CBM20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1435
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBM20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1435
File number: MLG 1552 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 23 December 2024 Catchwords: MIGRATION – Temporary Protection visa – decision of the then Immigration Assessment Authority – whether the IAA failed to consider the applicant’s protection claim or an integer of that claim – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 46A, 414, 473CB, 473DA, 473DC, 473EA, 473GA, 473GB, 476 and Part 5 & Part 7AA
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth), rr 11 & 12 and Part 3
Cases cited: AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
AUV15 v Minister for Immigration & Anor [2017] FCCA 1951
Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
Minister for Immigration v SZGUR [2011] HCA 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SZUTM v Minister for Immigration and Border Protection [2016] FCA 45
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submissions: 12 July 2024 Date of hearing: 5 July 2024 Place: Perth Counsel for the Applicant: Mr O Lloyd Solicitor for the Applicant: Katsaros & Associates Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1552 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBM20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 7 April 2020 in file IAA20/07950.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Immigration Assessment Authority (the “IAA”). The decision the subject of this judgment is dated 7 April 2020 and predates the amendments to the Act. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the IAA’s decision (or as at the date of any relevant matter referenced in this judgment).
The Applicant’s migration history
The applicant is a citizen of Pakistan (Court Book (“CB”) 3, 39 & 69-80). He first arrived in Australia in July 2013 as an unauthorised maritime arrival (CB 47 & 752).
On 25 November 2016, the applicant applied for a Temporary Protection (Class XD) (Subclass 785) (“TPV”) visa (the “visa”) (CB 26-65). In his visa application forms, the applicant indicated that he had received assistance from a registered migration agent (the “representative”) (CB 35, 63 & 66-68). He also and provided various identity documents with that visa application (CB 69-80).
In his visa application, the applicant claimed that:
(a)he had obtained employment as a teacher and that, during his employment, he supported and actively promoted educational health projects and programs, including the Polio Vaccination government initiative;
(b)as a result of his support of that initiative, he received “fierce warnings and threats from the Taliban” demanding that he quit his teaching job and stop supporting the government health and educational projects;
(c)he escaped Pakistan because he was threatened by the Taliban and they issued a death warrant against him (CB 58);
(d)he was imprisoned for six months by the Taliban because of his support of the Polio Vaccine and, whilst in custody, was tortured (including by way of electrical shocks and a broken arm);
(e)he was released on the condition that he quit his teaching job and stop his support for any government projects;
(f)after he was released, he moved (with his wife and children) and established a small business selling computer accessories and DVDs. He was again given death threats by the Taliban and was extremely frightened to relocate anywhere in Pakistan (CB 59);
(g)the Taliban are “really cruel militants who kill innocent people brutally by slaughtering them and chopping their heads off their bodies” and would not spare his life “for escaping … and disobeying their orders”;
(h)the authorities in Pakistan will not be able to protect him from the “suicide missions, target killings and bombings that are very much unpredictable and are non-containable”; and
(i)he is unable “to relocate to another location within Pakistan due to insecurity and instability”.
On 19 December 2016, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (noting that whilst the applicant had arrived as an unauthorised maritime arrival and was prevented from making a valid visa application, the first respondent (the “Minister”) had lifted the “bar” under s 46A of the Act to allow him to make a valid application) (CB 81-91).
On 22 February 2017, the applicant’s representative provided the Department with supporting documents in the form of employment references and “a letter of threat” (CB 92-95).
On 23 November 2017, the applicant’s representative provided the Department with a comprehensive psychological report for the applicant (CB 96-99).
On or about 13 September 2018, a further summary from the applicant’s counsellor was provided to the Department (to be “reviewed in conjunction with the psychological report” previously provided) (CB 111-112).
On 4 September 2019, the Department invited the applicant (through his representative) to attend a TPV interview at the Department’s Melbourne offices on 18 September 2019 (CB 115-125).
On 8 September 2019, the applicant attended that TPV interview with the assistance of his representative.
On 18 September 2019, the Department obtained a Financial Tracking Record in relation to the applicant (dated 3 September 2019) from AUSTRAC (CB 127-704).
On 26 September 2019, the applicant’s representative provided the Department with a response in relation to the applicant’s Financial Tracking Record (CB 705-724). That correspondence asked that the applicant be “given another chance to be interviewed” because the applicant felt that “he could not properly respond to the questions and express himself as he wished to” (CB 705).
On 2 October 2019, the Department declined to offer the applicant a further interview but explained that the applicant could “make any further comment or provide any further evidence in writing before a decision [was] made and that information would be taken into consideration” (CB 725-727).
