CMO17 v Minister for Immigration
[2018] FCCA 1888
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1888 |
| Catchwords: MIGRATION –– Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable. HIGH COURT AND FEDERAL COURT – Federal Circuit Court – Procedure – Evidence – Other matters – admissibility of evidence not before decision maker on application for judicial review. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5LA, 65, 36(2)(a), 473CC(1), 473EA Migration Regulations 1994 (Cth), 1.15AA€ |
| Cases cited: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALD 288 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 |
| Applicant: | CMO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 537 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the First Respondent: | Ms Forder |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 8 June, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 537 of 2017
| CMO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the second respondent given on 12 May, 2017 affirming a decision by a delegate of the first respondent to refuse to grant the applicant a Temporary Protection (subclass 785) visa.
The applicant argues that the second respondent’s decision was legally unreasonable because no reasonable decision-maker in the position of the second respondent could have concluded that the applicant was not at a real chance of serious harm or a real risk of significant harm should he be returned to Afghanistan. Connected with this argument is an application by the applicant for this Court to receive further material about events which have occurred in Afghanistan after the second respondent’s decision so as to show that what the second respondent thought was a remote risk of harm to people in the applicant’s position, has in fact come to pass. Further, he argues that the second respondent did not give proper genuine and realistic consideration to the applicant’s case and therefore, to the extent that it exercised the power under s.65 of the Migration Act 1958 (Cth), it was not a proper exercise of that power.
The first respondent argues that the second respondent’s decision is unimpeachable for either of the reasons advanced by the applicant.
Background
The applicant is a citizen of Afghanistan and an ethnic Hazara of the Shia Muslim faith. He arrived in Australia on 22 October, 2012 by boat. He is an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth).
On 9 June, 2015 the applicant lodged an application for a Temporary Protection visa. He provided additional information and documents to support his claims on 13 July, 2015.
On 25 September, 2015 the applicant attended an interview with a delegate of the first respondent for the purposes of his visa application. Following that interview, the applicant’s case was referred for an identity assessment and the applicant provided additional material regarding his identity. However, on 19 September, 2016 a delegate of the first respondent refused to grant the applicant a Temporary Protection visa.
On 22 September 2016, this matter was referred to the second respondent for review under Part 7AA of the Migration Act1958 (Cth).
On 13 October, 2016 the second respondent received from the applicant’s representative a five page submission and various documents that had not been before the first respondent’s delegate. Between 3 December, 2016 and 23 March, 2017 the second respondent received from the applicant’s representative further submissions regarding security incidents in Afghanistan post-dating the delegate’s decision and further country information that had not been before the delegate. However, those submissions did not conform to the second respondent’s Practice Direction for Applicants, Representatives and Authorised Recipients and the applicant and his representatives were asked to revise them. Revised submissions were received on 18 April, 2017.
The second respondent was satisfied that there were exceptional circumstances to justify considering the revised submissions because they related to the situation in Afghanistan as it had developed over time and they post-dated or nearly post-dated the delegate’s decision. The second respondent was not satisfied that it could consider the other material that the applicant attempted to provide to it.
The second respondent summarised the applicant’s claims for protection at [6] of its reasons. It is not suggested that the second respondent’s summary was inaccurate. The applicant claimed to fear harm from the Taliban on the basis of his ethnicity and religion. He claims that in about 2006 (or 2012 depending upon which account one considers) he was stopped at a road crossing by six or seven Taliban soldiers who, after finding $300 in his pocket, accused him of being an interpreter for the security forces, beat him, took his mobile phone and searched his wallet and identification. The applicant told a member of the Afghan National Army about the incident, but his details were not taken and he was not given an incident number. The second respondent said:
6. The applicant’s claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:
·He is a national of Afghanistan, an ethnic Hazara and a Shia Muslim, who originates from the Haidar area of Jaghori District in Afghanistan’s Ghazni Province.
