CWF16 v Minister for Immigration

[2018] FCCA 3357

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3357

Catchwords:
MIGRATION –“new information” not produced by applicant – applicant had already moved to a place of safety within Afghanistan after kidnapping by Taliban – consideration of relocation within country of origin by reference to place of kidnapping therefore irrelevant where likely place of return found to be a safe place away from Taliban – no unreasonable or illogical reasoning process – application for review dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2)(aa), 473CA, 473DD

Cases cited:

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: CWF16 (BY HIS LITIGATION GUARDIAN NAJIBULLAH AMIN)

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 911 of 2016

Judgment of: Judge Egan

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Brisbane

Delivered on: 30 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Rebetzke

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr McGlade

Solicitors for the Respondents: MinterEllison

ORDERS

1. The Application for an extension of time in reliance upon the provisions of s. 477(2) of the Migration Act 1958 (Cth) be granted.

2. The Applicant be granted leave to read and file a further amended application dated today.

3. The Further Amended Application filed by leave on 30 October 2018 be dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 911 of 2016

CWF16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan. He is 19 years old. On 7 September 2013, the applicant arrived in Australia by boat. By virtue of subsection 46A(1) of the Migration Act 1958 (Cth) (“the Act”), the consequence of the applicant so arriving in Australia was that he was prohibited from making a valid protection visa application. The applicant was permitted, however, to apply for a temporary protection (sub-class 785) visa or a Safe Haven Enterprise (sub-class 790) visa (referred to as a SHEV).

2. The applicant applied for a SHEV on 2 September 2015. In order to obtain that visa, the applicant needed to establish that at the time of the making of the decision in respect of his application, he met either the refugee or complementary protection criteria in sections 36(2)(a) or section 36(2)(aa) of the Act. On 16 June 2016, a delegate of the Minister refused the SHEV application. Because the delegate’s decision was a fast-track decision, on 20 June 2016, the Minister referred the delegate’s decision to the Immigration Assessment Authority (“IAA”) pursuant to section 473CA of the Act.

3. On 2 August 2016, the IAA affirmed the delegate’s decision.  On 29 September 2016, the applicant applied to this Court for orders seeking an extension of time to seek judicial review of the IAA’s decision and substantive orders quashing the IAA’s decision and requiring it to re-determine the matter according to law.  As to the first point, the first respondent did not take issue with the application for extension of time, and accordingly an extension of time for the filing of the application for judicial review is granted.

4. The applicant claimed to fear harm from the Taliban were he to return to Afghanistan.  From an early age, the applicant and his family had lived in Ghazni in Afghanistan, but, in 2001, the applicant was kidnapped by the Taliban and held ransom for four days, until his father paid for his release.  About a year after that ransom event, the Taliban approached the applicant’s father demanding further money.

5. Because of the problems that the applicant’s family had faced from the Taliban in Ghazni in 2012, the applicant’s family moved to Kabul.  The applicant alleges that despite moving to Kabul, the Taliban tracked the applicant’s family down and continued to harass and threaten the applicant’s father, should he not pay to them more money.  It then was alleged by the applicant that the applicant’s father arranged for the applicant to leave Afghanistan so as to eventually travel to Australia by boat.  At the time that he left Kabul, he had resided there for a period of two to three months with his family. 

6. The IAA accepted that while in Ghazni, the applicant was kidnapped by the Taliban and that he was later released following the payment of a ransom.  The applicant was targeted because his father was known to be wealthy.[1]  The IAA also accepted that the Taliban continued to demand money from the applicant’s father whilst the family was living in Ghazni, even though it did not accept that the Taliban had harassed the applicant to join the Taliban, nor did the IAA accept that the Taliban had sought to enlist the father into joining the Taliban.  The IAA did not accept that after the applicant and his family had moved to Kabul that they were subjected to any ongoing harassment or adverse attention from the Taliban.[2]

   [1]     See Court Book (“CB”) p. 267 - 268 [13], [15].

   [2] See CB p. 269 [20].

