharif – on both the refugee and complementary protection bases – the IAA was obliged, but failed, to consider and determine the reasonableness and practicability of the Applicant relocating to Mazar-e-Sharif, in terms of his individual circumstances (see MZANX v Minister for Immigration and Border Protection [2017] FCA 307).
Particulars
The IAA’s decision reveals the following failures to form the relevant state of satisfaction in considering whether the risk of harm to the Applicant if he relocated to Mazar-e-Sharif.
Failure to consider the fact the Applicant would visit his family in Ghazni Province.
Failure to consider the Applicant’s risks travelling from Mazar-e-Sharif to see his family in Ghazni Province.
Failure to consider whether members of the Applicant’s family would relocate to Mazar-e-Sharif.
Failure to consider how the Applicant would secure work in Mazar-e-Sharif.
Erroneously considering that the Applicant would relocate to Mazar-e-Sharif “without dependents as a single man of working age” (see [51] of the IAA decision and c.f. the fact that the Applicant has a wife, four sons and a daughter, as stated at [7] of the IAA decision).
Ground 3
The IAA failed to consider whether the level of violence in Mazar e Sharif rendered it unreasonable (as opposed to unsafe) to relocate to Mazar e Sharif.
Ground 4
The IAA erred by acting unreasonably in not considering giving the Applicant an effective opportunity to address the issue that it found dispositive – being whether the Applicant could relocate to Mazar e Sharif – in circumstances where:
a) no opportunity to be heard on the issue of relocation to Mazar e Sharif had been provided to the Applicant before the delegate;
b) the IAA had power under s.473DC (3)(b) to invite the Applicant to give new information in an interview;
c) the IAA misunderstood the nature of its own power, as revealed by its letter dated 14 December 2016 in which it characterised its own letter dated 2 December 2016 as an invitation to comment on adverse information under s.473DE of the Act, which was in fact inapplicable to country information.
The IAA’s Decision
The IAA’s decision may be summarised as follows.
At pars.3 – 6, the IAA set out the information before it, notably that which was referred to it by the Secretary of the Department of Immigration and Border Protection under s.473CB of the Migration Act 1958 (Cth) (“the Act”).
The IAA noted that shortly before the Delegate’s decision there were a number of reports of suicide bombings that targeted Hazaras in Kabul in July 2016. There were reports also of attacks on Shias in Kabul and Mazar-e-Sharif in October 2016, and again in Kabul in November 2016.
The IAA confirmed that since these reports it had received further information that, in its view, would likely impact on the viability of the relocation to Mazar-e-Sharif. In such circumstances, the IAA said that it was satisfied that there were “exceptional circumstances” that warranted consideration of this information. The IAA did not refer to any section of the Act in this regard.
The IAA noted that it invited the Applicant to comment on the information referred to in the previous paragraph and on its import regarding the “reasonableness of relocation to places within Afghanistan, including Mazar-e-Sharif.” On 20th October and 23rd December 2016, the Applicant provided responses. The information contained in these response, the IAA held (at par.5), was not, and could not have been, before the Minister, and could not have been provided before the Delegate’s decision. Accordingly, in the IAA’s view, the information constituted “exceptional circumstances.”[4] Again, there was no reference to any section of the Act. There was no cavil with the IAA’s view that “exceptional circumstances” existed in the present matter.
[4] “Exceptional circumstances” is referred to in s.473DD(a) but not otherwise defined in the Act or Regulations. There is, however, a general discussion of that “term” in the Full Court decision in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [51] – [52].
At par.6, the IAA referred to new information that was not before the Delegate, namely the administration of the Jaghori district during the reign of the Taliban. The IAA considered this information to constitute “exceptional circumstances” and was relevant to the Applicant’s claims of being targeted by the Taliban at the time.
At par.7, the IAA summarised, in some detail, the Applicant’s claims. I need not set them out here other than to note that, to some degree, the Applicant’s concerns arise out of a land dispute with a fellow resident of his village who has links to the Taliban. The Applicant claimed to have been beaten by the Taliban, and on the information provided by the former neighbour, a person known as Mohsin, his parents were killed by the Taliban.
At pars.8 – 11, the IAA set out the operation of s.5H(1) of the Act regarding who constitutes a refugee; it also referred to the operation of s.5J regarding the meaning of a “well-founded fear of persecution” for the purposes of the Act.
In these paragraphs the IAA accepted that the Applicant was an Afghani national. The IAA also accepted that the Applicant does not have a right of return to Iran or Pakistan, and that his “receiving country is Afghanistan.”
Paragraphs 12 – 21 set out, in some detail, the Applicant’s claims regarding his long-standing dispute over land with Mohsin and the involvement of the Taliban, and the general security situation in Jaghori.
The IAA determined (at par.14) that the Applicant was not threatened or beaten by the Taliban. It said that there were inconsistent accounts at his SHEV interview compared to what was in his visa Application. This said, the IAA accepted that Mohsin was a local Hazara who worked with, and was considered to be the local representative of, the Taliban. Curiously, and in my view inconsistently, the IAA also accepted that Mohsin may have used his position to attempt to acquire land from the Applicant, which included the Taliban intimidating the Applicant. These matters, it said, were consistent with the country information provided to the IAA.
How the Delegate can determine, on the one hand, that the Applicant “was [not] threatened or beaten by the Taliban”, but on the other hand, the IAA reach the completely opposite result, namely that “the Taliban came to the village to intimidate the Applicant”, was not immediately clear or otherwise explained.
The IAA accepted that the Applicant was forced to leave his village after he refused to hand over his land to Moshin. It did not accept that his parents were killed because of matters relating to the Applicant’s land issue with Mohsin.
The IAA noted (at pars.16 – 17) the Applicant’s account that, even after the Taliban and Moshin left the area, the influence of the Taliban remained. Ultimately, the IAA determined that, with the Applicant not having lived in Jaghori for 16 years, it was not plausible that he would be the subject of attention by the Taliban.
The Applicant claimed (at par.18) to be at risk of “serious harm” on the roads as a “Shia Hazara.” In this regard, the IAA noted that country information confirmed that anti-government elements systematically target civilians who are perceived to be supportive of the Government. I note too that this claim was unqualified. The context may suggest that it related generally to roads leading to Jaghori; but such an assumption, in my view, is not made clear, particularly in circumstances where the IAA was considering the Applicant relocating to another part of Afghanistan. Indeed, in par.19 of its reasons, the IAA outlined country information that relates to all of Afghanistan. Only in pars.20 – 21 did the IAA refer specifically to the dangers of travelling by road in the Ghazni province.
At par.19, the IAA recorded that information from the Department of Foreign Affairs and Trade (“DFAT”) confirmed that Hazaras “are widely perceived to be affiliated with both the government and the international community.” In subsequent paragraphs, the IAA confirmed that the Ghazni province is particularly volatile, and it would be through this province that the Applicant would be required to travel to return to Jaghori. Accordingly, at par.21, the IAA determined that “there is a real chance that the Applicant would suffer serious harm as a Shia Hazara on surrounding roads leading to Jaghori if he were to attempt to return there.”
In pars.22 – 35, the IAA set out its reasons for making the determination that it was not satisfied that the Applicant faces (or has) a “well-founded fear of persecution in Mazar-e-Sharif.” This was in circumstances where the Applicant claimed that (i) he was a Shia Hazara (which was not disputed), (ii) the Taliban “are in all cities in Afghanistan”, and (iii) Hazara are easily recognised. In response to these three claims by the Applicant, summarised, the IAA stated the following.