·In early 2006 the applicant was stopped at a road crossing between Jaghori and Kabul by about six or seven Taliban soldiers. He was in a taxi with three other Hazaras. They were pulled out of the taxi and searched. They found 300 United States dollars in the applicant’s pocket and accused him of being an interpreter for security forces. They beat him with weapons until he was bleeding. They eventually stopped when he explained to them that he had a car painting / panel beating business. He showed them the paint under his finger nails and they believed that he was not an interpreter for security forces. They nonetheless took his telephone and searched through his wallet and identification which they now have.
·Following this he approached the Afghan National Army (ANA) in Kabul and told them about what had happened. The ANA did not take his details or give him an incident number.
· Following the 2006 Taliban checkpoint incident he became much more fearful of living in Afghanistan and of what the Taliban will do to him. He fears harm on the basis of his being a Hazara and a Shia Muslim. Hazaras are targeted, beaten, tortured and even killed because of their ethnicity and religion. He has heard of a Hazara boy who was an Australian citizen who went to Afghanistan to visit family and was found by the Taliban and killed in public. He fears that if he returns the Taliban will learn that he has been in an infidel country will kill him on this basis.
· He also claims that Hazara people experience discrimination on a daily basis and are not recognised equally as people by the society or the government of Afghanistan.
The second respondent accepted that:
a)the applicant was an ethnic Hazara and Shia Muslim;
b)he was married and the father of four children
c)the applicant was detained, questioned and beaten by the Taliban as he had claimed;
d)the Taliban had taken and probably searched his mobile telephone.
Country information before the second respondent indicated that the Taliban may search mobile phones for contacts linking a person to foreign and/or Afghan governments. But the second respondent did not accept that the applicant had any such information on his confiscated mobile phone. Given this and the fact that the Taliban had not since used his confiscated mobile phone to contact the applicant’s family or issue threats or directions to him, the second respondent did not accept that the Taliban had any ongoing interest in the applicant.
The second respondent considered that the applicant’s home region was Haidar area of Jaghori District in Afghanistan’s Ghazni Province. In respect of Jaghori, the second respondent referred to country information to the effect that it was part of a larger Hazara dominated area colloquially known as the Hazarajat, that Jaghori’s security situation remained favourable and that aside from those travelling by road between Kabul and the Hazarajat, low profile Hazaras who have spent time in western countries faced a low risk of violence in Hazarajat. The second respondent was therefore not satisfied that the applicant would face a real chance of harm of any kind in Jaghori itself. The second respondent considered that the applicant had sufficient financial means to enter Hazarajat by air and so avoid travelling the unsafe road between Kabul and the Hazarajat).
The second respondent had regard to the country information submitted by the applicant but found that there was no evidence of Hazaras being abducted or otherwise attacked in the Hazara majority areas through which the applicant would travel to reach Jaghori from the relevant airport. Accordingly, the second respondent was not satisfied that the applicant would face a real chance of harm travelling to Jaghori via that airport. Further, the second respondent considered that the applicant would modify his behaviour by not travelling by road between Kabul and the Hazarajat for the foreseeable future because he had a well-founded fear of suffering serious harm if he travelled that road. It found that it would be reasonable for him to modify his behaviour in this respect.
The second respondent also considered the situation in Kabul and accepted that the emergence of insurgent groups conducting mass casualty attacks against Shia Hazaras at public demonstrations and mosques in Kabul had raised the overall level of risk, but found that there was no evidence the applicant would attend such a public demonstration and given the size and dispersal of the Shia Hazara community and mosques in Kabul, there was no real chance of the applicant suffering harm if he returned there. Nor was it satisfied on the evidence that there was a real chance of the applicant suffering harm in Kabul from inter-communal violence as a result of spending time in a western country, his being able to speak English, generalised violence or crime.
While the second respondent accepted that the applicant may face a real chance of suffering low level discrimination in employment in Kabul as a consequence of being Shia Hazara without family connections there, he would be arriving in Kabul as a single able-bodied man (given his family was not present in Kabul). Country information considered by the second respondent suggested such discrimination would not be of a level that would threaten his capacity to subsist or otherwise amount to serious harm. The second respondent concluded that the applicant did not satisfy the criteria set out in s.36(2)(a) of the Act.