7. That finding was based upon independent country information indicating the unlikelihood of the Taliban devoting resources to locate and harm low profile people such as the applicant, the applicant’s father and family.  The IAA considered that, had the applicant remained in Ghazni, he may have been at real risk of harm, but that because the applicant would likely return to Kabul there was no such risk.  The IAA found that the applicant resided in Kabul with his parents for two to three months before his departure from Afghanistan and that Kabul was the last known location of the applicant’s parents.[3]

   [3] See CB p. 271 [23]; p. 273 [34].

8. At the hearing before this Court, the applicant was granted leave to file a further amended application.  That application, relevantly, abandoned ground 1 of the former application and ground 3 of the former application.  The applicant, through counsel, persisted with ground 2 of the application, and ground 4 of the application, and otherwise sought leave to include a new paragraph 3A which was not the subject of objection by counsel for the first respondent. 

9. Ground 2 of the further amended application is as follows:

   The Second Respondent denied the Applicant procedural fairness by drawing an adverse inference from the failure to provide “definite” information about a fact in circumstances where the applicant had no entitlement to do so, alternatively, the Decision was affected by jurisdictional error by reason of illogical or irrational reasoning.

10. Counsel for the applicant submitted that such ground was based upon the proposition that the refusal of the IAA to produce “definite information” relating to the intentions of the applicant’s parents to reside elsewhere was illogical and irrational.  The applicant alleged that the IAA fell into error in drawing an adverse inference as to the location of the applicant’s parents at the date of the review by reason of the applicant’s failure to provide definite information as to their whereabouts in his representative’s July 2016 submission. 

11. It was submitted that the decision based upon the drawing of the adverse inference was affected by jurisdictional error by reason of the denial of procedural fairness, or alternatively, illogical or irrational reasoning, in that the IAA found that the parents’ residence would be Kabul in the event of the applicant being returned to Afghanistan, in circumstances where the applicant had no right to place new information before the second respondent in the absence of demonstrated “exceptional circumstances” as referred to in section 473DD of the Act.

12. It was submitted that the IAA ought to have invited the applicant to provide definite information on point, notwithstanding that the evidence before the authority was that the parents were living in Kabul at all relevant times after their removal from Ghazni the parents had “planned” to move somewhere else.  It was submitted on behalf of the applicant that because of that suggestion in one part of the submission of 13 November 2015[4] made on behalf of the applicant, the IAA ought to have invited the applicant to provide such information about the actual whereabouts of the applicant’s parents. 

    [4]     See CB p. 128.

13. That submission was made notwithstanding that it was clear that between the time of the handing down of the delegate’s decision and the consideration of the applicant’s application by the IAA, the applicant had been provided with documentation advising and inviting him that should he consider that there was any new information which he wished to put before the IAA, he was welcome to do so.  It transpired that the applicant did not put any such information before the IAA.  The consequence of that decision by the applicant was that the evidence before the IAA as to where the applicant’s parents lived (and thus where the applicant would likely live should he be returned to Afghanistan) was Kabul, and nowhere else, notwithstanding that some plan to move elsewhere, wishful or otherwise, had been suggested as possible.

14. In that regard, the High Court of Australia in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 dealt with the meaning of the term “new information.” at [24] where it was said:

    The term ‘new information’ must be read consistently when used in section 473 DC, 473 DB, and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject, or event that meets the two conditions set out in section 473DC(1)(a) and (b).  The first is that the information was not before the Minister or the delegate at the time of making the decision to refuse to grant the protection visa.  The second is that the authority considers that the information may be relevant.

15. Further, in the case of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], it was said as follows.

    Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief that the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of paragraph (a) of S424A(1).  Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a convention nexus, it is hard to see how such a failure can constitute “information.” Finn and Stone J correctly observed in VAF Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”

    does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

16. The applicant has contended through counsel that in paragraph 34 of the IAA’s reasons, the IAA fell into error when it said:

    I consider that if the applicant’s parents had actually left Kabul, the applicant would have provided definite information about this.

17. Counsel for the applicant submitted that the IAA fell into error in that it could not have made such a finding other than on an illogical or irrational basis, because the applicant had no right to place new information before the second respondent in the absence of demonstrated “exceptional circumstances” – namely, those circumstances as provided for in section 473DD of the Act. That submission ignores the fact that the applicant himself failed to put any such information relating to his parents’ place of residence before the IAA, notwithstanding that that was clearly a live issue in his application for a protection visa or SHEV.

