CVD22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 44
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CVD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 44
File number: PEG 156 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 25 January 2024 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether a claim arose on the material before the IAA or from the IAA’s own findings – whether the IAA properly considered that claim – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5J, 5AAA, 36, 46A, 473CA, 473CB, 473CC, 473DB, 476 and Part 7AA Cases cited: ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72
DWN042 v The Republic of Nauru [2017] HCA 56
DWP17 v Minister for Immigration and Border Protection [2019] FCA 160
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
EZC18 v Minister for Home Affairs [2019] FCA 2143
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335
Singh v Minister for Home Affairs [2019] FCAFC 3
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 7 August 2023 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 156 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVD22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 7 July 2022.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Afghanistan (Court Book (“CB”) 14). He first arrived in Australia in April 2013 as an unauthorised maritime arrival (CB 12, 30 & 99).
On 3 May 2016, the first respondent (the “Minister”) lifted the bar under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (CB 30-34).
On 29 December 2016, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”) (CB 35-76 & 161). With his visa application, the applicant provided a statement of protection claims and a bundle of identity documents (CB 77-97).
On 23 January 2017, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (CB 98-106).
On 3 March 2017, the Department asked the applicant to attend an interview at the Department’s offices in West Perth on 28 March 2017 (CB 107-126).
On 28 March 2017, the Tribunal asked the applicant for more information in relation to his visa application (CB 131-136). In particular, the applicant was asked for information about “the incidents” for which he had been charged in or about 2013 or 2014 (CB 135).
The applicant provided further materials to the Department (CB 137-152).
On 27 April 2017, the applicant provided information to the Department regarding the incidents he had been charged with (and noted that he had been acquitted of all offences) (CB 153-156).
On 30 May 2017, a delegate of the Minister refused to grant the applicant the visa because they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations (as set out in ss 36(2)(a) or (aa) of the Act) (CB 161-185).
The applicant’s matter was matter was referred to the Immigration Assessment Authority (the “IAA”) on 2 June 2017 (pursuant to s 473CA of the Act) (CB 186-198).
On 4 July 2017, the applicant’s first representative provided written submissions and associated materials to the IAA in support of the applicant’s review application (via email) (CB 207-244).
On 8 February 2018, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (the “first IAA decision”) (CB 228-245).
The applicant then sought review of the first IAA decision in the then Federal Circuit Court of Australia (the “FCCA”).
On 10 February 2020, consent orders were made by the FCCA remitting the matter back to the IAA for redetermination according to law (CB 246-247).
On 19 February 2020, the IAA invited the applicant (through his first representative) to comment on the “security situation in Afghanistan” (CB 258-262).
On 5 March 2020, the applicant’s first representative provided a response to the IAA on behalf of the applicant (CB 263-283).
On 11 March 2020, the applicant’s first representative provided the IAA with “submissions addressing why the IAA should consider new information” and a bundle of supporting materials and country information (CB 284-699).
On 24 March 2020, the IAA again affirmed the delegate’s decision refusing to grant the applicant the visa (the “second IAA decision”) (CB 703-725).
The applicant then sought review of the second IAA decision in the FCCA.
On 29 March 2022, orders were made by a judge of this Court remitting the matter back to the IAA for redetermination according to law (CB 726-727).
On 27 April 2022, the applicant’s second representative contacted the IAA and provided the IAA with written submissions and copies of the orders made by a judge of this Court on 29 March 2022 and the written reasons resulting in those orders (CB 751-758).
On 28 April 2022, the applicant’s second representative provided the IAA with a bundle of documents and country information reports for consideration (CB 759-856).
On 7 July 2022, the IAA again affirmed the delegate’s decision refusing to grant the applicant the visa (the “third IAA decision”) (CB 864-894). This is the decision the subject of the review presently before this Court.
On 10 August 2022, the applicant applied to this Court for judicial review of the third IAA decision.
The parties appeared at a hearing before this Court on 7 August 2023.
The applicant was represented at that hearing by Mr Hamish Glenister (appearing via video link). The Minister was represented by Ms Cobey Taggart of counsel. The Court thanks Mr Glenister and Ms Taggart for their considerable assistance with this matter.
