BRI16 v Minister for Immigration
[2018] FCCA 3353
•20 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRI16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3353 |
| Catchwords: MIGRATION – Protection visa application – judicial review of a decision of the Immigration Assessment Authority – whether IAA failed to consider applicant’s claims – whether IAA acted unreasonably – whether relevant information was ignored – no jurisdictional error found – application dismissed. |
| Legislation: Evidence Act 1995 (Cth) ss.55, 76 Pt.7AA |
| Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 |
| Applicant: | BRI16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 289 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 1 March 2018 and 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | PERTH |
| Delivered on: | 20 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F. Faris |
| Solicitors for the Applicant: | Rebus Legal |
| Counsel for the First Respondent: | Ms A. Ladhams |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
No. PEG289 of 2016
| BRI16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”).
The IAA’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), refusing to grant the applicant a protection visa.
The Court has reviewed the factual material provided by the parties and adopts the facts as outlined at paragraph 3 to 20 in the Minister’s written submissions dated 8 February 2018 as the procedural and factual background to these proceedings. These background facts were not in dispute and provide, relevantly, as follows.
The applicant, a citizen of Afghanistan, arrived in Australia at Christmas Island on 22 October 2012 as an unauthorised maritime arrival.
On 12 May 2015, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (the “Act”) to allow the applicant to make an application for a protection visa.
On 8 July 2015, the Department again wrote to the applicant and invited him to make an application for a subclass 785 temporary protection visa or a subclass 790 safe haven enterprise visa (“SHEV”).
On 6 August 2015, the applicant lodged an application for a temporary protection visa. The applicant’s claims are:
a)He fears harm in Afghanistan from the Taliban and Daesh due to his Shia Hazara ethnicity.
b)His life was in danger because the Taliban wanted him to hand over to them his son who worked with a company at the Australian base in Uruzgan.
c)While travelling by road from Kabul to Jaghori, he was abducted and mistreated by Taliban forces. He escaped and is afraid the Taliban will now kill him, as they have control of the country, including roads to Jaghori.
d)Because the Taliban has spies in Australia they will know he is in Australia and he will face harm if he returns to Afghanistan.
e)He is unable to relocate anywhere else in Afghanistan as the Taliban has influence everywhere and there is no safety in the whole country.
f)Daesh is now operating in Afghanistan and killing Hazaras. The Islamic State movement is making significant gains in Ghazni, Zabul and other parts of Afghanistan. The Afghan authorities are unable to safeguard Hazaras as they are unable to take care of themselves.
g)A Hazara person, who originated from the same village as the applicant, recently returned to Afghanistan and was beheaded by insurgents.
The applicant was interviewed by a Ministerial delegate on 21 October 2015.
On 29 April 2016, the delegate made a decision not to grant the applicant a protection visa.
The delegate’s decision was then referred to the IAA for a “fast track” review under Part 7AA of the Act.
On or around 25 May 2016 the applicant provided the IAA with a written submission, pictures of his son (as evidence of his son’s employment) and a reference letter for the applicant's son from the son’s employer.
On 10 June 2016, the IAA affirmed the decision not to grant the applicant a protection visa.
By application filed in this Court on 5 July 2016, the applicant seeks judicial review of the IAA’s decision.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
The IAA’s Decision
The IAA’s decision appears at pages 229 to 244 in the Court Book.
The applicant satisfies the criteria in section 5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under section 473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1).
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
As correctly summarised by the Minister, and not disputed, in relation to this applicant the IAA considered the materials referred by the Secretary under s.473CB. The IAA noted that it had also received a written submission filed by the applicant. That submission contained new information that was not before the delegate as follows ([5]):
a)Photographs evidencing the applicant's son's employment in Afghanistan and a reference to Australian Sapper magazine.
b)Details regarding mistreatment of the applicant by the Taliban and the applicant's escape from Taliban detention.
c)Information regarding deterioration in security in Afghanistan in 2014 and 2015.
d)Information from 2015 regarding the Taliban and hostility towards Afghan citizens expressing their opposition to the Taliban.
e)Information from 2014 regarding the risk in Afghanistan to returnees.
The IAA considered the applicant’s written submission in so far as the applicant noted areas of disagreement with the delegate's decision. However, the IAA found that it was unable to consider other new information provided with the applicant’s submission because the matters in s.473DD were not satisfied. The IAA so concluded because:
a)the applicant did not provide any explanation as to why the new information was not previously provided to the delegate;
b)the applicant did not explain why the new information may be regarded as credible personal information that was not previously known and, had it been known, may have affected the assessment; and
c)the new information pre-dated the delegate's decision ([6]).
The IAA accepted that the applicant was an Afghan Hazara from the Jaghori district ([8]).
The IAA noted that the applicant had claimed that he ran a business in Kabul from 2006 to 2012 but only lived in Kabul from 2010. The IAA found this to be unreliable:
9. The applicant has provided conflicting information regarding his period of residence in Kabul. At the visa interview the applicant stated that prior to coming to Australia he was living in Kabul, but his home was in Jaghori, Ghazni province. He stated that he had operated a shop in Kabul from 2006 until 2012 but he had only been resident in Kabul one to two years prior to his departure from Afghanistan in 2012. He said that as a business partner worked at the shop, he continued to reside in Jaghori and would only go to Kabul when required, which was between once a week and once a month. In the submission to the IAA the applicant stated that in 2010 he moved his family to Kabul where he established a home with them. At the visa interview the applicant confirmed that his wife and children still reside in Kabul.
10. I find the applicant's story about commuting between Ghazni and Kabul in the period 2006 to 2012 not to be plausible. According to 2007 country information, the insurgency in Afghanistan gained momentum in the south and east, moving from its traditional strongholds to Ghazni, Paktia, Paktika, Nangahar, and Laghman, with insurgents occupying critical roads and conducting ambushes from these strategic points. With the increased insurgent activity on the roads in Ghazni, I do not accept as plausible that the applicant would commute regularly by road between Ghazni province and his shop in Kabul. I accept that the applicant operated a shop in Kabul between 2006 and 2012 and find that he resided in Kabul with his family in this period.
