CDA18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 276
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 276
File number(s): SYG 1329 of 2022 Judgment of: JUDGE LAING Date of judgment: 18 April 2023 Catchwords: MIGRATION – extension of time – where delay was significant – merits of substantive application such that extension of time granted – whether the Immigration Assessment Authority failed to consider centrally relevant evidence and/or a claim that clearly arose on the materials – application succeeds. Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 36, 473DD, 476A, 477
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
BUD17 v Minister for Home Affairs [2018] FCAFC 140; (2018) 264 FCR 134
CTY20 & Ors v Minister for Immigration & Anor [2020] FCCA 1900
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Pearson v Minister for Home Affairs [2022] FCAFC 203
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
WQRJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 28 March 2023 Place: Sydney Counsel for the Applicant: Mr J. Widjaja (Counsel) appeared in person Solicitor for the Applicant: Human Rights for All Counsel for the First Respondent: Mr G. Johnson (Counsel) appeared in person Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 1329 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
18 APRIL 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 7 March 2018 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa (original decision) into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review of the original decision 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 LAING
Before the Court is an application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XD) (Subclass 785) visa (protection visa).
At the hearing of this matter on 28 March 2023, after some discussion with the parties, I determined that the extension of time ought to be granted and reserved my reasons in that regard. The matter therefore proceeded to be heard by way of final hearing, following which judgment was reserved. These reasons encompass my reasons both in respect of the grant of the extension of time and the orders that I have determined ought to be made after the final hearing of this matter.
BACKGROUND TO THE IAA’S DECISION
The applicant is from Gaza in the Palestinian Territories. He arrived in Australia as an unauthorised maritime arrival on 25 April 2013.
On 30 November 2016, the applicant applied for a protection visa.
The Delegate refused the application on 22 November 2017. On 27 November 2017, the matter was referred to the IAA for review.
On 7 March 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that it had received a submission from the applicant through his migration agent on 18 December 2017. To the extent that it advanced argument or submissions based upon information that was before the Delegate, the IAA stated that it had been considered. The IAA was not satisfied that a Human Rights Watch or media report that predated the Delegate’s decision could not have been provided to the Delegate. Considering this and the general nature of the new information, the IAA was not persuaded that the requirements of s 473DD of the Act were met (at [5]-[6]). The IAA therefore did not consider the Human Rights Watch report or the media report in coming to its decision (at [6]).
The IAA summarised the applicant’s claims at [7] of its decision. This included what it characterised as the applicant’s claim that he “will not be able to find work because only people who have links to Hamas can get work”.
At [11]-[12], the IAA summarised certain country information before it as follows (footnotes omitted):
11. The Australian Department of Foreign Affairs and Trade (DFAT) country information report dated 15 March 2017, sets out the historical development of the Palestinian Territories. The Territories, which are within Israel, currently comprise two separate areas; the West Bank, a large territory to the east of Jerusalem, which includes the cities of Nablus, Ramullah and Hebron; and Gaza, which is a smaller territory on Israel’s south-west coast, including Gaza City and Rafah. The West Bank is currently under the control of the Palestinian Authority while Gaza has come under the effective control of Hamas. DFAT reports that Palestinian residents of Gaza can obtain travel documents under the seal of the Palestinian Authority and these documents are accepted by 37 countries.1 The Palestinian passport does not convey citizenship of a state (in the absence of a Palestinian state) but it does entitle the holder to leave and re-enter, in the applicant’s case, Gaza without the need for additional travel and re-entry permits (unless Israeli authorities have specific security reasons).2 I accept that the applicant was able to obtain a passport. There is nothing in the material which leads me to doubt the bona fides of his other identity documents.
12. I also note information in the DFAT report that restrictions on freedom of movement enforced by Israeli authorities make it almost impossible for Palestinians to move between the West Bank and the Gaza Strip. Israel maintains tight control of the Palestinian Population Registry and the residency status of all Palestinians; for example, there are separate permits that clearly denote if an individual is from Gaza or from the West Bank. It is not legally or physically possible to move between the West Bank and the Gaza Strip, except in exceptional circumstances.3
The IAA accepted that the applicant was an Arab Sunni from Gaza in the Palestinian Territories and that he was stateless. It found that the Palestinian Territories was the “receiving country” for the purposes of the review and that if the applicant were to return there, he would return to Gaza (at [13]).
Having regard to the applicant’s claims regarding Hamas and further country information before it (at [14]-[17]), the IAA reasoned as follows at [19]-[24] (footnotes omitted):
19. I am prepared to accept that as a member of the student council, the applicant may have been invited to join Hamas when it was seeking to take control of the University. I am also prepared to accept that when the applicant refused to do so, he was initially subject to pressure and a degree of abuse and ill-treatment.
20. While I accept that as a member of the student council the applicant may have been of interest/use to Hamas in the early stages of its takeover, there is nothing in his profile to indicate that he would be of ongoing or significant interest to Hamas for the next three and a half years. According to DFAT, although statistics on forced recruitment are not available, anecdotal evidence indicates that it is not difficult for Hamas’ armed wing to find supporters, given there are few options for employment in Gaza and many young men are willing to join the armed fight. There are also limited options for entertainment and leisure in Gaza. Hamas runs summer camps for schoolchildren and these camps reportedly involve some level of militant training, including weapons handling and lessons on Hamas doctrine but do not result in forced recruitment. About 100,000 children attend Hamas’ summer camps; 50,000 attend the alternative camps run by Palestinian Islamic Jihad, but the majority, around 250,000, attend the more popular summer camps run by the United Nations.6
21. The applicant was never selected for and/or asked to attend Hamas camps and I also note that the majority of students in Gaza reportedly do not attend the Hamas camps and there is no information to indicate that they are targeted for harassment, threats or forcible recruiting for not doing so. Further, as the applicant graduated in 2009 and left the University, any interest that Hamas had in recruiting him for that reason would have ceased. I also note that the applicant has never been a member of Fatah and had no affiliation or association with any members of Fatah outside of his role on the student council. He has not claimed that he was engaged in any type of activity that could constitute opposition to, or criticism of, Hamas. While DFAT reports that there are Fatah supporters in Gaza as well as Hamas supporters in the West Bank, and that both groups of people have been subject to violence, harassment and moderate levels of official and societal discrimination, this is linked to and increases in frequency and severity if an individual was a high-profile and active critic of either Hamas in Gaza or Fatah in the West Bank.7 The highest profile that the applicant has claimed is that he was as a student council member who declined to join the organisation, and as noted above he graduated and left the University shortly after in any event. I am not satisfied that the applicant’s profile is such that he would be imputed as a high-profile and/or active critic of Hamas or that he would have been subject to the level and duration of interest that he has claimed. I do not accept that he was of any ongoing or adverse interest to Hamas for any reason after 2009 and I find that he has embellished his claims in this regard.