The materials before the Court include the application for judicial review filed in this Court on 10 August 2022, a Court Book numbering 894 pages (marked as Exhibit 1), written submissions filed on behalf of the applicant on 19 July 2023 and written submissions filed on behalf of the Minister on 3 August 2023.
THE IAA’S THIRD DECISION
The applicant’s judicial review application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA fell into jurisdictional error.
The applicant’s judicial review application contains one ground of review, as follows:
The Second Respondent (Authority) made a jurisdictional error by failing to consider whether the economic conditions in Afghanistan were such that they could cause the Applicant to be arbitrarily deprived of his life.
Given the confined issues raised by the parties in this matter (discussed further below), and the limited portions of the IAA’s reasons referenced by the parties before this Court, it is unnecessary for the Court to set out the IAA’s reasons in any great detail. The Court will, instead, include the paragraphs of the IAA’s decision referenced by the parties in this matter in full.
Those paragraphs are as follows (footnotes omitted):
101.I have had regard to the general economic situation in Afghanistan and the scarcity and meagerness of essential services and resources and submissions to the IAA note the “miserable reality” for returnees is they experience severe difficulties rebuilding their lives in Afghanistan and the contraction in the economy post the Taliban takeover has had a major impact on employment, accommodation, medical care and basic essential services such as water and power. In large part the economy, and therefore the provision of health and other services, was supported by the foreign agencies present in the country and by international donors but these agencies and donors have now withdrawn leading to widespread shortages and further compounded the freeze on assets.
102.The World Bank has outlined the “complex economic crisis” resulting from the events of August 2021 and the sharp fiscal contraction largely as the result of the cessation of foreign aid, together with other disruptions to services and trade and currency flow. The World Bank described Afghanistan as experiencing “a severe deterioration in household living standards”. Although the World Bank reported incoming humanitarian supplies in 2022 as supporting some economic stablisation it regards the economic outlook as “stark” and foreshadows a smaller economy and higher rates of poverty. The World Bank’s concerns about limited employment opportunities is shared by the International Labour Organisation and the 2022 IAA submission expressed concern as to the applicant’s ability to obtain employment.
103.The UK Home Office has reported concern about basics such as food security, access to accommodation, sanitation, and healthcare. The World Bank which had previously funded health services being delivered across most of the country has withdrawn. The ability to provide/access health services is further hampered by erratic power supply, border closures slowing the flow of medicines and supplies, and the Covid-19 pandemic.
104.The country information also reports large numbers of internally displaced people in Afghanistan; the UK Home Office estimates around 10 to 15% of the population being displaced. Displacement has been historically endemic with most of the displacement taking place before the events of August 2021. In the context of post-August 2021 displacement, and specifically relevant to Kandahar, the article from Foreign Policy reported the Taliban seizing property resulting in thousands becoming homeless. But it is apparent that houses at the centre of the dispute were allotted to members of various security departments under previous governments, indicating a very specific issue relevant to 3,000 families rather than a wholesale or widespread attack on the citizens of Kandahar. I also note the article indicated that following protest by those affected the governor of Kandahar stated those affected could stay in their homes “until further notice” while the authorities tried to find the “best possible solution”. There is no indication that the family property or his wife’s property have been seized.
105.Noting the dire economic situation and limited employment opportunities and other services, together with the applicant’s now more mature age I accept he may experience significant difficulties establishing himself in Afghanistan. But a well-founded fear of persecution involves a number of components as specified in s.5J. Serious harm as defined includes significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood of any kind, that threatens the person’s capacity to subsist. The feared harm must be for a s.5J reason, being race, religion, nationality, membership of a particular social group or political opinion. Furthermore, the harm must involve systematic and discriminatory conduct.
106.While the general economic situation is of course concerning, the information before me does not indicate that people are denied access to basic services or denied the capacity to earn a livelihood for any of the reasons specified in s.5J(1) of the Act. I find that the applicant does not have a well-founded fear of persecution on this basis.
107.I note the concerns expressed in the 2022 IAA submission about conditions in Afghanistan for the applicant’s daughters and I have had regard to the disturbing reporting regarding the diminution of women’s rights in Afghanistan, particularly access to education. Should the applicant’s daughters and/or his wife may choose not to join him in Afghanistan should he return I accept that this may be upsetting for him but I am not satisfied that any upset he may experience would amount to serious harm or that it falls within the refugee criterion.