In assessing the applicant’s claims about detention and his escape from the Taliban, the IAA accepted that the applicant's son may have been employed at the Australian base at Uruzgan but did not accept that the applicant was targeted by the Taliban because of his son’s employment:
11. The applicant claims that his name was on a watch list and he was targeted by the Taliban because his son worked at the Australian base in Uruzgan. He claims that as a result of this, he was detained and mistreated by the Taliban on the road from Kabul to Ghazni around three months prior to his departure from Australia. The applicant claims to have been beaten and tortured by the Taliban during this detention. He claims that he was detained in a house, where he was locked alone in a room. He claims to have escaped by breaking through a glass window, as the Taliban had departed and left the premises unguarded.
12. When pressed at the visa interview on 21 October 2015 to describe his treatment by the Taliban the applicant stated that "It wasn't a lot of beating. Just to scare me and frighten me." At the entry interview on 2 November 2012 the applicant made no mention of mistreatment or torture by the Taliban. When presented with this inconsistency at the visa interview, the applicant stated it occurred because he was not given the opportunity at the entry interview to provide specific details. In the submission to the IAA the applicant cited the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and stated that torture is not only physical but also mental.
13. I accept that the applicant's son may have been employed at the Australian base in Uruzgan, however I do not accept that the applicant was targeted by the Taliban because of this and do not accept as plausible the applicant's account of his detention and mistreatment by the Taliban and subsequent escape. Country information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant's case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at an Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son's employment at the Australian base in Uruzgan, detain and blindfold him, threaten him with harm and then leave him locked in a room in an empty house. If the applicant's son was of such interest to the Taliban that the applicant was on a watch list and targeted individually, it is more plausible that once detained, he would have been closely monitored until such time as the demand for his son to surrender to the Taliban had been resolved. I find that the applicant was not detained by the Taliban as claimed, was not mistreated or tortured and that the Taliban has no ongoing interest in him.
17. I have found that the applicant was not detained and mistreated by the Taliban as claimed and that the Taliban has no ongoing interest in him as a result of his son's employment at the Australian base in Uruzgan. As a result of this I find that the applicant does not face a real chance of persecution from the Taliban due to any involvement by his son with the Australian base in Uruzgan.
After summarising relevant country information, the IAA accepted that the applicant would face a real risk of being killed by the Taliban due to his Hazara ethnicity if he returned to Ghazni province and his home district of Jaghori ([21]). This finding was based on the historic discrimination against Harazas, particularly by the Taliban, the fact that the applicant would be readily identifiable as a Hazara if he were to return to Ghazni, and that the security situation in Ghazni is “uncertain” ([18]-[20]).
Section 36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. Despite finding that the applicant would be harmed if he returned to Ghazni province, the IAA was not satisfied that the applicant would face serious harm in Kabul ([22]). This finding was based on:
a)the fact that Hazaras comprise the largest ethnic group in Kabul;
b)country information which did not indicate that Shia Hazaras are subject to harassment or discrimination amounting to persecution in Kabul;
c)the fact that that the security situation for Hazaras does not differ significantly from that experienced by the general population in Kabul; and
d)the fact that that the Afghan government maintained effective control over Kabul ([23]-[28]).
On the basis of the country information, the IAA accepted that the applicant would be viewed as returning to Afghanistan from Australia, a western country ([31]). However, the IAA did not accept that this placed the applicant at risk of harm:
32. I accept that there have been possible instances of Shia Hazaras being targeted by anti-government elements for reason of their having travelled to Australia, however these incidents occurred while the individuals concerned were travelling by road through regional areas of Afghanistan. In 2014 there were uncorroborated news reports that an Afghan Hazara from Jaghori District was abducted and tortured by the Taliban following his deportation from Australia. DFAT has since been in contact with the individual, who is not currently pursuing any action regarding this matter. There is no evidence of Shia Hazara returnees from western countries being harmed by insurgents like the Taliban, Al Qaeda, or Oaesh in Kabul. DFAT assesses that, with the exception of those travelling by road between Kabul and the Hazarajat, low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links. The applicant would access Kabul through its international airport. There are no reports available to indicate that attacks similar to those on the roads between Kabul and Hazarjat, on account of having any association to a western country, have occurred in Kabul itself. As a result of this I am not satisfied that the applicant faces a real chance of persecution due to his return from a western country after seeking asylum, including as a Hazara Shia, or for any other reason.
Overall, the IAA was not satisfied that there was a real chance the applicant would face persecution upon return to Kabul for any of the reasons raised by the applicant, either individually or cumulatively, and determined that any fear of persecution was not well-founded ([34]).
The IAA also considered the relevant complementary protection provisions but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Kabul, there was a real risk that the applicant will suffer significant harm:
37. The applicant claims to fear harm in Afghanistan due to his Hazara race, Shia Muslim faith, as a failed asylum seeker, as a returnee from the West and because of his son's employment at the Australian base in Uruzgan. While I have found that the applicant does not face a real chance of persecution from the Taliban due to any involvement by his son with the Australian base in Uruzgan, I have found the applicant would face a real chance of persecution from the Taliban due to his Hazara ethnicity if he returned to Ghazni province and his home district of Jaghori. I am satisfied that this harm would amount to significant harm through infliction of cruel or inhuman treatment or punishment.
39. I do not accept that there is a real risk the applicant will suffer significant harm in Kabul. As noted previously, Hazaras comprise the largest ethnic group in Kabul in Kabul, where estimates of the Hazara population vary between around 1.6 million to two million, or 40-50 per cent of city's population. DFAT reports that there is currently no evidence of any official policy of discrimination pursued by the government on the basis of ethnicity and that while Hazaras still face some societal discrimination, this tends to occur in the form of nepotism in favour of particular ethnic and religious groups, rather than negative institutional discrimination against a particular group. Hazaras are active in the Afghan community, particularly in politics, education and civil societ y. Country information does not indicate that Shia Hazaras in Kabul are subject to harassment or discrimination amounting to significant harm of a level to constitute cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is there information to indicate that Shia Hazaras are denied access to basic services or to earn a livelihood. Because of the city's size and growth, Kabul offers a greater range of employment opportunities than many other areas of Afghanistan. Over the past decade, employment growth has been strongest in Kabul's service sector, including small businesses such as family-owned markets, and in the construction industry. Due to the significant military and government presence in Kabul, there are also employment opportunities in the armed forces and the civil service.
