BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 71
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
2
BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 71
File number: MLG 939 of 2018 Judgment of: JUDGE FORBES Date of judgment: 7 February 2024 Catchwords: MIGRATION - protection visa - judicial review of decision of Immigration Assessment Authority affirming refusal of visa – whether findings of Authority inconsistent – whether inconsistency reveals illogicality or irrationality in decision making – where Authority did not seek video from applicant or seek evidence to explain its non-production – whether Authority unreasonably failed to exercise discretion Legislation: Migration Act 1958 (Cth) s 36, 46A, 48B and 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 168
CGA15 v Minister for Home Affairs (2019) 268 FCR 362
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DPI17 v Minister for Home Affairs (2019) 268 FCR 134
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 6 March 2023 Place: Melbourne Counsel for the Applicant: Mr Overend Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the Respondents: Ms McInnes Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 939 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 11 April 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 6 March 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 16 March 2018 the Immigration Assessment Authority (the Authority) affirmed a decision made by a delegate of the Minister not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa).
The applicant seeks judicial review of the Authority’s decision and raises two grounds asserting jurisdictional error.
For the reasons set out in this judgment, I am not satisfied that the applicant has made out either ground. Accordingly, the application should be dismissed and the applicant should pay the Minister’s costs.
BACKGROUND
The applicant is a citizen of Afghanistan. He arrived on Christmas Island as an unauthorised maritime arrival on 16 July 2013.
The applicant applied for a Safe Haven Enterprise visa on 10 January 2017. In its decision, the Authority summarised the applicant’s claims for protection as follows:
·the applicant is a Hazara Shia. He was born in a village in the Jaghori District of Afghanistan and worked as a taxi driver in Ghazni and Kabul;
·in 2012, he reported a group of passengers who were taking explosives to Kabul in his taxi. The police arrested them. The explosives were suicide vests that belonged to the Taliban to be used in a major bombing in Kabul;
·one week after the incident, a few Hazaras went to his parents’ house in Jaghori asking for him. He realised the Taliban were after him and sent the Hazara people to find him. He moved his family to Mazar-e-Sharif and lived in hiding. After one year, the Taliban found out about his hiding place. The head of the community told him there were people going to local businesses asking about him. He moved to Pakistan;
·while in Mazar-e-Sharif he attended Christian gatherings but he stopped going after two of his friends who attended the meetings with him were shot dead;
·his brother converted to Christianity and, after his picture was shown in a TV broadcast, he went missing. His family was known to the Taliban because of his brother and, after he reported the Taliban to the police, he became a definite target for them; and
·he fears being harmed by the Taliban and believes they will target him for his Hazara ethnicity and Shia faith and because he reported them to the police.
On 18 May 2017, the delegate refused the application and referred the decision to the Authority for review under the fast track review provisions in Part 7AA of the Migration Act 1958 (Cth) (the Act).
On 16 March 2018, the Authority affirmed the delegate’s decision.
Authority’s reasons
Given the relatively narrow scope of the judicial review grounds, it is not necessary to rehearse the Authority’s findings in relation to all of the applicant’s claims for protection.
The Authority found that the applicant was a citizen of Afghanistan and that his place of return was Mazar-e-Sharif. He had lived in Mazar-e-Sharif for some time in the past and the Authority was satisfied that other family members lived there and that, upon return, he would be able to find work and his capacity to subsist would not be threatened.
While expressing some reservations, the Authority accepted the applicant’s account of having transported taxi passengers who he considered to be suspicious on account of packages they placed in his vehicle. The Authority accepted that the applicant had reported these passengers to the police and that they had been arrested and imprisoned[1].
[1] Authority’s reasons at [19]
However, the Authority was not convinced that the passengers were Taliban, notwithstanding the applicant’s belief to that effect. Rather, the Authority was only satisfied that they were members of an armed group, most likely an Anti-Government Element (AGE)[2].