…
Real risk of significant harm
116.Under s.36(2A), a person will suffer ‘significant harm’ if:
•the person will be arbitrarily deprived of his or her life
•the death penalty will be carried out on the person
•the person will be subjected to torture
•the person will be subjected to cruel or inhuman treatment or punishment, or
•the person will be subjected to degrading treatment or punishment.
117.The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
118.I have accepted that the applicant may experience significant problems returning to Afghanistan and I have noted the very difficult problems being faced in the country as a result of the general economic situation. But I am not satisfied this would amount to significant harm as defined.
THE PARTIES’ SUBMISSIONS
Applicant’s written submissions
The applicant’s written submissions (filed on behalf of the applicant on 19 July 2023) relevantly provide as follows:
(a)by section 473CC(1) of the Act, the IAA is required to review a referred decision. This review ‘is not concerned with the correction of error on the part of the Minister or delegate but is … a de novo consideration of the merits of the decision that has been referred to [the IAA]. The task of the IAA under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17];
(b)properly understood, a failure by the IAA to consider a claim, representation, contention or submission is a failure by the IAA to complete the task required of it under s 473CC(1) of the Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55] & [63]; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at [36]. That failure will constitute jurisdictional error if it is material to the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]; DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72 at [60];
(c)whether the IAA failed to consider a claim is a question of fact which must be decided by the drawing of inferences. Where there has been a failure to expressly deal with an issue in reasons for decision, an inference may be drawn that there has been a failure to consider that issue. This inference is strengthened where an issue raised by contentions made by an applicant, if resolved one way, would be dispositive of the review of a delegate’s decision: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47];
(d)in his most recent submission to the IAA, the applicant submitted that ‘the economic and food crises in Afghanistan are so severe for returnees as to result in a real chance of an inability to achieve a subsistence level of income everywhere in the country, which itself constitutes a real chance of serious harm’ (CB 754) and that ‘the current humanitarian situation in Afghanistan is so dire as to constitute inhuman and degrading treatment and thus a real risk of significant harm’ (CB 755);
(e)the IAA accepted that the applicant might experience significant problems because of the general economic situation, effectively accepting the factual aspects of these claims. The IAA rejected the claims on the bases that (1) the harm was not for a convention reason and (2) that they did not constitute significant harm as defined. With respect to the latter basis for rejection, the IAA’s decision record is devoid of any reasons as to why the claims did not meet the definition of significant harm; and
(f)while it is accepted that the claims were incapable of constituting most forms of significant harm as defined, they were not incapable of constituting an arbitrary deprivation of life. If a person cannot subsist, they will die. It was put squarely that there was a real chance that the applicant would be unable to achieve subsistence. If that is accepted then the consequence of the inability would be that the applicant may be arbitrarily deprived of his life by want of necessities. The IAA overlooked, or failed to engage with, this possibility and thereby made a jurisdictional error.
Applicant’s oral submissions
In oral submissions before this Court, Mr Glenister submitted as follows (on behalf of the applicant):
(a)the error here is a failure to consider whether the general situation in Afghanistan was “so bad” that there was being a real risk that the applicant could be arbitrarily deprived of his life – as he effectively could not subsist if sent back to Afghanistan;
(b)the applicant made a number of claims. It accepted that the applicant did not express the claim as clearly as he could have (or as outlined above);
(c)there was, however, enough there that it arose out of the materials and out of the claims made and it was one of the variations that the IAA should have taken into account when it was considering the applicant’s claims and determining whether he met the criteria for the grant of the visa;
(d)the applicant accepts that at [116]-[119] in the IAA’s reasons, the IAA does explain the definition of significant harm and effectively (at [118]) states that this would not amount to significant harm as defined;
(e)the applicant also accepts that, on one construction, [118] knocks out the possibility that the IAA overlooked the claim because it effectively “covers the whole field”;
(f)however, it is the “barest of findings possible”, simply stating that it does not meet the definition. That may be understandable for four of the five definitions of significant harm, all of which require some sort of intent and the IAA earlier made a finding (with respect to the refugee claims) that there was no intent – but, rather a general situation (at [101]-[107]);
(g)nowhere else in the reasons does the IAA deal with the possibility that the applicant could effectively be “arbitrarily deprived of his life due to the economic situation”. It simply dealt with the various intentions earlier in the reasons in its conclusions about the applicant’s refugee claims;
