CHI16 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 9

Federal Circuit and Family Court of Australia

(DIVISION 2)

CHI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 9

File number(s):

SYG 98 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

17 January 2023

Catchwords:

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming decision not to grant a protection visa – whether the IAA unreasonably ignored or placed limited weight upon documentation provided by the applicant – whether the IAA unreasonably failed to make further inquiries seeking verification of a document – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 473DC

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464

Division:

Division 2 General Federal Law

Number of paragraphs:

37

Date of hearing:

14 November 2022

Place:

Sydney

Solicitor for the Applicant

Mr N. Daawar (Ariana Defence Lawyers) appeared in person

Solicitor for the First Respondent

Ms S. Roberts (Mills Oakley) appeared in person

Solicitor for the Second Respondent

Submitting appearance, save as to costs

ORDERS

SYG 98 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHI16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	17 JANUARY 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

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

INTRODUCTION

1. Before the Court is an application seeking 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 Temporary Protection (Subclass 785) visa (protection visa).

   background

2. The applicant is a citizen of Afghanistan. He arrived in Australia on 1 November 2012 as an unauthorised maritime arrival.

3. The applicant applied for a protection visa on 8 July 2015.

4. On 27 May 2016, the Delegate refused the application.

5. On 15 July 2016, the IAA affirmed the Delegate’s decision. The Federal Circuit Court subsequently quashed this decision, remitting the matter for reconsideration.

6. On 3 November 2017, a reconstituted IAA affirmed the Delegate’s decision refusing to grant the applicant a protection visa.

   the iaa’s decision

7. In addition to the materials provided by the Department, the IAA had regard to updated DFAT reports in relation to Afghanistan, finding that exceptional circumstances justified taking that material into account (at [5]).

8. The IAA accepted that:

   (a)the applicant was a citizen of Afghanistan, from a village in the Ghazni City area (at [9]-[11]);

   (b)the applicant was part of the Shia Bayat ethnic-religious group, which was closely linked to the Hazara ethnic group (at [10]); and

   (c)the non-government organisation for which the applicant claimed to have worked (the NGO) was a local non-government organisation that operated in Ghazni City (at [12]).

9. However, the IAA raised a number of concerns in relation to the applicant’s claims:

   (a)Involvement with the NGO: The applicant claimed to be an administrator of the NGO, and gave evidence that the organisation provided educational services only to men. However, country information indicated that the provision of educational services to women were a significant, if not the exclusive, focus of the NGO (at [18]). The IAA was not persuaded by the applicant’s attempts to explain this contradiction (at [19]-[20]). Whilst the IAA accepted that the applicant had provided a purported reference letter from the NGO (NGO Reference), the IAA found that its value was undermined by the fact that the director had not responded to the Department’s attempts at verification. The IAA found that the letter was outweighed by other concerns regarding the applicant’s evidence (at [25]).

   (b)Warnings from the Taliban relating to work with the NGO: The applicant claimed that the Taliban verbally warned him on two occasions in relation to his employment with the NGO before issuing a written threat. However, the applicant could not say with any clarity when the threats began. The IAA found it implausible that he would not have at least discussed with or warned his colleagues at the NGO of the threats, had they in fact been received (at [21]-[24]).

   (c)Threat letter from the Taliban: The IAA did not accept that a letter purportedly from the Taliban was a genuine document (Threat Letter). The IAA noted that the letter was dated months after the applicant claimed to have stopped working for the NGO and left Ghazni. The IAA also had regard to country information regarding the prevalence of fraudulent documents in Afghanistan (at [26]).

10. Having regard to the above, the IAA concluded that the applicant was “not a witness of credit”. It did not accept that the applicant worked with the NGO or any other non-government organisation. The IAA therefore did not accept that the applicant was threatened by the Taliban because of his work with the NGO. The IAA found that the applicant had no adverse profile with the Taliban or any other insurgent group on this basis, and did not face a real chance of serious harm for these reasons if returned to Afghanistan (at [28]).