After noting that s.5J(1)(c) of the Act required that the real chance of persecution must relate to “all areas of the receiving country”, the IAA said that it did not consider that the Applicant would be pursued by the Taliban in Mazar-e-Sharif over the land dispute with Mohsin 16 years ago.
The IAA then focussed, at some length, on the risks the Applicant may face in Mazar-e-Sharif. For example, the IAA said that this city was regarded as one of the safest cities in Afghanistan. That said, the IAA noted (par.25) (internal citations omitted; emphasis added):
While armed attacks occur in Balkh province, attacks are relatively rare in the city although sporadic attacks still occur.
The precise (or actual) criteria used to determine such an assessment, is not clear. For example, taken as an average of bombings in Afghanistan as a whole, the Balkh province may have relatively few such disasters. It does rather raise the question of why or how a Court could sanction a person moving to a locality where there are known to be bombings and similar acts of extreme violence, but which, on the Minister’s submissions, are somewhat less frequent than other places in Afghanistan. Put another way: how or why would a Court sanction a relocation on the basis that Location A will ensure that the person in question is very likely to be blown up, but if the same person moves to Location B, there remains a lesser chance of being blown up, but not with the same relative degree of certainty as in Location A?
In the same place, the IAA said that Mazer-e-Sharif was known as a “melting pot of diverse cultures and religious influences where liberal attitudes coexist with conservative traditions.” The citation in support of this relatively irenic, benign and positive statement, footnote 25, was as follows: “AFP: “At least 10 people killed in Taliban siege at Afghan courthouse” 10 April 2015”; the remainder of the citation is unnecessary. How this reference to the bald headline and the lethal information it contains is able to be reconciled with, and how it allegedly supports, the IAA’s assessment, is not explained. Put another way: the almost positive assessment at par.25 of the IAA’s reasons that nonetheless refers somewhat prosaically to “sporadic attacks still occur” is, in my view, next to impossible to reconcile with the deaths of 10 people following the attack referenced. This rather begs the question: is the indicia of risk solely or principally the frequency of attacks, and/or does the lethality of them ever become part of the IAA’s assessment? The IAA seems to have focussed primarily, if not exclusively, on the issue of “frequency” with little or no regard to the “lethality” of the attacks, and likewise pays little attention to the randomness of them.
In my view, both aspects – frequency and lethality – are necessary criteria to which the IAA should have proper regard in exercising its statutory task under s.473CC. Failure to have due regard in the “weighing of the evidence before it” of both aspects, in my view, constitutes relevant error. Here, the IAA clearly had regard to the frequency of attacks but not to the lethality of them.
According to information provided by DFAT, as a general proposition, most attacks carried out by the Taliban are directed towards targets linked to the Afghanistan government or international security forces. DFAT also says that no particular group is systematically targeted solely on the basis of ethnicity. DFAT also noted, as recorded by the IAA, that various civilian groups were targeted (e.g. human rights defenders) and that indiscriminate tactics were used against them.
According to the European Asylum Support Office (“EASO”), there was a reported increase in insurgent attacks within Mazar-e-Sharif but these attacks, it said, were (par.27) ‘almost exclusively directed against the national security forces.’ According to Professor William Maley (in an expert opinion dated 22nd December 2016)[5] there are recent indications that Mazar-e-Sharif may become the focus of expanded military activity in the North [of Afghansitan]. In relation to this and other information, the IAA said that the Applicant, as a Hazara, has not been directly associated with any of the groups that are targets for insurgents and ‘does not have an imputed profile as a government affiliate which would be likely to bring him to adverse attention.’ This is a somewhat curious statement, and one that is quite inconsistent with an earlier comment, given that at par.19 of its reasons the IAA stated: “DFAT indicates that Hazaras are widely perceived to be affiliated with both the government and the international community.”
[5] See CB 218 – 221.
A further aspect of the Applicant’s claim before the IAA was that, if he returned to Mazar-e-Sharif, he would be subject to a subsistence level of living which would, in turn, subject him to imminent persecution and harm.
In response to this, the IAA accepted that there is a real chance that the Applicant may face certain difficulties on his return in relation to employment and ready access to accommodation, especially since he does not have family links in Mazar-e-Sharif. The IAA also accepted that there was a real chance that the Applicant may be subject to lower living standards on his return. However, the IAA ultimately determined that there was not a real chance that he would suffer discrimination as a result of these matters.
The IAA further noted (pars.29-31) that, according to DFAT, purely interfaith violence is rare in Afghanistan, although attacks against Shias do occur. The IAA noted that an attack occurred on 12th October 2016 when a bomb exploded outside a Mosque where Shias were celebrating; the attack took place approximately 20 kilometres from Mazar-e-Sharif.
While the IAA accepted that there were targeted attacks against Shias in Mazar-e-Sharif in 2011, and again in 2016, it raised the question for the IAA of whether this was ‘indicative of a real chance of serious harm for Shia Hazaras, such as the Applicant, living in Mazar-e-Sharif itself.’
The IAA reported that there had been no declaration of responsibility by ISIS or any other group in relation to the 2016 attack near Mazar-e-Sharif. The importance or significance of the attribution of a particular attack to a specific terrorist organisation, as opposed to the lethal and destructive effect of the attack itself, is not immediately apparent to me. The IAA went on to note that, according to EASO in November 2016, there was evidence of an ISIS presence in the southern districts of Balkh province, with the government conducting a clearing operation in March 2017. The IAA however noted that there was no evidence of an ISIS presence in or near Mazar-e-Sharif.
The IAA noted that the Taliban had ‘convincingly spoken out against sectarianism and stayed away from violence that stirred sectarian hatred.’ The IAA did not explain upon what basis it could, or should, be able to rely upon the report of a terrorist organisation that it now seemingly (or partially) eschewed violence. The IAA noted also that the Applicant had referred to more general comments from Human Rights Watch which stated that the wave of targeted attacks on Shia Hazaras was attributable to the emergence of insurgent groups affiliated with ISIS.
In response, the IAA said that, while it accepted that the October 2016 attack near Mazar-e-Sharif targeted Shia worshippers, it was not satisfied that ‘the evidence indicated that ISIS, IMU or the Taliban were involved or that the incident is indicative of a sectarian campaign in Balkh.’ The IAA went on to say that it accepted that, while there continues to be sporadic security incidents in Mazar-e-Sharif, it is a ‘melting pot of diverse cultures and religious influences where liberal attitudes exist with conservative traditions’ (par.25) and ‘there is no evidence to indicate they have targeted Shia Hazaras’ (pars.31 & 45).
For my part, the information cited in this paragraph and the conclusions reached by the IAA, are internally inconsistent. The inconsistencies are discussed in detail later in these reasons.
The IAA was not satisfied that the Applicant faced a “real chance of harm” in Mazar-e-Sharif as a returnee from a Western country who has been absent from Afghanistan for a lengthy period. Nor did the IAA consider the Applicant to be at risk by having imputed to him any relevant adverse political opinion.
In relation to the IAA’s considerations of the complementary protection assessment under s.36(2A) of the Act, the IAA found that there was a real chance of the Applicant being killed or harmed by the local Taliban as a local Hazara on the roads if he returns to Jaghori. However under s.36(2B), the IAA assessed that it was reasonable for the Applicant to relocate to a different area of Afghanistan where it would not be likely (again, a question of “frequency” but not one that considered the “lethality” of any risk) that he would suffer significant harm. Having regard to what has already been summarised from the IAA’s reasons, I need only note the following.
First, after noting that Mazar-e-Sharif is known as a ‘melting pot of diverse cultures and religious influences’ (recorded earlier in these reasons) the IAA observed that, although there is evidence of sporadic attacks in Mazar-e-Sharif, ‘generalised violence in the city is rare’ (par.45). As earlier noted, apart from the frequency of lethal attacks and/or the number of people killed in them, it is not clear what criteria were used to found this conclusion.