(h)paragraph [118] does not reveal any “active intellectual engagement with the claim” (if the IAA did, in fact, even consider the point);
(i)the applicant disagrees with the Minister’s suggestion that s 36(2B)(c) of the Act “knocks out the claim”;
(j)at [101] of its reasons, the IAA identifies the “miserable reality for returnees as they experience sever difficulties rebuilding their lives” and [at 104] refers to internally displaced people (a category within which the applicant would certainly fall given that he would return to a country he has not been in for a significant period of time);
(k)the general economic situation (whilst affecting everyone to some degree) would or could affect returnees differently;
(l)had the IAA determined that this kind of “arbitrary deprivation of life claim” was something that could affect the population generally, it would have said that;
(m)an applicant may be “arbitrarily deprived of his or her life” by lawful or unlawful action that is demonstrated to have elements of capriciousness, inappropriateness, injustice or lack of predictability: SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [44]. It does not require unlawful action on the part of any state party;
(n)the claims, to the extent that they were made, are referenced at [17] of the applicant’s written submissions. The IAA’s reasons are summarised at [10]-[12] of the applicant’s written submissions and referenced again at [18] of the applicant’s written submissions;
(o)accepting that the claim was not clearly articulated in the way it has now been put before the Court, the Court must first identify whether there was enough material for the IAA to be required to consider it (and this should be done by reference to the information at [17] of the applicant’s written submissions and [116]-[118] in the IAA’s reasons);
(p)while it might be inferred that the IAA did not overlook the claim entirely, it did not engage in any sort of intellectual process with it which is essentially a “species of failing to consider something” (using the old terminology, was a failure to give proper, genuine and realistic consideration, which, of course, is no longer in favour); and
(q)the claims are either made out or they have not been made out and either required consideration or they did not.
Minister’s written submissions
The Minister’s written submissions (filed on behalf of the Minister on 3 August 2023) relevantly provide as follows:
(a)the applicant made no claim (and no claim arose on the materials) that there was a specific risk he would be arbitrarily deprived of his life by reason of the economic claim;
(b)in referring to the ‘current humanitarian situation in Afghanistan’ which was a reference to the economic claim, the applicant claimed that the situation was ‘so dire as to constitute inhuman and degrading treatment and thus a real risk of significant harm’ (a particular part of the definition of “significant harm” that is distinct from s 36(2A)(a));
(c)the applicant did not identify ‘arbitrary deprivation of life’ as a relevant claim or risk arising from the economic claim. The submissions made to the IAA, by the applicant’s legal representative, emphasised inhuman and degrading treatment (which the IAA clearly recognised) (CB 863 at [29]). The applicant cannot now establish error on the basis that a form of harm which he did not identify was not considered: Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335 at [55]-[56]; DWN042 v The Republic of Nauru [2017] HCA 56 at [26];
(d)it was incumbent upon the applicant to specify all particulars of his claim (as required by s 5AAA of the Act). He did so, by specifying the particular harm from the general economic situation as giving rise to serious harm in the form of threatening his capacity to subsist (see s 5J(5)(d)-(e) of the Act), and as cruel and degrading punishment (see s 36(2A)(a) of the Act);
(e)the applicant’s written submissions in this Court reach no higher than identifying particular instances where it was said that the economic claim placed him at risk of “significant harm” (applicant’s written submissions at [17]). In that way it is both unsurprising, and not demonstrative of error, that the IAA’s reasons did not consider a particularised claim that was not made (cf applicant’s written submissions at [18]);
(f)“significant harm” is defined by s 36(2A) of the Act. Section 36(2B) of the Act specifies particular circumstances where it will be taken not to be a real risk of significant harm. One of those circumstances concerns where an identified risk is faced by the population of a receiving country generally and is not faced by the person claiming protection personally (s 36(2B)(c));
(g)further, significant harm as defined is not a reference to harm at large. It concerns harm of the kind defined in s 36(2A). The term “arbitrarily deprived” is not defined by the Act. Whilst it will always be a question of fact as to whether that relevant risk arises, as a matter of construction or meaning, s 36(2A)(a) is concerned with a risk of being deprived of life by a third party or third parties in an arbitrary way. The requirement for arbitrariness has been explained as requiring capriciousness, inappropriateness, injustice or lack of predictability: EZC18 v Minister for Home Affairs [2019] FCA 2143, [36]-[39] & [47];
(h)as the applicant’s submissions indicate, to the extent that a claim was made, it related to the general economic situation (applicant’s written submissions at [18]). It was not because of a deliberate or intentional act on the part of a third party (whether lawful or unlawful). It was a general situation. No claim of that type was ever made;
