DDS17 v Minister for Immigration
[2020] FCCA 3187
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3187 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant claims that the IAA failed to provide him with information from a UK Home Office Report which formed part of the reason for affirming the decision of the Delegate and that it did not consider getting documents and information from him and from a former colleague of his – HELD: the IAA had in fact provided in correspondence reference to the information complained of by the applicant, but in any event the IAA was under no obligation to provide the applicant with that information as it was exempted under s.473DE(3) of the Migration Act 1958 (Cth) due to not being about the applicant or another person – the IAA did not act legally unreasonably in failing to get documents or information from the applicant or his former colleague, nor did it fail to consider getting such information – none of the Grounds asserted by the Applicant established that the decision of the Tribunal was affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5AAA, 36, 46A, 424A, 473CA, 473DC, 473DE. |
| Cases cited: AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 |
| Applicant: | DDS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2211 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 22 November 2019 |
| Date of Last Submission: | 20 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Brennan of Counsel |
| Solicitors for the Applicant: | Piper Alderman |
| Counsel for the First Respondent: | Mr N. Swan of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to amend the Amended Application filed in this Court on 23 July 2018 by adding “Additional Ground 2” in the terms as filed in this Court on 11 December 2019.
The Amended Application filed in this Court on 23 July 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2211 of 2017
| DDS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Afghanistan aged 28 years and is a Shi’a Muslim of Hazara ethnicity.
By Amended Application filed in this Court on 23 July 2018 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 14 June 2017 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 November 2016 refusing to grant to him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Protection visa).
Background and Initial Claims to Protection
The Applicant departed Afghanistan on 2 August 2012. He arrived in Australia as an unauthorised maritime arrival via Dubai, Qatar and Indonesia on 17 November 2012.
On 5 December 2012 an officer from the Department of the Minister (Department) conducted an Entry Interview on Christmas Island with the Applicant, where he responded to the question “why did you leave your country of nationality?” as follows:
All international opinion now is that Afghanistan is not safe.
Being a photographer my job was very dangerous and there is a lot of carnage and social bombings.
Working with an NGO they could accuse me for working with foreigners.
Travelling on the roads is not safe for Hazarers.
…
Taliban accuses me of working for foreign company and working for British They intimidate me travelling in Kabul. They harass me about not doing Islamic rituals and about being clean shaven.
I cannot find a job because Taliban control the main roads between towns so I can’t travel to find work and to go to work. They control everyone’s movements.
(emphasis added)
In the Entry Interview the Applicant claimed to have been employed by an organisation known as “Afghan Eyes, Photographic section” (Afghan Eyes) as a “professional driver” from March 2010 to August 2012.
On 13 January 2016 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for a Protection visa on 19 February 2016 with the assistance of his migration agent (migration agent).
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ.
Claims to Protection
At the hearing in this Court, when Mr Brennan of Counsel appeared for the Applicant and Mr Swan of Counsel appeared for the Minister, it was common ground that the Applicant’s claims to protection had been correctly summarised by the Delegate in his Decision Record, as follows:
The applicant claims to fear that he will be seriously harmed by the Taliban and other Sunni extremist groups for reasons of his:
·Hazara ethnicity;
·Shia faith;
·imputed political opinion in opposition to the Taliban / in support of the Afghan Government and International Security Assistance Force forces (including as a suspected foreign spy); and
·membership of a particular social group as a returnee from a Western country.
In a Statutory Declaration sworn by the Applicant on 15 February 2016 (Statutory Declaration), which formed part of his Protection visa application, he elaborated upon his claims as follows:
a)he fled Afghanistan due to threats of persecution being made by the Taliban for his involvement with Afghan Eyes;
b)during his employment with Afghan Eyes, both he and his colleague were en route to Parwan province when their taxi was stopped by the Taliban. They were asked to declare if they were working with the government or a non-government organisation (NGO). As nobody owned up, they were both searched and his colleague’s identification card and phone were found. His colleague was taken away and his badly mutilated body was found a few days later. The Applicant was not taken at this time because they could not find anything in the search to prove that he belonged to a government group or an NGO;
c)as soon as he arrived in Parwan he made arrangements to return to Kabul as he was concerned the Taliban would come looking for him. He informed the Vice-President of Afghan Eyes, Mr Ahmad Mahsood, what had happened with his colleague but he was assured that he would be alright, since a lot of the employees in Kabul were fine. I note that this Mr Mahsood is the same person as Ahmad Massoud referred to below;
d)a week later he received a phone call from an individual identifying himself as ‘Mulla’ who threatened that he knew about the Applicant’s involvement with Afghan Eyes because the Taliban had found a picture of him with other employees on the deceased colleague’s phone, which showed their employment identifications hanging around their necks. Mulla also declared knowledge of the Applicant’s details, particularly of where he lived;
e)after his return to Kabul, three masked men stormed into his home looking for him. He fled his home and in retaliation they beat his mother and told her that they were going to kill him. He fled Afghanistan with the help of his relatives soon afterwards;
f)he fears that if he were to return to Afghanistan he would be seriously harmed by the Taliban because he is “a targeted man and the Taliban will not hesitate to kill him if he is found by them” and he experienced direct threats to his life which led to his mother being badly beaten by the Taliban;
g)he “could not move to any other parts of Afghanistan not only because the Taliban are everywhere but [he] did not have anyone to help [him]”;
h)he does “not think the authorities in Afghanistan will protect [him] because the Taliban will find him anywhere”;
i)he is unable to relocate within Afghanistan and “it is not safe for [him] to travel or live in any other parts of Afghanistan because the Taliban have great influence and power in the country and are in control of many of the roads in this area”; and
j)he will be deprived of his capacity to subsist in Afghanistan due to the threats to his life made by the Taliban.