40. At the visa interview the applicant stated that in partnership with his nephew, he had operated a shop in Kota Sangi, a market area in Kabul, between 2006 and 2012. While at the visa interview the applicant stated he did not come to Australia only to go back to Kabul, as the security situation for the Hazara community in Kabul was poor, Kabul is under effective government control. The applicant is an able-bodied man who in the past has engaged in a range of commercial activities, buying, selling and trading goods I am satisfied on the evidence that the applicant has the capacity to undertake future commercial activities and country information indicates that such opportunities are available in Kabul, which has a wide range of commercial services available, including small family-owned markets, vegetable markets, butchers, clothes markets, home-ware stores, mobile phone shops and petrol stations. On the available evidence I do not accept that it will be difficult for the applicant to subsist to the extent there is a real risk the applicant will suffer significant harm arising from degrading treatment or punishment.
Proceedings in this Court
On 5 July 2016, the applicant filed an application in this Court seeking judicial review of the IAA’s decision.
At that time, the applicant relied on two grounds of review as follows:
a)Ground one claims that the IAA carried out the review in circumstances where the Secretary had not provided all of the material it was required to give the IAA under s.473CB of the Act.
i)The applicant particularised his first ground by stating that the IAA does not set out the material provided to it by the Secretary under s.473CB of the Act in its reasons for decision and it is to be inferred thereby that the Secretary did not provide all the material it was required to provide.
b)Ground two asserts that, contrary to s.473DB(1) of the Act, the IAA did not consider all of the material given to it by the Secretary under s.473CB of the Act.
i)The particulars relevant to this second ground claim that the IAA does not set out the material provided to it by the Secretary under s.473CB of the Act in its reasons and it is to be inferred that the IAA did not consider all of that material.
On 3 August 2016, Registrar Eaton of this Court made orders giving the applicant an opportunity to file an amended application and further affidavit evidence by 21 September 2016 and requiring him to file submissions 42 days before the hearing.
The applicant did not file an amended application or provide this Court with any written submissions in support of his application.
On 20 June 2017, the applicant’s solicitors notified the Court that they had ceased acting for the applicant.
On 8 February 2018, the Minister filed detailed written submissions addressing the applicant’s two grounds of review.
No written submissions were received from the applicant at this time.
On 1 March 2018, the applicant appeared in person before this Court. He advised that his previous lawyer had all of the documentation relevant to his matter and had not provided it to him despite being asked to do so. This material included the Court Book and the Minister’s submissions. Counsel for the Minister agreed that, in the circumstances, the matter should be adjourned so that the applicant could seek new legal representation.
The matter was adjourned to a directions hearing on 22 March 2018 to allow the applicant to seek legal advice.
On 22 March 2018, this Court ordered that the matter be listed for a final hearing on 6 September 2018. The applicant was ordered to file an amended application, any affidavits and written submissions 28 days prior to the hearing date (i.e. 9 August 2018). The Minister was ordered to file any affidavits and written submissions 14 days prior to the hearing date.
On 14 August 2014, the applicant’s new lawyers filed an application (as opposed to an amended application, which, clearly, it was intended to be), an affidavit and written submissions.
It does not appear that the Minister received a copy of the (amended) application.
The (amended) application contained three grounds of review:
1. The decision maker failed to give due consideration to the Applicant’s claims.
2. Decision maker was unreasonable.
3. The second respondent failed to consider relevant information.
The (amended) application was prepared by the applicant’s new lawyers but provides no particulars. This is unsatisfactory and arguably a reason to dismiss the application for lack of substance and clarity. The Court notes that in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969, it was held that a general, vague and insufficiently particularised application provided judicial justification for the dismissal of the proceeding.
An omission of this sort might be expected from an unrepresented applicant with a poor grasp of the English language. In those circumstances, this Court usually allows the applicant to explain his or her position orally in court. This is how it should be, particularly when the visa in question relates to a protection claim: DQQ17 v Minister for Immigration and Border Protection [2017] FCCA 3207 per Colvin J. But that was not the case here. Here, the (amended) application, prepared by a lawyer, does not specify that it is an amended application, does not provide particulars, is undated and was filed late.
The affidavit attached to the (amended) application is dated 14 August 2018 and was, again, prepared by the applicant’s new lawyers. The affidavit is 6 pages in length and contains 34 paragraphs. It also contains numerous attachments.
It is arguable that this affidavit was intended to serve as particulars, although that was never made clear. Whatever the intention of the affidavit, the affidavit itself was lacking. On one level, the affidavit read more like legal submissions of the sort expected from counsel. Further, it was soon evident that there were issues in relation to the admissibility of much of the affidavit. At the hearing of this matter, the Minister objected to most of the affidavit evidence as follows:
| Paragraph | Part | Objection | Relevant provision of the Evidence Act 1995 (Cth) |
| 10 to 20 (including annexure A) | All | Relevance (Except for the limited purposes of s 55(2)(b) of the Evidence Act 1995 to determine whether annexure A is admissible) | s 55(1) |
| 21 to 24 | All | Relevance | s 55(1) |
| 28, 30,31 | All | Relevance | s 55(1) |
| 29 | All (a), (b), (c) | Opinion evidence Relevance | s 76 |
| 32-34 | All | Relevance | s 55(1) |
| 34 | From "however" to end of paragraph | Opinion evidence | s 76 |
These objections were put to counsel for the applicant.
It is expected that lawyers who appear before this Court will have a solid understanding of the rules of evidence (here, the rules that relate to relevance and opinion evidence). Regrettably, the lawyer acting for the applicant in this matter seemed incapable of addressing any of the Minister’s objections when asked to do so. In the end, he agreed to almost all of the Minister’s objections, with the result that the affidavit he had prepared (and which his client had, one assumes, paid for) was of no use to the applicant. This too is unacceptable. The applicant deserved much better.
The applicant’s new lawyers also provided written submissions on 14 August 2018. These submissions did not clarify whether the applicant’s application of 14 August 2018 was an amended application and whether the two original grounds of review articulated in the applicant’s first application of 2016 were now abandoned. Again, arguably, the written submissions seek to provide the particulars lacking in the (amended) application. The Court has proceeded on that basis, as did counsel for the Minister who showed considerable patience throughout these proceedings.