(i)having considered the economic claim and the requirement of “significant harm”, it was for the IAA to conclude whether it was satisfied that the applicant was owed protection. The applicant does not contend that the IAA’s finding as to the scope of significant harm was not open. Rather, the applicant contends, without any basis in support, that it was open to the IAA to reach a different conclusion (applicant’s written submissions at [19]). That is not apt to demonstrate relevant (or any) error;
(j)it is apparent from the IAA’s reasons at [118] that it expressly considered, and made a finding, that the general economic situation would not ‘arbitrarily deprive’ the applicant of his life. This is clearly encompassed by the reference to ‘significant harm as defined,’ which the IAA set out in its reasons at [116];
(k)having found that it was not satisfied that the claimed risk was within the defined meaning of “significant harm”, that resolved the matter, without requiring the IAA to descend further in its reasons. That is particularly so where the alleged claim was devoid of any articulation or particularisation;
(l)the applicant claims that the IAA’s reasons are devoid of any explanation as to why the claim did not meet the definition of significant harm (applicant’s written submissions at [18]). The IAA’s conclusion, and the reason for it, as to the claim concerning the complementary protection obligations are sufficient. In any event, a complaint as to the sufficiency of a decision-maker’s reasons, does not itself give rise to a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [70];
(m)the IAA was aware of and considered the information relevant to the economic claim (at [101]-[106] of its reasons) and turned its mind to that claim in the context of the refugee criterion and, separately, the complementary protection criterion. That is what the IAA was required to do. No error is established; and
(n)as the applicant appears to acknowledge, the conclusion that the economic claim did not meet the meaning of significant harm was open to the IAA, even if it is not the conclusion that the applicant would prefer.
Minister’s oral submissions
In oral submissions before this Court, Ms Taggart submitted as follows (on behalf of the Minister):
(a)the claim as articulated (being that there was a risk of arbitrary deprivation of life amounting to a relevant risk of significant harm arising from the general economic situation) was not a claim that was specifically made;
(b)the height the materials reach is that there was a general economic situation which was capable of being considered as amounting to a relevant risk of significant harm;
(c)the general economic situation does not meet the definition of significant harm, ergo the IAA need not go on and consider further any particular subset of the definition of significant harm because its finding that it just did not meet the definition covered the issue;
(d)it cannot be said that the finding made by the IAA was not open to it. Instead, the argument seems to reach no higher than saying that there was another conclusion that the authority could have come to;
(e)when one has regard to the definition of significant harm (including that the relevant risk cannot be one faced by the general population as a whole), the applicant’s case simply does not meet the onus he needs to establish to persuade the Court as to relevant error;
(f)section 36(2A) of the Act identifies when a non-citizen will suffer significant harm and, significantly, s 36(2B) of the Act identifies a “carve out” or exceptions where a person will not be at relevant risk. Of particular relevance in this matter is s 36(2B)(c) of the Act which states that there is taken not to be a real risk if the risk is one faced by the population of the country generally and is not faced by the non-citizen personally;
(g)the applicant does not identify how a claim relating to the general economic situation was said to somehow be something other than the general risk faced by the population;
(h)the IAA’s reasons discuss that the definition of significant harm cannot be a general risk faced by the population more generally;
(i)arbitrary deprivation of life does still require some act by a third party which is “capricious or unreasonable”, essentially an act or something which gives it a quality of arbitrariness;
(j)the IAA here was firstly considering the general economic situation and whether there was a relevant risk arising under the refugee criterion (and concluded that the general economic situation would not have resulted in persecution of a relevant kind);
(k)the IAA then specifically considered the general economic risk separately to consider whether, having found that it did not amount to persecution, was there some other reason to conclude that it in any event amounted to significant harm;
(l)the conclusion the IAA came to in that regard was that it simply did not meet the definition;
(m)the fact that the IAA’s reasons are succinct in their conclusion is not demonstrative of error on any level as it was clear that the IAA found the general claim did not meet the definition;
(n)paragraph [101] of the IAA’s reasons, on the whole, simply consider the miserable reality for people returning to Afghanistan on the basis of the situation that generally exists in Afghanistan;
(o)it is not open to the Court to conduct a merits assessment, even insofar as to say “if the IAA had considered it, it may have come to a different conclusion”. That is only relevant in a materiality context but that only arises where jurisdictional error is established; and
(p)it is not surprising that the IAA did not consider a claim that was not made.