(emphasis added)
In a written submission to the Department dated 14 February 2016 the Applicant’s migration agent submitted that independent country information supported that “Shia Hazaras throughout Afghanistan continue to be discriminately targeted (persecuted) and subjected to acts of violence by groups such as the Taliban, and other insurgent Sunni Muslim groups … [and that] due to the failure of authorities to establish and maintain control in Afghanistan, the Taliban are increasingly able to exert greater authority and influence throughout Afghanistan”. The migration agent’s submission also referred to a large body of independent country information with hyperlinks to the reports containing that country information.
In a later submission dated 9 September 2016 to the Department from the Applicant’s migration agent it was reiterated that Mr Ahmad Massoud of Afghan Eyes had suggested to the Applicant that he would be safe in Kabul.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 2 September 2016. Subsequent to the interview the Applicant’s migration agent sent the further submissions to the Department dated 9 September 2016, which in part submitted that the Applicant “will be killed by the Taliban, Daesh, other Sunni extremist groups if forced to return to Afghanistan [and that] … we believe the Afghan authorities cannot protect [the Applicant] when the Taliban can just sneak up from anywhere to harm him”.
In his Decision Record the Delegate found that the Applicant was a Shi’a Muslim of Hazara ethnicity who had been born in Parwan, had lived in Kabul without incident from 1993 to 2012 and had worked as a mechanic from January 2003 to March 2010, before commencing work as a driver for Afghan Eyes for two years from March 2010 until shortly before his departure for Australia. However, the Delegate did not find the Applicant to be a credible witness in relation to the claimed attack in Parwan and found that the Applicant had never travelled to Parwan with his colleague, that his colleague was not killed, that the Applicant had never been threatened or targeted by the Taliban and that he did not hold a profile of “distinguished adverse interest to the Taliban for his previous work for Afghan Eyes”. At page eight of his Decision Record the Delegate stated:
I have accepted that the applicant worked for Afghan Eyes as a driver but have found his claims that he previously came to the adverse attention of the Taliban for reasons of his employment to not be credible. Country information provides that people associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul (Footnote 30: “DFAT Thematic Report: Conditions in Kabul”, DFAT, 18/09/2015, CISEC96CF13367) However, overall DFAT assesses that Kabul has a higher level of government control and a greater level of security than other parts of Afghanistan, and has a range of counter-measure in place to prevent and respond to insurgent attacks.
(emphasis added)
The Delegate found that the Applicant could safely access Kabul and was not satisfied that there was a real chance that he would be targeted by the Taliban or any other insurgent groups in Kabul for reason of his race, religion or imputed political opinion. Accordingly the Delegate found that the Applicant was not a refugee as defined in s.5H(1) of the Act and concluded that Australia did not owe protection obligations to him under the Refugees Convention criterion or the complementary protection criterion as prescribed by s.36(2)(aa).
Decision of IAA
On 10 November 2016 the Minister, pursuant to s.473CA of the Act, referred the Delegate’s refusal to grant a Protection visa to the Applicant to the IAA for review.
On 12 April 2017 the Applicant appointed a new migration agent and solicitor from Ariana Defence Lawyers (solicitor) to act on his behalf for the purposes of the IAA review process. The solicitor forwarded a submission to the IAA on 26 April 2017, which included:
a)an amplification and clarification of the Applicant’s existing claims to protection;
b)an assertion that the Applicant is of good character and satisfied the public interest criteria prescribed by the Migration Regulations 1994 (Cth);
c)a psychologist’s report dated 19 April 2017 (psychologist’s report);
d)a reference letter dated 19 April 2017 from the Applicant’s employer in Australia (reference letter); and
e)a list of hyperlinks to general country information on the threat of Islamic State in Afghanistan, particularly towards people of Hazara ethnicity and a recent bomb blast in Kabul (country information hyperlinks).