Although the IAA noted that the Applicant did not have family or “tribal support” in Mazar-e-Sharif, and that his family continues to reside in Jaghori, based on him being an able-bodied male of working age with no health problems or other specified vulnerabilities, the IAA nonetheless assessed the Applicant as having the necessary skills and capacity to “subsist” in Mazar-e-Sharif.
At par.50, the IAA said that, based on the evidence before it, the applicant was assessed as “resilient and resourceful” and therefore will be able to obtain employment “to enable him to subsist in Mazar-e-Sharif as well as to provide for his family in Jaghori.” How one lives at a subsistence level in one part of the country, and supports one’s family in another part to which one cannot return, was not explained by the IAA.
Also somewhat curiously, at par.51, the IAA immediately went on to state that, while accepting that his wife and family reside in Jaghori, he would “therefore be arriving in Mazar-e-Sharif without dependants as a single man or working age.” Again, the inconsistency of the IAA’s conclusions are plain: the appearance of being a single man compared to the reality of him actually being a married man with a family. Yet in par.50 the IAA said that he will be able to find ‘employment to enable him to subsist in Mazar-e-Sharif, as well as to provide support for his family in Jaghori.’ But, in par.51, the IAA said that he would be arriving “without dependants.” The “appearance” of an individual is one thing; surely the factual reality and some consideration of it (e.g. if/when the Applicant’s Wife or any of his children visit him) is quite another. The factual reality was therefore formally ignored by the IAA as, in effect, a conceit or fiction. The range of inconsistencies on display by the IAA is patent. For some purposes it is content to treat or regard the Applicant as a single man; for other purposes, his subsistence level of existence will be enough, in the IAA’s view, to enable him to provide support for his family in Jaghori.
Put another way: in MZANX v Minister for Immigration and Border Protection (“MZANX”), Mortimer J referred, at [64], specifically and emphatically to the need for a reviewer to pay close attention to the “practical realities for the Appellant and his family.”[6] Similar comments were made by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs at [73] – [76] (Gummow and Hayne JJ), which are set out later in these reasons.[7] Making a decision in the present matter based upon the “fiction” that the Applicant would present or appear as a single man with no dependants, does not, in my view, relevantly comply with Mortimer J’s instruction in MZANX. A “fiction” is no proper or appropriate foundation upon which a reviewer can or should make a decision, especially one that involves relocation.
[6] MZANX v Minister for Immigration and Border Protection [2017] FCA 307.
[7] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
In my view, the inconsistencies in the IAA’s consideration of the Applicant’s actual circumstances (e.g. married with children; with dependants, treated for other purposes as without dependants) meant that the IAA failed to perform its statutory task by failing properly to consider the specific circumstances of this Applicant.
The IAA found, at par.52, that the Applicant’s relocation to Mazar-e-Sharif would require him to be separated from his family in the reasonably foreseeable future. This is in circumstances however where the IAA had earlier stated that he would be at a real risk of death or harm were he to visit them in Jaghori.
Statutory Provisions
It is convenient here to set out key sections of the Act that are referred to, not only in the reasons of the IAA, but also in the submissions of the parties, thus:
5H Meaning of refugee
1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
b) the person committed a serious non‑political crime before entering Australia; or
c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well-founded fear of persecution
1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
2)A person does not have a well founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
3)A person does not have a well founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
b)conceal an innate or immutable characteristic of the person; or
c)without limiting paragraph (a) or (b), require the person to do any of the following:
i.alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
ii.conceal his or her true race, ethnicity, nationality or country of origin;
iii.alter his or her political beliefs or conceal his or her true political beliefs;
iv.conceal a physical, psychological or intellectual disability;
v.enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
vi.alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
b) the persecution must involve serious harm to the person; and
c) the persecution must involve systematic and discriminatory conduct.
5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
a) a threat to the person’s life or liberty;
b) significant physical harassment of the person;
c) significant physical ill treatment of the person;
d) significant economic hardship that threatens the person’s capacity to subsist;
e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
6)In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non citizen in Australian respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
473DC Getting new information
(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.
473DD Considering new information in exceptional circumstances
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.
473DE Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Apart from ss.5H and 5J, the other sections noted all appear in Part 7AA of the Act which is described as the “Fast Track Review Process in Relation to Certain Protection Visa Decisions.” The determination of the current matter turns on (a) the proper construction and application of the sections noted in Part 7AA in the light of very recent comments by the High Court and the Full Federal Court, (b) the consideration and application of principle in relation to internal relocation, and (c) the consideration and application of the jurisprudence in relation to the statutory task of the IAA under s.473CC, and what constitutes “legal unreasonableness”.
Jurisprudence – Part 7AA
Part 7AA of the Act, which deals with a “fast track review process” in relation to certain protection visa decisions, was considered in detail by the Full Court in Minister for Immigration and Border Protection v AMA16, in the remarks of Griffiths J, with whom Dowsett and Charlesworth JJ agreed.[8]
[8] Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [11] – [27] (Griffiths J). See also the Full Court decisions in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (Robertson, Murphy and Kerr JJ) at [10] – [13]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (Robertson, Murphy and Kerr JJ) at [6] – [13].
More recently still, in Plaintiff M174/2016 v Minister for Immigration and Border Protection (“Plaintiff M174/2016”), the High Court also commented on Part 7AA of the Act.[9] For current purposes, it is sufficient to note the following.
[9] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481.
At [70] – [71], the plurality (Gageler, Keane and Nettle JJ) said:
[70] … once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant.
[71] Non-compliance by the Minister or delegate with s 57(2) of the Act would have the potential to impact on the validity of the Authority's decision were relevant information obtained without compliance with s 57(2) included in review material given to the Authority and then taken into consideration by the Authority without the Authority first inviting the referred applicant to respond to that relevant information. The jurisdictional error which might impact on the validity of the Authority's decision in such a case would not lie in the prior non-compliance with s 57(2) on the part of the Minister or delegate. For reasons already given, jurisdictional error would potentially lie either in non-compliance on the part of the Authority with the duty imposed by s 473DE(1) (in a case where the relevant information was not before the Minister or delegate at the time of making the decision under review and is therefore capable of being new information) or, in the absence of good reason for not doing so, in an unreasonable failure to exercise the power conferred by s 473DC(3) (in a case where the relevant information was before the Minister or delegate at the time of making the decision under review and is therefore incapable of being new information).
Then, at [85] - [87], Gordon J said (internal citations omitted; emphasis in original; underlined emphasis added):
[85] First, the review by the Authority conducted pursuant to Pt 7AA is a hearing de novo on the material provided to the Authority under s.473CB. The Authority's task is to consider the application for a protection visa and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. It is a review of a specific and limited kind, at the conclusion of which the Authority has power to affirm the decision under review or to remit the decision for reconsideration by the Minister in accordance with such directions or recommendations as are permitted by regulation and as are necessary to give effect to the Authority's determination.
[86] Second, as the plurality explains, there was no dispute that the various powers conferred on the Authority by Div 3 of Pt 7AA are to be exercised within the bounds of reasonableness. An unreasonable failure by the Authority to exercise one of its powers may invalidate the purported performance by the Authority of the duty imposed on it by s.473CC to conduct a review and affirm or remit the decision under review.
[87] Third, subject to Pt 7AA, the Authority reviews a fast track reviewable decision referred to it under s.473CA by considering the review material provided to it under s.473CB, without accepting or requesting new information and without interviewing the referred applicant.