22. The applicant has provided copies of documents purporting to corroborate his claims. The first document is a medical report and translation from a hospital in Gaza which refers to the applicant suffering some injuries when “abused by others” in October 2012. The applicant claimed this occurred when he was taken by Hamas, detained and questioned. While I accept that the applicant suffered the reported injuries, the document does not provide any additional evidence to support his claim that they were caused by Hamas. For the reasons I have already given, I do not accept that he was of any interest to Hamas at this time. I also note that in the entry interview on 23 May 2013 (entry interview), the applicant said that there had been tribal problems in his home area that led in 2012 to a fight and police involvement. He said that he was imprisoned for two days. He also said that at other times, there were problems “within the tribe” and the police came and held him on the spot and then released him. At the interview with the delegate, he said that he was summonsed to attend the police station in December 2012 because of an incident involving his maternal uncle but this was an “alleged complaint” with no basis of truth. He provided a copy of a document from the police directing him to report to the police station on 8 December 2012. Having regard to the information, including the close chronological connection between the medical report and the summons to the police station, I am not satisfied that the injuries he received were inflicted by Hamas.
23. The applicant also provided a document from Hamas Internal Security dated 12 November 2012, which instructs him to report to the headquarters and receive his personal card, bringing two personal photographs with him. The applicant claims that Hamas had kept his identity card and that this was an instruction to report for further questions. The document does not refer to questioning or any other investigation and as noted above, I have found that Hamas had no ongoing or adverse interest in the applicant after 2009. I do not accept this document as proof that Hamas had any ongoing or adverse interest in the applicant. Furthermore, although the applicant claimed that Hamas had taken his identity card, the document does not specify whether it is referring to a confiscated card, a card held for any other reason, or the issue of a new card. While I accept that he was asked to report and receive a card, I do not accept that this document is proof that Hamas had taken the applicant’s identity card.
24. The applicant claims that if he returns to Gaza, he will be imputed as an opponent of Hamas or a traitor and will be subject to detention, death or the loss of a limb. Information in the material indicates that Palestinians, including returnees, who are suspected of collaborating with Israel, face a high risk of official and societal discrimination and serious harm, including execution through judicial and extra-judicial means. The applicant did not depart Gaza via Israel and has not claimed that he has had any dealings with Israel or that he has been involved in any activities in Gaza or in Australia which could lead him to being imputed with any such dealings. The DFAT report does not refer to any commentary, reports or accusations that returnees from other countries are imputed as opponents, traitors or with any other adverse profile on the basis of having sought asylum outside Gaza.8 I have found above that the applicant has no adverse profile with Hamas and I am satisfied that he will not be imputed as an opponent or a traitor because he sought asylum outside Gaza.
At [25]-[26], the IAA considered what it understood to be the applicant’s claims and evidence in relation to harm arising from his ability to access employment in Gaza as follows (footnotes omitted):
25. Towards the end of the interview the applicant’s agent indicated that the applicant also feared harm because he would be unable to get employment in Gaza. The agent said that Hamas had an employment monopoly in Gaza. I note the DFAT assessment that unemployment, especially youth unemployment, is high and rising and that in Gaza, overall unemployment is 41 per cent and the youth unemployment rate is 65 per cent. Further, according to the United States Department of State, employment in some government positions in Gaza, especially in the security services, is reserved for Hamas members.9
26. The applicant’s evidence indicates that although he was unable to find work in his area of study after finishing university, he trained and qualified as a hairdresser, working in this role from June 2012 until he left Gaza in February 2013. He has not claimed to have had any difficulty in obtaining this qualification and work, and he has not claimed to have any medical or psychological condition which may impact on his ability to work. I also note that he is university educated (obtained in Gaza) and has worked in Gaza before. I accept that he may have difficulty obtaining employment on return to Gaza but I am satisfied on the information cited above that he will not be denied or prevented from accessing work for any reason associated with his race, religion, nationality, membership of a particular social group or political opinion, other than the limited circumstance noted above. I am satisfied that he does not face a real chance of harm arising from his ability to access employment in Gaza.
The IAA concluded as follows at [27]:
27. Having regard to all of the information and evidence above, as well as the applicant’s lack of any adverse profile, I am satisfied that the applicant does not face a real chance of harm: from Hamas for any reason; in relation to employment in Gaza; or for being a returned asylum seeker. As I have found that he does not have any adverse profile with Hamas, I am also satisfied that he does not face a real chance of harm when his claims are considered cumulatively.
In relation to the complementary protection criterion, the IAA reasoned at [31] (footnotes omitted):
31. I have found above that the applicant does not face a real chance of harm: from Hamas for any reason; in relation to employment in Gaza; or for being a returned asylum seeker. As 'real chance' and 'real risk' have been found to equate to the same threshold10 and for the same reasons given above, I am also satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to the Palestinian Territories, the applicant will face a real risk of significant harm in Gaza.