(collectively submissions to the IAA)
The submissions to the IAA also sought to raise the following new claims:
a)prior to the incident in 2012 in the Parwan province, which unfortunately resulted in the capture and death of the Applicant’s Afghan Eyes colleague, several other staff members had also been captured and killed by the Taliban;
b)the Vice-President of Afghan Eyes, who gave assurances to the Applicant that he would be safe, was also threatened and had obtained refugee status in Canada; and
c)the Applicant has converted from Islam to Christianity in Australia and regularly practices his Christian faith in public.
By letter dated 27 April 2017 the IAA invited the Applicant to comment on or respond to the following information, being relevantly:
You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:
·Recent country information (Footnote 1: UK Home Office, Country Policy and Information "Country Policy and Information Note - Afghanistan - Fear of anti-government elements", 1 December 2016, p.17-19, 24-25 [(UK Home Office Report)]; IHS Jane's Intelligence Review "Back on the offensive - Wilayat Khorasan reasserts itself in Afghanistan", 13 December 2016; EASO, "EASO Country of Origin Information Report Afghanistan Security Situation November 2016", 01 November 2016, p. 24-26, 113; Islamic State claims suicide attack outside Afghanistan's supreme court", The Long War Journal, 8 February 2017; "To Afghanistan Not Syria? Islamic State Diverts Tajik Fighters South", Jamestown Foundation, 15 March 2017) recognises the emergent threat of Islamic State, but raises questions about whether the group has the capability to orchestrate anything beyond infrequent or occasional high profile attacks in Afghanistan. The group’s presence in the country is confined mostly to the Pakistan border, in Nangarhar and Zabul. Sources also indicate that the group continues to be weakened, is struggling to control territory and its efforts to establish itself in other parts of Afghanistan have in large part failed.
·A report from the Afghanistan Analysts Network on recent attacks states that while Islamic State seems capable of planning and executing ‘occasional’ attacks, it remains a limited threat, and that it is unlikely that the group can single-handedly drive the conflict in a sectarian direction.
·It has been estimated that in late 2015 that there were 1,000-3,000 Islamic State fighters in Afghanistan and that US and Afghan military efforts had reduced the group’s fighting strength by 15-20% as of October 2016 to roughly 1,000 personnel. Two prominent leaders of Islamic State were killed in July 2016 and February 2017.
·Reports from Jane’s Intelligence Review forecast that while Islamic State will probably continue to conduct infrequent attacks in urban areas in Afghanistan, Afghan, United States forces and the Taliban are intent on eliminating Islamic State’s presence in the country and that this is likely to limit any Islamic State expansion over the next 12 months.
The above information is relevant as it may lead the IAA to conclude that:
·There is not a real chance or real risk of you being seriously harmed by Islamic State, the Taliban or any other Anti-Government Elements [(AGE)] for reasons of your religion or ethnicity in major urban areas like Kabul and Mazar-e-Sharif in Balkh Province, and therefore that your fear of persecution may not relate to all areas of Afghanistan;
·Future attacks on the Shi'a population are likely to be occasional or infrequent, and that Islamic State's capacity to perpetuate attacks is limited and being weakened and that any such attacks are unlikely to result in the emergence of sectarianism in the country.
It may also be relevant to the issue of whether you could relocate to another area of Afghanistan as the IAA may conclude that it would be reasonable for you to relocate to an area such as Kabul or Mazar-e-Sharif where there is not a real risk of you suffering significant harm. Subject to your comments, this new information would be the reason, or part of the reason, for affirming the decision not to grant you a protection visa.
(IAA notice of new information)
I note that the UK Home Office Report had been published nearly one month after the decision of the Delegate.
The IAA gave the Applicant until 11 May 2017 to respond to the contents of the IAA notice of new information but neither the Applicant nor his solicitor did so, although I note that the Applicant informed the IAA that he had problems contacting his solicitor around this time: see [12] – [13] of the Decision Record of the IAA.
At [14] of its Decision Record the IAA recorded the Applicant’s claims to protection.
From [15] – [22] of its Decision Record the IAA recorded its factual findings. At [15] it found that Kabul was the Applicant’s home region and at [16] it accepted that the Applicant had been an employee of Afghan Eyes, which was a NGO. At [21] the IAA recorded that it had listened to the audio recording of the Applicant’s interview with the Delegate. At [22] it found as follows:
[22]I am not satisfied the applicant's colleague was captured and killed, or that the applicant was subsequently threatened and was forced to escape from his house. While I accept the applicant worked for AE for the two years prior to his departure I am not satisfied he was personally known or threatened by the Taliban. I do not accept his mother was beaten and warned about the applicant's funeral.