As noted, the (amended) application, affidavit and written submissions were all filed late. On 30 August 2018, the Court ordered by consent that on 16 August 2018, the applicant file and serve any amended application, any affidavits, written submissions and a list of authorities in support of the application for review.
On the basis of the above, the Court assumes that the grounds of review in the 2016 application are abandoned.
Accordingly, the Court will address the three grounds of review as articulated in the (amended) application of 14 August 2018.
Ground one
The decision maker failed to give due consideration to the Applicant’s claims
In relation to ground 1, the applicant contended as follows in written submissions:
17. The Applicants entire claim is based on the premise that he feared harm to his life because he had problems with the Taliban due to his son’s employment at the Australian troop based in Uruzgan province, Afghanistan.
18. It is respectfully submitted that the IAA fell into Jurisdictional Error by not placing adequate weight on the Applicant’s claims insofar as him having been threatened.
Detention & mistreatment
19. The applicant claimed that he was detained and mistreated by the Taliban on the road from Kabul to Ghazni around three months prior to his departure from Australia.
20. The IAA did not accept as plausible the applicant’s account of his detention and escape stating that “Country Information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant’s case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at an Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son’s employment at the Australian base in Uruzgan…”
21. The IAA relied on country information that stated that Kidnappings are common in Afghanistan.
22. However, the IAA erred in finding that ‘because’ no ransom was demanded for the Applicant, that he could not have been kidnapped and tortured by the Taliban.
23. The IAA failed to consider that the Applicant may have been kidnapped for reasons other than a ransom demand such as his son being involved with Western forces.
24. The IAA fell into Jurisdictional Error by overemphasising the fact that whilst kidnappings are common in Afghanistan they generally are committed for ransom purposes and underemphasising that kidnappings can take place for other reasons too.
Travel between Kabul & Ghazni
25. The IAA found that the Applicant could not have travelled between Kabul and Ghazni when it stated as follows:
27. I find the Applicant’s story about commuting between Ghazni and Kabul in the period 2006 to 2012 not to be plausible. According to 2007 country information, the insurgency in Afghanistan gained momentum in the South and East, moving from its traditional strongholds to Ghazni, Paktia, Nangahar, and Laghman, with insurgents occupying critical roads and conducting ambushes from these strategic points. With increased insurgent activity on the roads in Ghazni, I do not accept as plausible that the applicant would commute regularly by road between Ghazni province and his shop in Kabul. I accept that the applicant operated a shop in Kabul between 2006 and 2012 and find that he resided in Kabul with his Family in this period.
26. The IAA had failed to take into account relevant information pertaining to the following facts:
a. That the Applicant had children in Ghazni Jaghori;
b. That the Applicant had land in Ghazni Jaghori; and
c.That the Applicant had a shop in Kabul operated by his business partner.
27. The failure of the IAA to consider the relevant information contained in paragraph 27 above, led to a finding that the Applicant could not have travelled between Kabul and Ghazni notwithstanding the fact that had the information been taken into consideration then the Applicant would have had very good reasons to have had to travel between Kabul and Ghazni.
It is noted that the applicant refers to paragraph 27 of the IAA’s decision in his written submissions at paragraph 25 above. This is not the correct paragraph. The correct reference is paragraph 10 of the IAA’s decision.
In response, the Minister contended as follows in his written submissions:
4. The applicant has made a general submission at paragraph 18 that the Authority fell into jurisdictional error by placing inadequate weight on the applicant's claims to have been threatened. This does not of itself amount to jurisdictional error, as it is well established that the weight to be given to evidence is generally a matter for the decision-maker: see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 (Peko-Wallsend) at [15(d)].
5. When the Authority's reasons are considered in the appropriate context, it becomes apparent that the applicant is seeking impermissible merits review by this ground.
6. At paragraph 11 of the Authority's reasons, the Authority sets out the applicant's claim to have been detained and mistreated by the Taliban as a result of his son's employment at the Australian base in Uruzgan. The Authority at paragraph 12 notes the failure of the applicant to raise this claim at the entry interview, and summarises further information provided by the applicant at the protection visa interview and in submissions to the Authority. The Authority then finds at paragraph 13:
I accept that the applicant's son may have bene employed at the Australian base in Uruzgan, however, I do not accept that the applicant was targeted because of this and do not accept as plausible the applicant's account of his detention and mistreatment by the Taliban and subsequent escape. Country information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant's case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at the Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son's employment at the Australian base at Uruzgan, detain and blindfold him, threaten him with harm and then leave him locked in a room in an empty house. If the applicant's son was of such interest to the Taliban that the applicant was on a watch list and targeted individually, it is more plausible that once detained, he would have been closely monitored until such time as the demand for his son to surrender to the Taliban had been resolved. I find that the applicant was not detained by the Taliban as claimed, was not mistreated or tortured and that the Taliban has no ongoing interest in him.
7. This passage addresses the concerns raised at paragraphs 22 and 23 of the applicant's submissions. The Authority did not find that the applicant could not have been kidnapped because no ransom was demanded. The Authority did expressly consider that a person might be kidnapped for a reason such as their son being involved in the western forces, but found that, if this had been the case with the applicant, it was more plausible that the Taliban would have more closely monitored him. The Authority ultimately found that the applicant's account, viewed in the context of the country information, was not plausible. This finding was open to the Authority and does not evidence any jurisdictional error.
8. The applicant has also asserted that the Authority failed to take into account 3 relevant considerations. The Minister accepts that a failure to take into account a mandatory material consideration can amount to jurisdictional error: Peko-Wallsend at [15]. The Minister further accepts that the applicant's claims for protection and their component integers are mandatory relevant considerations: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]. However, the Minister submits that there is no jurisdictional error in the present case, for the following reasons:
8.1. The Authority addressed part of the applicant's assertion that he had children in Jaghori when it acknowledged at [10] the applicant's claim that he had lived in Jaghori until he moved with his family to Kabul in 2010. The IAA addressed this at [11] when it found that the applicant had lived in Kabul with his family from 2006 to 2012. The Minister acknowledges that the IAA did not address the applicant's assertion that he also had children from his first marriage in Jaghori (see CB 213-214). The Minister submits that this factor is not sufficiently material to the Authority's decision that a failure to address it will amount to jurisdictional error.