On 4 October 2019, the applicant’s representative provided the Department with a letter from the applicant’s General Practitioner (“GP”) and asked that, if another interview could not be given to the applicant, whether the effects of the medication he had been taking, and his mental condition, could be considered in any final assessment (CB 728-732).
On 25 February 2020, a delegate of the Minister refused to grant the applicant the visa (CB 752-770).
On 2 March 2020, the matter was referred to the IAA under Part 7AA of the Act (CB 772).
On 29 March 2020, the applicant wrote to the IAA in relation to his visa application review (CB 785-786).
On 4 April 2020, the applicant provided the IAA with photographs (CB 787-788).
On 7 April 2020, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 791-806).
On 12 May 2020, the applicant applied for judicial review of the IAA’s decision in this Court. The applicant filed an affidavit with that application annexing a copy of the IAA’s decision.
On 6 June 2024, the applicant obtained legal representation and a notice of address for service was filed on his behalf.
On 17 June 2024, an amended application and written submissions were filed on behalf of the applicant.
On 20 June 2024, written submissions were filed on behalf of the Minister.
THE IAA’S DECISION
The application before this Court is brought pursuant s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is any jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires that the Secretary of the Department to give to the IAA certain material, known as the “review material”. 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 that decision was made.
The IAA can, however, obtain “new information”, which is defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
The IAA did not receive any “new information” in this case.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with s 473GA and s 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 17 pages long and spans 44 paragraphs. This includes four pages containing extracts of relevant legislative provisions.
The IAA began by noting that the applicant had applied for the visa on 25 November 2016 and that a delegate of the Minister had refused to grant the applicant that visa on 25 February 2020. The IAA explained that it had had regard to the material referred to it by the Secretary under s 473CB of the Act and that it had also had regard to an email from the applicant (dated 29 March 2020 responding to some of the delegate’s findings) and identity documents provided by the applicant (via email) on 4 April 2020 (at [1]-[3]).
The IAA then summarised the applicant’s protection claims in detail and explained that the applicant had “provided different identities to authorities in different countries” and that there was evidence before it that the applicant had “used different passports displaying different names, dates of birth and citizenship numbers … to apply for visas to different countries”. Whilst the IAA accepted that the applicant was a Sunni Pashtun and a Pakistani national (as claimed), the IAA did not otherwise “accept much of what the applicant ha[d] claimed” (at [4]-[6]).
The IAA considered evidence provided by the applicant in relation to his “medical condition” and noted that the applicant claimed to have been taking “antidepressant medication”, had been seeing a counsellor and had seen a psychiatrist once in 2018. The IAA noted that the applicant had provided reports from a psychologist and from a counsellor and letters from his GP. The IAA noted that the psychologist’s report stated that the applicant had “described sleep patterns that are constantly disrupted by intrusive flashbacks of events that occurred when he was detained” and that when he was awake, he was “often troubled by intrusive and troubled thoughts that make it difficult for him to focus on finding work”. The IAA noted that this contradicted evidence given by the applicant at the TPV interview and, accordingly, gave little weight to the medical evidence provided (at [7]-[12]).
The IAA acknowledged that, following the TPV interview, the applicant’s representative submitted that the applicant “had been on medication for depression and anxiety and could not properly focus and respond to the questions in the interview”. The IAA acknowledged that the letter provided by the applicant’s GP detailed the medication the applicant had been taking since 2016 and outlined common side effects (noting that those effects usually wear off in time but may persist). The IAA accepted that separation from his family and “visa uncertainty” may have caused the applicant some distress and that he had been prescribed medication. However, the IAA was not satisfied that any side effects from the medication (as described in a letter from the applicant’s GP) could account for the credibility concerns it had with the applicant’s evidence (at [13]-[14]).
The IAA then detailed its concerns and findings in relation to the applicant’s credibility, noting that the IAA did not consider the applicant to be “a credible witness”. The IAA explained that the applicant’s “evidence demonstrate[d] a preparedness to dishonestly engage with various government authorities for personal gain” and detailing conflicting evidence in relation to the countries the applicant had travelled to and for which the applicant had applied for visas. The IAA also had concerns about large amounts of money being sent by the applicant overseas. The IAA noted that the applicant had claimed that those funds were to support his children but the evidence before the IAA suggested that funds were also being sent to the United Kingdom. The IAA further explained that the “applicant’s shifting evidence and lack of candour regarding his employment history, the transfer or funds, previous visa applications and travel history … call into question the applicant’s reliability as a witness of truth” (at [15]-[21]).
