CSJ17 v Minister for Immigration and Border Protection
[2018] FCCA 269
•1 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSJ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 269 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – international relocation – applicable principles – IAA failed to properly apply those principles – constitutional writs issued. |
| Legislation Migration Act 1958, ss.5H(1), 36(2)(a), 36(2)(aa), 473CA, 473DD |
| Cases cited An v Minister for Immigration and Citizenship (2007) 160 FCR 480 |
| Applicant: | CSJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | PEG 330 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 1 February 2018 |
| Date of last submission: | 1 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 1 February 2018 |
REPRESENTATION
| Counsel for the applicant: |
| Solicitors for the applicant: | Estrin Saul Lawyers |
| Counsel for the first respondent: | Mr J Edwards |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 6 June 2017 (bearing IAA reference IAA16/01373).
An order in the nature of a writ of mandamus issue directing the second respondent to hear and determine the application for review according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 330 of 2017
| CSJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
(ex tempore)
Two issues were raised in this application for judicial review. The first was whether the Immigration Assessment Authority (“IAA”) erred in determining that there were no exceptional circumstances justifying the consideration of the Voice of America report.[1] The second was whether the IAA erred in concluding that it was reasonable and practicable for the applicant to relocate.
[1] Hasib Danish Alikozai, ‘Afghanistan May Have to Accommodate 1.5 Million Refugees in 2016’, Voice of America (online), 17 November 2016, < >
The IAA rejected the applicant’s claims to Convention-based protection as well as his claims for complementary protection. In this court, the applicant sought judicial review of the IAA’s decision on the grounds recorded in the applicant’s amended application filed 11 January 2018.
Synopsis
For the reasons that follow, in my judgment the IAA fell into jurisdictional error in its treatment of the Voice of America report. I am also of the view that the IAA fell into jurisdictional error in its treatment of the applicant’s relocation. Specifically, the IAA failed to have regard to well established legal principles applicable to international relocation. In my view, had the IAA correctly applied the legal principles on international relocation, the conclusion it reached was likely to have altered. I order the issue of constitutional writs.
Relevant factual setting
The applicant, a citizen of Afghanistan, arrived in Australia at Christmas Island on 19 December 2012. On 12 April 2016, the applicant was informed that the Minister had granted permission for the applicant to lodge an application for a protection visa. He applied for a protection visa on 25 July 2016. The applicant claimed to fear that if he returned to Afghanistan he would be harmed by a local warlord who killed the applicant’s father in 2002 and imprisoned the applicant between 2004 and 2007 by reason of the applicant’s father’s refusal to agree to the warlord marrying the applicant’s sister. The applicant also claimed to fear harm from the Taliban and other insurgents due to his partial Hazara ethnicity and Shia Muslim faith. The applicant was raised in Kandahar and attained year 4 level education. The applicant’s family was granted humanitarian visas in 2004 on the sponsorship of the applicant’s uncle. The applicant was originally part of that application but he was excised from the visa application as he was thought to be missing. In truth, between 2004 and 2007 the applicant was being held captive by the warlord who killed his father. Upon escaping from the captivity of the warlord the applicant fled to Pakistan where he lived for the following five years without legal entitlement. He then travelled by boat to Australia.
On 16 November 2016 a delegate of the Minister refused the applicant’s application for a protection visa. The delegate took the view that it was safe for the applicant to relocate to Kabul.
In accordance with s.473CA of the Migration Act 1958 (“the Act”), the applicant’s case was automatically referred to the IAA on 16 November 2016. On 7 December 2016, the applicant provided submissions to the IAA. On 1 February 2017 the IAA invited the applicant to comment on the information that it regarded could be the reason, or part of the reason, for affirming the delegate’s decision. The applicant responded to that invitation on 26 February 2017 putting in issue the reasonableness of relocation.
The IAA concluded that the applicant did not meet the requirements of the definition of a refugee in s.5H(1) and did not meet the criteria in s.36(2)(a) of the Act. In considering the complementary protection provisions the IAA found that the applicant did not meet the criteria in s.36(2)(aa) of the Act mainly because there was not a real risk the applicant would face significant harm in Kabul or Mazar-i-Sharif, and it was reasonable for the applicant to relocate to Kabul or Mazar-i-Sharif.
On 6 June 2017, the IAA affirmed the delegate’s decision not to grant the applicant the protection visa he sought.
In this court
Being dissatisfied with the decision of the IAA, on 20 June 2017 the applicant commenced this proceeding in this court seeking the issue of constitutional writs in respect of the IAA’s decision. The applicant relied on two grounds of review. It is useful to record them before addressing any consideration of them.