[2] Authority’s reasons at [21]
Relevantly, while accepting that the applicant’s actions had likely thwarted a planned attack, the Authority was not satisfied, on the evidence, that the applicant had been “subsequently pursued”[3]. The Authority noted that the applicant had given some evidence about some Hazara men asking about him in Jaghori and some unknown people asking about him in Mazar-e-Sharif. The applicant said he was suspicious of the Hazaras looking for him and suspected they were spying against him for the Taliban. He did not provide information about the people asking after him in Mazar-e-Sharif. The Authority found this evidence to be vague.
[3] Authority’s reasons at [22]
The Authority accepted that the applicant was suspicious about strangers looking for him and that the applicant had a subjective fear about retaliation against him for the arrest and imprisonment of his taxi passengers. The Authority also accepted that applicant believed the taxi passengers to be Taliban – although the Authority was not so satisfied.
The Authority found that there were no indicators that the people looking for the applicant or asking about him in Jaghori or Mazar-e-Sharif intended to harm him. The Authority was also not satisfied that the taxi passengers or any other person or group had an adverse interest in the applicant stemming from his police report in 2012[4]. The Authority found that the applicant’s wife and children, his parents and two siblings continue to live in Mazar-e-Sharif and it was not satisfied that any further approaches had been made to try and find the applicant[5]. The Authority concluded that the applicant did not face a real chance of being harmed by anyone in relation to “this matter”[6].
[4] Authority’s reasons at [25]
[5] Authority’s reasons at [23]
[6] Authority’s reasons at [25]
As to the applicant’s claim that he was a “definite target” for the Taliban because of his brother’s conversion to Christianity and subsequent disappearance, the Authority found the applicant’s evidence to be vague[7]. At the protection visa interview, the applicant had referred to his brother’s face being shown in a TV broadcast, which he said had subsequently been shown many times, resulting in people saying that members of the Christian community should be taken away or arrested. The applicant had not provided a copy of the video clip and was unable to describe it in detail, but he told the delegate that “you can find this picture on YouTube or Facebook maybe”.
[7] Authority’s reasons at [43]
The Authority found that the applicant had not provided any information about the circumstances in which his brother went missing. The Authority noted the applicant’s statement that the video clip “maybe” could be found on YouTube or Facebook, but also noted that neither this clip nor any other further evidence had been produced, despite the applicant having had ample time and opportunity to provide the information. Relevantly, the Authority expressly noted that it did not have a duty to get, request or accept, any new information even when requested to do so by the applicant. The Authority stated that it was under no duty to obtain evidence, it had not attempted to find the clip and it was not satisfied that an invitation for the applicant to provide it was warranted in the circumstances[8].
[8] Authority’s reasons at [43]
In relation to the brother’s conversion to Christianity, the Authority made no express findings in relation to that conversion or the brother’s disappearance. The Authority did find, however, that neither the applicant nor any other member of his family had suffered any harm, threats or difficulties as a result of the brother’s conversion and that the applicant had remained in Afghanistan for another four or five years after that event. The Authority found no indication that the applicant has been identified as being connected or linked with his brother in such a way as to give rise to any harm, threats or other adverse treatment. Further, the Authority concluded that the applicant would not face a real chance of harm upon return in relation to his brother’s conversion to Christianity and/or his disappearance.
As for the other claims underpinning the applicant’s application for protection, the Authority was not satisfied that he would suffer serious harm because of societal violence[9], discrimination as a Hazara[10], his claimed Christian identity or participation in church activities[11], his status as a failed asylum seeker or returnee from the West[12] or when travelling between Kabul and Mazar-e-Sharif[13].