The IAA then considered the applicant’s claims to have “received warnings” and threats and his being “detained and tortured by the Taliban because of his work as [a] teacher and [his] support for a polio eradication program”. The IAA had concerns with those claims and noted that the applicant was unable to give a precise commencement date for his employment, despite being “in possession of a document which gave his start date”. The IAA explained that the applicant had given little detail about his responsibilities and experiences as a teacher and considered that the applicant’s answers to questions in that regard were “quite superficial”. The IAA also found the applicant’s evidence regarding “his claimed involvement with the polio program” to be “vague and unpersuasive” (at [22]-[24]).
The IAA also had concerns that the applicant was “unsure when he was first warned by the Taliban” and that the applicant later raised matters not detailed in his visa application. In particular, the IAA noted that the psychologist letter referenced the applicant witnessing the beheading of two medical professionals and being locked in a small, dark room with 28 other individuals and evidence the applicant gave to the delegate that his father had paid money to the Taliban so that they would leave the applicant alone (none of which is mentioned in his visa application) (at [25]-[26]),
The IAA explained that the applicant had provided what he claimed to be a threatening letter from a group aligned with the Taliban (dated June 2012) which alluded to the applicant having been warned several times about engaging in anti-religious activities (including opening a CD store) and explained that he was barred from the religion (now regarded as being an apostate) and that the “only punishment for him [was] death”. Noting that the letter was dated one year prior to the applicant’s departure (and that he remained in his home country during that time), the IAA found the applicant’s “evidence regarding the Taliban threats highly improbable”. The IAA was also not satisfied that the applicant’s “entire narrative” about his work as a teacher and polio program coordinator (and resulting difficulties with the Taliban) was truthful (at [27]-[28]).
The IAA then considered the applicant’s claims against the refugee criteria, first summarising the relevant definitions of s 5H(1) and s 5J of the Act and then summarising relevant country information relating to Pakistan, the threat of the Taliban and sectarian violence in the region. The IAA also explained that the country information supported a finding that, as a Sunni Pashtun who had resided in Australia for a period of time (and without any other profile of interest), the applicant faced only a remote chance of experiencing any harm upon his return in the foreseeable future. The IAA ultimately concluded that there was no real chance of any harm to the applicant and that his fear of persecution was not well-founded. The applicant thus did not meet the requirements of the definition of refugee in s 5H(1) of the Act (at [30]-[39]).
The IAA also considered the applicant against the complementary protection criteria and found that the applicant did not face a real risk of significant harm in the foreseeable future if he were to return to Pakistan. On that basis, the IAA concluded that the applicant did not meet the requirements of s 36(2)(aa) of the Act ([40]-[44]).
The IAA affirmed the delegate’s decision refusing to grant the applicant the visa.
APPLICATION TO THIS COURT
As outlined above, the applicant filed an application for judicial review in this Court on 12 May 2020.
On 21 May 2024, written submissions were filed on behalf of the Minister.
On 6 June 2024, the applicant obtained legal representation and a notice of address for service was filed on his behalf.
On 17 June 2024, an amended application and written submissions were filed on behalf of the applicant.
That amended application contains two particularised grounds of review, as follows:
1.The Immigration Assessment Authority’s decision was made in jurisdictional error because it was based on an illogical or irrational process of reasoning at [21] to [28] of its reasons that it was not satisfied that the applicant was a teacher or polio program coordinator or that he was the subject of any adverse interest from the Taliban or any affiliated group.
Particulars
(a)In relation to the applicant’s history as a teacher, the Authority’s reasons at [23] and [24] constitute an illogical or irrational process of reasoning, having regard to the evidence at CB p58 and p93 and the transcript of the interview held on 18 September 2016 at T-20 to T-30.
(b)In relation to the applicant’s history as a polio program coordinator, the Authority’s reasons at [24] constitute an illogical or irrational process of reasoning, having regard to the evidence at CB p94 and the transcript of the interview held on 18 September 2016 at T-30 to T-34.
(c)In relation to the applicant being the subject of adverse interest from the Taliban or affiliated groups, the Authority’s reasons at [25] to [28] illogically or irrationally relied on supposed “inconsistencies” or “contradictions” to discredit the applicant’s account as a whole.
2.The Immigration Assessment Authority’s decision was made in jurisdictional error because it failed to consider the applicant’s claim that he had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business.
Particulars
The applicant’s claim was clearly articulated in his visa application at CB p64 and the transcript of the interview held on 18 September 2016 at T-34 to T-39 and T-50 to T-51.
On 20 June 2024, written submissions were filed on behalf of the Minister.
On 21 June 2024, a bundle of authorities was filed on behalf of the Minister.
On 24 June 2024, a bundle of authorities was filed on behalf of the applicant.