Ground 1 was as follows –
The Immigration Assessment Authority (IAA) erred in determining that there were no exceptional circumstances justifying the consideration of the ‘Voice of America’ report referred to in the Applicant’s submissions dated 7 December 2016.
Particulars
The report is referred to at CB 140 [23].
Ground 2 was as follows –
The IAA erred by not completing its statutory task in concluding that it was reasonable for the Applicant to relocate.
Particulars
a)The IAA did not engage in any active intellectual process in relation to the Applicant’s submission and country information in respect of Afghanistan’s capacity to absorb returnees.
b)The IAA found that the Applicant would suffer discrimination in relation to finding employment because he would not be a beneficiary of nepotism, but did not consider this in respect of reasonableness of relocation.
Before going to the detail of the grounds argued, it is necessary to say something about Part 7AA of the Act and that its practical application has been the subject of a number of decisions since 2015 when it commenced. I addressed some of them in CSR16 v Minister for Immigration and Border Protection,[2] the principal decision of the Full Court of the Federal Court being at the time Minister for Immigration and Border Protection v AMA16.[3] White J considered Part 7AA of the Act in BVZ16 v Minister for Immigration and Border Protection,[4] as did his Honour Judge Smith of this court in DFZ16 v Minister for Immigration and Border Protection.[5] To that list must be added Minister for Immigration and Border Protection v CRY16,[6] AZR16 v Minister for Immigration and Border Protection,[7] and Minister for Immigration and Border Protection v BBS16.[8]
[2] [2017] FCCA 2222 (CSR16)
[3] [2017] FCAFC 136
[4] [2017] FCA 958 (BVZ16)
[5] [2017] FCCA 2427
[6] [2017] FCAFC 210
[7] [2017] FCA 1453
[8] [2017] FCAFC 176
While s.473DD of the Act is made up of several discrete parts (I addressed those in CSR16)[9] “exceptional circumstances” must exist so as to justify the IAA considering new information. That phrase was construed by White J in BVZ16 in the specific context of s.473DD and the phrase was considered in other authorities in other legislative contexts. In BVZ16, White J held that[10] –
Generally, and subject to the particular statutory context, circumstances will be exceptional if they are unusual or out of the ordinary…
[9] CSR16 (at [62])
[10] BVZ16 (at [39])
Support for that proposition lay in the decision of the Full Court of the Federal Court in An v Minister for Immigration and Citizenship.[11] When the Chief Justice of the High Court of Australia sat as a single judge of the Federal Court of Australia, Kiefel J, as her Honour then was, held in Hatcher v Cohn[12] that in general “exceptional” circumstances were unusual or out of the ordinary.[13] Her Honour further held that no definition that limits the application of those words should be adopted “unless the limitation appears from the words of the relevant statutory provision.”[14]
[11] (2007) 160 FCR 480
[12] (2004) 139 FCR 425
[13] Ibid (at [49])
[14] Ibid (at [50])
In BVZ16, White J held that generally consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances.[15] White J held that that was because, while no single factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional, as was held in Griffiths v R,[16] Ho v Professional Services Review Committee No 295,[17] and Hasim v the Attorney-General (Cth).[18] In construing the phrase “exceptional circumstances” in s.473DD of the Act, White J held that it was necessary to take account of the context in which the phrase was used. His Honour pointed out that the task of the IAA was prima facie to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified in s.473DD.[19] To that, White J added that applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s.65.[20] White J further held that account must be taken of the reference to the exceptional circumstances being such as to justify consideration of the new material.[21] His Honour held as follows[22] –
That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.
[15] BVZ16 (at [41])
[16] (1989) 167 CLR 372
[17] [2007] FCA 388
[18] (2013) 218 FCR 25
[19] BVZ16 (at [42])
[20] Ibid
[21] Ibid (at [43])
[22] Ibid
In the upshot, White J held that the IAA applied an unduly narrow interpretation of the term “exceptional circumstances” because the IAA had confined its consideration of whether there were exceptional circumstances to the evaluation of the applicant’s explanation of not having provided the information earlier.
The construction adopted by White J of s.473DD of the Act in BVZ16 was supported by the decision of the Full Court of the Federal Court (Kenny, Tracey and Griffiths JJ) in Minister for Immigration and Border Protection v BBS16.[23]
[23] [2017] FCAFC 176
Only a matter of days later, a differently constituted Full Court of the Federal Court, (Gilmour, Robinson and Kerr JJ) also addressed aspects of s.473DD of the Act in CHF16 v Minister for Immigration and Border Protection.[24] As in this case, in CHF16, the IAA found that it was prevented from considering certain information because it was “new information” and the IAA was not satisfied that there were exceptional circumstances to justify the consideration of the new information. A judge of this court held that the IAA made no error. The Full Court of the Federal Court reversed the decision of the Federal Circuit Court judge. The Full Court held that the IAA did not take into account a range of matters in determining whether or not exceptional circumstances existed.