As the IAA therefore found that the applicant was unable to meet the criteria under ss 36(2)(a) or (aa) of the Act, it affirmed the Delegate’s decision.
EXTENSION OF TIME APPLICATION
The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15); WQRJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 736 (WQRJ); and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa).
The Court is required “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (per Jagot and Halley JJ); see also Katoa at [12] (per Kiefel CJ, Gageler, Keane and Gleeson JJ).
Whilst the matters to which regard may be had are not expressly confined by the Act, matters that may be relevant include the following:
(a)the extent of the delay and the explanation for it;
(b)any prejudice;
(c)the impact on the applicant if the time is not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (per Gordon, Edelman, and Steward JJ).
Delay and explanation
The delay in this matter was inordinate. The time for making an application for review expired on 11 April 2018. The application that is the subject of the present proceedings was filed on 7 September 2022, some years later. The Minister submitted that a case ought to be “exceptional” to warrant an extension of time in such circumstances, having regard to the merits of the case: WQRJ at [31]. I accept that this is so.
In explanation for the substantial delay, the applicant made a number of allegations against his former representatives. For reasons that will become apparent, I have decided not to refer to those representatives by name.
Whilst various aspects of the conduct of both representatives were impugned, the applicant’s most substantial allegation against his first former representative (First Representative) for the purposes of these proceedings was that she purported to consent on the applicant’s behalf, without instructions, to dismissal of proceedings previously commenced on the applicant’s behalf in SYG1199/2018 (Earlier FCCA Proceedings). Those proceedings sought review of the same IAA decision that is the subject of these proceedings, on different grounds. The First Representative denies the allegations made by the applicant in relation to her conduct. She contends that she consented to dismissal of the Earlier FCCA Proceedings upon the applicant’s instructions, after giving appropriate advice that the grounds relied upon lacked adequate prospects of success.
After the Earlier FCCA Proceedings were dismissed, the applicant contends that he was given inadequate advice and assistance by a subsequent legal representative (Second Representative). That representative pursued proceedings in the High Court seeking an extension of time in which to apply for constitutional writs in relation to the IAA’s decision, on different grounds to those now relied upon. That application was dismissed for reasons that included the applicant’s failure to explain the reasons for the delay in circumstances where he appeared to have consented to dismissal of his application in the Earlier FCCA Proceedings. The applicant contended that he had advised his Second Representative of his allegations regarding his First Representative’s conduct, but that his Second Representative did not inform the Court of this or adequately advise the applicant in relation to the High Court proceedings.
The Second Representative denied that the applicant was inadequately advised in relation to the High Court proceedings. The Second Representative contended that he had been instructed by the applicant not to raise in the High Court proceedings his dispute with the First Representative, or his allegation that she consented to dismissal of his earlier proceedings without his instructions.
The above matters have been the subject of complaints to the Office of the NSW Legal Services Commissioner (OLSC), in respect of which I understand investigations are ongoing. The broader circumstances of the applicant’s interactions with both of his former representatives are the subject of highly contested disputes in this regard. Only some of the contested factual matters are of direct relevance to the applicant’s explanation for the delay in filing these proceedings (as opposed to, for example, being indirectly relevant as matters bearing upon questions of context or credibility).
Nonetheless, at least 16 affidavits have been filed in relation to the disputes (excluding those that have been additionally filed in substantially similar, but amended, forms). I anticipated that dealing with questions of admissibility was likely to occupy some time during the scheduled hearing, as also would potentially any subsequent applications to adduce further evidence following my rulings on those objections. An adjournment application had been foreshadowed. Challenge had been made to the applicant’s lawyer’s ability to continue to represent the applicant within the context of evidence that she had given regarding the explanation for delay. Multiple witnesses had been required for cross-examination.
In short, it was readily apparent that if full ventilation of the factual disputes regarding the explanation for delay and associated matters were allowed to occur, then this would potentially result in substantial delay in this matter. This is in circumstances where the applicant was in detention, and had sought expedition of the proceedings on the basis that he was suffering from acute mental health conditions including depression and post-traumatic distress disorder that were exacerbated by his ongoing detention.
It would have been necessary for such issues to have been more fulsomely ventilated had I formed the view that adjudication of the factual disputes regarding the explanation for the delay would potentially change the outcome of the application, when resolved one way or the other. However, this was not the view that I ultimately formed.
If the applicant’s account were not accepted then, clearly enough, his explanation for delay would have been considered unsatisfactory. The applicant would have been delayed by his choice to pursue, and then consent to dismissal of, the Earlier FCCA Proceedings. He would have further been delayed by matters including his decision to pursue a High Court application based upon grounds and an explanation for delay that were found to have been insufficiently meritorious for an extension of time to have been granted within that jurisdiction.
Even if the applicant’s account were taken at its highest, I accepted the Minister’s submission that this would still not have adequately explained the entirety of the delay in this matter. Even if the First Representative improperly consented to dismissal of the Earlier FCCA Proceedings, the applicant did not contend that the grounds that he raised there ought to have succeeded. Regardless of this and of what he has alleged regarding his Second Representative’s conduct in relation to the High Court proceedings, the fact remains that the grounds relied upon by the applicant in these proceedings were only identified by his most recent set of representatives. As the Minister submitted, there were also further delays in this case that cannot be explained by reference to the alleged conduct of the applicant’s previous representatives.
I was therefore not persuaded that the applicant had adequately explained the entirety of his delay in bringing the current application, even if his account were to be accepted. I accepted that this potentially weighed heavily against the extension of time being granted. Rejection of his account would, of course, have weighed more heavily than if his serious allegations of negligence and misconduct were accepted. However, whether his case were taken at its highest or its lowest in this regard, I was not persuaded that refusal of the extension of time application ought to occur when this consideration was weighed with the other considerations and, in particular, the merits of the proposed substantive application.