And at [89] and [90], her Honour observed (emphasis added):
[89] The law requires and expects that the Minister, in making a decision under s.65 to refuse to grant a protection visa, will comply with the procedure set out in subdiv AB of Div 3 of Pt 2 of the Act, which includes s.57. Compliance with that procedure would be the "ordinary" circumstance. But where no opportunity was given by the Minister to a fast track applicant to respond to adverse information contrary to the requirement in s.57, the fact of that non-compliance with s.57 would itself be an exceptional circumstance engaging the Authority's new information powers under ss.473DD and 473DE in Pt 7AA of the Act.
[90] Exercising the new information powers in those circumstances cannot, and should not, be understood as the Authority conducting merits review of the Minister's decision. Rather, it is the Authority doing no more than it is directed to do – consider the application for a protection visa and determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. A failure by the Authority to do so would constitute an unreasonable failure by the Authority to exercise its powers and may invalidate the purported performance by the Authority of the duty imposed on it.
Jurisprudence – The Statutory Task
Again for current purposes, it is sufficient to note the following comments, first by Robertson J in Minister for Immigration and Citizenship v SZRKT (“SZRKT”), and secondly, by the Full Court (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS (“MZYTS”).[10] The Full Court in MZYTS approved the statements of principle of Robertson J in SZRKT.
[10] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431.
I note the following from the judgment of Robertson J in SZRKT.
At [77], his Honour observed that any adverse findings must, on review/appeal, involve a “case specific inquiry [which] is not one which should be analysed by reference to fixed categories or formulas.” At [96], his Honour referred to comments by the High Court in Minister for Immigration and Citizenship v SZJSS (and cases there cited) where it was confirmed that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.” Then, at [97], Robertson J said (emphasis added):
… merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
Critically, at [111], his Honour said (internal citation omitted; emphasis added):
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
I note the following matters from the Full Court decision in MZYTS.
First, in discussing the description “failure to consider”, the Full Court said, at [31] and [32] (emphasis added):
[31] … while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
[32] The Tribunal’s task on review under s.414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it…
Secondly, the nature of the Tribunal’s task was then addressed by the Full Court at [33] – [35], where it noted, at [35] in particular, by reference to the comments of the High Court (Gummow and Hayne JJ) in S395/2002 v Minister for Immigration and Multicultural Affairs:[11]
[35] The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there…
[11] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 475 at [73] – [76]. At [74], Gummow and Hayne JJ said, in part: “… absence of past persecution does not deny that there is a real chance of future persecution.”
Thirdly, succinctly at [36], the Full Court said (emphasis added):[12]
… to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
[12] See too the Full Court’s comments, at [50] regarding the importance of the process of “weighing evidence and preferring some over the other”, and at [68] and [70] in relation to “the failure to perform the statutory task.”
Fourthly, at [50], again by reference to the “statutory task” of the Tribunal in that case, the Full Court said (emphasis added):
The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
Without completely pre-empting what is said later in these reasons, this particular observation/instruction by the Full Court is important in the current matter because of the IAA’s treatment (or more particularly the lack of reference to or relevant “weighing”) of the in-depth reports of Professor Maley regarding the conditions and risks in Afghanistan in relation to persons like the Applicant in the present proceeding. In my view, the IAA did not relevantly undertake its statutory task because it failed to consider at all (in the case of the November 2016 Report), or properly consider (in the case of the December 2016 Report) – in the sense of “weighing” the evidence provided by the Applicant in the form of Professor Maley’s Reports.
Jurisprudence – Internal Relocation
In addition to what has already been said above, notably by the High Court in S395/2002, cited in MZYTS, in MZACX v Minister for Immigration and Border Protection, Kenny J set out basal principles regarding relocation.[13] At [24] – [26], her Honour said (emphasis added):
[24] The requirement that a “fear” be “well-founded” in Art 1A(2) of the Convention “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8], citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19]- [22]. A person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country. The “factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). Further, it “may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). This analysis is taken up by Australian law in s 36(2) of the Migration Act, set out above.
[25] The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV [2007] HCA 40; 233 CLR 18 at [24]; see also SZFDV [2007] HCA 41; 233 CLR 51 at [14]; and SZSCA [2014] HCA 45; 254 CLR 317 at [25].
[26] Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains: see SZFDV [2007] HCA 41; 233 CLR 51 at [14]; SZATV [2007] HCA 40; 233 CLR 18 at [24] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 at 443 (Black CJ, Whitlam J agreeing).
[13] MZACX v Minister for Immigration and Border Protection [2016] FCA 1212. An earlier and critical reference point regarding “internal relocation” was (and remains) SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] – [22] (Gummow, Hayne and Crennan JJ), and at [80] – [81] (Kirby J) regarding considerations of “reasonableness”. Among other things, his Honour noted that in such cases, there are often “logistical or safety impediments” to gaining a safe haven, and likewise that “the absence of family networks or other local support” can or may lead to such relocation proving to be “unreasonable.” In MZANXv Minister for Immigration and Border Protection [2017] FCA 307 (discussed later in these reasons) Mortimer J made similar comments to those by Kirby J.
At [35] – [37], Kenny J further observed that (emphasis added):
[35] In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU [2012] FCA 1032; 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.
[36] In MZYQU [2012] FCA 1032; 206 FCR 191, Dodds-Streeton J held (at [61]) that there was jurisdictional error in treating a risk of serious harm (within s 91R(1)(b) of the Migration Act) as the only kind of harm that could affect the reasonableness of relocation. Her Honour explained (at [55] and [60]):
Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.
...
The I[ndependent] M[erits] R[eviewer] did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious within the meaning of s.91R(1)(b), it was unnecessary to do so.[37] In MZZJY [2014] FCA 1394 Davies J held that the Tribunal had erred in considering whether the applicant in that case could relocate within Pakistan to avoid persecution. Her Honour said (at [16] and [21]):
The applicant’s primary contention in support of the proposed ground of appeal is that the FCC erred in not finding that the Tribunal, in assessing the reasonableness of the applicant relocating to Karachi, was obliged, but failed, to consider the risk of the applicant suffering harm having regard to the particular circumstances of the applicant. It was argued that the Tribunal wrongly conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by failing to address the personal circumstances of the applicant in addressing the question whether it was reasonable, in the sense of practicable, for the applicant to relocate to Karachi in the face of a risk of the applicant suffering sectarian and generalised violence, however remote...
I accept the submission for the applicant that the Tribunal conflated the two limbs of the relocation test, namely “appreciable risk” and “reasonableness”, by finding that the applicant could be reasonably expected to relocate to Karachi “where there is not an appreciable risk of the occurrence of the feared persecution”. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated that what is “reasonable” in the sense of practicable must depend upon the particular circumstances of the visa applicant and the impact upon that person of relocation of the place of residence within the country of nationality. This criterion was recently affirmed by the High Court in Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014. In the present case, the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, is there a lack of “appreciable risk” of harm? The conclusion that the chance of harm is not more than remote dealt only with the consideration as to whether objectively there is an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practical, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations do not necessarily apply to both limbs. The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.In the result, and on facts and circumstances with some similarity to those currently before this Court (considered later in these reasons), Kenny J found that (a) (at [49]) the Tribunal failed “to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case”, and (b) (at [64]) that because the Tribunal had failed properly to consider the Appellant’s circumstances and evidence, it had failed to fulfil its statutory duty.