On 24 June 2024, a final hearing was held in this matter before this Court. Mr Oliver Lloyd (“Mr Lloyd”) of counsel appeared on behalf of the applicant (by video link). Ms Kylie McInnes (“Ms McInnes”) of counsel appeared on behalf of the Minister (also by video link).
At the hearing of this matter (on 24 June 2024), Ms McInnes requested that the parties be granted leave to file further written submissions. The Court made orders in that regard. Further written submissions and a further bundle of authorities were filed on behalf of the applicant on 28 June 2024 and further supplementary written submissions were filed on behalf of the Minister on 12 July 2024.
The materials before the Court include a Court Book numbering 808 pages (filed in this Court on 17 May 2023 and marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 21 May 2024, the affidavit of Mr Dimitrios Katsaros (sworn and filed on 14 June 2024 and annexing a transcript of the applicant’s TPV interview (the “Katsaros affidavit”) which was taken as read and in evidence at the hearing of this matter), the amended application for judicial review and written submissions filed on behalf of the applicant on 17 June 2024, supplementary written submissions filed on behalf of the Minister on 20 June 2024, supplementary written submissions filed on behalf of the applicant on 28 June 2024 and further supplementary submissions filed on behalf of the Minister on 12 July 2024.
CONSIDERATION
As outlined above, the amended application for judicial review filed on behalf of the applicant raised two particularised grounds of review.
At the hearing of this matter (on 24 June 2024), counsel for both parties gave submissions addressing both grounds. There was, however, a clear focus on ground two.
In the circumstances, the parties were granted leave (by way of orders made on 24 June 2024) to file further submissions directed to ground two.
The Court notes that Mr Lloyd initially claimed that ground two was dependent on ground one. However, during the course of the hearing, Mr Lloyd seemed to alter his position (indicating that ground two could, and should, stand alone).
Given the parties focus on ground two, the Court will first consider ground two.
As set out above, ground two relevantly provided as follows:
2.The Immigration Assessment Authority’s decision was made in jurisdictional error because it failed to consider the applicant’s claim that he had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business.
Particulars
The applicant’s claim was clearly articulated in his visa application at CB p64 and the transcript of the interview held on 18 September 2016 at T-34 to T-39 and T-50 to T-51.
Applicant’s submissions in relation to ground two
Applicant’s Written submissions
The applicant’s written submissions (filed on behalf of the applicant on 17 June 2024) relevantly provided as follows:
(a)the IAA’s decision was made in jurisdictional error because it failed to consider the applicant’s claim that he had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business;
(b)the applicant’s claim (as set out above) was clearly articulated by the applicant in his visa application (CB 58, Q89-Q90 and CB 64) and during his TPV interview (Katsaros affidavit at transcript pages 34-39 and 50-51);
(c)the IAA (at [32]-[39] in its reasons) did not in any way consider the applicant’s claim as articulated. Its assessment only consisted of whether the applicant had a well-founded fear of persecution based on his Pashtun ethnicity and his Sunni religion, then his status as a returnee from Australia, and then based on his mental condition. The IAA’s reasons go into great detail setting out pro forma country information about these matters and applying such information to the applicant. However, simply put, the applicant did not claim a well-founded fear of persecution based on his ethnicity or religion, or on the basis of his general status as a returnee from Australia;
(d)the applicant’s claims were based on his specific personal history and his status as a returnee from Australia in that context. The IAA’s reasons did not consider in any way whether the applicant’s fear of persecution was well-founded or whether there was a real chance of harm in relation to a person who may have a profile of interest based on his alleged anti-Islamic activities in the country (being teaching, involvement in the polio program and the operation of his computer products business). The delegate referred to country information regarding the targeting of individuals involved in polio programs (Katsaros affidavit at transcript pages 34-35) and so did the delegate’s reasons (CB 758). However, the IAA did not turn its mind to the applicant’s claim in this regard; and
(e)having failed to consider a clearly articulated claim which, the applicant submits, was material, the IAA’s decision was made in jurisdictional error.
Applicant’s Oral submissions
In oral submissions before this Court, Mr Lloyd submitted as follows on behalf of the applicant:
(a)the IAA’s consideration of the persecution claim does not actually clearly set out what the applicant’s persecution claim was;
(b)the applicant submits that the claim was not set out and was not considered;
(c)the claim being that the applicant had a well-founded fear of persecution on the basis of his imputed political opinion that fundamentalists in Pakistan thought he had certain anti-fundamentalist or anti-Islamic political opinion because of his involvement with the Polio program, selling computer software in his CD store and other aspects generally seen as progressive;
(d)the IAA focused on the applicant’s general attributes (as someone of Sunni Muslim faith and of Pashtun ethnicity) and the IAA’s reasons in that regard are “quite pro forma in their nature”; and
(e)the IAA did make clear findings that it did not believe that the applicant was a teacher or that he was involved in the Polio program. However, the IAA did not make any clear finding that the applicant did not run a computer parts store.