8.2. The Minister acknowledges that the Authority did not expressly address the applicant's assertion that he owned land in Jaghori (see CB 213-214), but again submits that this is not sufficiently material to the Authority's decision that a failure to consider it will amount to jurisdictional error.
8.3. The Authority acknowledged at [10] the applicant's assertion that he had a shop in Kabul operated by a business partner and found at [11] that the applicant had lived in Kabul and operated the shop from 2006 to 2012. It therefore cannot be said that the Authority failed to consider the applicant's assertion that he had a shop in Kabul operated by his business partner.
9. The reasons the Minister says that the Authority's failure to consider the facts asserted at paragraph 26(a) and (b) of the applicant's submissions to this Court does not amount to jurisdictional error are outlined below:
9.1. The extract of the Authority's decision cited by the applicant at paragraph 25 of ·his submissions expresses a finding made in the context of whether the applicant resided in Kabul or Jaghori since 2006.
9.2. The applicant's travel between Kabul and Jaghori between 2006 and 2010 did not form part of his claims for protection. The applicant claimed to have been kidnapped while travelling on one occasion only, and that was in 2012. The applicant agreed that he had already moved to Kabul before then (see [9]). The Authority's finding is not that the applicant never travelled between Kabul and Jaghori, rather that he did not do so on a regular basis.
9.3. The Authority did not rely on its finding in relation to the applicant's residence in Kabul, or its finding that he did not travel between Jaghori and Kabul on a regular basis, in reaching its finding at [13] that it did not accept that the applicant was kidnapped and detained by the Taliban as claimed.
9.4. Nor did the Authority make general adverse credibility findings against the applicant in reliance on its finding at [10].
9.5. Even if the Authority had relied on the assertions at paragraph 26 of the applicant's submissions, the only possible difference in finding could be that the applicant lived in Jaghori and commuted to Kabul in the period from 2006 to 2010. This finding could not have made any difference to the outcome of the review. The assertions made by the applicant referred to in paragraph 26(a) and (b) of the applicant's submissions to this Court are simply not material enough to have affected the outcome of the review.
10. No jurisdictional error arises based on the facts asserted at paragraph 26 of the applicant's submissions.
The Court notes that despite pleading ground 1 as a failure of the IAA to give due consideration to the applicant’s claims, the applicant appears, in his submissions relating to ground 1, to refer to multiple errors committed by the IAA including a failure to consider relevant material/information and errors in relation to the weight given to some evidence.
Having considered the material before it, including the parties’ submissions, for the reasons that follow the Court finds that ground 1 must fail. No jurisdictional error of the sort pleaded in ground 1, nor raised in the applicant’s submissions, can be seen here.
Weight to be given to evidence
The Court cannot reassess the evidence that was before the IAA and come to a different conclusion as this would amount to impermissible merits review. As outlined in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 (“Wu Shan Liang”) at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The weight to be given to the evidence before it is a matter for the administrative decision maker: Minister for Immigration v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [24]; Lee v Minister for Immigration [2005] FCA 464 (“Lee”) at [27].
In this matter, the IAA was entitled to either accept, reject or apply such weight to the applicant’s evidence as it thought appropriate in the circumstances: Lee at [27].
The IAA’s statutory task is to make findings of fact regarding the applicant’s claims for protection: Wu Shan Liang at 498-499 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In relation to the applicant’s concerns about the IAA’s findings in relation to detention and a lack of evidence as to ransom (in particular, the submission that “the IAA fell into jurisdictional error by overemphasising the fact that whilst kidnappings are common in Afghanistan they generally are committed for ransom purposes and underemphasising that kidnappings can take place for other reasons too”), the Court notes the contents at paragraph 13 in the IAA’s decision and agrees with the Minister’s submission that the applicant has taken the IAA’s findings out of context.
Paragraph 13 needs to be read within the context of all of the evidence and findings before the IAA. In this regard, it is worth noting paragraphs 11 and 12 of the IAA’s decision, which provide:
11. The applicant claims that his name was on a watch list and he was targeted by the Taliban because his son worked at the Australian base in Uruzgan. He claims that as a result of this, he was detained and mistreated by the Taliban on the road from Kabul to Ghazni around three months prior to his departure from Australia. The applicant claims to have been beaten and tortured by the Taliban during this detention. He claims that he was detained in a house, where he was locked alone in a room. He claims to have escaped by breaking through a glass window, as the Taliban had departed and left the premises unguarded.
12. When pressed at the visa interview on 21 October 2015 to describe his treatment by the Taliban the applicant stated that "It wasn't a lot of beating. Just to scare me and frighten me." At the entry interview on 2 November 2012 the applicant made no mention of mistreatment or torture by the Taliban. When presented with this inconsistency at the visa interview, the applicant stated it occurred because he was not given the opportunity at the entry interview to provide specific details. In the submission to the IAA the applicant cited the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and stated that torture is not only physical but also mental.
Having so stated, the IAA then concluded as follows:
13. I accept that the applicant's son may have been employed at the Australian base in Uruzgan, however, I do not accept that the applicant was targeted because of this and do not accept as plausible the applicant's account of his detention and mistreatment by the Taliban and subsequent escape. Country information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant's case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at the Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son's employment at the Australian base at Uruzgan, detain and blindfold him, threaten him with harm and then leave him locked in a room in an empty house. If the applicant's son was of such interest to the Taliban that the applicant was on a watch list and targeted individually, it is more plausible that once detained, he would have been closely monitored until such time as the demand for his son to surrender to the Taliban had been resolved. I find that the applicant was not detained by the Taliban as claimed, was not mistreated or tortured and that the Taliban has no ongoing interest in him.
The Court is satisfied that when paragraph 13 is read in context, the IAA addresses the concerns raised at paragraphs 22 and 23 (and 24) of the applicant’s submissions. The IAA analysed the country information before it and did so within the context of specific credibility findings that were open to it on the evidence. In that context, it found that the applicant's account, viewed in the context of the country information and his own unreliable evidence was not plausible. This finding was open to the IAA.