18. There was no denial of procedural fairness as submitted on behalf of the applicant in that regard.  Additionally, the only information before the authority was the November 2015 submission concerning plans on the part of the applicant’s family to leave Afghanistan.  It is doubted whether such submission, as set out on page 131 of the Court book, constituted a factual assertion sufficient to give rise to any action being required to be taken by the IAA in its own right, pursuant to section 473DC, to pursue the issue as to the residence of the parents. 

19. Ground 3A of the further amended application is as follows:

    The Decision was affected by jurisdictional error by reason of the failure of the Second Respondent to observe applicable requirements of procedural fairness by considering “new information” (the location of the Applicant’s parents as at 1 July 2016) without (a) explaining to the Applicant why the new information was relevant to the review; and (b) inviting the Applicant to give comments on the new information.

20. That ground overlaps with Ground 2, and, for similar reasons, is without merit. The submission that it was legally unreasonable in the circumstances for the second respondent not to consider getting information from the applicant pursuant to the IAA’s power to do so in section 473DC is unsustainable.  Not every step of the process of reasoning of a Tribunal needs to be set out as to why it did or did not take any particular action, or why it made or did not make any particular decision.  The decision not to obtain or consider obtaining information from the applicant as to the applicant’s family’s residence was a decision which could have been made reasonably by another decision-maker acting entirely appropriately in all circumstances.

21. In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [55], Wigney J said:

    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 ... The overarching question is whether the Tribunal’s decision was affected by jurisdictional error... 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... 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...

22. The IAA, in the Court’s view, was open to find on the evidence before it that the last-known residence of the applicant’s family was Kabul. It was not unreasonable for the IAA to so find, as it did in [34] of its reasons, that had the applicant’s parents actually left Kabul, the applicant would have provided definite information about that change.  A tribunal or authority is not obliged to unilaterally follow up each and every possible scenario which might affect an applicant’s presentation of his case before it when an applicant has had ample opportunity to do that themselves. 

23. That ground of review is without merit.  It was open on the facts before the IAA to proceed precisely in the manner which it did.  Each case in that regard turns on its own facts.  It was not unreasonable in the circumstances for the IAA not to seek new information as submitted on behalf of the applicant pursuant to section 473DC.  This case is clearly distinguishable from cases such as Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.

24. Ground 4 of the further amended application provides as follows:

    The Decision was affected by jurisdictional error by the Second Respondent misunderstanding its statutory task;

    (a) by failing to make an intermediate finding of fact that the Applicant’s parents were likely to remain in Kabul and be in Kabul when the Applicant would be likely to be removed from Australia to Afghanistan;

    (b) by failing to consider the statutory question posed by section 36(2B)(a) of the Migration Act 1958, namely whether it would be reasonable for the Applicant to relocate to an area of Afghanistan (i.e., Kabul) where there would not be a real risk that he would suffer significant harm; and

    (c) in view of (a) and (b): the lack of a logical pathway to the conclusion that the Applicant did not meet the criteria for complementary protection in s.36(2)(aa) of the Migration Act 1958.

25. This ground also relates to the residence of the applicant’s parents.  It is asserted that jurisdictional error occurred because the IAA failed to make an intermediate finding of fact that the applicant’s parents were likely to remain in Kabul, and be in Kabul, if and when the applicant would be likely to be removed from Australia to Afghanistan.  The assertion that a failure to make a decision constitutes a basis for a finding of jurisdictional error in the circumstances of this case is without merit, and such application should be dismissed. 

26. Secondly, the applicant asserts in sub-paragraph (b) of ground 4 that the IAA failed to consider the question of relocation to an area of Afghanistan where there would be no real risk that he would suffer significant harm.  That ground is based on the misconception that this was a relocation case.  Clearly, this is not a case where the IAA ought to have undertaken a consideration as to whether the applicant was able to safely relocate within the country.  Rather, this was a situation where the applicant was returning to a place found to have been safe, that being his former place of residence in Kabul. That finding was open in all circumstances.

27. For those reasons, the application for review is dismissed. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 19 November 2018