Applicant’s further written submissions
The applicant’s further written submissions (filed on behalf of the applicant on 28 June 2024) relevantly provided as follows:
(a)the Minister submits (at [18]-[19] of its supplementary submissions filed on 21 June 2024) that the IAA did not fail to consider any claim arising from the applicant’s claimed history because it found that it was not satisfied as to the applicant’s claimed history;
(b)the Minister also submits that the reasoning indicates that – in addition to his claimed history as a teacher, polio program coordinator and in relation to adverse interest from the Taliban – the IAA also did not accept that the applicant operated a CD store. The applicant opposes this submission. The IAA’s reasons (at [6]) leaves open the credibility of the applicant’s narrative as to the CD store, and there is nothing in [27]-[28] of the IAA’s reasons that it had any issue with that narrative, let alone that it impliedly made a finding that he never operated such a store. In fact, one of the factual premises underlying the IAA’s rejection of his evidence regarding Taliban threats (at [27] of its reasons) is that it was difficult to believe that he would have kept his CD business going if his evidence as to the Taliban threats were true. The IAA therefore accepted the evidence as to his CD business in order to reject his evidence regarding the Taliban threats;
(c)the Minister also submits that because the applicant’s claimed history was rejected at a factual level, the IAA was not then required to go on to assess a claim that did not arise on the facts as found.
(d)The Minister relies on the following passage from the decision of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”) (emphasis added):
47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(e)the Minister submits that any findings as to whether the applicant has a well-founded fear of persecution arising from his claimed history were unnecessary because the factual premise of that claim (the applicant’s claimed history) was rejected (the first underlined statement above);
(f)in reply to this submission, first, the starting point is that the failure of the IAA’s reasons to deal with the applicant’s persecution claims as articulated raises a strong inference it has been overlooked (the second underlined statement above), which would clearly be a legal error according to the well-known principles in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) and Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 (“Dranichnikov”);
(g)second, if the Minister is to displace that strong inference by its submission that the factual premise of the claim was rejected, it is observed that if any of the IAA’s findings rejecting the applicant’s claimed history were made in legal error (as argued under ground one), then the IAA ought to have considered the applicant’s persecution claim in respect of the particular factual premise found to have been erroneously rejected; and
(h)third, even if this Court holds that the IAA’s factual findings challenged under ground one were not made in legal error, the IAA ought to have gone on to consider the applicant’s persecution claim in respect of the remaining part of the factual narrative that it did impliedly accept, being his operation of the CD store, which the applicant claimed was regarded by the Taliban as part of his “anti-Islamic activities” (CB 64). Since there was no country information regarding the vulnerability to persecution of individuals undertaking “antireligion” activities such as operating computer stores, there is a realistic possibility that the IAA could have come to a different conclusion if it properly investigated and considered the claim, such that the error in not doing so was material to the decision.
Minister’s submissions in relation to ground two
Minister’s Supplementary written submissions
The Minister’s supplementary written submissions (filed on behalf of the Minister on 20 June 2024) relevantly provided as follows:
(a)the IAA did not fail to consider any claim arising from the applicant’s claimed history;
(b)ground two entirely overlooks the IAA’s finding (at [28]) that it was “not satisfied the applicant’s entire narrative in respect [of] his claimed employment as a teacher and polio program coordinator, and the difficulties he claimed flowed from these activities garnering adverse interest from the Taliban, [was] truthful.” Reading [27]-[28] of the IAA’s reasons fairly, and together with [6] (that the IAA did “not accept much of what the applicant has claimed” beyond being a Sunni Pashtun), the reasoning indicates that the IAA also did not accept that applicant had operated a CD store; and
(c)having rejected the applicant’s claimed history at a factual level, the IAA was not then required to go on to assess a claim that did not arise on the facts as found.
Minister’s Oral submissions
In oral submissions before this Court, Ms McInnes submitted as follows on behalf of the Minister:
(a)the IAA’s decision (at [4]) sets out what the IAA understands the applicant’s claims to be and it outlines (at a factual level) that the applicant claimed to have come to the attention of the Taliban through his teaching, through his work in the Polio immunisation project and through working in a CD store;
(b)the IAA then first makes factual findings before moving on to assess the protection claims based on the facts that it has found;
(c)the Minister accepts that under the heading “Refugee Assessment”, the IAA does not state again that “the applicant raised a claim based on having been a teacher and I reject that based on the factual findings”. There is nothing expressly stating that. However, reading the reasons as a whole, the IAA has gone through the evidence in great detail about the applicant having a particular profile based on being a teacher and having worked in the Polio program;
(d)this culminates at [28] of the IAA’s reasons where it rejects that the applicant has that particular profile and the reason it does that is because it acknowledges that there was a claim being made on that basis; and
(e)the Minister relies on the decision in Applicant WAEE regarding the inferences that the Court can draw from something not being mentioned in the IAA’s reasons and the inference that should be drawn here is that the IAA did not (under the heading “Refugee Assessment”) acknowledge and then reject the claim because it did not need to. It had already rejected the factual underpinning.