In a similar vein, the comments by the Full Court (Mortimer, Moshinsky and Thawley JJ) in AHK16 v Minister for Immigration and Border Protection are apposite.[14] At [3], the Court said (emphasis added):
The assessment of whether a person can return to one or more parts of her or his country of nationality is undertaken in relation to the causal aspect of the definition of refugee in Art 1A of the Refugees Convention: namely, whether a person is outside her or his country of nationality owing to (in the sense of because of) a well-founded fear of persecution for a Convention reason: see generally SZATV at 25-26 [19], referring to the reasoning of Lord Bingham in Januzi v Secretary of State for Home Department 2 AC 426. As the extract from Januzi at [19] of SZATV, and the other authorities to which we refer establish, there are two components to this assessment. The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.
[14] AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106.
It is also apposite to record Mortimer J’s comments in MZANX v Minister for Immigration and Border Protection in relation to, among other things, a “subsistence” level of existence in cases of internal relocation as well as what her Honour referred to as other “practical realities”, such as purported “familial support” and “employment prospects.”[15] I need only note here that at [60], her Honour said:
… it is unreasonable to expect a person to relocate to a place where she or he must exist “below at least an adequate level of subsistence”: see UNHCR Guidelines on International Protection: “‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04, 23 July 2003, quoted with approval by Lord Bingham in Januzi at [20].
[15] MZANX v Minister for Immigration and Border Protection [2017] FCA 307.
It is also important to record here summarily, the comments by Mortimer J at [64] – [69]. Each of the matters noted by her Honour, in my view, apply to the facts and circumstances of the Applicant in the present matter before this Court.
At [64], her Honour referred to the need to address in detail the “practical realities for the Applicant” including his “familial support, such as it actually is rather than what it might be assumed to be.” Her Honour said it was imperative that there be a firm factual basis for any conclusion or findings by the IAA.
At [65], Mortimer J referred to the need for there to be proper inquiry made by the reviewer regarding what life in the relevant city would be like for the particular Applicant. Her Honour concluded that there was a relevant lack of particularity in the reviewer’s approach.
At [66], Mortimer J referred to the reviewer’s assessment of employment prospects, which her Honour found also to be lacking in the case before her. For example, her Honour found that there was no evidence about how the Appellant before her might find employment in the nominated city in that case. Such was likewise the case here. In MZANX, her Honour found that the reviewer referred to no evidence about “what kinds of jobs were available for uneducated Hazara” in the nominated city in that matter (Kabul). The same specific inquiry was lacking in the matter before this Court regarding this Applicant and what jobs might actually be available to him in Masar-e-Sharif.
At [67] – [69], Mortimer J found that the reviewer paid insufficient attention to the level and particularity of support that would actually be available to the Applicant before her Honour from the Hazara community. This required a specific, fact- intensive inquiry to be made by the reviewer in the matter before her Honour. The same inquiry was also required, and did not occur, in the matter before this Court regarding, among other things, the detailed country and other information provided by Professor Maley in his two Reports.
Jurisprudence – Legal Unreasonableness
For the purposes of the matter before this Court, I need only refer to three decisions of the Full Federal Court: Minister for Immigration and Border Protection v Stretton (“Stretton”) (which includes a detailed discussion by Allsop CJ of the High Court judgment in Minister for Immigration and Citizenship v Li (“Li”) and related matters);[16] Minister for Immigration and Border Protection v CRY16 (“CRY16”);[17] and Minister for Immigration and Border Protection v DZU16 (“DZU16”).[18] The last two cases deal with legal unreasonableness in the context of Part 7AA of the Act.
[16] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[17] Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.
[18] Minister for Immigration and Border Protection v DZU16 (2017) 253 FCR 526.
In Stretton, Allsop CJ authoritatively set out the jurisprudence regarding legal unreasonableness.[19]
[19] The focus here on the discussion by Allsop CJ, who also agreed with the reasons of the other members of the Court, is not meant to ignore the expansive discussion by Griffiths J at [52] – [74]. Wigney J agreed with the comments of both Allsop CJ and Griffiths J, as well as adding some brief observations of his own at [92].
First, at [4] – [8], his Honour set out the following basal principles (emphasis added):
[4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
[5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v PekoWallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated lawmaking power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
[6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome focused” conclusion without any specific jurisdictional error being identified: Singh at [44].
[7] It is in relation to the second context, the “outcome focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
Secondly, his Honour cautioned, at [10] – [11], regarding the difficulty (and imprudence) of attempting (and the impossibility of) rigidly defining by categorisation the concept of legal unreasonableness. Likewise, he said, a precise textual formulary was equally not possible.
Next, Allsop CJ referred to the task of the Court, at [12] – [13], and [21]. He said:
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
…
[21] The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion.
From the Full Court decision in CRY16 (Robertson, Murphy and Kerr JJ), it is sufficient to note the following.
First, after recording (at [67]) certain comments arising from the High Court decision in Li, at [74], the Court said (emphasis added):
… although submissions were directed to the question of “information” as opposed to “comments”, the former being dealt with in s 473DC and s 473DD and the latter in s 473DE, we do not consider that distinction to be of present significance. We do no more than note the discussion in AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 at [65] – [66] of those terms in other provisions of the Migration Act and agree that those terms may overlap to some extent.
Secondly, after noting (at [77]) that legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred, the Court said, at [82] (emphasis added):
[82] … The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
Finally, I note the following from the Full Court decision in DZU16 (Robertson, Murphy and Kerr JJ). Somewhat curiously, like the present matter, DZU16 involved an Applicant who was likely to have, but the IAA did not, relevant information regarding a possible relocation to Mazar-e-Sharif.
At [79], the Court said (emphasis added):
[79] A second alternative analysis is that if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). In that way the Authority’s mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister’s submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence. It is common ground that the Authority did not consider acting under s 473DC and this was because it wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments.
In the result, the Court said (at [83]) that it preferred this “second alternative” analysis.
Next, after noting (at [89] – [91]) the operation of ss.473DE and 473DF, and that there was incorrect information given to the Applicant in that case regarding the operation of these sections, at [92], the Court said:
[92] The process it adopted was either contrary to the statute or did not allow a reasonable time to respond. The Authority’s mistake as to its obligation to invite the respondent to give comments does not mean that the errors it made in limiting the period in which the respondent had a right to respond were immaterial.
The Full Court concluded, at [160]:[20]
[160] The Authority’s mistake as to its obligation to proceed under s 473DE did not immunise its procedures and its ultimate decision on the review from an analysis for legal unreasonableness. If the Authority had not made that mistake it would either have considered whether to exercise its discretion under s 473DC or it would not, in circumstances where the delegate asked the respondent questions in his visa interview about relocation to Kabul, but not about Mazar-e-Sharif. Those steps too are susceptible to analysis for legal unreasonableness: see CRY16.
[20] See also the later Full Court decision (Mortimer, Moshinsky and Thawley JJ) in BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [73] and [84] – [95] regarding the proper or correct operation of ss.473DD, 473DE and 473DF
The IAA’s Correspondence with the Applicant
As noted in the submissions that follow, the Applicant placed significant weight on the proper characterisation of his correspondence with the IAA.
For example, the IAA’s email of 14th December 2016 clearly reveals that the IAA believed it had given to the Applicant an invitation to comment on adverse information under s.473DE, rather than an invitation to give new information under s.473DC.
Moreover, the gravamen of much of the Applicant’s argument turns on whether it was incumbent upon the IAA to give the Applicant the opportunity to speak directly with the IAA, and that this procedural requirement (which he says arises under the Act) was not satisfied simply, or merely, by giving the Applicant an opportunity (on more than one occasion) to comment in writing on the matters raised by the IAA. In these circumstances, it is important to consider the correspondence between the Applicant and the IAA in some detail.