On this account, I was not persuaded that it would be appropriate for full testing of the evidence to occur in this matter. My preliminary views in this regard were communicated at the hearing. After some (sensible) clarification was sought by the Minister’s representative that I had considered the explanation at its highest and at its lowest, the Minister did not seek to be heard further on this issue. I did not understand any party or interested person to submit that I ought to allow full adjudication of the factual disputes if I were not persuaded that the asserted deficiencies in the applicant’s explanation for the delay were capable of tipping the balance for or against the extension of time. Nor did the Minister submit that I ought to determine the factual disputes to allow the Minister to develop some other argument that he wished to pursue in relation to estoppel, abuse of process or otherwise.
As the factual disputes between the applicant and his former representatives have not been fully adjudicated, and are the subject of an ongoing OLSC investigation, I have decided that it would not be appropriate to refer to the former representatives by name in my written reasons for judgment.
Prejudice, the public interest and impact upon the applicant
If the extension of time were refused then the IAA’s decision would have remained undisturbed. No appeal would then have been permitted to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act although an application to that Court may have been made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.
There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this is whether the merits of the proposed substantive application are such as to warrant their determination at a full and final hearing.
However, it has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]-[17]; see also Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597.
Such considerations loom large in the present case. That a public interest tends, strongly, against allowing multiple attempts to review the same administrative decision can readily be appreciated. This, at least, ought to weigh heavily against an extension of time being granted.
However, the Minister did not contend that the present application was an abuse of process or affected by estoppel. The Minister may, in this regard, have been influenced by cases such as Pearson v Minister for Home Affairs [2022] FCAFC 203 and CTY20 & Ors v Minister for Immigration & Anor [2020] FCCA 1900. Such cases indicate that arguments of this nature can face difficulties.
Regardless, such an argument was not run in the present case. The Minister did not approach the matter on the basis that the applicant’s previous applications or the resulting prejudice of having to contest a further application, in respect of which costs may not be recoverable, were necessarily determinative. Instead, the Minister approached the application on the basis that these were matters to be weighed amongst the other considerations in this case. Such considerations included, significantly, the merits of the proposed application.
Merits of the proposed application
The Minister did not contend that the proposed substantive application was hopeless or entirely without merit such as to justify refusal of the extension of time solely on this basis. However, the Minister contended that the relative strength of the proposed grounds did not favour the grant of an extension.
The difficulty in this regard was that I had come to a different view regarding the strength of the applicant’s proposed substantive application. This was in circumstances where the applicant had identified aspects of the material before the IAA that were not expressly considered by the IAA. In particular, these included what the applicant had said at his Irregular Maritime Arrival Entry Interview conducted on 23 May 2013 (Entry Interview) regarding his ability to earn sufficient income from his employment as a hairdresser in Gaza in order to support his family. This was raised in the Entry Interview as a most recent catalyst for the applicant’s departure from Gaza. It was not expressly referred to by the IAA at [25]-[27] of its decision, where it found that the applicant would not face a real chance of harm due to an inability to access employment or “in relation to employment in Gaza”. That rejection appeared to rely heavily upon the fact that the applicant had previously been employed as a hairdresser. However, it did not engage, at least expressly, with what the applicant had said about his inability to earn sufficient income from such work to support his family.
Whilst the merits of the substantive application before the Court are considered in further detail below, for the purposes of the extension of time application, I considered that the merits of the proposed substantive application were such that it was necessary in the interests of the administration of justice to extend time to allow the dispute between the parties to be heard through a final hearing. This was notwithstanding the strength of other considerations that tended against the extension of time being granted, which are discussed above.
I therefore made an order granting the extension of time.
THE SUBSTANTIVE APPLICATION
The following grounds were proposed in the application filed on 7 September 2022:
1. The IAA fell into jurisdictional error by applying irrational or illogical reasoning in finding that:
(a) “there is nothing in [the Applicant’s] profile to indicate that he would be of ongoing or significant interest to Hamas for the next three and a half years” (IAA Decision at [20]).
(b) the Applicant’s profile was not one where “he would be imputed as a high-profile and/or active critic of Hamas…or subject to the level and duration of interest that he has claimed” (IAA Decision at [21]).
(c) the Applicant was “never selected for and/or asked to attend Hamas camps” and that “the majority of students in Gaza reportedly do not attend the Hamas camps and there is no information to indicate that they are targeted for harassment, threats or forcible recruiting for not doing so” (IAA Decision at [21]).
(d) the Applicant “has not claimed that he was engaged in any type of activity that could constitute opposition to, or criticism of, Hamas” (IAA Decision at [21]) contrary to the Applicant’s evidence, which was accepted by the IAA, that he refused to join Hamas.
(e) the Applicant did not have a well-founded fear of persecution by Hamas by reason of the Applicant’s refusal to join Hamas and his perceived association with the Palestinian Authority.
Particulars
The IAA’s findings are irrational or illogical inter alia on the basis that:
(i) the IAA relied on statistics about Hamas’ summer camps in the “DFAT Thematic Report Palestinian Territories March 2017", 15 March 2017 (DFAT Report), when those statistics were about “children”, not university level students, as the Applicant relevantly was;
(ii)the IAA relied on the absence of evidence of the Applicant being “selected” for a Hamas camp, when there is nothing in the DFAT report that suggests a person is “selected for” Hamas’ camps;
(iii)the IAA relied on the DFAT Report (at [3.34] and page 21) conclusions on forced recruitment for Hamas’ armed wing which is irrelevant to the Applicant’s case, particularly, Hamas’ political wing and its attempt to build political influence in the university system.
2.The IAA failed to consider a claim which clearly arose on the material, namely whether the Applicant has a well-founded fear of persecution by Israel on the basis of the Applicant’s race, nationality and/or religion.