Minister’s Further supplementary written submissions
The Minister’s further supplementary written submissions (filed on behalf of the Minister on 12 July 2024) relevantly provided as follows:
(a)the applicant has not cited any authority in support of the position the Minister understood him to be advancing at the hearing, being that the IAA needed to first expressly articulate the claims made by an applicant before proceeding to assess (by either accepting or rejecting) those claims based on the facts as found. The Minister is not aware of any authority to this effect;
(b)the obligation of the decision maker is to “consider all claims made by an applicant and its essential components or integers”: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 (“Htun”) at [42] (Allsop J, with whom Spender J agreed). That consideration is then reflected to the extent necessary in the IAA’s written statement of decision. The statement of reasons is required to “set out the reasons for the decision”, including “the findings on material questions of fact and refer to the evidence or other material on which those findings were based”: s 473EA(1)(b) of the Act read with s 25D of the Acts Interpretation Act 1901 (Cth);
(c)since s 473EA of the Act does not require the statement of reasons to set out the applicant’s claims, the IAA not having done so does not indicate that it failed to “consider” the claims. As the Full Court in Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 explained:
49.The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); [BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35] at [45]; AQR17 v Minister for Immigration & Border Protection [2018] FCA 901 at [14]–[15].
(d)even if there was some requirement for the IAA to articulate the applicant’s claims before accepting or rejecting them, it would not follow that the IAA erred by failing to do so here. This is so for three reasons:
(i)first, the IAA did specify the claims the applicant contends were not considered at [4] of its reasons. It summarised the applicant’s claims to have “received warnings and threats from the Taliban demanding he terminate his employment as a teacher and his support for government education and health projects” (4th dot point) and “[t]he Taliban warned him that he … committed himself to activities and deeds that were forbidden in Islam, referring to his business” (7th dot point). The inference that a claim has been overlooked is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: Applicant WAEE at [47]. Here, the IAA has identified claims based on the applicant’s claimed employment as a teacher, health project worker, and CD business operator;
(ii)second, since the IAA did not accept that the applicant was a teacher, polio vaccinator or CD store owner (which is addressed further below), any resultant failure to consider the applicant’s claims would not “clearly be a legal error” in accordance with well-known principles of NABE and Dranichnikov.
(iii)Gummow and Callinan JJ in Dranichnikov said (emphasis added):
24.To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
(iv)similarly, the principle from NABE that the decision-maker must also consider a claim that clearly emerges from the materials (NABE at [55] & [68]; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]) must be read in light of the principle in Dranichnikov and only arises where the clearly emerging claim is based on “established facts”: SZUTM v Minister for Immigration and Border Protection [2016] FCA 45 at [37]-[38]) (endorsed by the Full Federal Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 [18, 4th point (c)]). Nothing in NABE or Dranichnikov obliged the IAA to make findings on claims that were made based on facts that were not established, as is the case here in relation to the applicant’s claimed employment history; and
(v)third, any error by the IAA in failing to articulate the applicant’s claims before assessing them would not be a material error. The historical fact of how the decision was made includes that the IAA did not accept that the applicant had been a teacher, polio vaccinator or run a CD business. Even if the IAA was required to set out claims before considering them, there is no realistic possibility it could ultimately have reached a different decision on whether the applicant was owed protection obligations based on his previous employment. Any error of failing to set out claims before considering and rejecting them would not amount to jurisdictional error;
(e)contrary to the applicant’s supplementary submissions (at [7]), there is no starting point or assumption to be displaced, that a failure to refer to a matter in submissions infers that it has been overlooked. It does not follow from the fact that a matter is not mentioned, that the matter was not considered: Minister for Immigration v SZGUR [2011] HCA 1 (“SZGUR”) at [31]-[32] (French CJ and Kiefel J), [48] (Gummow J). The applicant bears the onus of establishing jurisdictional error on the part of the IAA (SZGUR at [67]) and he has not established that the absence of reasoning directly rejecting a claim of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business means that those claims were unconsidered;
(f)the IAA set out the protection claims. The IAA then dealt with the factual basis for the claims (at [22]-[27] of its reasons, including at [27] by noting that the applicant claimed to have been warned by the Taliban about engaging in anti-religion activities by opening the CD store). This tends strongly against claims having been overlooked;