CONSIDERATION
Having considered the applicant’s ground of review and the parties’ submissions in this matter, there appear to be two issues for the Court to consider, as follows:
(a)whether a particular claim (ie, whether the economic situation in Afghanistan is such that the applicant would be arbitrarily deprived of his life if returned on the basis that he effectively could not subsist if he were to be sent back to Afghanistan) arose on the material before the IAA or from the IAA’s own findings; and
(b)whether the IAA properly considered that claim – that is, did the IAA engage in an active intellectual process with the claim.
Whether the claim arose on the material before the IAA or from the IAA’s own findings
Pursuant to s 473CC of the Act, the IAA must review a decision referred to it under s 473CA of the Act. In order for the IAA to perform that task, the IAA must consider the review material provided to it under s 473CB of the Act (see s 473DB(1) of the Act).
The Full Court of the Federal Court of Australia addressed the IAA’s duty to consider claims arising on the materials before it in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”), as follows:
18.It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
...A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
19.In this appeal, the appellant argues that while NABE dealt with circumstances in which claims arising from materials before the Tribunal must be considered, the Tribunal must also consider issues which arise from its own findings, which it has already made. There is a special need for this consideration because such findings may not be known to an applicant. Nor may they be predictable during the course of the IAA review and may raise further questions about whether a visa applicant has a well-founded fear of persecution.
As is clear from AYY17, an unarticulated claim may arise on the materials or from the Tribunal’s (or in this case, the IAA’s) own findings.
In the circumstances of this matter, the Court considers that the “claim” in question (being whether the economic situation in Afghanistan is such that the applicant would be arbitrarily deprived of his life if returned on the basis that he effectively could not subsist if he were to be sent back to Afghanistan) did arise (both on the material before the IAA and from the IAA’s own findings) for the reasons that follow.
In written submissions provided to the IAA by the applicant’s migration agent (dated 27 April 2022, CB 753-757), the agent makes two comments which effectively raise the claim.
The first comment can be found in the second half of [8] (CB 754), as follows:
In addition, the economic and food crises in Afghanistan are so severe for returnees as to result in a real chance of an inability to achieve a subsistence level of income everywhere in the country, which itself constitutes a real chance of serious harm.
The second comment can be found at the end of [13] (CB 755), as follows:
In addition, the current humanitarian situation in Afghanistan is so dire as to constitute inhuman and degrading treatment and thus a real risk of significant harm.
The IAA, in summarising the applicant’s “claims for protection”, references part of the claim made by the applicant at [29] (CB 872), as follows:
•The submission addressed the economic situation in Afghanistan and noted the applicant’s now “mature” age would make it difficult for him to find employment and that the current humanitarian situation in Afghanistan is so dire as to constitute inhuman and degrading treatment and thus a real risk of significant harm.
The IAA then outlined the circumstances in which a person will suffer “significant harm” (including by way of being arbitrarily deprived of his or her life) (at [116] in its reasons) and ultimately made a finding which also arguably references the claim (at [118], CB 889), as follows:
I have accepted that the applicant may experience significant problems returning to Afghanistan and I have noted the very difficult problems being faced in the country as a result of the general economic situation. But I am not satisfied this would amount to significant harm as defined.
As conceded by Mr Glenister, the “claim” was not as “articulately” raised before the IAA as it was before this Court. That said, the Court is satisfied, based on the information included in the submissions provided to the IAA on behalf of the applicant and the findings made by the IAA, that the IAA was at least aware of the claim (but may not have properly or adequately engaged with or addressed that claim).
In circumstances where the Court is satisfied that the claim (as set out above) was raised on the materials before it, it is then necessary for the Court to address whether that claim was properly considered by the IAA.
