Catchwords: MIGRATION – Applicant’s adviser made general complaint to IAA regarding “serious concerns” about accuracy of interpretation during SHEV interview – IAA made copy of recording available to Applicant’s adviser – no subsequent reference to “serious concerns” in interpretation in later submissions after the provision of the recording – responsibility on Applicant to provide reasonable information about any “serious concerns” but no particulars provided – no further duty on IAA to make inquiry – Application dismissed.
The Further Amended Application filed on 15th February 2018 be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA
CAG 63 of 2017
DJV17
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a 53 year old gentleman from, and citizen of, Afghanistan. He identifies as being of Hazara ethnicity, and is Shia Muslim. It was accepted by the Delegate and by the Immigration Assessment Authority (“the IAA”) that he had escaped from the Taliban after being in their custody for a period of time. He claimed that he had been beaten with a cable by the Taliban.
The Delegate found that there was a “real chance and real risk” that the Applicant would suffer serious and significant harm if he was to return to his home district of Jaghori in the province of Ghanzi. However, the Delegate found that the real chance of harm did not relate to all areas of Afghanistan and that, on return to that country, it was reasonable for him to relocate to Kabul.[1]
[1] The Decision Record of the IAA is at Court Book (“CB”) 225 – 240. These findings by the Delegate are recorded by the IAA at [2] of its reasons.
The IAA affirmed the decision of the Delegate. It is from that decision that the Applicant seeks relief in this Court pursuant to his Application for Review, filed 27th July 2017.
There were several iterations of the Application for Review, as did the actual grounds of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an application for judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed a delegate of the Minister for Immigration's refusal to grant the Applicant a Safe Haven Enterprise visa. The Applicant contended that the IAA's decision involved a jurisdictional error.
The legal issues before the Court were whether the IAA made a jurisdictional error by concluding that information regarding alleged errors in interpretation during the Applicant's interview could not have been provided to the original delegate, and whether the IAA erred by failing to undertake an obvious inquiry into the quality of the interpretation by obtaining an independent evaluation of the interview recording. The Applicant argued that the IAA's satisfaction under section 473DD(b)(i) of the *Migration Act 1958* (Cth) was legally unreasonable, and that the IAA owed a duty of inquiry, akin to that discussed in *Minister for Immigration and Citizenship v SZIAI*, to investigate the critical fact of interpretation accuracy.
The Court considered the principles of legal unreasonableness and the duty of inquiry in the context of administrative decision-making. It referenced *Minister for Immigration and Border Protection v CRY16* for the proposition that a decision-maker's satisfaction regarding the provision of new information can be judicially reviewed for legal unreasonableness, and *Minister for Immigration and Citizenship v SZIAI* for the concept of a duty to make obvious inquiries into critical facts. However, the Court found that, similar to the situation in *SZIAI*, there was no factual basis to support the Applicant's claim that the alleged interpretation errors were not apparent at the time of the interview, or that the Applicant or his representative lacked the capacity to identify such errors. The Court noted that neither the Applicant nor his representative raised concerns about the interpreter during the interview, and that the subsequent claims of error were not substantiated with specific details that would have necessitated an independent evaluation by the IAA.
The Court concluded that the IAA was not satisfied that the alleged interpretation errors could not have been provided to the delegate, nor was it satisfied that the information was credible personal information. The Court found that the IAA's reasoning was not legally unreasonable and that there was no basis to infer a failure to exercise jurisdiction or a constructive failure to review. Therefore, the application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The Applicant’s submissions, filed 25th January 2018, were as follows: 1) There is before the Court an application for judicial review of a decision of the Second Respondent (Authority). The Authority affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Class XE Subclass 790 Safe Haven Enterprise visa (visa). The Applicant submits that the decision of the Authority involved a jurisdictional error.Background2) The following events are critical:(a) 28 April 2016 – Applicant applies for the visa;(b) 3 August 2016 – Applicant interviewed by the Delegate;(c) 4 November 2016 – Delegate decides to refuse the Applicant the visa; and(d) 22 June 2017 – Authority decides to affirm the Delegate’s decision to refuse the Applicant the visa.Reasons of Authority3) The reasons of the Authority, so far as they are relevant to the judicial review, are as follows:6. On 24 November 2016, the IAA received an email from the applicant’s representative stating that the applicant “had serious concerns about the interpretation service performed by the accredited interpreter” in the SHEV interview. He states there were many occasions where the interpreter did not interpret his words correctly. These concerns with the interpreter were not raised with the delegate.…8. The applicant’s claim of interpreting errors during the SHEV interview is new information. The email of 24 November 2016 does not specify the nature of the interpreting errors claimed to have occurred in [the] SHEV interview but does state that an audio copy of the interview has been sought. In a further email of 25 November 2016, the Applicant’s representative confirmed he had in his possession a copy of the SHEV interview. Neither the subsequent email nor the IAA submission makes reference to any interpreting errors nor does it explain why this information could not have been provided to the delegate or why it may be considered credible personal information. I have listened to the recording of the SHEV interview and at no time did the applicant or his representative who was also present indicate concerns with the competence of the interpreter. I am not satisfied that this information could not have been provided before the delegate’s decision was made.Grounds of judicial review4) The Applicant seeks leave to amend the application for judicial review so as to press the following grounds of judicial review:1. The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate’s decision was made.2. The Authority made a jurisdictional error as it failed to make an obvious inquiry into a critical fact the existence of which was easily ascertainable, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation.SubmissionsGround 15) The Authority rightly accepted that, in order to allow the information as to errors in interpretation as “new information” within the meaning of s 473DC of the Migration Act 1958 (Cth) (Act), it had to be satisfied that the information “was not, and could not have been provided to the Minister before the Minister made the decision” within the meaning of s 473DD(b)(i) of the Act. 6) In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16), the Full Court of the Federal Court, constituted by Robertson, Murphy and Kerr JJ, held that a decision of the Authority was judicially reviewable for a legally unreasonable failure to consider obtaining new information under s 473DC of the Act (CRY16 at [82]). It is submitted that it equally follows that the Authority’s state of satisfaction under s 473DD(b)(i) of the Act is judicially reviewable for legal unreasonableness. 