11. On the issue of whether the applicant may suffer harm on the basis of his ethnic or religious profile, or as a teacher, a failed asylum seeker returning from Australia, or a person with imputed connection to the government or international community, the IAA had regard to the updated DFAT reports along with other country information (at [30]-[61]). The IAA was not satisfied, having regard to this material, that the applicant would face a real chance of being seriously or significantly harmed on any of these bases. Whilst the IAA accepted that the applicant may face some discrimination in Ghazni, the IAA considered that this would be low level and infrequent, and would not amount to serious or significant harm (at [47] and [59]). The IAA did not accept that the applicant faced a real chance of serious or significant harm on account of generalised or insurgent violence (at [53] and [60]-[61]).

12. Accordingly, the IAA affirmed the Delegate’s decision not to grant the applicant a protection visa.

    APPLICATION BEFORE THIS COURT

13. The applicant commenced the current proceedings by an application filed on 11 January 2018. In an amended application filed on 16 July 2018, the following was stated under the heading “Grounds of application”:

    1.        Breach of Procedural Fairness

    The First Respondent breached procedural Fairness and did not act fairly in reaching to the unreasonable decision by did not accepting the evidence of the visa application in the absence of any probative contrary evidence to the applicant claim as required by the principle of Procedural Fairness.

    The First Respondent did not put sufficient weight to those evidence presented by the applicant in reaching their decision.

    The First Respondent haven't made real effort to obtain information regarding my employment and only restricted his efforts to an email sent to my employer [redacted]. The delegate did not receive a response to his email and choose not to call him. I did work for [the NGO]. It is the truth and at the time I was working [the NGO] was providing educational services to male and female in Ghazni province of Afghanistan. That is the truth and no one can change it. It is confirmed by my office that I worked for them. If the delegate have any evidence to confirm that my claim is false or fabricated the decision would be ok but in circumstance he did not have any such evidence that will be very unfair to reject my claim. It is unfair and unjust.

    I worked in [the NGO] and I was working in a department that was providing services to male but at the same building [the NGO] also had female project called Women Affairs which provided services to women. Women and men were attending those classes at the same building and this was the reason my life was put in risk and the Taliban threatened me. I have been personally subject of persecution by Taliban and no one could provide me with proper protection. This is why I left my home country as my life was in danger. This is the truth and the only truth.

    The First Respondent should have given the benefit of the doubt to my claim here and accept my account of the persecution and the chance of harm to him in Afghanistan as recommended by the UNHCR guidelines too. In contrast the decision was based on the First Respondent subjective opinion in absence of relevant contrary information.

    The Second Respondent had opportunity to correct the error of the First Respondent and remit my application to immigration as their decision was not based on any evidence but the subject and biased opinion of the delegate. The IAA closed their eyes and forgot their obligations to review the decision according to the law particularly procedural fairness but did not do that and made the same error for affirming the decision of the First Respondent. The second respondent ignored everything and did not accept my claim. They concluded that I was make false claim and I never worked for the [NGO] and when I hadn't worked for [the NGO] indicated that my entire claim was false and fabricated. That was all in the absence of any adverse evidence.

    Both the First and Second Respondent seemed to be very ignorant about political and security situation in Afghanistan, its culture, people and institution including NGOs working in Afghanistan. They only relied on some out of dated data or booklets printed by some unrelated organisation to [the NGO], and a spelling error in my employment confirmation letter. I wonder how one can be responsible for the third party action. I was not the writer of the letter. In summary, the First and Second Respondent knowledge regarding [the NGO] and its activities seemed to be very insufficient and even wrong. Grounding decision in relation to a human life based on insufficient information or speculations while being obliged to be unbiased and fair, is wrong, inhuman, unjust and in breach of procedural fairness.

14. The amended application indicated that it was prepared by the applicant. However, a legal representative (Mr Daawar) subsequently came on the record. In submissions filed after the Minister’s submissions, Mr Daawar indicated that the applicant no longer relied upon a ground alleging breach of procedural fairness. Instead, Mr Daawar contended that IAA’s decision was affected by jurisdictional error in the following manner:

    I. Failure of to give real, genuine and proper consideration to the two letters provided immigration.

    II. Failure to consider and explore all relevant and necessary factors in assessing the two letters being bogus and him not been employed by [the NGO], and the possible risk harm the applicant will face if return home. The decision maker made unsupported assertions assessing the possible risk of harm if returned home. The decision was made in the absence of real, genuine, and proper evidence.