From [23] – [49] of its Decision Record the IAA recorded its consideration of whether or not the Applicant satisfied the Refugees Convention criterion. At [25] the IAA referred to the security situation throughout Afghanistan as being fluid and complex and having deteriorated throughout 2015 – 2016. At [27] the IAA found as follows:
[27] I accept the applicant worked for Afghan Eyes (AE) taking photographers and reporters on assignment. However the applicant’s role was as a driver and while country information indicates that the Taliban have the capability to track people, its targets are generally of higher profile than the applicant (Footnote 1: UK Home Office, "Country Policy and Information Note - Afghanistan - Fear of anti-government elements", 1 December 2016, 0GD7C848D96). The information does not support that Anti Government Elements seek to track low-profile individuals throughout Afghanistan and I have not accepted the applicant was previously personally known to them. The applicant also ceased working for AE when he left in August 2012 and since then there has been a significant four and a half year passage of time, a period which I consider significant in the fluid Afghan security environment, particularly in a place like Kabul with a large diverse population that is growing. I do not accept he would be identified and targeted or that he would otherwise face a real chance of harm in relation to his previous work or association with AE on return to Kabul.
From [30] – [42] of its Decision Record the IAA made the following findings with respect to the Applicant’s claims to protection on the basis of his religion and ethnicity, with reference to country information:
a)that the Applicant only faced a remote and not real chance of being harmed by Islamic State, the Taliban or any other extremist group in Kabul for reason of his race or religion: see [35] of its Decision Record;
b)that it was not satisfied that the Applicant would face discrimination on the basis of his Hazara ethnicity and Shi’a Muslim religion: see [37] of its Decision Record;
c)that it was satisfied that the Applicant was of no specific interest to AGEs / insurgents / extremists such that he would be personally targeted in Kabul;
d)that it did not accept that the Applicant would be perceived as having an association with Western countries, the international community or that he faced a risk of harm as a returnee from a Western country in Kabul: see [41] – [42] of its Decision Record.
At [48] – [49] of its Decision Record the IAA recorded its conclusions on the Refugees Convention criterion and in the result at [50] it found the Applicant was not a refugee pursuant to s.5H(1) of the Act and that he did not satisfy s.36(2)(a).
At [51] – [56] of its Decision Record the IAA recorded its consideration of the Applicant’s claims under the complementary protection criterion. With reference to country information the IAA tested the veracity of the Applicant’s claims to protection pursuant to the complementary protection criterion and found at [53] – [54], as follows:
[53] I have accepted the applicant may face some discrimination at the community level upon return. However I did not accept he would face discrimination for any reason that would threaten his capacity to access services, earn a livelihood or otherwise subsist. I found the applicant would be able to draw on his previous work experience to obtain employment either as a driver in a different industry within Kabul or in mechanics where his greatest experience lies. I do not accept there are not jobs available driving in an industry other than for foreigners / photographers / reporters / media associated with government or the international community or in mechanics within Kabul. I am not satisfied he would be required to leave Kabul in the course of his employment. Further, I am not satisfied work of these kinds in Kabul would expose the applicant to a real risk of significant harm or that restricting himself in such manner would otherwise amount to significant harm in itself.
[54] I am not satisfied on the information before me that the applicant's mental health or psychological state will lead to a risk of significant harm upon return. Country information does not indicate that mental health would contribute to his having a risk profile or that treatment for such conditions in Afghanistan is intentionally withheld for any reason. I am not satisfied that these factors would lead the applicant to be arbitrarily deprived of his life, have the death penalty applied, or be tortured. I am also not satisfied that through any act or omission the authorities would intentionally inflict pain or suffering, or severe pain or suffering on the applicant such as to meet the definition of cruel or inhuman treatment or punishment, nor that they would intentionally cause extreme humiliation. I am not satisfied that the applicant would, as a result of his mental health or psychological state, be subject to acts or omissions which would constitute significant harm, as defined under s.36(2A) and s.5 of the Act upon return.
In the result at [55] – [56] of its Decision Record the IAA found that there were no substantial grounds for believing that the Applicant would suffer significant harm upon his return to Afghanistan and concluded at [57] that he did not satisfy s.36(2)(aa) of the Act.
Accordingly the IAA affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Decision of IAA in this Court
At the hearing the Applicant relied on the following Ground:
1. The Immigration Assessment Authority (IAA) exceeded its jurisdiction by failing to comply with ss473DE and 473DF of the Migration Act 1958 (Cth) (Act) and thereby failed to conform to the natural justice hearing rule as enacted by s473DA of the Act.
Particulars
(a) At paragraphs 27 and 28 of the IAA’s reasons for decision dated 14 June 2017, the IAA took into account new information as part of the reason for affirming the fast track reviewable decision without:
(1) giving to the Applicant particulars of any of that new information;
(2) explaining to the Applicant why any of that information was relevant to the review; and
(3) inviting the Applicant to comment on that information.