(g)there can be many explanations for why a claim is not expressly rejected that tend against an inference that a claim was overlooked. One explanation was that “it is unnecessary to make a finding on a particular matter because… there is a factual premise upon which a contention rests which has been rejected”: Applicant WAEE at 47. That is what has occurred here;
(h)the IAA overtly rejected that the applicant had ever worked as a teacher or a polio vaccinator (at [28] of its reasons). The Minister maintains his submission that reading paragraphs [27]-[28] of the IAA’s reasons fairly, and together with [6] (that the IAA did “not accept much of what the applicant has claimed” beyond being a Sunni Pashtun), the reasoning indicates that the IAA did not accept that applicant had operated a CD store;
(i)this position is not undermined by the IAA reasoning at [27] that it was difficult to believe the applicant would have kept his CD business going if the claims about the Taliban threats were true. That reasoning is entirely consistent with the IAA rejecting the entirety of the relevant factual claims (namely that he ran a business that was forbidden in Islam and that he received threats while doing so) as “highly improbable”;
(j)implying that the IAA accepted that the applicant operated a CD business would not be reading the decision as a whole and would be to discard the Authority’s observation that beyond background findings, it did “not accept much of what the applicant has claimed”: see [6] of the IAA’s reasons. In light of that statement, if the IAA did not expressly state its acceptance of a claim (including a factual claim), the appropriate inference to draw is that it rejected the factual claim; and
(k)finally, the Minister does not dispute that if ground one succeeds, it would follow that the IAA has not lawfully discharged its duty to consider the applicant’s claims. But if the error in ground one is not established, the errors alleged by that ground provide no separate basis to grant relief based on ground two.
The Court’s consideration of ground two
As noted above, ground two relevantly provided as follows:
2.The Immigration Assessment Authority’s decision was made in jurisdictional error because it failed to consider the applicant’s claim that he had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business.
Particulars
The applicant’s claim was clearly articulated in his visa application at CB p64 and the transcript of the interview held on 18 September 2016 at T-34 to T-39 and T-50 to T-51.
This Court has previously outlined what is required when considering claims in AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326 at [66]-[70]. That analysis applies equally to this matter and is repeated and adopted below (with minor amendments and additions).
The IAA will err if it excludes from its consideration some factor which should affect its determination: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360.
Establishing exactly what should have been considered by the IAA in any given matter is often a difficult task. As Judge Wilson (as His Honour then was) explained in AUV15 v Minister for Immigration & Anor [2017] FCCA 1951:
19.A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).
An applicant’s protection claims and their component integers are, however, considerations that are mandatorily relevant under the Act. Justice Allsop (as His Honour then was) considered the nature of the decision-maker’s (in that case the Tribunal’s) review function in Htun, stating (at [42]):
... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. 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 ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
The IAA is not, however, required to give consideration to a claim that is not expressly made or that does not arise clearly on the materials before it. As explained in NABE at [61]-[62]:
…the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Whatever the scope of the tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [31]–[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 203 ALR 112; [2003] HCA 71 at [1]:
... Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
It follows that, if the IAA fails to consider a claim, or misunderstands or misconstrues a claim which is raised on the evidence before it, the failure to do so may constitute jurisdictional error.
In this regard, it is noted that the Full Court of the Federal Court in NABE stressed that (at [63]):
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
...If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
There does not appear to be any dispute between the parties in this matter that the applicant’s claim (being that he had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as a teacher, polio program coordinator and owner of a computer products business) was squarely raised.
The question for the Court then is whether that claim was properly considered by the IAA.
As outlined above, the Minister submits that there was no need for the IAA to make findings about that claim because the IAA had rejected the applicant’s evidence and made relevant factual findings in that regard.
The applicant submits that while factual findings were made rejecting some of the matters raised in the claim (being that the applicant was a teacher and was involved in the Polio program), no factual findings were made rejecting the applicant’s evidence about owning a CD store and the IAA still needed to make findings about the balance of the claim.