Further, the second respondent was not satisfied that the applicant would face a real risk of significant harm in his home area of Jaghori or in Kabul, for the same reasons that it concluded that s.36(2)(a) was not met.
As to whether it would be reasonable for the applicant to relocate to Kabul, the second respondent concluded that it would, having regard to:
a)the applicant’s prior willingness and ability to live apart from his family for long periods of time;
b)the applicant’s circumstances and family support;
c)the fact that the applicant had not claimed to have any other vulnerabilities;
d)the applicant’s financial means; and
e)the applicant’s ability to find employment in Kabul.
The second respondent concluded that the applicant did not meet the criteria set out in s.36(2)(aa) of the Act. On 12 May, 2017 the second respondent affirmed the delegate’s decision.
The grounds of review
The application filed on 9 June, 2017 contains the following grounds:
1. The second respondent failed to properly interpret and/or apply s 36 and/or ss5H to 5LA of the Migration Act 1958
2. The second respondent failed to properly interpret and/or apply Part 7AA of the Migration Act 1958.
3. The second respondent failed to proper interpret and/or apply the relocation principle in refugee law.
4. The second respondent’s decision was an improper exercise of power.
5. The second respondent’s decision was unreasonable.
6. The second respondent failed to take a number of relevant considerations into account.
7. The second respondent took a number of irrelevant considerations into account.
8. The decision was otherwise unlawful.
As the first respondent relevantly observes, grounds 1, 2 and 4-8 are unparticularised and of such a general nature as to be impossible for the first respondent to respond to or assess. The applicant has not identified how or in what way the second respondent is said to have failed to properly interpret or apply ss.36, 5H to 5LA or Part 7AA of the Act, or made a decision that was an improper exercise of power, unreasonable or otherwise unlawful. Nor has the applicant particularised the matters said to be relevant or irrelevant considerations.
Unparticularised grounds of review that are no more than assertions are insufficient to support an application for judicial review. The application may be dismissed for that reason alone: SZNXA v first respondent for Immigration and Citizenship [2010] FCA 775 at [21] special leave refused: SZNXA & Anor v first respondent For Immigration And Citizenship & Anor [2010] HCASL 250; WZAVW v first respondent for Immigration and Border Protection [2016] FCA 760 at [35], MZARG v first respondent for Immigration and Border Protection [2018] FCA 624 at [25]
Despite being legally represented throughout these proceedings, the applicant did not take advantage of the orders made by Registrar Lynch on 6 October, 2017 which permitted him to file an amended application to give further content or particulars to these grounds. They are vague and generic in form.
The applicant filed some written submissions on 19 March, 2008 which expanded upon grounds 1, 2 and 5 of the Application for Review. The written submissions did not deal with the other grounds of review. Nor did counsel’s oral submissions. I have taken all grounds of review other than 1,2 and 5 to have been abandoned by the applicant. I dismiss them for that reason without further consideration.
Grounds 1 and 5
These grounds overlap. I will deal with them together.
By these grounds, as expanded upon in his counsel’s written submissions, the applicant argues generally that the second respondent’s decision is affected by jurisdictional error because it is unreasonable in the sense that there is no intelligible basis for the decision. The applicant argues that “by concluding that ordinary Shia Hazara are not at risk in Kabul or elsewhere in Afghanistan the IAA simply failed to apply the ‘real chance’ test”.
The applicant refers me to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 where the Full Federal Court said:
42..Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.
But I am not sure that is an apt reference. Singh concerned a refusal by a migration review tribunal to exercise its power to adjourn a review hearing to permit the applicant to have a re-mark of an English language test that he had undertaken at the request of the tribunal. Under consideration was the exercise of a power to adjourn vested in the tribunal as part of the hearing process. The case at hand is different because the second respondent was discharging the first respondent’s functions pursuant to s.65 of the Migration Act. No exercise of a discretionary power is involved in that determination.