On 14th October 2016, the IAA wrote to the Applicant.[21] In the first part of the letter, the IAA set out certain commentary from Afghanistan Analysts Network, which included information on a bombing that targeted Hazara demonstrators in Kabul on 23rd July 2016. There followed further information from IHS Jane’s Intelligence Weekly regarding a regional group affiliated with Islamic State as well as commentary from DFAT with respect to “security conditions” for the period 1st January to 31st September 2015. This section of the IAA’s letter to the Applicant, in the light of this information, stated:[22]
This information is relevant to your case because it may lead the IAA to conclude that future attacks upon the Shia Hazara population are likely to be infrequent, and not to such an extent as to pose a real chance or real risk of harm to you. This may form part of the reason for affirming the decision under review.
[21] A copy of the letter is at CB 194 – 196. The quotation here is found at CB 194.
[22] See CB 195.
In terms, the IAA invited the Applicant to comment on this information, thus:
“to provide the following information in writing: Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm.”
The IAA also provided very brief country information in relation to Hazaras who form “one of the majority ethnic groups in Mazar-e-Sharif.” In the same letter, the IAA referred to various reports in relation to a degree of isolation of that city from “the conflict”; the information provided stated that while armed attacks have occurred in the Balkh province “militant attacks are relatively rare in the city.” Other matters concerning country information were otherwise briefly noted, including that there are international airports in Mazar-e-Sharif and Herat.
The IAA concluded this letter with the following instruction/invitation:
You are invited to give comments on the above information in writing. Your comments must be received at the IAA by 8 November 2016.
… If we do not receive your comments by 8 November 2016, we may make a decision on the review without taking any further action to obtain your views on the information.
The Applicant responded by email dated 21st October 2016.[23] In the course of that response, the Applicant said (emphasis added):
a)His life was not in danger “in one city”; his problem was with the Taliban, who “are in all cities of Afghanistan.” Further, he said that his problem was with one man – Moshin - from his own area, who is “one of the most important person in Taliban’s group, and everyone also knows him”;
b)Moshin and “all [the] Taliban” know where the Applicant is now. They have photographs of him “and all [the] details”;
c)After expressing his firm belief in the peril in which his life was held, and his concern for his family, he continued: “If I hadn’t had these problems, I would never have come here. Living alone in this age is very difficult. I have a wife and sons. I need them and they need me”;
d)In addition to his “problem” (as he termed it) “with Moshin”, the Applicant said that “everyone nowadays knows in which situation Hazara People live. Some kill us because we are Hazara, and some kill us because we are Shia. They try to kill us in any place they get the opportunity”. He continued: “Before there was only one terrorist group against Hazara People, nowadays there are many, and all of them target only hazara people [sic]”;
e)Finally, the Applicant stated: “Attack on 23 July 2016 tells everything, how they try to genocide us. In the same attack one of my uncle’s son has also been killed.”
[23] The Applicant’s response is at CB 197 – 199.
Submissions on behalf of the First Respondent in relation to CRY16
The Respondents filed further submissions with leave of the Court on 22nd May 2018 in relation to the Full Federal Court decision handed down in CRY16. They were as follows:
SUBMISSIONS OF THE FIRST RESPONDENT ON THE EFFECT OF THE FEDERAL COURT’S JUDGMENT IN CRY16
Introduction
1) These submissions are made pursuant to the leave granted by Judge Neville on 1 May 2018. They address the effect of the judgment of Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). The reasoning in that judgment was applied by their Honours in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (DZU16) at [79]-[81] and [87]-[88]. For the purposes of these submissions, it is not necessary to give independent consideration to DZU16, as it only applies CRY16.
2) Reference will, however, be made to the High Court’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174), which was delivered very recently. In so far as the Minister requires leave to do so, leave is sought.
3) Abbreviations and acronyms have the meanings given to them in the Minister’s previous submissions.
The judgment in CRY16
4) The Full Court’s conclusions in CRY16 are set out at [82] of the judgment. There, the Full Court held:
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. [Emphasis added.]
5) The reasoning leading to these conclusions may be summarised as follows.
6) First, the Authority had power to get any documents or information which were not before the Minister and which the Authority considered might be relevant. At [69], the Full Court rejected a submission, said to have been made by the Minister, that “the only relevant question is whether Pt 7AA required the Authority to give such notice to a referred applicant.” [Emphasis in original.] (It should be noted that the Minister made no such submission; rather, the Minister submitted that the presence of s 473DC(2) was an important feature of the statutory scheme that militated against a finding of legal unreasonableness in the present case.)
7) Secondly, the Full Court rejected the Minister’s submission that, absent a duty to consider the exercise of the discretionary power in s 473DC(3), the principles of legal unreasonableness could only apply where the Authority had actually embarked on consideration of a possible exercise of the power, and declined to exercise it. Their Honours considered that proposition to be “too broad”. In so holding, the Full Court appeared to proceed upon the assumption that the discretionary powers in s 473DC(3) do not carry with them a duty to consider their exercise, but that the absence of such a duty did not supply the answer to whether the Authority’s non-consideration could be challenged on legal reasonableness grounds.
8) Thirdly, the Full Court accepted the Minister’s submission that there was no evidence that the Authority exercised, or considered exercising, its discretionary power in s 473DC(3).
The High Court’s judgment in Plaintiff M174
9) On the day before special leave to appeal from the Full Court’s orders in CRY16 was refused, the High Court delivered judgment in Plaintiff M174/2016.
10) In all three judgments delivered by the High Court (Gageler, Keane and Nettle JJ; Gordon J; and Edelman J), it was held that the discretionary power in s 473DC(3) to get new information is conferred on the Authority on the implied condition that it is to be exercised reasonably, with the result that an unreasonable exercise, or failure to exercise, that power “can”, “may”, or “might” result in jurisdictional error. The circumstances contemplated in that case involved the use of s 473DC(3) to seek information from the referred applicant, in order to overcome a failure by the delegate to comply with the code of procedure in Division 3 of Part 2 of the Act (there being apparently no other mechanism available).
The present case
11) Accepting, as the Minister must in the light of Plaintiff M174/2016, CRY16 and DZU16, that a failure by the Authority to exercise, or to consider exercising, its discretionary power under s 473DC(3) is a decision that is subject to a requirement of reasonableness, the Authority’s decision in the present case not to exercise, or to consider exercising, that power was not legally unreasonable, on an outcome-focused view of the matter,[34] for the reasons given by the Minister at [20]-[31] of his submissions filed on 22 September 2017 and at [28] of his submissions filed on 1 November 2017, upon which the Minister continues to rely. Each of CRY16 and DZU16 is distinguishable for the reasons given in those submissions.
Submissions in Reply on behalf of the Applicant in relation to CRY16
[34] cf Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445 [44] per Allsop CJ, Robertson and Mortimer JJ.
The Applicant filed Submissions in Reply on the issue of CRY16 on 4th June 2018, which were as follows:
APPLICANT’S FURTHER SUBMISSIONS
1) As the Minister’s submissions filed 22 May 2018 correctly concede, on the authority of M174/2016, CRY16 and DZU16, a failure by the Authority to unreasonably exercise or consider exercising its discretionary power under s 473DC(3) to invite new information may amount to jurisdictional error.
2) In this case, the Authority should have exercised, or considered exercising its power under s 473DC(3). Instead it distracted itself from whether it could do so by issuing an invitation under s 473DE to comment on country information.
3) The First Respondent’s written submissions filed 22 May 2018 in relation to DZU16 fail to mention the following part of the Full Court’s decision. At [79], the Full Court stated:
“…if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). In that way the Authority’s mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister’s submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence.”