The Court notes the comments made by the Full Court of the Federal Court in Applicant WAEE as follows (emphasis added):
47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Court is satisfied that in the matter the subject of this judgment the IAA made findings rejecting the applicant’s claims to have been employed as a teacher and to have been involved in the Polio program, as follows:
28. I am not satisfied the applicant’s entire narrative in respect his claimed employment as a teacher and polio program coordinator, and the difficulties he claimed flowed from these activities garnering adverse interest from the Taliban, is truthful. His account was vague and has evolved over time, while other aspects of his evidence at the delegate’s interview contradicted his earlier evidence from the visa application. I am not satisfied he ever worked as a teacher or a polio vaccinator. I do not accept that he was ever warned, threatened or detained by the Taliban or any affiliated group while in Pakistan. I do not accept that the threat letter is genuine. Nor do I accept that any Taliban aligned group ever sought to recruit him. I am not satisfied he ever experienced any adverse interest from any Taliban affiliated group while in Pakistan, or that he was harmed by any such group in any way. In and of itself his narrative regarding these events was vague, unpersuasive, and in certain instances contradictory.
The IAA was thus not required to consider that part of the applicant’s claim relating to his employment as a teacher or his involvement in the Polio vaccination program. However, the balance of the applicant’s claim remained – that is, whether the applicant had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as the owner of a computer products business or CD store.
The Court has reviewed the IAA’s decision in detail and cannot see any determination by the IAA that rejects (implicitly or otherwise) the applicant’s claim to have owned a CD store. Indeed, the IAA references the applicant continuing to work at that store after he allegedly received threats from the Taliban and does so as follows (emphasis added):
27.The applicant provided what he says is a threat letter from a Taliban aligned group called Lashkar Islam dated June 2012. It alludes to the applicant having been warned several times not to engage in anti-religion activities, that by opening the CD store in [name of place omitted] he had not given up these activities, so he is now barred from the religion, regarded as an apostate and the only punishment for him is death. This letter is dated one year prior to the applicant’s departure from Pakistan. In his visa application he states that he was deeply concerned after receiving this threat and decided to leave Pakistan. However he did not actually do so until June 2013 and he continued to carry on his CD business during this period. I find it difficult to believe that the applicant, if he has in fact received a death warrant from the Taliban, would wait a year after receiving the warrant before departing the country particularly given he was in possession of a passport at that time. Despite these threats and the applicant continuing to carry on his business and remained in the country, nothing seems to have come of them. I consider his evidence regarding the Taliban threats highly improbable.
Arguably, having read the IAA’s decision as a whole and noting the highlighted portions of the passage above, the IAA does appear to accept that the applicant was “carrying on a CD business” for at least the year between when the applicant claimed to have received threats from the Taliban and the date at which he departed Pakistan.
What is not present in the IAA’s decision, however, is any consideration of the balance of the applicant’s protection claim (being whether the applicant had a well-founded fear of persecution based on his imputed anti-Islamic political opinions arising from his history as the owner of a computer products business or CD store).
As outlined above, making a decision without considering all claims constitutes a failure to complete the exercise of jurisdiction embarked on. The claim or claims and their component integers are considerations made mandatorily relevant for consideration: Htun at [42].
The IAA in this matter has failed to consider an integer of the applicant’s protection claim and, by doing so, has failed to complete its statutory task.
As to whether any such error is material, as explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPDT”), the appropriate test is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: LPDT at [14] (emphasis in original). In this matter, the Court considers that, had the IAA considered the applicant’s protection claim in its entirety (particularly given that the IAA appears to accept that the applicant was running a CD store for at least one year), the outcome in this matter could have been quite different.
Contextually, the Court is satisfied that the IAA failed to consider an integer of the applicant’s protection claim and, on that basis, has fallen into jurisdictional error.
As ground two has identified a jurisdictional error on the part of the IAA, the Court does not consider it necessary to address ground one.
CONCLUSION
The amended application for judicial review filed on behalf of the applicant on 17 June 2024 has identified jurisdictional error in the IAA’s decision (dated 7 April 2020).
As explained by the Court above, the ART commenced on 14 October 2024 (established by the commencement of the Administrative Review Tribunal Act 2024 (Cth) on that same date). The Consequential Act made significant amendments to, and included transitional provisions relating to, a number of Commonwealth Acts. This included repealing Part 7AA of the Act which dealt with the IAA and IAA decisions.
The Acts (referenced at [91] above) are supported by various pieces of subordinate legislation, including the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) (the “Transitional Rules”). Part 3 of the Transitional Rules deals with the IAA and provides that this Court can do anything in relation an IAA matter that it could have done prior to the commencement of the ART, including (importantly) remitting an IAA decision for reconsideration (see rule 11(3) of the Transitional Rules). Further, where the Court remits a decision of the IAA to the ART (in accordance with rule 11 of the Transitional Rules), the proceeding for review by the ART is taken to be a proceeding for review of a reviewable protection visa decision under Part 5 of the Act (as in force following the 14 October 2024 amendments, see rule 12(3) of the Transitional Rules).
The IAA’s decision will, accordingly, be set aside and the matter will be remitted to the ART for reconsideration.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 December 2024
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