However, in Singh, the Full Federal Court said, at [44]:
44. In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].
Here, the applicant’s arguments appear to engage both basis identified in the passage above upon which a court might reach a conclusion that an administrative decision-maker’s decision is legally unreasonable. Ground 5 seems to be outcome focused – it does not necessarily identify any other underlying jurisdictional error by the second respondent in its decision process and the applicant argues that the second respondent’s decision lacks an evident and intelligible justification. In addition to ground 5, or perhaps as part of it, ground 1 appears to engage in the identification of an underlying jurisdictional error the decision-making process – the identification, misapplication or failure to apply the real chance test.
Contrary to the applicant’s written and oral submissions, the second respondent did not find that the applicant was not at risk in Kabul “or elsewhere in Afghanistan”. The second respondent found that there was a chance of serious harm to the applicant in some parts of Afghanistan. For example, the second respondent considered that the evidence showed that there was a “level of risk” for the applicant if he was to travel on roads between the roads linking Kabul to the Hazarajat through the Pashtun dominated districts of Ghazni (Giro, Qarabagh and Ghazni District itself) and the Pashtun dominated eastern districts of Maydan Wardak (Seyedabad, Nirkh, Jalrez).
The applicant argues that the material before the second respondent shows that insurgent groups, whether they be Sunni, Pashtun or Daesh/ISIL-KP are the natural opponents of Shia Hazara. He argues that notwithstanding that the second respondent assessed that the material before it demonstrated that insurgents in Kabul were aiming for the government and international institutions, it was clear that that insurgents were using attacks on ordinary Shia Hazara as a means of attacking the government and those institutions. He argues that whilst ordinary Shia Hazaras may be “collateral damage” they are foreseeable “collateral damage”, especially if places are bombed where Shia Hazaras gather. He argues that therefore ordinary Shia Hazaras face a real chance of harm. The applicant argues that the second respondent conclusion to the contrary, demonstrates that the second respondent did not apply the real chance test.
The applicant’s argument suggests that the core of the second respondent’s decision appears in paragraph 32 and 33 of its reasons for decision. To that I would add paragraphs 24, 25 and 34 of the second respondent’s reasons, although there are also others. Those paragraphs are in the following terms (footnotes omitted):
24. Having regard to the totality of the circumstances, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of harm in, or in returning to, his home area of Jaghori District as a consequence of the 2006 Taliban checkpoint incident in which accusations were made against him by Taliban militants as a suspected worker for foreign and/or Afghan security forces, authorities or organisations, and/or because he is a Shia Hazara, and/or because he has lived in, and sought asylum in, a western country like Australia, or for any other reason. I am therefore not satisfied that the applicant would face a real chance of serious harm in, or in returning to, his home area of Jaghori District.
25. Furthermore, I am not satisfied that the applicant would face a real chance of serious harm in Kabul. As has been noted above, I am not satisfied that the applicant is a person of interest to the Taliban as a consequence of the 2006 Taliban checkpoint incident and I am therefore not satisfied that he would face a real chance of harm in Kabul as a consequence of this incident as suspected worker for foreign and/or Afghan security forces, authorities or organisations.
…
32. In February 2017 UNAMA observed that suicide and complex insurgent attacks in Kabul had resulted in 262 civilian deaths and 1,119 injured in 2016. DFAT’s reporting acknowledges that Kabul remains one of the most dangerous cities in the world, and that overall security conditions in Afghanistan continued to decline nationwide in the first eight months of 2016. However, and while as noted above three of Kabul’s Shia Hazara suburbs were specifically targeted in the December 2011, October 2016 and November 2016 attacks upon Shia religious commemorations, DFAT reports that militant attacks in Kabul are overwhelmingly staged in the western, central and eastern sections of the city where the international presence is most visible and where key highways link the city to the international airport and outlying provinces. The reporting data provided by UNAMA likewise indicates that the vast majority of the insurgent attacks perpetrated by insurgent groups in Kabul continue to target government and international institutions and security forces.