(b) The new information was:
(1) the UK Home Office Report entitled “Country Policy Information Note - Afghanistan - Fear of Anti-Government Elements” dated 1 December 2016 (Report) indicated that the Taliban had the capability to track people but that its targets are generally of higher profile than the Applicant;
(2) the Report does not support that anti-government elements seek to track low profile individuals throughout Afghanistan; and
(3) the period since the Applicant ceased working for Afghan Eyes was significant in the fluid Afghan security environment particularly in a place like Kabul with a large diverse population that is growing.
(collectively New Information).
(c) The New Information referred to in the particulars at (b)(1) and (b)(3) was specifically about the Applicant.
(d) Further and in the alternative to the particulars at (c), each aspect of the New Information was not about a class of person of which the Applicant was a member.
This Ground in substance contends that the IAA committed jurisdictional error by acting in breach of the requirements of s.473DE of the Act, by taking into account the UK Home Office Report to which it referred at [27] and [31] of its Decision Record, without giving to the Applicant particulars of this information which would be the reason, or part of the reason, for affirming the Delegate’s decision.
I should record that at the hearing it was agreed by Mr Brennan that insofar as [14] and [33] of his Written Submissions, and the Ground itself, contended that the UK Home Office Report had not been mentioned in the IAA notice of new information and had not been raised by the IAA at any time before its decision, such contention was an overstatement. Rather, of course, the UK Home Office Report had been specifically raised and footnoted on the first page of the IAA notice of new information, as may be seen at [21] above.
Section 424A(3)(a) of the Act, which applies to the Administrative Appeals Tribunal (Tribunal), is in similar terms to s.473DE(3)(a) which renders inapplicable the obligation on the IAA under s.473DE(1) to give to an applicant particulars of any new information which falls within its purview. Section 473DE(3)(a) provides:
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; …
The force and effect of s.473DE(3)(a) of the Act has been considered in a number of decisions of Judges of the Federal Court of Australia and it is sufficient for present purposes to refer to [31] – [32] and [34] of the decision of Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17):
[31]Division 3 of Pt 7AA of the Act, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA(1). Section 473DA(1) provides:
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
[32]Section 473DE of the Act (which is in Division 3) provides that, in the particular circumstances identified in s 473DE(1)(a), new information must be given to the referred applicant, the relevance of the new information to the review must be explained and the referred applicant must be invited, orally or in writing, to comment on the new information. Section 473DE(3)(a) specifically excludes from this requirement new information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”.
[34]The 2017 DFAT Report falls within s 473DE(3)(a) and therefore did not need to be put to the appellant by the Authority despite the terms of s 473DE(1): CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [46]; EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 at [17] –[20].
Mr Brennan’s argument in support of the Ground was expressed at [27] – [30] of his Written Submissions as follows:
[27]There are two requirements of the exception in s.473DE(3)(a):
(a) first, that the information is not specifically about the referred applicant; and
(b) secondly, that the information is just about a class of persons of which the referred applicant is a member.
[28]The information concerning the distinction between high ranking officials and low ranking officials upon which the IAA relied was information contained in section 8.5 of the Report and in particular in paragraph [8.5.2]. It was not information about a class of persons of which the Applicant is a member. It was information about a completely different class of persons. There was no finding and no suggestion that the Applicant was a government official or employee.
[29] On the other hand the findings in IAA [27] are findings specific to the Applicant. If any of the information in the Report supported those findings it was necessarily information specifically about the Applicant and therefore not within the exception within s.473DE(3).
[30]By taking that new information into account, without having given notice of that information to the Applicant, the IAA departed from the natural justice hearing rule referred to in s.473DA and thereby exceeded its jurisdiction (Footnote 2: Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 ([M174/2016]) at [48] to [50]).
Consideration
Section 473DE(3)(a) Exception Rendered the IAA’s Obligation Under s.473DE(1) of the Act Inapplicable.
In my view the Ground fails to establish jurisdictional error. First, it is clear the UK Home Office Report is, under s.473DE(3)(a) of the Act, “not specifically about” the Applicant. There is no mention of the Applicant at all in that Report. That in itself means that the exception comprised in s.473DE(3)(a) applies because, as was said concerning the equivalent section applicable to the Tribunal comprised in s.424A(3)(a), by Markovic J, with the agreement of Siopis and Logan JJ, in SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540 at 550 – 551 [46] – [47]:
[46]In Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 (SZHXF) a Full Court of this Court (Tamberlin, Gyles and Stone JJ) considered s 424A(3)(a) and whether the information in question in that case was information about the first respondent or another person. The Court said at [19]:
In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member”. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the “class of persons” in s 424A(3)(a) “is not another criterion to be met”. Rather, the reference “is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”: see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17].