[9] Authority’s reasons at [37]
[10] Authority’s reasons at [41]
[11] Authority’s reasons at [49]
[12] Authority’s reasons at [50]-[57]
[13] Authority’s reasons at [58]-[60]
The Authority stated that it had considered the applicant’s claims individually and cumulatively and was not satisfied that his fear of persecution was well-founded. His claim for refugee protection under s 36(2)(a) was not made out. Separately, the Authority also concluded that the applicant did not meet the criteria for complementary protection under s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
By an application dated 11 April 2018, the applicant seeks judicial review of the Authority’s decision. The applicant asserts two grounds of jurisdictional error, being:
(1)The IAA considered the evidence that “some Hazara men came looking for him in Jaghori, approaching people at a community gathering and then visiting his parents to ask about his whereabouts” in a way that was illogical.
(2)The IAA considered but unreasonably refused to exercise its power to get new information from the Applicant about the video of his brother which was broadcast on television.
The application was listed for hearing before me on 6 March 2023. Mr Overend appeared as counsel for the applicant and Ms McInnis as counsel for the Minister.
Prior to the hearing each of the parties filed comprehensive written submissions dealing, first, with an application by the applicant for an adjournment of the proceeding pending the exercise of Ministerial discretion pursuant to ss 46A and 48B of the Act and, secondly, with the substantive application for review. Those submissions were further developed by counsel at the hearing.
For reasons given ex tempore and published in BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 168, I dismissed the adjournment application and the matter proceeded on the substantive issues.
Ground one
The applicant seeks to impugn the Authority’s decision on the ground that it contains illogical reasoning and inconsistent conclusions which are impossible to reconcile. The applicant contends that the illogicality reveals a failure on the part of the Authority to intellectually engage with the applicant’s central claim that, as a Hazara, he feared reprisals from Taliban operatives following the arrest and imprisonment of his taxi passengers.
At [22] of its reasons, the Authority records that it was “not on the evidence, satisfied that the applicant was subsequently pursued” following the taxi incident. The applicant contends that this lack of satisfaction is contradicted head-on in the very next paragraph [23] by a reference to “the people looking for him in either Jaghori or Mazar-e-Sharif”.
The applicant submits that it is impossible to reconcile the proposition in [22] that the applicant was not pursued, with the proposition in [23] that the applicant was the subject of “people looking for him”. The applicant submits that the two propositions are opposites and cannot logically coexist within the reasons. The applicant submits that this inconsistency is the product of illogical reasoning and therefore reveals jurisdictional error.
The Minister, on the other hand, argues that there is no inconsistency at all. Rather, the Minister submits that the applicant fails to grapple with the distinction between the concepts of being “pursued” and being “looked for”. In the Minister’s submission the evidence permits these two findings which, when read in the context of the reasons as a whole, do not reveal illogicality or any other species of error.
At paragraph [35]-[39] of the written submissions, the Minister sought to resolve the alleged irreconcilable reasoning as follows:
“[35]Ground 1 unravels once it is recognised that paragraphs [22] and [23] are dealing with the applicant being pursued or looked for by different groups: [22] deals with whether the applicant was pursued by the Taliban/insurgents/armed group; and [23] concerns any risk of harm arising from the people who had looked for the applicant.
[36]The Authority’s findings about whether the applicant had been pursued by members of an armed group, or looked for by people, were not ones which could be said to lack a logical connection between the evidence and reasons of the Authority nor are they ones to which no reasonable decision-maker could have come.
[37]The applicant claimed that the Taliban were looking for him and that they had sent Hazara men (spies) to find him. He gave evidence that Hazara men came looking for him in Jaghori and that people had asked local businesses about him in Mazar-e-Sharif [20]. There was no claim made about any subsequent incidents where people (either the Taliban or anyone else) were looking for him.
[38]The finding at [22] was that the Authority was not satisfied that the applicant was subsequently pursued by the insurgents following his actions in reporting them to police: [22]. In contrast, at [23], the Authority appeared to accept that some people had been looking for the applicant in either Jaghori or Mazar-e-Sharif. No inconsistency arises with [22] because is nothing in the reasons at [23] to suggest that “the people” who the Authority accepted were looking for the applicant were from the Taliban, insurgents or armed group.
