BON17 v Minister for Immigration

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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
Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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 Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Border Protection v DZU16 (2017) 253 FCR 526
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534
MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481
MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

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

  1. 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.

  2. 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

  1. 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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Details
Case
[2019] FCCA 1456
Decision Date

CaseChat Overview and Summary

This matter concerned an application by BON17 against the Minister for Immigration. The applicant, a Shia Muslim married man with five children, had been ordered to relocate to a different part of Afghanistan by the Independent Assessment Authority (IAA). The dispute centred on the IAA's alleged failure to properly consider two expert reports concerning the security situation in Afghanistan and the likely prospects for returnees, which the applicant argued constituted a jurisdictional error. The case was heard by Judge Neville.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.”

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.