[47]In other words, the reference to a “class of person” in s 424A(3)(a) is not itself a criterion to be met in order for the exception to apply. The criterion is that the information is not specifically about the applicant or another person.
To similar effect Thawley J in CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [46] said of s.473DE(3)(a) as follows:
[46]Ground 4: asserts a denial of procedural fairness in failing to put to the appellant the 2017 DFAT country information. There was no obligation on the part of the Authority to put that information to the appellant because the information was not specifically about the appellant: s 473DE(3)(a). Nor is it apparent that it was materially different from the country information which had been before the delegate.
In my view the exception comprised in s.473DE(3)(a) of the Act applied to the UK Home Office Report and no obligations were engaged by the IAA under s.473DE(1).
In Any Event the IAA Notice of New Information Did Give the UK Home Office Report as New Information to the Applicant Under s.473DE(1) of the Act
It was part of the Applicant’s claim to protection that he was in danger everywhere in Afghanistan and unable to relocate within Afghanistan: see [4], [10], [11 (f) – (i)], [12] and [15] above.
The first paragraph of the IAA notice of new information footnoted the UK Home Office Report and noted that it (together with other country information) raised questions about whether Islamic State “has the capability to orchestrate anything beyond infrequent or occasional high profile attacks in Afghanistan”. The Applicant certainly had never claimed to be a “high profile” person in Afghanistan. Accordingly, the IAA went on to suggest that this might mean that the Applicant did not suffer from a real chance or real risk of being seriously harmed by Islamic State, the Taliban or any other AGEs and that he might relocate to another area of Afghanistan, such as Kabul (see [21] above).
At [27] of its Decision Record the IAA referred to the UK Home Office Report in connection with higher profile targets and as not supporting that AGEs sought to track low profile individuals throughout Afghanistan: see [25] above.
The reasoning of the IAA at [27] of its Decision Record, and the further reference to the UK Home Office Report at [31] in connection with Islamic State having struggled “to expand beyond four districts in Nangahar” and having failed to establish itself in other parts of Afghanistan, were matters dealt with at pages 24 – 25 of the UK Home Office Report to which specific reference was made in the IAA notice of new information sent to the Applicant. At [8.1.1] on page 25 the following was stated in the UK Home Office Report:
[8.1.1]The UNHCR Eligibility Guidelines for Afghanistan, published 19 April 2016, noted that Anti-Government Elements (AGEs) '... are reported to systematically target civilians who are associated with, or who are perceived to be supporting the Afghan Government, Afghan civil society and the international community in Afghanistan, including the international military forces and international humanitarian and development actors.’ Though not an exhaustive list, other targets included: government officials and civil servants; judges, prosecutors and judicial staff; tribal elders and religious leaders; healthcare workers; humanitarian workers and human rights activists; women in the public sphere; individuals perceived as 'Westernised'; journalists and other media professionals; and families or individuals supporting or perceived to be associated with the above.
In my view, notwithstanding that the IAA was not subject to any obligation under s.473DE(1) of the Act to do so, it did take the eminently fair step of relevantly and sufficiently putting the UK Home Office Report to the Applicant for comment as new information under that provision. As Wigney J recently stated in Hasnat v Minister for Immigration and Border Protection [2020] FCA 784 at [81]:
[81] The obligation to give an applicant such information may not extend to a requirement to disclose the entirety of any document in which the information is contained; how much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case: SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505; [2010] FCA 297 at [23]; referred to with approval in SZTGV v Minister for Immigration & Border Protection (2015) 144 ALD 525; (2015) 318 ALR 450; [2015] FCAFC 3 at [27], [32]. It must also follow that the requirement does not extend to giving the applicant a copy of the document in which the relevant information is contained: SXRB v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCAFC 14 at [9].
In my view the Ground in the Amended Application is not made out and fails to establish jurisdictional error.
A Further Matter
At the hearing on 22 November 2019 Mr Brennan sought leave to raise a further Ground which had been foreshadowed at [33] – [35] of his Written Submissions. In the result on 11 December 2019 the Applicant filed a document containing a proposed additional Ground 2. Notwithstanding Mr Swan’s submission that the Applicant should be refused leave to raise this additional Ground of review, I will grant leave for him to do so.
Ground 2 is as follows:
2. By conducting its review as recorded at IAA [9] CB 269 and IAA [12] and [13] CB 270 the IAA exceeded its jurisdiction by unreasonably:
(a) failing to consider getting documents or information from the Applicant pursuant to s.473DC of the Migration Act 1958 (Act);
(b) further, and in the alternative, failing to consider getting documents or information from the Applicant’s supervisor at Afghan Eyes, Mr Ahmad Massoud pursuant to s.473DC of the Act; and
(c) in the alternative to (a) and (b) failing to request the Applicant to provide documents and information pursuant to s.473DC of the Act.