[24] [2017] FCAFC 192
A fair construction of those authorities, commencing with White J’s consideration in BVZ16, is that the phrase “exceptional circumstances” is not to be given an unduly narrow interpretation. It seemed to me that in this case the IAA was required to take into account a range of matters in determining whether exceptional circumstances existed. As Kiefel J held in Hatcher v Cohn, no definition that limits the application of those words should be adopted.
Ground 1
In this case, it is instructive to analyse precisely what the IAA addressed in relation to the Voice of America report. The IAA mentioned the report in paragraph 7 of its reasons, especially with greater relevance in the second part of paragraph 7. The IAA stated that it accepted that the information (inferentially, the Voice of America report) could not have been provided to the delegate, as the report post-dated the delegate’s decision. That sentence was one of the critical planks in the IAA’s reasoning for its conclusion that exceptional circumstances for considering the Voice of America report did not exist. The second critical plank in the IAA’s reasoning for concluding that exceptional circumstances did not exist for considering the Voice of America report was the following sentence –
… However, the representative has made an extensive submission in respect of this matter in response to the IAA invitation, which I have considered. …
Pausing there, the learning in relation to s.473DD has held that the metes and bounds of exceptional circumstances are not narrow. They must be considered in context. They are generally circumstances that are out of the ordinary. I find it impossible to accept that the mere fact that submissions were provided to the IAA takes this case out of consideration of whether exceptional circumstances for considering the Voice of America report existed. As the phrase “exceptional circumstances” calls for an examination of all relevant circumstances, the fact that submissions had been filed with the IAA was but one circumstance. It was by no means the totality of the circumstances. In the same way that White J took the view that it was an unduly narrow interpretation to say that exceptional circumstances were confined to the evaluation of the explanation for not having provided the information earlier than it was, so too in this case it seemed to me that it was an unduly narrow interpretation of “exceptional circumstances” to conclude, as the IAA concluded, that there were no exceptional circumstances because the applicant’s representative filed submissions.
To my mind, it was important to keep in focus that the IAA was first invited by the applicant to have regard to the Voice of America report in the applicant’s 7 December 2016 submissions. In that submission on behalf of the applicant it was put that the Voice of America report post-dated the delegate’s decision and that exceptional circumstances existed to justify a consideration of the new material. In the applicant’s response dated 26 February 2017 the applicant adduced extensive citations but those did not refer to the Voice of America report because that report had been the subject of earlier submissions. In the face of that state of affairs, some propositions of fact may be summarised as follows –
a)the applicant was unable to refer to the Voice of America report in the matter before the delegate as the report came into existence after the delegate decided the issue;
b)the delegate’s decision was given on 16 November 2016;
c)on 7 December 2016 the applicant filed submissions with the IAA referring to the Voice of America report but did not provide the report itself;
d)the applicant’s 26 February 2017 submissions did not include references to the Voice of America report as it had been the subject of detailed submissions on 7 December 2016; and
e)the IAA decision did not refer to the Voice of America report and instead stated that the applicant’s extensive submissions had been considered.
Did circumstances that were out of the ordinary present themselves such that the IAA should have, but failed to, consider the Voice of America report? In my view, the answer to that question must be in the affirmative. The IAA had not seen the Voice of America report. It needed to see it so as to comprehend the submissions made about the report on 7 December 2016. The IAA adopted a bizarre approach of receiving submissions about the Voice of America report yet it refused to receive the report itself when the report itself was relied on. In like manner as White J found that the IAA placed an unduly narrow interpretation on the phrase “exceptional circumstances”, I too take the view that the IAA erred by failing to take into account a relevant consideration when it stated that no exceptional circumstances existed to justify considering the Voice of America report. The IAA should have considered that report. It fell into jurisdictional error by not doing so.
The Minister submitted that the IAA did not “depend on the Voice of America report”. I confess not to understand that submission. If the Minister was in reality submitting that any consideration of the Voice of America report by the IAA would have made no practical difference in the determination of this case, then I disagree. By December 2016, the IAA had received excerpts of the Voice of America report. But the IAA had not received the whole document. To my mind, that was significant. Submissions, footnotes, paraphrasing of the contents of and other distillations of something as important as the report itself are mere commentaries. The report itself was the best evidence on point. The IAA decided against receiving it. It fell into jurisdictional error in that decision.