[39]The use of the words “further approaches” in [23] does not indicate that the Authority inconsistently accepted that there had been any previous approach by the Taliban/insurgents/armed group. Instead, the Authority accepted that there had been other people looking for him in Jaghori and Mazar-e-Sharif, but that this had not been repeated.”
The Minister submits that there is no inconsistency in the Authority accepting that some people had looked for the applicant in Jaghori and Mazar-e-Sharif, but not accepting that those people were the Taliban/insurgents/an armed group. The Minister submits that the conclusions were open to the Authority on the evidence before it and that its pathway of reasoning was not illogical.
Relevant principles
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error.
Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or decision. Both may also arise in respect of findings or reasoning leading to the ultimate conclusion or decision, albeit that the overarching question is whether the decision is affected by jurisdictional error[14].
[14] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ); see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ)
An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making a decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn[15]. Factual findings must be rationally made and based on probative material and logical grounds[16].
[15] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)
[16] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[55]
To demonstrate jurisdictional error on the basis that the decision maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[17].
[17] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148] (Robertson J); [2013] FCA 317
It is to be remembered that reasons are not to be read “with an eye keenly attuned to the perception of error”[18] and a finding will not be irrational where it falls within the Minister’s “area of decisional freedom” on which minds might reasonably differ[19].
[18] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)
[19] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7] (Allsop CJ)
True irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees. It must be shown that the findings were not rationally open to be made[20].
[20] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ
Consideration
I do not accept the applicant’s submission that the propositions in [22] and [23] of the Authority’s reasons are opposites. When the reasons are read fairly and as a whole, it seems to me that the Authority is dealing with two separate scenarios and that the conclusions reached in relation to each were reasonably open to it on the evidence.
It may well be that the pathway of reasoning is not as clear as it could be, but the conclusions were reasonably open to the Authority and there is, in my view, a logical connection between the evidence received and the conclusions reached.
I agree with the thrust of the Minister’s submission that the applicant conflates rather than distinguishes the concepts of being “pursued” on the one hand and “looked for” on the other. The finding at [22] that the applicant was not being “subsequently pursued” is clearly referrable to the taxi incident described at [18]-[20] and the applicant’s subjective fear of retribution arising from the applicant’s report of the passengers to the police and their imprisonment. Those claimed fears are framed by the applicant’s belief that the passengers were members of the Taliban and the Authority’s finding that they were more likely insurgents or members of an armed group.
The discussion at [22] should be read as referrable to the applicant’s fear that he will be pursued by persons seeking reprisal and wanting to do him harm. Further support for this reading can be found at [67] of the reasons where the Authority found (in relation to complementary protection) that it did not accept that the applicant “was pursued by any individual or groups in retaliation for the report he made to the police in 2012”.
The reasons at [23] appear to accept that some people had been looking for the applicant. However, there is nothing in the evidence to suggest that those “people” were Taliban, insurgents or an armed group intending to do him harm. The Authority accepted that the applicant was suspicious about strangers and in his heightened sense of fear believed they might present a threat to him. However, the Authority found no evidence that anyone who had asked after him in Jaghori or Mazar-e-Sharif intended to do him harm.
Counsel for the Minister submitted, and I accept, that being “subsequently pursued” carries a different connotation to being “looked for” by unidentified persons. In my view, the evidence permits these two rational and reconcilable findings. The applicant has failed to demonstrate jurisdictional error and ground one should be dismissed.
Ground two
By this ground, the applicant contends that the Authority unreasonably failed to consider or to exercise its discretion to obtain new information pursuant to s 473DC of the Act. The applicant submits that in the particular circumstances of this case, acting reasonably, the Authority should have sought a copy of the video which corroborated his claims regarding his brother’s conversion to Christianity. Alternatively, it is contended that the Authority should have, but did not, seek further evidence from the applicant as to why the video had not previously been provided.
Section 473DC of the Act provides as follows:
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The applicant acknowledges that there are no expressly identified circumstances in which the Authority must actually exercise its discretion to get new information. However, it is submitted the discretion must be properly considered and the facts of a particular case may require the discretion to be exercised in order for the Authority to perform its duty reasonably[21].