33. It has been observed that Kabul, like all of Afghanistan, is affected by a level of serious crime, including some violent crime, and that while policing in Kabul tends to be more effective than in most other urban and rural areas, police capacity to maintain law and order is nonetheless limited by a lack of resources, poor training, insufficient and outmoded equipment and corruption. Nevertheless, DFAT does not report that violent crime levels are such a problem in Kabul as to be a significant concern for Afghan nationals returning from western countries like Australia, or that Kabul’s Shia Hazara population face any significant risks in this regard. Professor Maley has expressed the view that any Hazara with no social connections in Kabul would likely be exposed to criminal predation. However, the view that there is a real chance of this occurring is not supported by the assessments of UNHCR and DFAT where relocation to urban centres like Kabul is considered viable for single able-bodied men in some circumstances, even when without social connections. On the evidence, Shia Hazara suburbs may see occasional attacks in the future. Other parts of the city will continue to see high-profile attacks. Nevertheless, given the size of Kabul’s population, and given that government and international institutions, and security forces, which have been and will likely remain the main focus of insurgent attacks, I am not satisfied that the applicant would face a real chance of harm in Kabul as a consequence of generalised violence or crime such as that caused by insurgents and criminals, including in his return via Kabul airport.
34. I do not accept that the applicant is of any interest to the Taliban or any other insurgent group as an individual for reason of his being a suspected worker for foreign and/or Afghan security forces, authorities or organisations, or for any other reason. I accept that in Kabul the applicant may face a real chance of experiencing some low level discrimination, including in the employment market, for reason of being a Shia Hazara and/or as a consequence of not being without family or tribal connections in Kabul. However, on the evidence, I am not satisfied that in Kabul the applicant would, on this basis, face a real chance of being denied the capacity to subsist or of suffering serious harm of any kind. Other than the real chance of perhaps experiencing some low level discrimination, and having regard to the totality of the applicant’s circumstances as a Shia Hazara who would be returning to Kabul from Australia where he has sought asylum, I am not satisfied that the applicant would face a real chance of suffering harm of any other kind in Kabul. I am therefore not satisfied that the applicant would face a real chance of serious harm in Kabul.
Having concluded that it was not satisfied that the applicant would face a real chance of serious harm in Kabul or in the other Hazara controlled areas of Afghanistan, the second respondent had no choice but to determine that, insofar as s.36(2)(a)was concerned the applicant was not a refugee and by reason of s.65(1)(b) of the Act, his application for the visa must be refused. That conclusion cannot, on the material before me, be said to be unreasonable in the sense that it lacks an evident or intelligible justification. Indeed the second respondent’s reasons demonstrate an evident and intelligible justification for its decision to refuse the visa, namely that the criteria prescribed by s.36(2)(a) of the Act were not met. Given the findings of fact that the second respondent had made as I have recorded above, the second respondent’s affirmation of the delegate’s decision was inevitable.
The real basis, it seems to me, of the applicant’s argument is that the second respondent’s conclusion that he does not face a real chance of serious harm in his home region or in Kabul is illogical or irrational having regard to the material before the second respondent and its reasons for decision.
He argues that there was ample material before the IAA as at 12 May, 2017 which demonstrated the proposition that Shia Hazara are not safe, presumably anywhere in Afghanistan. He points out that his case before the IAA was that insurgent groups target Shia Hazara persons and places where Shia Hazara gather. The applicant is Shia Hazara and by dint of that status is subject to a risk of harm in Kabul and elsewhere in Afghanistan. He argues at paragraph 8 of his submissions that:
The IAA has written off all of this, in the last sentence of paragraph 32, CB 256:
“..the vast majority of insurgent attacks perpetrated by insurgent groups in Kabul continue to target government and international institutions and security forces.”
However, he argues that even if the proposition in that paragraph were true, it does not follow that the ordinary Shia Hazara in Kabul are not at risk of a real chance of harm on the basis that they are Shia Hazara. He argues that in light of the significant material before the second respondent regarding attacks which end up with targeted Shia Hazaras being killed or injured the second respondent ought to have concluded that the applicant was at a real chance of serious harm anywhere in Afghanistan. Further, he points out that the “insurgents are natural opponents of the Shia Hazaras, who are victims of broad targeting by those insurgent groups. Given the ample material before the IAA, to demonstrate “an evident and intelligible justification” of a conclusion where Shia Hazara were killed or injured, the IAA would have to go through the incidents that did affect Shia Hazara and then make determinations as to whether an ordinary Shia Hazara is subject to a real chance of harm.”. He says that the IAA did not do that.