In my view, ground 1 should be allowed.
Ground 2
As I have already said, ground 2 succeeded. The IAAs treatment of the issue of relocation was contrary to law.
It is useful to begin with my brother Smith’s examination of the law, particularly as his Honour’s decision is recent and it took account of the key authorities in the point, including Mortimer J’s decision in MZANX v Minister for Immigration and Border Protection,[25] an appeal of my own decision in that case.[26] I mention that to put into context how her Honour was extremely careful to point out that in any consideration of relocation a fact intensive assessment must be undertaken calling for a detailed examination of information about the applicant, about his or her family and about the putative safe location. Her Honour pointed out that the matter is nuanced and not without its difficulties.
[25] [2017] FCA 307 (MZANX)
[26] MZANX v Minister for Immigration & Anor (2016) 314 FLR 461
But let me endeavour to put this issue in context. As it happened, in MZANX v Minister for Immigration & Anor[27] I reviewed the law in relation to the principle of international location. On appeal to the Federal Court Mortimer J took the view that I failed to adequately consider the academic expositions on point by Professor Hathaway in The Law of Refugee Status.[28] At all events, the observations of Lord Bingham in Januzi v Secretary of State for the Home Department[29] remain good law. Ultimately, issues concerning what is “practicable” and what is “reasonable” for a person to do or not to do involves a fact intensive assessment and in that consideration generalities will not suffice.
[27] (2016) 314 FLR 461
[28] James C Hathaway, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014)
[29] [2006] 2 AC 426
The case law on this issue in this case is involved. It called for careful examination. Having undertaken that examination, in my view the IAA failed to properly consider applicable legal issues of international relocation. I am of the opinion that the IAAs suggestion that in reference to this applicant he could be relocated to Kabul or Mazar-i-Sharif was not a proper assessment of the international relocation principle.
Let me commence by incorporating my observations in MZANX[30] –
[30] (2016) 314 FLR 461 (at [75] to [78])
75.The applicant and the Minister were in common cause that the current test in determining the international relocation principle was set out in the decision of the High Court in Minister for Immigration and Border Protection v SZSCA & Anor (SZSCA) which in turn applied the observations of the High Court of Australia in SZATV v Minister for Immigration and Citizenship (SZATV). In fact, the international relocation principle traces its origins to the decisions of the Full Court of the Federal Court of Australia in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs. It draws on the speech of Lord Bingham in Januzi v Secretary of State for the Home Department (Januzi). In essence, a well-founded fear of persecution need not always extend to the whole of the territory of an applicant’s country of nationality in order for an applicant to qualify as a refugee. However, a person will be excluded from refugee status if, under all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country. What is reasonable for the purposes of the relocation principle will depend on the impact on the applicant from refugee status of relocation to the place of residence within the country of nationality.
76.In the later High Court decision in SZSCA, the observations in Januzi and in SZATV were applied. The decision in SZSCA involved an applicant who lived in predominantly Hazara occupied territory. The High Court said the following of the international relocation principle –
The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country.
77.In the United Kingdom, the modern jurisprudence commenced with the decision of the United Kingdom Court of Appeal in E v Secretary of State for the Home Department (E), a decision approved by the House of Lords in Januzi. The relevant passage from E was this –
Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there … Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is “outside the country of his nationality by reason of a well-founded fear of persecution”.
78.In SZSCA, the plurality said the nature of the test involved –
… a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker.
(citations omitted)
Mortimer J on appeal from my decision held that I erred where I said[31] –
The reasonableness of relocation must be determined in the context of the practicability of the relocation. The High Court so held in SZATV as did Kenny J in SZQPY. In the context of this case, the issue is whether the [Independent Protection Assessment Reviewer] addressed that proposition. While the IPAR did not specifically refer to those authorities (yet curiously the IPAR did refer to Khawar) it seems to me that the IPAR did in fact address the practicability of relocation to Kabul. In my view, the reply submissions in relation to ground three were an ambitious expression of the obligations upon the IPAR. In my view, the IPAR made no jurisdictional error in relation to ground three.