[21] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3]-[4]
The alleged jurisdictional error is contextualised by the applicant’s claim that his brother had converted to Christianity and that, after the brother appeared on a TV broadcast, the brother went missing. Against that background, the applicant’s fear was that the Taliban would link him to Christianity, via the brother, and that he would therefore be at risk.
The delegate did ask the applicant a number of questions about the circumstances of the brother’s disappearance[22] - although the applicant now submits that that questioning was cursory. In their reasons, the delegate rejected the applicant’s argument that the Taliban had any interest in him by reason of his brother’s conversion. The delegate found that the applicant had remained in Afghanistan for four years after his brother went missing and that eight years had passed prior to the protection application.
[22] Affidavit of Erskine Hamilton Rodan dated 24 April 2020, Annexure A, P16-17
The applicant submits that although his claim for protection was rejected, the delegate did not reject the claim that the brother had converted or gone missing, nor did the delegate engage in any commentary about the applicant not having provided the video, which the applicant had explained was available on YouTube or Facebook.
Against that background, the applicant submits that the Authority’s rejection of the claim regarding the brother’s conversion on the basis of the “vagueness” of evidence constitutes a different ground or a “fresh basis” for rejecting the claim concerning the brother. The applicant submits that the applicant was never on notice, either in the interview with the delegate or from the delegate’s reasons, that this claim might be rejected as “vague” because the video of the brother had not been produced. The applicant submits that a finding by the Authority about the claim being vague on this account should not have been reached without first asking the applicant for a copy of the video pursuant to s 473DC or seeking an explanation from him about why it had not been produced.
In advancing this submission the applicant called into aid the decision of the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17) where at [3] the plurality[23] said in respect of a Part 7AA fast track review:
“The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.”
[23] Kiefel CJ, Bell, Gageler and Keane JJ
The applicant’s submission, in a nutshell, is that by rejecting the claim relating to the brother’s conversion to Christianity, at least in part because the evidence about it was vague, the Authority unreasonably failed to exercise the discretion available to it to obtain corroborating evidence.
The Minister submits that ground two is misconceived because it is based on the mistaken foundation that the Authority disposed of the applicant’s claims regarding his brother on a different basis to the delegate. The Minister submits that that premise is false because the Authority, like the delegate, did not reject the applicant’s claim that his brother had converted to Christianity. The Minister says that there is nothing in the Authority’s reasons which reveal a rejection of the applicant’s evidence that his brother had converted to Christianity or that he disappeared.
The Minister also submits that an observation that some of the applicant’s evidence was vague does not give rise to an obligation on the part of the Authority to require new or further information. Every case is fact-dependent and in the circumstances of this matter, acting reasonably, the Authority’s conduct in the review did not necessitate seeking information which was not dispositive of the claim. In circumstances where the Authority did not reject the applicant’s claim that his brother had converted to Christianity and/or had disappeared, the requirement for corroboration of the brother’s conversion to Christianity simply does not arise.
In any event, the Minister submits that the Authority considered the exercise of the discretion in s 473DC and found that it was not warranted. The Minister submits that the Authority’s reasons for not seeking to obtain the video were sound. That exercise of discretion was based on the following considerations:
(1)the applicant had not described the video clip in any detail;
(2)the applicant did not know when the clip was published;
(3)the applicant’s evidence regarding his brother’s conversion was vague in a general sense, not solely on account of the video not having been produced;
(4)the applicant did not provide any information about the circumstances in which his brother went missing;
(5)the applicant said the clip could “maybe” be found on YouTube or Facebook; and
(6)the applicant had ample time and opportunity to provide the clip or other further corroborating evidence.