4) Similarly in this case, the Authority mistook its power and distracted itself. It is not just that the Authority did not exercise its discretion to invite the Applicant to an interview under s 473DC(3)(b) of the Act. The Authority’s error was more than that: by mistaking its procedural powers by giving an invitation to comment on adverse information under s 473DE (3), the Authority distracted itself from its actual power to invite the Applicant to an interview.
5) There is a factual difference between this case and DZU16. In DZU16, the Appellant did not put in any submissions regarding relocation, including because of the Authority’s procedural fairness errors in not properly inviting him to do so. A factual difference here is that the Applicant did put in submissions regarding relocation. The Applicant’s submissions in relation to the dangers of relocating to Mazar-e-Sharif included detailed opinion evidence from Professor William Maley. The Authority did not properly engage with the claims made via Professor Maley’s opinion. This error was not in play in DZU16 because the applicant there did not make submissions regarding the reasonableness of relocation at all.
6) The Full Court in DZU16 refer with approval to various cases which establish that decision makers may commit jurisdictional error when failing to consider aspects of claim in respect of relocation (see DZU16 at [134], [136], [138]).
7) Considering the reasonableness of relocation is a “fact intensive” task: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 per Mortimer J at [69]. The Applicant’s objections to relocation should have framed the matters for the Authority to consider.
8) Here, the IAA did not deal with the content of Professor Maley’s report in its relocation findings, at all. The only reference to the Professor’s evidence is at [27] (not in relation to relocation) where the Authority stated “The representative also refers to an expert opinion dated 22 December 2016 by Professor William Maley who claims there are recent indications that Mazar-e-Sharif may become the focus of expanded military activity in the north.”
9) Mere noting or reference to something is not the same as considering it. As stated recently by Moshinsky J in AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 (9 May 2018) at [46]:
“However, the fact that a matter has been noted as “considered” does not preclude an analysis as to whether that matter has been given consideration as required by law: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [27].”
10) While the Full Court did not refer to MZANX v Minister for Immigration and Border Protection [2017] FCA 307 per Mortimer J at [70], the other cases cited by the Full Court are consistent with Mortimer J’s approach that the decision maker fails to perform the task required of it if it fails to deal at a factual level with the specific objections to relocation raised by the Applicant. The Applicant repeats his earlier submissions citing MZANX and adopts the reasoning (though not the result) of the Full Court in DZU at [134]-[138].
11) Here, the IAA failed to carry out the fact intensive and objection specific task of considering the reasonableness of the Applicant relocating to Mazar-e-Sharif. The IAA considered the risk of generalised harm in relation to whether the Applicant was at risk of serious harm there, but not in relation to whether it was reasonable for him to relocate there. So much is clear from the IAA’s reasons. At [45]-[46] the IAA considered the “real risk of significant harm” and the general security situation. Then the IAA went on at [47]-[53] to set out reasons about whether relocation to Mazar-e-Sharif was reasonable. The IAA took into account some (but not all) of the Applicant’s personal circumstances, but did not consider the specific issues raised in Professor Maley’s evidence regarding the reasonableness of relocation, particularly the fluidity of security in Afghanistan and Mazar-e-Sharif.
12) The IAA’s task at [47]-[53] was different to that at [45]. When the IAA came to consider the reasonableness of relocation, the test was not whether there was a risk of significant harm, but whether relocation was reasonable. In light of the Applicant’s objections to relocation in Professor Maley’s evidence, the IAA missed the point that the fluid risk of violence made it unreasonable to relocate to Mazar-e-Sharif.
13) Counsel for the Minister in this case was also counsel for the Minister in the recent Federal Court appeal of AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 (4 May 2018) which the Minister lost. In that case, Perry J found that the Tribunal erred by failing to consider the future risk of harm in a place of potential relocation. Here, the IAA has failed to consider the claimed fluidity of security in Mazar-e-Sharif, which was centrally relevant to the required forward looking assessment of risk and the reasonableness of making the applicant move to Mazar-e-Sharif.
14) The Applicant relies on the Full Federal Court judgment of Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, which found no error with the judgment of Reithmuller J below, where his Honour said:
If the applicant is expected to prove a negative, that is that they cannot relocate to anywhere else in a country or region, then it would place an applicant in an almost impossible situation if they were not given any notice of where the decision maker was considering that they could relocate.
15) As can be seen from CB 194, in this case, like in CRY16, the Authority invited the Applicant to comment on the reasonableness of relocating anywhere, stating:
“You are invited to provide the following information in writing:
Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm”.
16) In its decision, the IAA says that it invited the Applicant to “provide information relating to reasonableness of relocation to places within Afghanistan, including Mazar-e-Sharif”. The Applicant was put in a difficult situation, of having to object to relocate to anywhere in Afghanistan. Despite the difficulty, the Applicant made objections specifically to relocating to Mazar-e-Sharif, based on the fluid security situation there, which was liable to “cascade” and was “extraordinarily fluid” CB 218-220. The IAA failed to properly consider, or consider at all, the objections the Applicant made to relocating to Mazar-e-Sharif.
17) The IAA’s decision ought to be quashed and remitted for reconsideration because it is affected by jurisdictional error.
Consideration & Disposition
Before dealing with the Applicant’s specific Grounds of Review, I note the following matters.
In S395/2002 v Minister for Immigration and Multicultural Affairs (“S395/2002”), Gummow and Hayne JJ said, at [73] – [76] (emphasis in original; underlined emphasis added):[35]
[73] The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
[74] Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
[75] Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[76] Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
[35] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
These same comments about the task to be undertaken were quoted by the Full Court in MZYTS, at [35]. In that same paragraph, the Full Court prefaced the quote from S395/2002 with the following observation (emphasis added):
The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there…
Also in MZYTS, at [50], as earlier noted, the Full Court recalled that part of the “statutory task” was to ensure that there was an obvious or discernible “process of weighing evidence and preferring some over the other.” In the same place, the Full Court continued (emphasis added):
In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
Applying these statements of principle to the IAA’s reasons in the current matter, in my view it is clear that:
a)There is only one reference to Professor Maley’s second Report, dated 22nd December 2016. That reference (at par.27), such as it is, is barely a passing reference, as opposed to any active intellectual engagement with, or even specific mention of, his detailed analysis of the situation in Afghanistan. Nor does it adequately consider or address his assessment of, for example, the reasons why the safety of Hazaras generally is necessarily compromised in that country. There was, in my view, no obvious or discernible “weighing” of this extremely detailed Report from this expert. I note in particular that Professor Maley challenges the country information provided by DFAT (noted above), but to this challenge there is no reference at all, notwithstanding that the Professor’s Reports post-date the country information relied upon by the IAA, including that supplied by DFAT. There was certainly no “weighing” of the respective and quite different assessments given by DFAT, on the one hand, and Professor Maley, on the other, regarding, among other thins, the safety and risk situation in Afghanistan;
b)There is no reference at all to Professor Maley’s first Report, dated 22nd November 2016. Such omission is directly contrary to the Full Court’s comments in MZYTS at [50], noted earlier in these reasons;
c)The IAA made findings (see Reasons at par.28) regarding the Applicant’s capacity to survive in Afghanistan, albeit in another part of the country. The IAA found that as a consequence of such a move he may be, among other things, subject to lower living standards in the nominated city of Mazar-e-Sharif compared to his home province. The IAA also determined that, although there were likely difficulties the Applicant would encounter (e.g. discrimination in employment), in its view, it was unlikely that “he would be denied the capacity to earn a livelihood or access basic services, or that he would be subject to economic hardship such that it would threaten his capacity to exist …”. However, as noted earlier in these reasons when discussing Professor Maley’s second Report (December 2016) in detail, the complete opposite conclusion was reached; the reasons for that conclusion are set out in par.6 of that Report. The detailed, expert reasons of Professor Maley were not referred to at all by the IAA. Thus, there was not only no relevant “weighing” of the more recent evidence provided by the Applicant through Professor Maley’s two Reports; as already recorded, there was not even a reference to his November 2016 Report;
d)The approach adopted by the IAA with respect to its consideration of “relocation” by this Applicant especially the “reasonableness” of what the IAA determined for this Applicant, was at odds with the principles set out by Kenny J in MZACX at [24] – [26] set out earlier in these reasons;
e)The approach of the IAA with respect to its consideration of the circumstances of the Applicant and his evidence regarding the familial relationships with his Wife and children, and in the light of Professor Maley’s [expert] Reports regarding (i) the employability of and discrimination against “returnees” in Afghanistan, and (ii) their subsistence level of existence, was contrary to the principles set out by Mortimer J in MZANX at [60] – [68].