15. At the hearing, Mr Daawar confirmed that the applicant was not seeking review of the Delegate’s decision and did not press his complaints in that regard. He clarified that there were only two grounds of jurisdictional error that the applicant sought to press in respect of the IAA’s decision:

    (a)firstly, that the IAA’s consideration of the NGO Reference and Threat Letter was not reasonably open to it (Ground 1); and

    (b)secondly, that the IAA unreasonably did not make further inquiries seeking verification of the NGO Reference (Ground 2).

    Ground 1

16. In respect of Ground 1, Mr Daawar submitted that the IAA unreasonably ignored the NGO Reference and Threat Letter without evidence demonstrating they were not genuine. He submitted that the country information relied upon by the IAA was generated by a “diplomat sitting behind the desk” and did not reflect the reality of the situation. He complained that the IAA did not rely upon “any forensic evidence” in refusing to accept the NGO Reference or the Threat Letter.

17. Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [43]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ).

18. I am not persuaded that the high threshold for this ground is capable of being met in the present case.

19. The IAA considered the letters at [25]-[27] of its decision as follows (footnotes omitted):

    25. In assessing this claim, I have weighed [the NGO] reference letter from May 2012. A departmental document examination of the reference document was inconclusive, and I give that assessment no adverse weight. The dates in the letter align with the applicant’s claims, and the reference purports to be written by [redacted], who the applicant claims was the manager. [This person’s] role as manager/director is consistent with other information before me.⁵ However, I find the value of the letter is undermined by the fact that the director of [the NGO] did not respond to the Department’s requests to verify the applicant’s employment.While I accept the reference letter is broadly consistent with his evidence, I find it is outweighed by other concerns with the applicant’s evidence and credibility.

    26. I have also weighed the copy of the Taliban threat letter provided by the applicant. I accept that ‘night letters’ are a threatening tactic used by the Taliban in Afghanistan, including within Ghazni.⁶ However, I have concerns with the document. The translation of the letter indicates it was issued in May 2012, a period well after the applicant claims to have stopped working for [the NGO] and have left Ghazni in March 2012. While I have considered whether this is an error in the translation or a typographical error in the original, in the context of my other concerns with his credibility, and information before me about the prevalence of document fraud in Afghanistan,⁷ I find this is not a genuine document and I give it no weight.

    27.I note the delegate put these concerns to the applicant for comment in writing in October 2015. On 7 October the applicant requested an extension of time to respond to the allegations. The delegate provided the applicant with an extension of time and also requested the applicant’s permission to contact the manager, [redacted]. The applicant responded on 21 October 2015. He reiterated the reference letter was not bogus and he consented to the delegate contacting [the manager]. The delegate emailed the addresses for [the NGO], but no response was received. On 23 November 2015, the delegate contacted the applicant and advised him that no contact had been received from [the NGO]. No further response was received by the applicant at the time of the decision.

20. The footnotes to those paragraphs referenced the following sources:

    (a)USAID/Counterpart International, “Directory of Non-Governmental Organizations and Social Organizations”;

    (b)Canadian IRB: Immigration and Refugee Board of Canada, “Afghanistan: Night letters”, AFG105047.E, 10 February 2015, OGFDFC61A3; and

    (c)DFAT, "DFAT Country Information Report - Afghanistan September 2015", 18 September 2015, CISEC96CF13366.

21. The IAA gave reasons for placing limited weight on the NGO Reference. Those reasons were twofold:

    (a)firstly, that the director of the NGO had not responded to the Department’s requests to verify the applicant’s employment; and

    (b)secondly, that the weight given to the letter was outweighed by other concerns with the applicant’s evidence and credibility.

22. Those reasons were intelligible. The fact that the letter had not been verified despite attempts was logically capable of informing the weight given to that evidence. This was in circumstances where the Delegate obtained contact details for the organisation from a directory of Afghan non-government organisations and wrote to both the NGO and the apparent author of the letter, without response. It was also in circumstances where the Delegate had put concerns to the applicant in writing regarding the authenticity of the letter and had given the applicant an opportunity to respond.