Furthermore, the Minister submits that even if the Authority had unreasonably failed to obtain the video (a proposition the Minister does not concede), any such error was not material and could not have affected the Authority’s findings. At [44]-[45] the Authority found that the applicant and other members of his family had not suffered any harm or adverse treatment in connection with the brother’s conversion to Christianity, nor had they been identified as being connected or linked with the brother in any way since the conversion. The Minister submits that this reasoning was dispositive of the relevant claim, and a video corroborating that the brother’s conversion to Christianity had been publicised could not have resulted in a different outcome in the Authority’s review.
Consideration
In ABT17, the plurality described the Part 7AA review process as follows at [2] (footnotes omitted):
“[2]The scheme of the Part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral, without accepting or requesting "new information" and without interviewing the referred applicant, subject to the Authority having specific powers to "get" and, in specified circumstances and on specified conditions, to "consider" new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way.”
Section 473DC forms part of the statutory architecture of Part 7AA which establishes a mechanism for the fast track review of a delegate’s decision. The Authority can accept or consider or in certain circumstances “get” new information in the course of conducting its review.
Section 473DC(2) of the Act expressly provides that the Authority “does not have a duty to get, request or accept, any new information whether the authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
It is well-settled that the Authority is required to act reasonably in the exercise of its discretion under s 473DC, and the unreasonable failure to consider the exercise of the discretion to get new information, or the unreasonable refusal to get new information, can amount to jurisdictional error[24].
[24] See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [71], [90] and [97]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16) at [82]; DPI17 v Minister for Home Affairs (2019) 268 FCR 134; [2019] FCAFC 43
Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the Court on review based upon a consideration of the facts of the particular case[25]. A finding of legal unreasonableness will invariably be fact dependent. It requires careful evaluation of the evidence within the context of the relevant statutory scheme.
[25] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [61] [70] (Gageler), [84] (Nettle and Gordon JJ) and [140] [141] (Edelman J); Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]
As to materiality, the onus is on the applicant to prove jurisdictional error and that requires him to establish on the balance of probabilities that the error was a material one.
The existence of error is not sufficient to establish jurisdictional error. An error is only material if there is a realistic possibility that the decision made could have been different had the error not occurred[26].
[26] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ)
In my opinion, ground two does not reveal jurisdictional error. There are three principal reasons for this conclusion.
First, I accept the Minister’s submission that this ground is advanced on the flawed premise that the Authority disposed of the applicant’s claims regarding his brother on a different basis than did the delegate. In each case, the claim was rejected because the decision maker was not satisfied that the applicant faced a real chance of harm upon his return in relation to his brother’s conversion to Christianity and/or his disappearance. The claim was not rejected because the conversion or disappearance were disbelieved.
Secondly, in the circumstances of this case, I am not satisfied that it was unreasonable for the Authority not to have sought a copy of the video. The applicant’s description of the video and its probative value was scant. The date of the video, the content of the video, its location and availability could not have provided the Authority with a clear trail of enquiry. It is also for the applicant to make good his claims for protection and not for the Authority to fill gaps in his evidence. The Authority’s conclusion that the applicant had ample time and opportunity to provide the video or further evidence appears perfectly sound. The Authority properly considered whether to exercise its discretion and it chose not to.
Thirdly, and in any event, the video could at best only corroborate the applicant’s claim that his brother had converted to Christianity, an issue which was not dispositive of the claim for protection. It is difficult to see how the video could advance the applicant’s claim beyond that. In and of itself the video cannot inform the Authority of the risks to the applicant of harm or adverse treatment or how the applicant has been identified as being connected or linked with his brother since his conversion. In my view even if the Authority did unreasonably fail to obtain the video, that error was not material, and therefore not jurisdictional, because there was no realistic possibility that the Authority, even with the video, could have reached a different outcome.
DISPOSITION
Having considered the written and oral submissions of the parties, and for the reasons set out above, I have concluded that the decision of the Authority made on 18 March 2018 is not affected by jurisdictional error.
Accordingly, the application will be dismissed.
It is appropriate that the applicant pay the Minister’s costs which in default of agreement shall be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).2
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 7 February 2024
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