As the applicant points out in his written submissions, it is not the function of the Court to attempt to determine what the second respondent would have done with all the material before it. This Court on a review such as the present has no business undertaking the statutory task entrusted to the second respondent. Its only function is to assess whether the exercise of power by the second respondent was carried out according to law: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45]; Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [15]. In the latter case, the Court observed:
“47… If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not.
The reasons of the decision maker here demonstrate a justification and intelligible basis for the conclusion that it has reached about the applicant’s risk of harm in his home area or in Kabul. The second respondent undertook a careful review of the country material before it and explained why it reached the conclusion it did. I have set out some of the relevant paragraph above. But insofar as the second respondent concluded that the applicant would not face a real chance of serious harm in, or in returning to, his home area of Jaghori District reference should be had to paragraphs [12] – [23] of the second respondent’s reasons where it undertakes an extensive review of the country information and other material before it relating to the risk of harm to the applicant in his home region of Jaghori. As to the risk of harm faced by the applicant in Kabul, the second respondent analysed the material before it in paragraphs [26] – [31] of its reasons for decision.
I accept that other decision makers might have come to a different conclusion than the second respondent and that there was material before the second respondent upon which it might have reached a different conclusion. But that is not to the point. Where the decision maker has given reasons for the factual conclusion that has been reached, the applicant must demonstrate that the conclusion reached is undermined by illogical or irrational reasoning or antecedent findings of fact. In DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 the Full Federal Court summarised the position thus:
19. In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221-222; [2016] FCA 516 at [52] and [54]-[56], Wigney J distilled the principles relevant to determining whether a decision might be vitiated because it was “illogical” or “irrational”. His Honour there said:
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54 …. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see [132]): see also SZRKT at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 [66]; SZWCO at [64]-[67].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; 67 AAR 376 at [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
20. Having regard to the authorities it is possible, but difficult, to impugn a decision, such as that presently under consideration, on the ground of unreasonableness. An administrative decision may be found to be “illogical” or “irrational” even if it does not involve the exercise of a discretion: see, for example, CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146. Nonetheless, the “illogicality” and “irrationality” grounds of review have been circumscribed by authority.
21. Where the present ground is relied on and the decision-maker has given reasons for his or her decision, the reviewing court will concentrate on those reasons with a view to deciding whether the reasons demonstrate a justification for the impugned decision: cf Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446-447; [2014] FCAFC 1 at [45]-[47] (Allsop CJ, Robertson and Mortimer JJ).
Having regard to the second respondent’s reasons for decision and specifically those paragraphs to which I have just drawn attention, it is clear that the second respondent gave proper, realistic and genuine consideration to the merits of the applicant’s case.
In support of his argument as to these grounds, the applicant seeks to rely upon evidence that was not before the first respondent’s delegate when the primary visa decision was made or before the second respondent. That it is to say, he seeks to lead evidence before me about further attacks upon Shia Hazara in Kabul that have occurred since the second respondent’s decision was made. The evidence he wishes to rely on is an affidavit sworn by Laura Mandeville and filed on 19 March, 2008. Annexed to that affidavit are five articles described as follows:
a)Reuters article ‘Kabul truck-bomb toll rises to more than 150 killed: Afghan president’, dated 6 June 2017;
b)New York Times article ‘Blown Up by Isis While Feeding Poor in Afghanistan’, dated 16 June 2017;
c)United Nations Assistance Mission in Afghanistan (‘UNAMA”) Annual Report 2017;
d)United Nations Assistance Mission in Afghanistan (‘UNAMA’) report ‘Protection of Civilians in Armed Conflict: Attacks Against Places of Worship, Religious Leaders and Worshippers’ dated 7 November 2017;
e)New York Times article ‘Hazara’s Protest After an Isis Attack Kills 10 in Kabul’, dated 9 March 2018.