Whether the IAA properly considered that claim
The Court must now determine if the IAA “did enough” to satisfy its statutory obligation.
This Court previously outlined the requirements for a decision maker (in that case the Tribunal) to give “proper consideration” to a claim or evidence before it in ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476. The principles outlined in that matter apply equally here and are repeated below (with minor amendments).
The IAA is required to engage with and give proper consideration to claims and evidence put forward by an applicant. This task is often referenced as involving an “active intellectual process”.
The Full Court of the Federal Court explained in Minister for Home Affairs v Buadromo [2018] FCAFC 151 (at [42]-[45]) that a failure to engage with material in a way that amounts to error can be described in a number of different ways (and with different connotations) and that the description of “active intellectual exercise” is merely one appropriate descriptive. What is required, however, is proper analysis (within the applicable statutory setting) of what the IAA did contextually – that is, in relation to the particular facts and circumstances of the relevant case.
A detailed consideration of the relevant principles regarding “active intellectual engagement” is provided by Logan J in DWP17 v Minister for Immigration and Border Protection [2019] FCA 160 (citing the Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]-[38]), wherein His Honour explains:
15As to principle … Singh v Minister for Home Affairs [2019] FCAFC 3 [contains] is a most helpful summary of pertinent authority:
30.If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
31. A statute might require a decision-maker to consider a matter by:
(1)expressly stating that the decision-maker must consider the matter; or
(2)necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
32.Carrascalao concerned the cancellation by the Minister of the visas of Mr Carrascalao and Mr Taulahi under s 501(3) of the Migration Act 1958 (Cth). Mr Carrascalao and Mr Taulahi sought judicial review of those decisions in the Federal Court. The matter was heard, in this Court’s original jurisdiction, by three Justices.
33.The Minister did not contest that he was under a general legal obligation to consider the merits of cases before cancelling visas under s 501(3). The Full Court stated at [46]:
… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
34.The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
35.However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
36.The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37.In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
As outlined above, the IAA must consider the review material provided to it.
In order to determine whether the IAA properly considered the claim or the material before it, it is useful to again set out the IAA’s findings in this regard. Those “findings” provide as follows:
Real risk of significant harm
116.Under s.36(2A), a person will suffer ‘significant harm’ if:
•the person will be arbitrarily deprived of his or her life
•the death penalty will be carried out on the person
•the person will be subjected to torture
•the person will be subjected to cruel or inhuman treatment or punishment, or
•the person will be subjected to degrading treatment or punishment.
117.The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
118.I have accepted that the applicant may experience significant problems returning to Afghanistan and I have noted the very difficult problems being faced in the country as a result of the general economic situation. But I am not satisfied this would amount to significant harm as defined.
In the context of this matter, the Court is not satisfied that the IAA here has properly engaged with the material before it insofar as it relates to the “claim” that the applicant may be arbitrarily deprived of his life due to the dire economic situation in Afghanistan.
Clarity matters. Here, the IAA accepted that the applicant may experience significant problems upon his return but then simply states that it is “not satisfied that this would amount to significant harm as defined”. The Court does not consider that this “throw away” line evidences any active or intellectual engagement with the claim as a whole. As submitted by Mr Glenister the IAA’s “consideration” in this regard is “devoid of any reasons as to why the claim did not meet the definition of significant harm”. In the circumstances of this matter, where the consequences for the applicant upon return to Afghanistan are arguably extreme, more (much more) is required.
As succinctly submitted by Mr Glenister, if a person cannot subsist, they will die. It was clearly put to the IAA that there was a “real chance that the applicant would be unable to achieve subsistence” upon his return to Afghanistan. The IAA did not properly engage with this claim or the consequences for the applicant in that regard.
The Court is not satisfied that the IAA in this matter actively engaged with the applicant’s claim (as it arose on the materials before it and in the IAA’s own findings).
On that basis, the IAA has fallen into jurisdictional error.
CONCLUSION
The application for judicial review filed on behalf of the applicant on 10 August 2022 has identified jurisdictional error in the IAA’s third decision (dated 7 July 2022).
The IAA’s third decision will, accordingly, be set aside and the matter will again be remitted to the IAA for reconsideration.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 January 2024
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