Particulars
i. The Delegate’s decision turned on his assessment at CB 220 that the Applicant’s claim to have come to the attention of the Taliban prior to his leaving Afghanistan was not established; and as a result the only material risk faced by the Applicant should he be required to return to Afghanistan was that which would result from his resuming employment with Afghan Eyes (at CB 223 – 224).
ii. The IAA accepted at IAA [27] CB 274 by reference to the UK Home Office Report (Exhibit B part 4.2) that there existed a risk of the Taliban tracking persons who returned to Afghanistan because upon return their appearance in a city or community would be noticed; and whether the Applicant would face such a risk depended upon whether he would thereby be targeted by the Taliban.
iii. The UK Home Office Report identified the risks that people in the position of the Applicant, being a former employee of an NGO, would be targeted by the Taliban depended upon specific individual circumstances (Exhibit B paragraphs 8.6.2 and 8.6.4).
iv. Neither the decision of the Delegate nor the particulars given in the Notice of Country Information (CB 256 – 259), nor any other document, gave notice to the Applicant that the IAA would consider any risk that the Applicant would be targeted by the Taliban other than that arising from:
1. his having come to the attention of the Taliban before leaving Afghanistan; or
2. his resuming employment with Afghan Eyes.
v. The IAA affirmed the conclusion of the Delegate that the Applicant’s claim to have come to the attention of the Taliban prior to his leaving Afghanistan was not established (IAA [22] CB 273).
vi. The IAA reasoned, by reference to the UK Home Office Report, that the Applicant was not exposed to a material risk of the Taliban tracking him as a result of his return to Afghanistan because he would not be targeted because he was “low profile.”
vii. The UK Home Office Report, which was to be read as a whole, did not rationally support the proposition that the targeting of former NGO employee’s depended upon whether they were low profile.
viii. The Applicant and Mr Massoud were likely to know of, and be able to provide, information on the specific individual circumstances of the Applicant which would be relevant to assessing the risk that the Applicant, as a former employee of an NGO, would be targeted by the Taliban if he were to come to the Taliban’s attention by reason of his return to Afghanistan.
ix. The Applicant had provided Mr Massoud’s current employment details with Xinhua China Newsagency as part of his application for a visa (CB 200).
Consideration – Ground 2
First, it is pertinent to note that the IAA accepted that the Applicant had been employed by Afghan Eyes for two years prior to his departure from Afghanistan, taking photographers and reporters on assignment (see [16], [22] and [27] of the Decision record of the IAA) and at [33] found that the Applicant was “not known to the Taliban and does not have a pro-government / NGO / international community profile”. Then at [26] it recorded its view that the Afghan Government maintained effective control in Kabul and quickly responded to attacks, which were mostly against high profile targets and at [27] did not accept that the Applicant would be targeted in Kabul: see [25[27]] above. The IAA recorded that it was not satisfied that the Applicant held any other profile connected to the Government or international community (see [29], [33], [38] or [40] of the Decision Record) or that he was known to the Taliban (see [33] of the Decision Record) and was satisfied that the Applicant “is of no specific interest to AGEs / insurgents / extremists such that he would be personally targeted in Kabul”: see [42] of the Decision Record.
It is in light of these findings that the substance of Ground 2 is to be considered. It contends that the IAA unreasonably failed to request the Applicant to provide “documents and information pursuant to s 473DC of the Act” (presumably, s.473DC(3)). That appears to be because the Applicant and Mr Massoud of Afghan Eyes were “likely to know of, and be able to provide, information on the specific individual circumstances of the Applicant which would be relevant to assessing the risk that the Applicant…would be targeted by the Taliban if he were to come to the Taliban’s attention by reason of his return to Afghanistan” (Particular (viii)).
The fact of the matter is that the Applicant’s claims to fear harm from the Taliban and other anti-Government groups had been rejected by the IAA root and branch. The IAA had come to the view that he did not have an adverse profile with such groups and he would not come to their adverse attention on return to Afghanistan because of his past work for Afghan Eyes. All that had ever been said about Mr Massoud prior to the decision of the IAA was that he was Vice-President of Afghan Eyes, on one occasion had told the Applicant that he would be safe if he moved to Kabul and he “was also threatened and now got refugee protection in Canada”. There is no explanation by the Applicant as to what information or further information Mr Massoud would have provided to the IAA if he had been asked by the IAA to do so. The Applicant made no express request of the IAA that it should contact and make enquiry of Mr Massoud, although the IAA surmised that an implicit request to do so had been made: see [52] below. There is no explanation why the Applicant did not take it upon himself to provide relevant evidence from Mr Massoud to the IAA, particularly when s.5AAA(2) of the Act placed upon him the responsibility “to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim” and the onus of proof lay on him: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 at 205 [38]. In the absence of any explanation and evidence of what actually would have been provided or said by Mr Massoud it is difficult to see how any discretionary decision by the IAA to not seek information of Mr Massoud was either legally unreasonable or could have realistically led to a different decision being made.