The first respondent objects to its reception. Can the further evidence be received? The applicant argues that as a matter of law it can be.
Ordinarily no further evidence can be admitted on judicial review. In Waterford v Commonwealth (1987) 163 CLR 54 Brennan J said at 77–78:
A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
However, there are circumstances where evidence that was not before the primary decision-maker is admissible. The obvious example is evidence which will demonstrate that there has been a denial of procedural fairness to the applicant for judicial review. But there are other examples. In Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, this question arose. Lockhart J said, at 539-540:
The admissibility of evidence not before the decision-maker depends upon the grounds of review on which the applicant relies before the Court. In the case of some grounds of review (for example, if the decision-maker failed to take into account a relevant consideration) (para. 5(2)(b) of the Judicial Review Act) or took into account an irrelevant consideration (para. 5(2)(a)) it is difficult to see the relevance of material not before the decision-maker. Other grounds of review (for example, unreasonable exercise of the power (para. 5(2)(g)) will generally, lead to the evidence consisting primarily of the material before the decision-maker.
Where the ground relied upon is error of law (para. 5(1)(f)) the trend of judicial opinion is that the evidence before the Court is confined to the material before the decisionmaker….
The primary ground of attack upon the first respondent’s decision in this case is ‘that the decision was not authorised by the enactment in pursuance of which it was purported to be made’: para. 5(1)(d) of the Judicial Review Act.
The determination of whether an action taken falls within the power conferred will often centre on issues of statutory interpretation. The Court’s task in such a case is essentially that of resolving a legal question, and, where that is the extent of the issue, there will ordinarily be no necessity for adducing material which was not before the decision-maker. Where however there is a question of mixed fact and law, i.e., where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material. That evidence would be directed to establishing that on the true facts of the case, regardless of the material that was actually before the decision-maker the decision made was one which could not have been lawfully made. In this case the applicants seek to establish that the true fact of the matter is that certain roads within the relevant area were in fact public roads within the meaning of subs-s. 11(3) and could not therefore lawfully be included within a grant of land under the Act. In my opinion it is open to the applicant to establish that ground by adducing evidence which was not before the first respondent when he made his decision.
Those remarks were applied by Sackville J in McCormack v Deputy Commissioner of Taxation Large Business & International (2001) 114 FCR 574. At [38] his Honour said:
As Lockhart J’s analysis indicates, the admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case. It has been held, for example, that evidence may be admitted where it supports a claim that the applicant has been denied procedural fairness (Percerep v Minister for Immigration (1998) 86 FCR 483 (Weinberg J)); or that the decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts which did not exist (Queensland v Wyvill (1989) 25 FCR 512, at 519-520, per Pincus J, reversed on other grounds in Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125); or that the decision-maker based the decision on a finding of a particular fact which did not exist (Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, at 224, per Black CJ).
The approach revealed in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (above) and McCormack (above) was applied by Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALD 288. After referring to the two authorities to which I have just referred, at [31] her Honour said:
New evidence (in the sense already mentioned) will be admissible in a judicial review proceeding where that evidence is relevant to establishing a ground of review challenging the decision-making process.
The applicant directs my attention to Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87. That case involved a refusal of an entry permit. On matter upon which the applicant relied to establish her claims was a romantic relationship that she had formed with a man. She sought to place before the Federal Court on her judicial review application, evidence that she had become engaged to the man. Of this evidence, Hill J said, at p.93:
The applicant, in her case, sought to adduce evidence on affidavit that in the meantime Mr Pacak and the applicant had become engaged. That evidence was objected to by counsel for the respondent on the basis that it was not material that was before the decision-maker and accordingly was irrelevant to the application under the ADJR Act. With that submission I must agree. In determining whether any of the grounds of review contained in s.5(1) of the ADJR Act can be made out, the court is limited to considering matters put before the decision-maker himself, and cannot take into account material not then known to any of the parties. This is a concomitant to the principle that the proceeding before the court is one of judicial review and it is not for the court itself to make a decision, but rather to determine whether some error of law or principle is to be found in the decision-making process itself.