These matters lead to the conclusion that, because of (a) the failure by the IAA properly to consider, (either in detail in relation to Professor Maley’s 22nd December 2016 Report, or at all in relation to Professor Maley’s 22nd November 2016 Report), and notably to weigh the evidence before it in the light of Professor Maley’s more recent two Reports in accordance with the principles set out in MZYTS, and (b) the failure by the IAA properly to consider and notably to weigh the evidence before it. This is especially so in the light of Professor Maley’s more recent two Reports that related specifically to this Applicant, as a returning Hazara in Afghanistan, in accordance with the principles set out in S395/2002 (on which more below). Hence, the IAA did not comply with its statutory task under the Act as outlined by the High Court in Plaintiff M174/2016. The failures already noted require that the relief sought by the Applicant should be granted.
In addition to these fundamental failures by the IAA, and because of the detail already canvassed in these reasons, I need deal only very briefly with the Applicant’s specific Further Amended Grounds of Review.
The first Ground of Review asserts that the IAA failed to form the requisite state of satisfaction regarding the economic hardship the Applicant would likely suffer if he moved to Mazar-e-Sharif. The Applicant contended that the IAA was in error by referring (at Reasons, par.28) to “exist” rather than to “subsist” as prescribed by s.5J(5) of the Act.
For reasons already given, in my view the IAA (a) failed properly to consider (or to consider at all) the evidence of Professor Maley regarding the very significant difficulties faced by “returnee” such as the Applicant faces in Afghanistan regarding, among other things, employment, access to services and lack of familial support; (b) in the light of the principles outlined by Mortimer J in MZANX regarding proper attention to the practical realities facing the Applicant, the IAA failed properly to consider those practical realities facing the Applicant; and (c) by referring to “exist” rather than “subsist”, it misunderstood a relevant indicia as prescribed by the Act in s.5J. Accordingly, the first Ground of Review is made out.
The second Ground of Review challenged the findings of the IAA with respect to the application of proper principles regarding “relocation” as they applied to the Applicant.
In my view, this Ground is also made out for the following reasons:
a)On the evidence cited by the IAA, it concluded that it was sufficiently “safe” or without relevant risk for the Applicant to relocate to Mazar-e-Sharif in circumstances where the IAA acknowledged that there had been a relatively recent bombing in which there had been many casualties and injuries;
b)The IAA did not refer to the Applicant’s own evidence of him having already lost a family member to a bombing;
c)The IAA failed relevantly to consider the practical reality of the Applicant being married with five children, and instead founded its decision, in part, upon the untenable and inaccurate fiction of the Applicant “presenting” as a single man without dependants (but at the same time finding that he could support his dependants by his subsistent existence);
d)The IAA did not consider, either at all or properly, the Reports of Professor Maley regarding, among other things, the general and wide-spread instability in Afghanistan;
e)The principles in relation to these matters was summarised by Kenny J in MZACX. Those principles were not relevantly followed in the present matter, as noted earlier in these reasons;
f)Otherwise I accept the “particulars” provided by the Applicant in Ground 2 of his Further Amended Application.
Ground 3 of the Grounds of Review refers to the level of violence in Mazar-e-Sharif and the issue of the “unreasonableness” of the Applicant relocating to that city. In my view, the reasons already given are sufficient to establish that (a) there was insufficient attention paid by the IAA to proper principle regarding relocation as set out by the Federal Court in MZACX, (b) there was insufficient attention paid to the practical realities faced by this Applicant, and his family situation (including the death of a young relative in a bombing), and (c) the conclusion of relative safety of the Applicant notwithstanding the IAA citing an uncontested report that confirmed a significant number of death and injuries in that area, together with the unchallenged evidence of Professor Maley in his Reports. Accordingly, Ground 3 is made out.
Ground 4 relates to the alleged lack of procedural fairness in not affording the Applicant an opportunity to be interviewed (as opposed to him otherwise providing written comment), and that this occurred because the IAA “misunderstood the nature of its power.” The Applicant contended that the IAA mistook its position (and power) as being exercised under s.473DE rather than (as it should have understood) under s.473DC(3)(b). The Applicant also contended that it was significant that he was given no opportunity to put any evidence before the Delegate regarding relocation to Mazar-e-Sharif.
In my view, the following matters are relevant to this Ground (emphasis added):
a)Section 473DC(3) in fact provides alternative courses to the IAA. As noted earlier in these reasons, the section provides that the IAA (emphasis added) “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;
b)Section 473DE(1)(c) relevantly and similarly provides that the IAA may invite the Applicant to provide it with comment, either “orally or in writing”;
c)Given that there was no requirement that there be an interview but only, at the IAA’s discretion, an opportunity for the Applicant to put comment before the IAA either in writing or at an interview (which need not, in any event, be face-to-face), and given that the Applicant was given an opportunity to put his written comments before the IAA, I fail to see how there was any procedural error as alleged;
d)Further, given that the hearing before the IAA was, in effect, a hearing de novo, I do not see that it is relevant that the Applicant did not have the opportunity to put any evidence before the Delegate regarding relocation to Mazar-e-Sharif;
e)In short, under s.473DC the IAA has a discretion, and under s.473DE, it has a duty, to seek either comment or information from the Applicant. Under each section, the “invitation” from the IAA may be for comment/information to be in writing or in an interview. In the current matter, comment was sought from the Applicant in writing, which was provided;
f)All of this said, in the light of the Full Court’s decisions in CRY16 and DZU16, the issue is whether the IAA relevantly “considered” whether to invite the Applicant to an interview, believing that it was operating under s.473DE, rather than relevantly “considering” such an invitation under s.473DC;
g)What the IAA actually did was to seek comment from the Applicant (see its letters dated 14th October and 2nd December 2016); the Applicant responded, notably with the Reports of Professor Maley. The IAA effectively “disabled itself” (see CRY16 at [82]) from making a properly informed decision by not considering at all, let alone properly considering, these Reports on behalf of the Applicant;
h)In all of the circumstances, given that the Applicant was given an opportunity to comment on the material provided by the IAA, the error (as noted in the earlier Grounds) is not so much the lack of opportunity, or the nature of the opportunity to comment, but more what the IAA did, or in this matter, what it did not do (i.e. it did not consider the material provided by Professor Maley), with the material provided to it.
In all of the circumstances, I do not consider that Ground 4 has been made out.
In the light of the reasons given, the Court’s Orders will be as follows:
a)The decision and recommendation of the Immigration Assessment Authority dated 7th February 2017 be set aside, and the matter be remitted for further assessment by a different reviewer; and
b)Absent any Application within 14 days, the First Respondent pay the Applicant’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 31 May 2019
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