Particulars
(a) The IAA accepted that the Applicant is “an Arab Sunni from Gaza in the Palestinian Territories” (IAA Decision at [13]).
(b) The Applicant’s entry interview on 23 May 2013 records:
(i) The Applicant had “worked in the tunnels - digging tunnels for the Egyptian borders, so we can smuggle, cement, iron, clothes. It depends, during the festivals, clothes would be the prominent goods that we would get from outside.”
(ii) The Applicant was “UNEMPLOYED after completing University” from 03/2009 to 09/2011.
(iii) “I tried to work for someone, help my family, help my brother's [sic], help my relatives. The situation in Gaza is unbearable. I started to work in the tunnels, I worked for almost one year and 4 or 5 months, something like that. It is very exhausting work, we start at 7 and finish at 5. Or 7pm. It was like shift work. Some of our friends died as a result of tunnels collapsing on them.
As a result of unemployment, I took this money and spent it on my family and brothers because their situation was no good. There is no way you can work, using your qualification. You need a middle man for that.”
(iv) Regarding hairdressing “I worked there for 3 months, along with the course, I worked there for 6 months. It was very hard work, not many clients, not much income. The income there was not enough to start life, buy house, so that is when I thought I should leave the country.”
(c) The DFAT Report states:
[2.11] – “The Palestinian economy is volatile. It is heavily reliant on foreign aid, vulnerable to spikes in conflict and is directly affected by the political situation at any given time.”
[2.12] – “The economy in Gaza is closed and stagnant due to Israel’s blockade and the international community’s sanctions against Hamas.”
[2.13] – “In 2014, the poverty rate in Gaza was 39%.” … “Almost 80% of Gaza’s population is dependent on aid.”
[2.14] – “The movement of people and goods in and out of Gaza is restricted by Israel and Egypt due to security concerns and has reduced economic activity and livelihoods. Israel’s maritime blockade of Gaza has affected the fishing industry, which was traditionally a key source of income.”
[2.14] – “Under the Protocol on Economic Relations (also known as the Paris Protocol), signed by Israel and the Palestinian Territories following the Oslo Accords, Israel collects revenues on behalf of the Palestinian Authority and transfer them on a monthly basis. In the first quarter of 2015 Israel withheld all transfer and according to the World Bank, the Palestinian Authority loses USD285 million annually under the arrangement.”
(d) The DFAT Report addresses “Employment” from [2.23] to [2.25] and, most relevantly, states:
[2.23] – “Unemployment, especially youth unemployment, is high and rising.”… “In Gaza, overall unemployment is 41% and youth unemployment is 65%.”
[2.24] “Restrictions on freedom of movement and goods impact on Palestinian employment opportunities.”
(e)The DFAT Report addresses the “Political System” from [2.26] to [2.40] and, most relevantly, states:
[2.26] “The Palestinian governance system is also unique in that it has very limited control of land, water and markets.”
[2.30] “The PA … does not control borders, currency or natural resources…”.
(f)The DFAT Report addresses “Freedom of Movement” from [2.46] to [2.51] and, most relevantly, states:
[2.48] “Palestinians residing in the Gaza Strip all face a more stringent process to enter Israel, based on similar criteria to those outlined above for West Bank residents, along with individual security evaluations, the security evaluations of members of their family, and a review of the overarching security, political and strategic interests of the State of Israel. There are tight quotas on the number of Gazans allowed into Israel and age restrictions are enforced; DFAT understands that male Gazans aged between 12 and 35 are unlikely to be approved.”
3. The IAA failed to consider a claim which clearly arose from the material, namely whether the Applicant has a well-founded fear of persecution by Egypt on the basis of the Applicant’s nationality.
Particulars
(a) Particulars (a) to (c) of ground 2 are repeated.
(b)The DFAT Report provides an “Economic Overview” from [2.11] to [2.15] and, most relevantly, states:
[2.11] – “The Palestinian economy is volatile. It is heavily reliant on foreign aid, vulnerable to spikes in conflict and is directly affected by the political situation at any given time.”
[2.13] – “In 2014, the poverty rate in Gaza was 39%.” … “Almost 80% of Gaza’s population is dependent on aid.”
[2.14] – “The movement of people and goods in and out of Gaza is restricted by Israel and Egypt due to security concerns and has reduced economic activity and livelihoods.”
(c)The DFAT Report addresses “Employment” from [2.23] to [2.25] and, most relevantly, states:
[2.23] – “Unemployment, especially youth unemployment, is high and rising.”… “In Gaza, overall unemployment is 41% and youth unemployment is 65%.”
[2.24] “Restrictions on freedom of movement and goods impact on Palestinian employment opportunities.”
(d)The DFAT Report addresses the “Political System” from [2.26] to [2.40] and, most relevantly, states:
[2.26] “The Palestinian governance system is also unique in that it has very limited control of land, water and markets.”
[2.30] “The PA … does not control borders, currency or natural resources…”.
(e)The DFAT Report addresses “Freedom of Movement” from [2.46] to [2.51] and, most relevantly, states:
[2.50] “Rafah is the only crossing between the Gaza Strip and Egypt. Following the overthrow of Hamas’ close ally, Mohammed Morsi, in July 2013 the new Egyptian administration, under the leadership of President Abdel Fatal el-Sisi, implemented restrictions on the movement of Gazans into Egypt through Rafah. As a result, the Rafah crossing has mostly been closed since mid-2013 and movement in and out of Gaza is very difficult for most Gazans. Nonetheless many residents continue to seek opportunities to exit Gaza, including for access to specialised health care and employment. In the first half of 2016 the Rafah crossing was only open for 11 days, with a monthly average of 1,896 exits and entries, compared to 40,816 crossings on average per month in the first half of 2013. There are currently thousands of Palestinians registered with UNHCR as humanitarian cases waiting to leave Gaza through Rafah.”