Further, to the extent that the applicant is claiming that the IAA failed to consider evidence, the IAA clearly considered all of the evidence before it but attached little weight to some of it because it found the evidence to be less than credible within the specific factual context it was analysing.
In this context, to go behind the findings of the IAA or impugn the weight it applied to some evidence again invites the Court to engage in impermissible merits review: Wu Shan Liang.
Consideration of relevant material
The applicant also submits that the IAA failed to take into account the following three pieces of information:
a)evidence that the applicant had children in Ghazni Jaghori;
b)evidence that the applicant had land in Ghazni Jaghori; and
c)evidence that the applicant had a shop in Kabul that was operated by his business partner.
The applicant contends that the failure of the IAA to consider this relevant information led to a finding that the applicant could not have travelled between Kabul and Ghazni and that, had that information been considered, the IAA might have determined that the applicant had a reason for not traveling between Kabul and Ghazni.
The Court finds that:
a)the IAA did not expressly address the fact that the applicant had children in Jaghori from his first marriage;
b)the IAA did not expressly address the applicant’s assertion that he owned land in Jaghori; and
c)the IAA acknowledged (at [10]) the applicant's assertion that he had a shop in Kabul operated by a business partner and found (at [11]) that the applicant had lived in Kabul and operated the shop from 2006 to 2012.
The IAA’s findings at paragraph 10 (the applicant incorrectly references paragraph 10 as paragraph 27) in its reasons for decision provide:
10. I find the Applicant’s story about commuting between Ghazni and Kabul in the period 2006 to 2012 not to be plausible. According to 2007 country information, the insurgency in Afghanistan gained momentum in the South and East, moving from its traditional strongholds to Ghazni, Paktia, Nangahar, and Laghman, with insurgents occupying critical roads and conducting ambushes from these strategic points. With increased insurgent activity on the roads in Ghazni, I do not accept as plausible that the applicant would commute regularly by road between Ghazni province and his shop in Kabul. I accept that the applicant operated a shop in Kabul between 2006 and 2012 and find that he resided in Kabul with his Family in this period.
As a starting point, the argument that the IAA failed to consider the applicant’s assertion that he had a shop in Kabul operated by his business partner is untenable. The IAA clearly considered this information at [10] of its reasons.
In relation to the other purportedly overlooked information, the Court agrees with the Minister that these factors are not sufficiently material to the IAA’s decision that a failure to consider them amounts to jurisdictional error. This information was not material which could be regarded as so “fundamental”, “important” or “overwhelming” that a failure to have regard to it by the IAA constitutes jurisdictional error: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60] per Tracey J.
Further, overlooking an item of evidence when considering an applicant’s claims does not amount to jurisdictional error provided the error does not equate to a failure to consider the applicant’s claims: Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28] per North and Lander JJ.
Paragraph 10 of the IAA’s decision must be read in the context of the applicant’s claim that he was kidnapped in 2012. At paragraph 10, the IAA refers to country information from 2007 that shows that the insurgency in Afghanistan was such that regular travel on critical roads would have been very difficult. It was on this basis that the IAA doubted the applicant’s assertion that he travelled regularly between Kabul and Ghazni province between 2006 and 2012 – i.e. that the country information showed that it was simply too hazardous to commute on a regular basis.
The court is satisfied that even if the IAA had addressed the applicant’s concerns in relation to paragraph 10 of its reasons for decision, the only difference in finding could be that the applicant lived in Jaghori and commuted to Kabul in the period from 2006 to 2010. This finding would not have made any difference to the outcome of the review because the IAA’s main conclusion was that the country information as to the nature of the Taliban’s behaviour in relation to kidnapping and the evidence as to any possible ongoing interest in the applicant or his son did not support the applicant’s claim that he had been targeted, kidnapped and continues to face persecution from the Taliban.
The assertions made by the applicant referred to in paragraph 26(a) and (b) of the applicant's submissions to this Court in relation to “factors a and b” are not material enough to have affected the outcome of the IAA’s review.
Accordingly, the Court is not satisfied that the IAA’s failure to consider or refer to this information in its reasons for decision amounts to a failure by the IAA to exercise its jurisdiction.
Failure to give due consideration to claims
In relation to ground 1 as pleaded, being that the IAA failed to give due consideration to the applicant’s claims, it is unclear which claims the applicant believes the IAA purportedly failed to consider. As noted earlier, none of the grounds of review in the applicant’s amended application were particularised.
In his written submissions the applicant states that his entire claim is based on the premise that he feared harm to his life because he had problems with the Taliban due to his son’s employment at the Australian troop base in Uruzgan province, Afghanistan.
The applicant then submits that the IAA fell into jurisdictional error by not placing adequate weight on the applicant’s claims insofar as him having been threatened. This is an issue which the Court addressed earlier in these reasons.
The applicant then states that the IAA failed to consider (or give due consideration to) a claim or claims and its or their component integers.
This ground is not made out.
Consideration of a claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration": Htun v Minister of Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”) at [42].
Clearly the IAA addressed the applicant’s claims. This is evident from paragraph 13 of the IAA’s decision which reads:
13. I accept that the applicant's son may have been employed at the Australian base in Uruzgan, however I do not accept that the applicant was targeted by the Taliban because of this and do not accept as plausible the applicant's account of his detention and mistreatment by the Taliban and subsequent escape. Country information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant's case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at an Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son's employment at the Australian base in Uruzgan, detain and blindfold him, threaten him with harm and then leave him locked in a room in an empty house. If the applicant's son was of such interest to the Taliban that the applicant was on a watch list and targeted individually, it is more plausible that once detained, he would have been closely monitored until such time as the demand for his son to surrender to the Taliban had been resolved. I find that the applicant was not detained by the Taliban as claimed, was not mistreated or tortured and that the Taliban has no ongoing interest in him.
Without particulars as to how the IAA failed to give due consideration to the applicant’s claims (and by somehow tying this ground to arguments as to the weight the IAA applied to certain evidence) the Court cannot see jurisdictional error in relation to this point. On the evidence, the Court is satisfied that the IAA adequately considered all of the applicant’s claims.
Accordingly, no jurisdictional error arises in relation to ground 1.