[31] (2016) 314 FLR 461 (at [87])
Relevantly paraphrased, the lead authorities remain the decision of the High Court in Minister for Immigration and Border Protection v SZSCA,[32] SZATV v Minister for Immigration and Citizenship,[33] the decision of the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs,[34] Januzi, mentioned earlier, as well as E v Secretary of State for the Home Department.[35] At single judge level, Kenny J contributed to the learning in SZQPY v Minister for Immigration and Border Protection.[36] Other cases that have addressed the relocation principle include SZMCD v Minister for Immigration and Citizenship,[37] and the others catalogued by my brother Smith between paragraphs 32 and 36 of his Honour’s reasons in DFZ16 v Minister for Immigration and Border Protection.[38] Sackville J took the view that the Refugee Review Tribunal gave adequate consideration to the matter in SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs[39] by taking account the applicant’s education, qualifications, ability to obtain employment, linguistic skills and the remoteness of any threat to his safety. It is sufficiently apparent from the decision of the Full Court of the Federal Court in SZMCD that the applicant’s claims are of key importance as well as the applicant’s statements about the practicalities of relocation. Relevantly, Markovic J expressed the relevant enquiry in SZVRA v Minister for Immigration and Border Protection[40] (accepted by the Full Court of the Federal Court in SZMCD) to be whether a claimant can reasonably be expected to relocate and that depends upon the particular objections to relocation. As has been held variously, each case turns on its own facts. As Mortimer J observed in MZANX, a detailed consideration of the circumstances of the ground in the area proposed for the relocation will be required. Her Honour said that what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship.[41] The circumstances of that individual need detailed consideration, including his or her personal strengths and weaknesses, skills, material and family support, and how the individual will cope. Mortimer J held that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations.[42]
[32] (2014) 254 CLR 317
[33] (2007) 233 CLR 18
[34] (1994) 52 FCR 437
[35] [2004] QB 531
[36] [2013] FCA 1133
[37] (2009) 174 FCR 415
[38] [2017] FCCA 2427
[39] [2005] FCA 961
[40] [2017] FCA 121
[41] MZANX (at [55])
[42] MZANX (at [58])
Lesser living standards or, for that matter, living standards that are far below those experienced in a western country will not of themselves render relocation unreasonable. But it is unreasonable to expect a person to relocate to a place where she or he must exist below at least an adequate level of subsistence. Mortimer J held as much in MZANX,[43] citing the UNHCR Guidelines on International Protection,[44] a concept embraced by Lord Bingham in Januzi, as well as by the High Court of Australia in SZATV v Minister for Immigration and Citizenship.[45] A decision-maker such as the IAA in this case should address standards that the Convention itself identifies such a health, housing, education, liberty, employment, civil and political freedom of speech, and others when assessing whether relocation is reasonable and practicable, as Mortimer J held in MZANX.[46] A bare assessment that an applicant has “family support” will not be enough. Information about life for young Hazara families in Kabul should have been presented.[47] Employment prospects are a matter of significance to a reviewer, such as the IAA.[48]
[43] MZANX (at [60])
[44] UNHCR Guidelines on International Protection: “‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04
[45] (2007) 233 CLR 18
[46] MZANX (at [61])
[47] MZANX (at [65])
[48] MZANX (at [66])
It may fairly be said that the level of detail required of the IAA’s investigations, as my brother Smith observed, is not universally applicable. His Honour Judge Smith held to that effect in DFZ16.[49] I respectfully agree. It seemed to me that Mortimer J may have been extolling a counsel of perfection in her Honour’s observations about the intricacies of the reviewer’s investigations that her Honour held needed to be undertaken. It is not for me, an intermediate trial judge, to make observations about the matters identified by her Honour. That said, among the critically important issues to arise from her Honour’s observations in MZANX were the following –
a)any determination about the practicability and reasonableness of relocation follows from an intensely fact specific investigation;
b)that investigation must have regard to issues identified in the convention, as identified by Mortimer J in MZANX;[50]
c)a detailed examination of the circumstances on the ground is called for in the area proposed for relocation;
d)a comfortable satisfaction based on probative material must be reached by the decision maker about what will face that particular individual and how he or she will cope; and
e)it is unreasonable to expect a person to relocate to a place where he or she must exist below what the United Nations regarded as an adequate level of subsistence.
[49] [2017] FCCA 2427 (at [51])
[50] MZANX (at [61])
In my view, in this case the IAAs treatment of the relevant investigation the reviewer was required to undertake, as revealed in paragraph 61 of the IAAs reasons, was deficient. It did not go anywhere near meeting the fact specific investigation of which Mortimer J spoke in MZANX, and which his Honour Judge Smith held was the subject of parallel reasoning in SZMCD. I reject the Minister’s submissions on this issue. In my view, the IAA failed to discharge its statutory task in undertaking an examination into the applicant’s relocation.
Ground 2 was made out.
Conclusion
Both grounds succeeded. Constitutional writs must issue. The Minister must pay the applicant’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 8 February 2018
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