23. The IAA’s other concerns regarding the applicant’s credibility were logically capable of informing the relative weight given to the letter by the IAA. Absent verification, the letter depended heavily on the applicant’s credibility. This had been found wanting by the IAA, including in relation to other evidence regarding his claimed employment with the NGO.

24. The IAA also gave reasons for declining to place weight on the Threat Letter. Those reasons were:

    (a)that the letter was dated May 2012, after the applicant claimed to have ceased working for the NGO and left Ghazni;

    (b)country information regarding the prevalence of document fraud in Afghanistan; and

    (c)its other concerns with the applicant’s credibility.

25. Again, those reasons were intelligible. The fact that the apparent date of the letter did not sit well with the applicant’s other claims was logically capable of informing the weight given to it. The applicant claimed to have fled Ghazni in response to the Threat Letter. That could not have happened if the letter was issued after this had occurred.  

26. It was also open to the IAA to rely upon country information regarding the prevalence of fraudulent documents in Afghanistan. Whilst the applicant may disagree with that information, this is incapable of demonstrating that the IAA’s reasoning was logically closed to the IAA.

27. Finally, it was open to the IAA to take into account its other concerns regarding the applicant’s credibility in considering the weight to be given to the Threat Letter. As with the NGO Reference, absent verification the IAA’s assessment of the claimed provenance of the Threat Letter depended heavily on the credibility of the applicant’s evidence. Matters capable of affecting the applicant’s credibility were logically capable of influencing that assessment.

1. The applicant has therefore not demonstrated that it was closed to the IAA to reason in the manner that it did in considering the two letters. He did not explain what “forensic evidence” he considered that the IAA ought to have considered or obtained in respect of the letters. I understood this complaint to be that the IAA ought to have accepted his evidence, in the absence of rebutting evidence to the contrary. Such an approach is not supported on the authorities: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [65].

2. It follows that Ground 1 is unable to succeed.

   Ground 2

3. Ground 2 contended that the IAA unreasonably failed to make further inquiries seeking verification of the NGO Reference. In support of the ground, the applicant relied upon an affidavit dated 14 July 2018 annexing a response said to have been received by his representative from the director of the NGO after the IAA’s decision, supporting his claims.  

4. There are some cases in which it has been found to have been unreasonable for the IAA not to have considered seeking further information pursuant to s 473DC. This has included where the review turned on a new, dispositive issue such as relocation in respect of which the IAA lacked information that the applicant could have supplied: see for eg Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82]. Unreasonableness has also been found in certain “extreme” factual circumstances such as those considered in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16), in which the Immigration Assessment Authority was aware that an applicant (CHK16) had intended to provide it with submissions but their agent had inadvertently provided submissions regarding another person. Those circumstances were found in DUA16 at [28] to have reflected the following observations in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [20]:

   The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.

5. I am not persuaded that such a high threshold is capable of being met in the present case. In the present case, the applicant was on notice that the Delegate had attempted to contact persons at the NGO but had not received a response. Despite this, the applicant did not seek to put before either the Delegate or the IAA evidence of any response that he had obtained (such as that which is now before the Court). It would not have been apparent on the material before the IAA that such a response would have “readily be[en] determined” by exercise of the power under s 473DC of the Migration Act 1958 (Cth), in circumstances where the Delegate had not been able to obtain one and no further evidence in this regard had been submitted by the applicant. The email address used by the applicant’s representative after the IAA’s decision also appears to have differed from that used by the Delegate in the materials that were before the IAA.

6. It follows that Ground 2 is unable to succeed.

   Other matters

7. In written submissions and at the hearing, Mr Daawar referred to the changed situation in Afghanistan. 

8. I am not unsympathetic to that submission. However, as I explained during the hearing, this Court has no power to reassess whether the applicant’s protection visa application ought to be granted based upon the current situation in Afghanistan. The role of the Court is to assess whether or not any material, legally recognisable error is apparent in either the decision or the procedure of the IAA. No such error has been demonstrated in the present case. 

   conclusion

9. For the above reasons, the application must be dismissed.

10. I will hear from the parties in relation to costs.

38          I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 17 January 2023