Ground 2
Decision maker was unreasonable
It is not entirely clear what the applicant is referring to when he uses the word “unreasonable” within the context of ground 2.
In relation to ground 2, the applicant contended as follows in written submissions:
28. The Minister at Para 17 of his refusal decision made a conclusion that the various inconsistencies raised about the applicant’s family composition raised doubts about his identity and theses doubts about his identity raise doubt about his specific PV claims.
29. The Minister in para 35 of his decision errored (sic) by making a finding of not accepting “the applicant's authorised recipient for the purposes of his PV application, […], is his biological brother. I believe the applicant has given incorrect information regarding his family composition and other elements of his biography in an attempt to materially enhance his PV claims”.
30. The Minister even went further at para 47 of his decision by making a finding of not accepting the applicant’s authorised recipient for the purpose of his PV was has biological brother. The Decision Maker believed the significant inconsistencies and discrepancies in the applicant’s various account of his family composition casts doubt on his overall credibility.
31. We respectfully, submit the applicant was consistence (sic) about his family composition. The Decision Maker was unreasonable to allow this to cast doubts on the applicant’s PV claims and overall credibility.
32. In the applicant’s Affidavit we enclosed a copy of the applicant’s DNA – Kinship Testing Report, which states “Based on the autosomal DNA Testing undertaken, it is 140 billion times more likely that […] and […] are full siblings rather than unrelated, corresponding to a probability of >99.99999999%”.
33. Respectfully, the Minister erred in accepting inconsistency regarding the applicant family composition and, especially his brother […] who resides in Australia that resulted in casting doubts of the applicant’s PC (sic) claims and overall credibility. This led to the Minister falling into Jurisdictional Error and subsequently the IAA by not considering this credibility finding.
(citations removed)
Counsel for the applicant made no oral submissions in relation to ground 2.
The Minister contended as follows in written submissions:
11. This ground asserts jurisdictional error in the delegate's decision based on the delegate's findings in relation to the applicant's family composition.
12. The delegate's decision is a primary decision within the meaning of s 476(4)(c) of the Migration Act and is not reviewable by this Court: s 476(2)(a).
13. Even if there was jurisdictional error in the delegate's decision (which the Minister does not concede), this does not result in the Authority not having jurisdiction to review the decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174) at [45]-[52].
14. The Authority did not make any findings in relation to the applicant's family composition and did not rely on any adverse findings in relation to the applicant's family composition to cast doubt on the applicant's claims. It follows that there is no basis for any such allegation of unreasonableness in the Authority's decision.
The Court agrees with the Minister in this regard. The applicant seems to suggest (although it is not entirely clear) that the Court should review the delegate’s findings in relation to the applicant’s family relationships. No explanation was given as to why the Court should, or indeed can, do this.
The delegate's decision is a primary decision within the meaning of s.476(4)(c) of the Act and is not reviewable by this Court: s.476(2)(a). Further, even if there was jurisdictional error in the delegate's decision (and no determination is made here in relation to that assertion), this does not mean the IAA has any jurisdiction to review the delegate’s decision on the facts of this particular case. This is addressed further below in relation to the applicant’s submissions in relation to ground 3.
To the extent that the applicant suggests (and, again, regrettably, it is not entirely clear) that the IAA acted unreasonably because some sort of adverse credibility finding can be inferred by its failure to address the delegates credibility findings, there is simply no evidence that that is the case.
The Court is guided here by the principles outlined by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”), as follows:
30. The relevant principles can be summarised as follows:
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny...
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
On the evidence here it is clear the IAA did not make any findings in relation to the applicant's family composition and did not rely on any adverse findings in relation to the applicant's family composition to cast doubt on the applicant's claims. Applying these principles to the circumstances that arise here, it cannot be said that the IAA acted “unreasonably”.
Overall, there is nothing in the IAA’s reasons to suggest that its decision lacks an intelligible or evident justification. Nor can it be said that the decision was plainly unjust, arbitrary, capricious, irrational and beyond ‘the terms, scope and purpose of the relevant statutory power’: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.
No jurisdictional error arises in relation to ground 2.
Ground 3
The second respondent failed to consider relevant information -- Credibility finding regarding the Applicant’s brother and family composition.
In relation to ground 3, the applicant seems to have amended the ground that appears in the (amended) application. Ground 3 initially read “The second respondent failed to consider relevant information” but now reads “The second respondent failed to consider relevant information -- Credibility finding regarding the Applicant’s brother and family composition”.
Counsel for the Minister proceeded on the basis that this amendment was accepted. The Court also proceeds on that basis.
In relation to (the now amended) ground 3, the applicant contended as follows in written submissions:
34. The Authority erred in its decision by not considering credibility finding made by the Minister in relation to the Applicant’s brother and family composition, which in the view of the Minister cast doubt on the applicant’s overall credibility and protection claims.
35. The Authority did not deal with the credibility aspect of the Applicant’s claims and the findings made by the Minister in that respect. This reveals that the Authority fell into Jurisdictional error.
36. It is submitted that issues of credibility, even though a matter for the Decision Maker to determine as a question of fact, are still open to challenge on judicial review grounds. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J observed:
“It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.”
37. The Minister in his decision, did not accept that […] was the Applicant’s biological brother. The Decision Maker believed that the Applicant had given incorrect information regarding his family composition and other elements of his biography in an attempt to materially enhance his PV claims.
38. The Minister in his decision rejecting the assertion that […] was the Applicant’s biological brother states that the ‘…significant inconsistencies and discrepancies in the applicant’s various accounts of his family composition casts doubt on his overall credibility’.
39. These credibility findings by the Minister had a significant bearing on the Minister’s Decision. However, the Authority in its decision failed to address these credibility findings at all.
40. Respectfully, the Authority failed to consider these matters which led to the Authority failing into Jurisdictional Error.
(Citations removed)
The Minister in turn contended:
17. The Minister says that there is no jurisdictional error because:
17.1.The nature of the review conducted by the Authority does not in the circumstances of this case require the Authority to address whether there is or is not a jurisdictional error in the delegate's decision; and
17.2.The applicant's family composition and/or any adverse credibility finding on the part of the delegate are not mandatory relevant considerations that the Authority was required to consider.