Nevertheless, I do not think that the evidence is entirely irrelevant. There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters which should have been taken into account at the time of the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration. By way of analogy, reference might be made to a decision which involved a matter of valuation. It is clear enough that subsequent events cannot affect a valuation made as at a particular date. However, evidence of subsequent events is admissible as showing the probability that such events may happen; cf Weldon v Union Trustee Co of Australia Ltd (1925) 36 CLR 165; Trustees Executors and Agency Co Ltd v Commissioner of Taxes (Vic) (1941) 65 CLR 33 and Longworth v Commissioner of Stamp Duties (1953) 53 SR (NSW) 342. I would accordingly admit the evidence. The weight, however, in the present circumstances that could be given to such evidence is certainly very slight.
Having regard to those authorities, it is clear that the applicant might rely upon evidence that was not before the primary decision-maker or the second respondent if that evidence is relevant to a ground of review challenging the decision making process.
Should then, the evidence that the applicant wishes to place before this Court be admitted? The applicant argues that because the second respondent’s decision essentially concerns a prediction or assessment of what might happen in the future and the new evidence goes to demonstrate what has in fact happened following the making of the second respondent’s decision, it is relevant. The applicant draws an analogy with Hill J’s reasons in Surinakova (above). He argues that the second respondent excluded the proposition that there was a real chance of harm to the applicant on the basis that in the future, insurgent groups would target government and international institutions and not civilian Shia Hazaras. Therefore, he argues, it is necessary for the Court to review and consider the prediction of future harm to the applicant, as this is a question of law and not any fact before the second respondent. The applicant argues that the articles he wishes to put into evidence show that events in the period from the date of second respondent’s decision on 12 May, 2017 to the present show that Shia Hazara are at risk and have been killed as a result of Sunni, Sunni Pashtun or ISIL-KP attacks. Further, civilians are victims as intentional and inevitable collateral damage.
However, in my view, the evidence is neither relevant nor admissible. By the use of the evidence, the applicant seeks to challenge the second respondent’s finding of fact that there was no real chance of harm to the applicant in his home region or in Kabul by demonstrating that what little risk the second respondent assessed there was, had come to pass. The evidence does not go towards the decision-making process in the sense explained in the authorities to which I have referred to above. To the extent that the applicant suggests the approach in Surinakova demands a different outcome, I would respectfully decline to follow the obiter dicta relied upon by the applicant.
These grounds of review do not reveal any jurisdictional error on the part of the second respondent.
Ground 2
By this ground the applicant argues that the second respondent failed to properly interpret and/or apply Part 7AA of the Migration Act. He argues that “Essentially the second respondent failed to conduct a proper review” pursuant to s.473CC(1) of the Act. He draws my attention to s.473EA of the Act which provides:
(1) If the Immigration Assessment Authority makes its decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
The applicant argues that the second respondent has fallen into the error identified by the Full Federal Court in Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [31] – [36]. In those paragraphs, the Full Court pointed out that it was not enough for the decision maker to express his conclusions in a generalised way. Such an approach fails to properly disclose to a Court undertaking a process of judicial review the manner in which and the basis upon which a decision has been made. In that case, the Tribunal had failed to make a number of findings which the Full Court considered were necessary if the Tribunal was to properly apply the regulation relevant in that case (reg. 1.15AA(1)(e) of the Migrations Regulations 1994 (Cth)).
Those type of errors are not apparent here. The second respondent has considered each of the applicant’s claims (there is no suggestion that it has not) and it has made findings in respect of each of them. I have set some of them out above and directed attention to the relevant aspects of the second respondent’s decision. The absent findings that ought to have been made by the second respondent have not been identified by the applicant. His argument is that the second respondent ought to have made different findings.
This ground of review does not establish jurisdictional error.
Conclusion
The second respondent’s decision is not affected by jurisdictional error. The application should be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 12 July, 2018
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