[2.51] “Some residents of Gaza use informal means to exit and enter Gaza. An illegal tunnel system is used to smuggle people and goods in and out of the Gaza Strip to Egypt. The volume of this traffic is difficult to measure given that it is done covertly. Israeli and Egyptian authorities are actively engaged in finding and destroying the tunnel system.”
Grounds 2 and 3
As I have found that the application ought to succeed upon the expanded version of grounds 2 and 3 advanced at hearing, it is convenient to deal with those grounds first.
The pleaded version of the grounds relied upon various aspects of the materials, many of which were not expressly referred to in the IAA’s decision. In written submissions, considerable emphasis was placed by the applicant on evidence that was before the IAA of what he had said during his Entry Interview regarding his ability to earn sufficient income from employment, including his employment as a hairdresser. This was submitted to have raised serious concerns on the part of the applicant regarding his ability to subsist and earn a livelihood. Such material, the applicant submitted, was to be considered within the context of country information that was before the IAA. That information indicated a significant poverty rate within the context of a volatile economy that was affected by various actors including Israel, Egypt and Hamas. It was in a context where the IAA accepted that the applicant was an Arab Sunni from Gaza in the Palestinian Territories who was stateless and, in respect of whom, country information indicated that there were (inter alia) restrictions on freedom of movement.
The pleaded version of the grounds contended, by reference to the above, that the IAA had failed to consider “claim[s]” that arose on the material regarding “persecution” by state actors. However, during the hearing the grounds evolved to encompass the following issues:
(a)whether the IAA adequately engaged with the evidence before it, specifically those parts of the materials that were relied upon by the applicant; and
(b)whether the Court should infer from the manner in which the IAA approached those materials that the IAA misconstrued or failed to engage with the claims that were made or sufficiently arose.
The question then became whether either of those two issues were capable of demonstrating jurisdictional error. In oral submissions, the applicant did not confine the grounds by reference to the refugee criterion (as distinct from the complementary protection criterion), or by reference to an individual state actor.
At the hearing, I queried whether the Minister wished to take any pleadings point regarding the expanded purview of the grounds as they had evolved. I noted that if such a point were taken, then I would hear from the applicant regarding any application to amend his application. However, no pleadings point was ultimately taken by the Minister, whose capable and experienced representative was able to deal with the additional scope of the grounds at hearing.
Principles
In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18], the Full Court (per Collier, McKerracher and Banks-Smith JJ) considered in some detail the relevant principles regarding the obligation upon a decision maker to consider claims, including:
…
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67])…
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a)such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38]))…
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised ” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
Claims that a decision maker is obliged to consider which “clearly emerge” include those that arise in consequence of (inter alia) their own findings: AYY17 at [26].
It has been recognised that the distinction between allegations that an exercise of jurisdiction miscarried due to a failure to consider a claim, or failure to consider centrally relevant evidence, does not always involve a bright line: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [64] per Kenny, Griffiths and Mortimer JJ (as her Honour then was) and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) (per Robertson J) at [111].
Where a failure to consider such evidence is contended, a threshold question is whether the Court ought to draw an inference that this occurred. Non-reference to a particular matter does not necessitate a conclusion that it was not considered. As was found in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] (WAEE) (per French, Sackville and Hely JJ):
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.
Where an inference is drawn that particular evidence has been overlooked, the consequences of this will depend upon the cogency and centrality of the material, within the context of the decision under review and the applicant’s claims: see SZRKT at [97]- [112]), BUD17 v Minister for Home Affairs [2018] FCAFC 140; (2018) 264 FCR 134 at [65] (per Robertson, Steward and Thawley JJ) and the cases cited therein.
Consideration
The applicant submitted that the IAA did not grapple with the evidence that was before it, including the evidence that the applicant gave at his Entry Interview regarding his ability to earn sufficient income from employment in Gaza to support himself and his family. That evidence relevantly included the following:
Q: I need you to move along a little to what happened more recently?
A: After that I tried to start a life, I tried to work for someone, help my family, help my brother's, help my relatives. The situation in Gaza is unbearable. I started to work in the tunnels, I worked for almost one year and 4 or 5 months, something like that. It is very exhausting work, we start at 7 and finish at 5. Or 7pm. It was like shift work. Some of our friends died as a result of tunnels collapsing on them.
As a result of unemployment, I took this money and spent it on my family and brothers because their situation was no good. There is no way you can work, using your qualification. You need a middle man for that.
After one year and four or five months, my mum had kidney failure. I had to stay home and look after her and take her to hospital. My work in the tunnels was disrupted. I would go for work for 3-4 days. I then went to hairdressing and learnt about that profession and at the [REDACTED] I learnt the profession. When I finished the course I went and worked at a hairdresser's place. I worked there for 3 months, along with the course, I worked there for 6 months. It was very hard work, not many clients, not much income. The income there was not enough to start life, buy house, so that is when I thought I should leave the country.
Q: You left Palestine to have a better life?
A: Yes, some freedom, I need to help my brother's, I need to help my nephews. And also to help myself to be something in the community.
I accept, as the Minister submitted, that the applicant did not spell out the relationship between what was claimed in the Entry Interview and the criteria for the visa. This was not required. The Minister did not suggest otherwise in oral submissions. However, the Minister did dispute that what was raised in the Entry Interview amounted to evidence or any claim that the applicant and his family were unable to subsist on the income that the applicant earned from hairdressing, as opposed to doing such things as “buy[ing] [a] house”. Such considerations, it was submitted, did not attract the protection criteria.