18. In Plaintiff M174, the High Court confirmed the nature of the review conducted by the IAA at [17]:
Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits.
19. This confirms that the Authority is able to consider the issues afresh, and it was open to the Authority to affirm the decision of the delegate for reasons that differed to those expressed by the delegate, subject of course to any limitations arising from the provisions in Part 7AA of the Migration Act and the implied obligation to exercise discretionary powers reasonably.
20. There is nothing in Part 7AA of the Migration Act or the implied obligation to exercise discretionary powers reasonably that caused the Authority's decision not to address the applicant's family composition, or the delegate's adverse credibility finding in relation to the applicant's family composition, to amount to jurisdictional error.
21. Further, neither the applicant's relationship with his brother, nor the delegate's adverse credibility finding on the applicant's family composition were mandatory relevant considerations that the Authority was required to take into account. The Authority's statutory task was to review (in the nature described in Plaintiff M174) the delegate's decision that the applicant did not meet the criteria for a protection visa. In conducting this review, the Authority was required to consider the applicant's claims for protection and their component integers (see Htun cited above) to determine whether the applicant met the criteria for the visa set out in s 36 of the Migration Act. The applicant made no claims for protection based on his relationship with his brother, and no claim could arise from the delegate's adverse credibility finding. Accordingly, the Authority's failure to consider these aspects of the delegate's decision does not amount to jurisdictional error.
Counsel for the applicant was asked to clarify his position during oral submissions. He attempted to do so, saying:
MR FARIS: Your Honour, I have brought it in a manner which could seem strange, but I looked at it from the perspective of section 57 of the Migration Act, in the sense of relevant information and the definition of that section relevant information means information that the Minister considers would be a reason, or reasons, of – for – of or for refusing to grant a visa, so ‑ ‑ ‑
MR FARIS: Well, we can approach it in two aspects. The aspect – the first aspect, the IAA should have complied with section 57(2) and invited the applicant to commence in relation to his brother, especially the information in relation to his brother was a relevant pillar, or a big pillar, when the decision-maker initially, at the stage of the Department of Immigration decide to refuse the applicant’s visa, in the sense of having no credibility of him due to the fact, or the assumption, that the applicant was using the brother as a mean or justification to increase his protection claim or protection ..... there is a big weight – I understand, oversight, to some extent of this jurisdiction, but there’s a big weight placed by the Minister’s delegates at the time of assessment in relation to the brother and there was big credibility finding in relation to that.
The IAA should have make a reference or make any consideration in relation to that fact and the applicant’s representative at the time, a migration agent, she made a brief submission outline, or affirming, the brother aspect and that’s all the submission in relation to this point, your Honour.
On one level, it appears that what the applicant is saying is that the IAA should have assessed the delegate’s decision for jurisdictional error. This argument is not sustainable. The nature of the review conducted by the IAA does not in the circumstances of this case require the IAA to address whether there is or is not a jurisdictional error in the delegate's decision.
Further, as rightly pointed out by the Minister, the IAA’s task under s.473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174/2016”) at [17]. The IAA is to perform a de novo consideration of the merits of the Minister or his delegate’s decision. The IAA is not statutorily or jurisprudentially obligated to examine that decision for jurisdictional error.
Nor can it be said in this matter that the IAA was required to take into account the applicant's relationship with his brother or the delegate's adverse credibility finding on the applicant's family composition. The Court agrees with the Minister that these were not mandatory considerations that the IAA was required to take into account. The IAA's statutory task was to review the delegate's decision that the applicant did not meet the criteria for a protection visa.
In so far as it is suggested that a relevant claim was overlooked, it is not disputed that “to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration": Htun at [42].
In this context, the relevant question is "does this material relate in some component way to the applicant's claims?".
Here, it does not. The applicant made no claims for protection based on his relationship with his brother, and no claim could arise from the delegate's adverse credibility finding. Accordingly, the IAA's failure to consider these aspects of the delegate's decision does not amount to jurisdictional error.
Further, there is simply no evidence that the IAA made any adverse credibility findings based on the delegate’s findings about the applicant’s brother. Had there been, then arguably the IAA should have addressed the issue and allowed the applicant to comment. But that does not arise here. It cannot be said in this context that the IAA failed to exercise its discretionary powers reasonably.
In relation to the s.57 issue raised by counsel for the applicant in oral submissions, this argument is misconceived. It is not the breach of s.57(2) by the delegate which gives rise to the jurisdictional error but the IAA’s failure to exercise its powers under s.473DC(3) of the Act.
In Plaintiff M174/2016, the High Court found that the IAA fell into error when it was clear that the delegate had breached s.57(2) of the Act and the IAA had failed to exercise its powers under s.473DC(3) of the Act to invite the applicant to give new information in response to the information relied upon by the delegate. The High Court held that:
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).
The Court agrees with submissions made by counsel for the Minister that there is no jurisdictional error on the basis of s.57. A review of the delegate’s decision, at paragraph 16, suggests that the delegate did in fact put evidentiary inconsistencies to the applicant and the applicant had an opportunity to comment. After the delegate’s decision was made, the applicant then had a further opportunity to comment to the IAA.
The circumstances contemplated by the High Court in Plaintiff M174/2016 do not arise here and s.57 was clearly complied with. Even if s.57 of the Act had been breached by the delegate, the Court considers that it need not have been complied with in any event. The High Court in Plaintiff M174/2016 (at [9]) stated that s.57 relates to information that must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself "would", as distinct from "might", be the reason or part of the reason for refusing to grant the visa.
The information allegedly falling afoul of the delegate’s obligations under s.57 is certainly not of the type described in Plaintiff M174/2016, particularly where no claims for protection on the basis of the applicant’s relationship with any family members were made. In the circumstances, it is difficult to understand the basis of this argument advanced by the applicant here.
The Court finds that the delegate did not breach of s.57(2) of the Act and the IAA was not obligated to exercise its powers under s.473DC(3) of the Act. No jurisdictional error arises in this context.
For the reasons outlined above, ground 3 must fail.
Conclusion
For the reasons outlined above, the Court concludes that the applicant has not established that the IAA’s decision is affected by jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 20 November 2018
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