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) |
| 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…
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- Case
- [2019] FCCA 1456
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the IAA had committed a jurisdictional error by failing to perform its statutory task. This involved determining whether the IAA's approach to the expert reports amounted to a failure to consider relevant material in a way that vitiated its decision-making process, rather than merely an error of fact or law within its jurisdiction. The court was required to assess whether the IAA had adequately weighed the evidence before it, particularly the expert reports, in forming its satisfaction under the relevant provisions of the Migration Act.
Judge Neville found that the IAA had indeed committed a jurisdictional error. Applying principles from Full Court decisions, his Honour emphasised that a failure to perform the statutory task, rather than merely describing the path to error, constitutes jurisdictional error. The IAA's task was to form its own satisfaction based on the material before it, which included assessing the objective basis for any fear of harm. The court noted that the IAA's reasons disclosed no process of weighing evidence and preferring some over others, particularly in relation to the expert reports. The omission and ignoring of this substantial and consequential evidence, rather than a considered weighing, indicated a failure to undertake the statutory task.
The relief sought by the applicant was granted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.