However, the applicant also referred in his Entry Interview to the income being insufficient to “start life”. Whilst not elegantly expressed, I accept the applicant’s submission that this expression was given context earlier in the record of the Entry Interview. There, the applicant had explained that in attempting to “start a life” and support his family through work, he and his family had faced an “unbearable situation” in Gaza. This, the applicant had said, had resulted in him undertaking dangerous and exhausting work in the tunnels through which some of his friends had been killed. Context to this was provided by the country information before the IAA, which referred to an illegal tunnel system for smuggling which the Israeli and Egyptian authorities were “actively engaged in finding and destroying”. Context was also provided by country information referring to the economic situation in Gaza, which indicated limited economic opportunities and a significant poverty rate. Even without this context, I find it difficult to accept that the applicant’s characterisation of his family’s economic situation as “unbearable” within the context of the employment that he was able to achieve, and insufficient to “start life”, as being of a level that was necessarily incapable of attracting the definitions of serious or significant harm.
The Minister emphasised that even if a claim to this effect were raised at the Entry Interview, this did not mean that it was relevantly raised for the purposes of the visa application under consideration by the IAA. In this regard, the Minister observed the different purpose of the Entry Interview, by reference to MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [56] per North, Bromberg and Mortimer JJ (as her Honour then was). That decision reflected upon the dangers of relying too heavily upon omissions within interviews predating a visa application in determining credibility. The Minister submitted that the claim put within the context of the applicant’s visa application was reflected in the following extract from the Delegate’s decision:
The applicant’s Migration Agent also spoke about the reason why the applicant left Gaza and why he does not want to return there. The Migration Agent also advised that if the applicant is not accepted as a refugee then the decision-maker should take into account the fact that the applicant will be deprived of any chance of employment in Gaza.
What was said by the applicant’s agent at interview was characterised as follows at [25] of the IAA’s decision:
25.Towards the end of the interview the applicant’s agent indicated that the applicant also feared harm because he would be unable to get employment in Gaza…
There is some force to the Minister’s submissions. However, in context, I tend towards the view that the applicant (through his agent) was before the Delegate seeking to maintain his “subsistence” style of claim raised in the Entry Interview. Whilst inelegantly expressed, the agent asked that the limitations on the applicant’s employment prospects be taken into account. This invited consideration of any harm that may result from such limitations. This, then, fell to be considered within the context of the country information before the IAA indicating significant poverty that was influenced by a number of factors, as well as the applicant’s own evidence regarding his difficulties in supporting himself and his family through previous employment.
In any event, the IAA took it upon itself to consider whether the applicant would face a real chance of harm “arising from his ability to access employment in Gaza” or “in relation to employment in Gaza”. It found that he would not, although in doing so, did not expressly grapple with the applicant’s ability to derive sufficient income from the employment that it appears to have contemplated. The claims that the IAA was obliged to consider, which clearly arose, included those that arose in consequence of (inter alia) its own findings: AYY17 at [26]. Whether or not the applicant faced a real chance of harm arising from his ability to access employment, or in relation to his employment, depended upon the employment in question and the income that he could derive from it. This was in a context where the IAA had before it material in which the applicant had raised that he had been unable to earn sufficient income from the employment that the IAA contemplated at [26], and that the harm he had accordingly faced had prompted his decision to leave the country.
Having regard to the above, I consider that a claim that the applicant may face harm on account of limitations upon his ability to earn adequate income from his employment in Gaza sufficiently arose in the present case.
In any event, I find that the evidence before the IAA in the Entry Interview was sufficiently cogent, central and substantial as to warrant a finding that a failure to consider it was capable of resulting in jurisdictional error in the manner considered in SZRKT and associated cases. This was in circumstances where:
(a)the IAA appears to have generally accepted the applicant’s employment history (in terms of the type of employment that he had previously claimed to have undertaken) for the purposes of its analysis at [26];
(b)in this regard, the IAA appears to have relied heavily at [26] upon the applicant’s previous employment as a hairdresser in Gaza, as well as its understanding that the applicant had “not claimed to have had any difficulty in obtaining this qualification and work”, in finding that the applicant did not face a real chance of “harm” from his ability to access employment;
(c)there was country information before the IAA indicating a significant rate of poverty in Gaza, restrictions on movement, few opportunities for employment and serious difficulties arising from the economic situation there that were attributable to a complex of factors; and
(d)whether or not the applicant would face relevant “harm” associated with his opportunities for employment in Gaza, and the impact of that country information, potentially depended upon the applicant’s ability to derive sufficient income to support himself and his family (including through his employment).
The question then becomes whether an inference ought to be drawn that the IAA failed to consider the material in issue in coming to its decision. The Minister submitted that such an inference should not be drawn. In this regard, the Minister observed that the IAA had regard to country information regarding the unemployment rate in Gaza at [25]. Relying upon WAEE, the Minister submitted that an inference ought not to be drawn that the IAA overlooked the material that was relied upon by the applicant but rather that it was dealt with in the IAA’s findings at [26].
I am, however, persuaded that an inference ought to be drawn that the evidence in the Entry Interview regarding the applicant’s previous ability to derive sufficient income from employment was overlooked, or not grappled with, in the IAA’s decision. The IAA’s references at [25] to country information regarding employment were limited to the ability to obtain employment, rather than the sufficiency of income that may thereby be derived. The IAA’s reasoning appears to have been directed towards the question identified in the first sentence of [25], namely, whether the applicant “would be unable to get employment in Gaza”. This also appears to have been the question the IAA was answering at [26]. The IAA’s heavy reliance upon the fact (as distinct from the sufficiency) of the applicant’s previous employment as a hairdresser, and understanding that he had “not claimed to have had any difficulty in obtaining this qualification and work”, together with the lack of any reference to the evidence in the Entry Interview regarding the difficulties that he had claimed to have faced regarding this employment, compel an inference that this evidence was overlooked. Had it not been overlooked, then one would have expected to have seen at least some engagement with what the applicant had said regarding his previous inability to earn sufficient income to avoid harm by the IAA in concluding that he did “not face a real chance of harm arising from his ability to access employment in Gaza”.
I did not understand the Minister to raise any issue of materiality, in the event that I found as I have found above.