Further, s.473DC(2) of the Act provides that the IAA “does not have a duty to get, request or accept any new information, whether requested to do so or in any other circumstance”. Insofar as it appears to be contended by this Ground that the IAA had an obligation to get or request new information from the Applicant and Mr Massoud because of its reliance on the UK Home Office Report, s.473DE(3)(a) absolved the IAA from doing so. As Thawley J said in CCQ17 at [47]:
[47]In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard...
In any event the IAA did turn its mind to seeking information from Mr Massoud at [9] of its Decision Record in the following terms:
[9] The submission contains the personal details for the applicant's superior at Afghan Eyes. No context has been provided but I deduce the information was provided as an invitation for the IAA to verify information. I am satisfied that the applicant has had ample time and opportunity to provide further evidence of his employment and the IAA does not have a duty to get, request or accept, any new information even when requested to do so by a referred applicant. I am under no duty to contact third parties to obtain evidence or to seek verification and I have not attempted to contact the person named. Nevertheless, I accept the applicant was employed at Afghan Eyes.
In my view there is nothing legally unreasonable in the IAA’s reasoning as recorded at [9] of its Decision Record, particularly in light of the following passage from the judgment of Gageler, Keane and Nettle JJ in M174/2016 at 227 [22]:
[22]Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
In my view the IAA did not act legally unreasonably in failing to get documents or information from Mr Massoud, nor did it fail to consider getting such information from Mr Massoud.
The IAA had invited the Applicant’s comment on a range of country information, including the UK Home Office Report by the IAA notice of new information, but the Applicant and his solicitor, for whatever reason, did not respond to that invitation. At [9] and [13] of its Decision Record the IAA then recorded that in the circumstances it had decided to determine the review on the basis of the material put before it and not to seek anything further from the Applicant or Mr Massoud. There was nothing illogical, irrational or unreasonable about this approach, especially given the nature of a Part 7AA review and the statutory scheme of which Thawley J in CCQ17 also said at [48] – [49]:
[48]It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.
[49] These features of the statutory scheme are relevant to the identification of the scope and purpose of s 473DC in order then to evaluate whether the discretion was exercised in a way which was legally reasonable in the sense described in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 [(CRY16)] and BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [52], or whether a failure to consider exercising the discretion was legally unreasonable.
In my view this case is distinguishable from CRY16, in which the Full Court of the Federal Court found that particular circumstances might arise in the course of a review by the IAA that might, as a matter of legal reasonableness, require it to consider exercising its discretion under s.473DC(3) of the Act and that a failure to consider whether to exercise that discretion could be legally unreasonable.
However, this case is very different from CRY16, where the IAA determined its review on the basis of a relocation finding, being an issue that was not considered by the Delegate at all and on which the Applicant before the IAA in that case had said nothing. In this case on the other hand, the Applicant had only ever claimed to be a driver for Afghan Eyes, and the Delegate in his Decision Record, after considering a large body of country information, had found that as an ordinary Shi’a Hazara the Applicant was not of the profile of people in Afghanistan associated with the Afghan Government or international community who were “at a significantly higher risk than normal Afghans in Kabul”: see [16] above, and that “the risk of being killed or harmed as a normal civilian in Kabul, would be remote”. The solicitor had on 12 April 2017 sent to the IAA country information hyperlinks (see [19(e)] above) and on 27 April 2017 the IAA had sent the IAA notice of new information. Further, at [25] of its Decision Record the IAA noted that notwithstanding that the Applicant had not responded to the IAA notice of new information it had “nonetheless considered… the pre and post interview submissions and country information provided by the applicant’s representative at the primary stage” which included the Applicant’s migration agent’s submissions to the Department dated 14 February 2016 which had referred to a large body of independent country information: see [12] above.
In these circumstances, as the Full Court of the Federal Court said in DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at 88 [71]:
[71]…Unlike in CRY16, there is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue.
There is no proper basis for a finding that the IAA did not consider “getting documents or information” from the Applicant (and Mr Massoud) pursuant to s.473DC of the Act: see [9] and [13] of the Decision Record of the IAA. These paragraphs strongly suggest that the IAA did turn its mind to whether it should obtain further evidence from the Applicant and Mr Massoud, but decided not to. In both instances, the IAA provided a rational and intelligible justification for taking the course that it did.
Ground 2 is not made out.
Conclusion
Despite the earnest endeavours of Mr Brennan, the Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Amended Application is to be dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 30 November 2020
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