However, for completeness, I note that the IAA also found at [26] that the applicant would not be “prevented from accessing work for any reason associated with his race, religion, nationality, membership of a particular social group or political opinion”, other than in “the limited circumstance” dealt with earlier in its reasons. That “limited circumstance” appears to have involved what was said in the preceding paragraph regarding Hamas related restrictions in relation to government employment.
The IAA did not elaborate upon this finding within the context of the country information that was before it. Regardless, such reasoning was specific to the refugee criterion. It was therefore incapable, on its own, of sustaining the IAA’s decision. The findings that the IAA appears to have relied upon in this regard were its findings that the applicant did not face a “real chance of harm arising from his ability to access employment in Gaza” or “in relation to employment in Gaza”: [26]-[27] and [31]. Had the IAA engaged with the material regarding the applicant’s ability to earn sufficient income from such employment, then there is a possibility that the outcome may have been different. I therefore find that the IAA’s decision was affected by jurisdictional error.
Ground 1
Given my findings above, it is not strictly necessary to determine Ground 1. However, for completeness, I will explain why no jurisdictional error has been found on the basis contended under that ground.
Ground 1 contended that the IAA’s reasoning was illogical or irrational in a number of respects at [20]-[21], and in its conclusion that the applicant did not have a well-founded fear of persecution by Hamas. The IAA was said to have relied upon country information relevant to children rather than university students and to the armed wing of Hamas, rather than its political wing. The IAA was therefore submitted to have relied upon the non-application of irrelevant country information in finding that the applicant lacked a relevant profile. Issue was also taken with the IAA’s reference to the applicant not having been “selected for” Hamas camps when, it was submitted, DFAT information did not suggest that a person was “selected for” such camps.
The IAA’s findings at [21] and [22] of its decision are set out in full above.
The IAA did have regard to country information regarding Hamas’ approach to recruitment in those paragraphs beyond the applicant’s specific circumstances. This included information that “anecdotal evidence indicate[d] that it [was] not difficult for Hamas’ armed wing to find supporters, given there [were] few options for employment in Gaza and many young men [were] willing to join the armed fight”. It also included information about children who attended Hamas summer camps. The IAA observed that the applicant “was never selected for and/or asked to attend” such camps and that, in any event, country information indicated that the majority of students in Gaza did not attend and were not targeted for harassment, threats or forcible recruitment for not doing so.
The context of the IAA having regard to this information was, at the beginning of [20], said to have been its consideration that although the applicant may have been of interest to Hamas in the early stages of its takeover, there was nothing in the applicant’s profile to indicate that he would have been of ongoing interest to Hamas thereafter. It was in this context that the IAA examined the limited country information that was before it regarding Hamas recruitment.
The IAA observed that statistics on forced recruitment were not available. It observed that country information indicated that it did not appear to have been difficult for Hamas’ armed wing to find supporters. In so observing, the IAA did not find that this directly applied to the applicant, who had not claimed to have been involved with the armed wing. This does not appear to have been misunderstood by the IAA. Given this, I am not persuaded that the IAA fell into error in having regard to this amongst the limited information that was before it regarding forced recruitment, notwithstanding that it was not directly applicable to the applicant’s circumstances. Information indicating that forced recruitment did not form part of Hamas’ approach in other circumstances was potentially of some relevance to how Hamas may react in the longer term to a refused recruitment attempt.
The IAA also observed that the applicant had not ever been “selected for and/or asked to attend Hamas camps”. In so reasoning, the IAA did not find that there was any selection process for such camps. Nor did the IAA suggest that the applicant would have been expected to have been recruited for such camps, involving school children, before or during the time that he was a university student, had he been of ongoing adverse interest to Hamas. Instead, the IAA appears to have reasoned that the applicant’s apparent lack of involvement at any time in the past with such activities did not involve any specific refusal of recruitment and that, in circumstances where it appeared that the majority of students did not attend such camps without adverse consequences, this did not give rise to any adverse profile on the part of the applicant.
Therefore, the IAA appears to have considered that the only attempted recruitment that informed the applicant’s profile was Hamas’ attempt to recruit the applicant at the University. The applicant has not demonstrated that this reasoning was relevantly closed to the IAA.
The applicant contended that the IAA’s findings at [21] regarding the limitations of the applicant’s profile also failed to take into account country information indicating that:
(a)student councils had political importance in Gaza (with Hamas having “strong support” in some student elections);
(b)Hamas had been known to monitor student activism; and
(c)persons involved in student groups could be subjected to political violence.
Within this context, the applicant submitted that the IAA’s findings regarding the applicant’s profile were illogical or irrational.
I do not regard the IAA’s reasoning as relevantly closed to the IAA, within the context of the country information that was relied upon by the applicant. Consistently with that country information, the IAA found that the applicant may have been of interest to Hamas and subjected to some pressure and mistreatment while he was a member of the student council and Hamas were seeking to take control of the University. However, the IAA did not accept that the applicant was of ongoing adverse interest to Hamas subsequently, including after he had graduated from the University (at [17]-[21]). The country information before the Court does not demonstrate that such reasoning was logically closed to the IAA.
The applicant also suggested that the IAA’s findings at [21] that the applicant had not claimed to have been involved in activities constituting opposition to or criticism of Hamas were not open, in circumstances where he had refused to join them. However, the IAA found that the applicant’s refusal of Hamas’ invitation was because the applicant did not wish to become involved in politics (at [16]). This did not necessarily indicate opposition to or criticism of Hamas, as distinct from a general unwillingness to become involved with any political group.
Having regard to the above, I am not persuaded that the IAA’s reasoning that was the subject of ground 1 was illogical or irrational in the sense considered in cases such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
For these reasons, I would not have accepted that ground 1 demonstrated jurisdictional error.
CONCLUSION
As I have found that jurisdictional error has been demonstrated, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 April 2023
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