7) The test for legal unreasonableness is whether the Authority’s state of satisfaction can be impeached on the ground that it “is one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]). 8) It is submitted that the foregoing test is satisfied in the present case. There was no evidence before the Authority that either the Applicant or the Applicant’s representative spoke both English and Arabic fluently. Rather, the Applicant did not speak English with sufficient competence and required an interpreter. The Applicant’s representative was not the qualified interpreter. An independent interpreter was used. The Applicant and the Applicant’s representative had no way of knowing at the interview whether the interpretation was defective or not. 9) It was, therefore, legally unreasonable for the Authority to conclude that the Applicant or the Applicant’s representative should have alleged errors in interpretation before the Delegate’s decision. Contrary to the Authority’s reasoning, those errors were not necessarily apparent to the Applicant or his representative at the time of the interview. Rather, it was appropriate to allege error after the Delegate’s decision, by which time it may be inferred errors had become apparent to the Applicant or his representative.Ground 210) The Applicant invokes a duty of inquiry held by the Authority in accordance with the judgment of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (SZIAI). The criteria for the duty is the presence of a fact which is critical and which can easily be ascertained by an obvious inquiry. Of course, the High Court was dealing with an immigration tribunal other than the Authority and subject to statutory provisions different from Part 7AA of the Act. 11) To the extent that SZIAI is distinguishable on this basis, it is noted that the High Court referred to legal unreasonableness as one possible justification for the duty of inquiry in SZIAI (see at [23], [25]). It is submitted that, if this Court does not find SZIAI independently applicable, it is nonetheless open to this Court to combine CRY16 and SZIAI so as to recognise a duty for the Authority to consider obtaining (and to proceed to obtain) new information at least in circumstances where there is a critical fact relevantly ascertainable by an exercise of s 473DC of the Act.12) Such a fact arose in the present case. The words of the Applicant at the interview with the Delegate were material to the Authority’s decision, especially in circumstances where the Authority itself was not itself interviewing the Applicant. It would be a straightforward exercise for the Authority to arrange an independent evaluation of the quality of the interpretation at the interview based on the audio recording. It was contrary to SZIAI, or legally unreasonable in accordance with CRY16, for the Authority to fail to or to fail to consider doing so. Conclusion13) The application should be allowed with costs.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
To save duplication, and because there is no issue raised by either party as to the accuracy or otherwise of the Minister’s Submissions, filed 1st February, 2018, I set out here the following summary of the IAA’s decision:The IAA decision: the decision under review7) On 22 June 2017, the IAA affirmed the delegate’s decision. The IAA had regard to the material referred to by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). The IAA also noted in its Decision Record (DR) that it had obtained updated country information regarding the emergent threat of Islamic State in Afghanistan and the security situation in Balkh province. The IAA considered that the updated country information was significant new information which impacted on its consideration of the Applicant's claims. Pursuant to s 473DC and s 473DD, the IAA found there were exceptional circumstances justifying consideration of the new information: DR at [10].8) On 1 May 2017, the IAA invited the Applicant, in reliance on s 473DE, to comment on the new information, and on the reasonableness of his relocating to Mazar-e-Sharif: CB 205-210. On 15 May 2017, the Applicant’s representative responded with an attached submission: see CB 211-217. 9) The IAA was satisfied that the further information was not before the Delegate and could not have been provided before the Delegate's decision and was satisfied that there existed exceptional circumstances to justify considering it: DR at [11].10) The IAA also noted (DR at [6]) that, by email sent by the applicant’s representative on 24 November 2016, the applicant claimed that there had been interpreting errors during the applicant’s SHEV interviews. Having found that this constituted new information (ie, new information that was, inter alia, not before the delegate), the IAA set out (DR at [7]) the limited circumstances in which new information could be considered by reference to Part 7AA of the Act. The IAA was not satisfied that the claim about the quality of the interpreting could not have been provided before the delegate’s decision was made. Nor was the IAA satisfied that it was credible personal information: DR at [8]. Similarly, the IAA did not accept new information put by the applicant’s representative that the applicant had failed to recall information during his SHEV interview, for the same reasons: DR at [9]. 11) After considering the Applicant's evidence and the country information, the IAA found that the Applicant did not satisfy the refugee criteria because there was not a real chance of persecution in relation to all areas of Afghanistan. Nor did the IAA find that the applicant satisfied the complementary protection criterion: this was because the IAA considered that the Applicant could relocate to the cities of Kabul and/or Mazar-e-Sharif. 12) The IAA considered the applicant’s case by reference to the following aspects of his claims: Fear of harm as a Shia Hazara in Jaghori District, Ghazni Province 12.1) The IAA did not accept that the applicant came to the adverse attention of the Taliban under suspicion of transporting government officials and documents, or for any other reason. The IAA considered that the applicant’s evidence in relation to his claimed abduction and escape “lacked detail”, had “changed over time” and was marked by conflicting evidence as to when he was abducted and the period of time he spent in Kabul. Accordingly, the Tribunal was not satisfied the applicant was recalling a genuine personal experience: DR at [18]-[26]; 12.2) The IAA also did not accept that, given independent country information pointing to the lack of Taliban penetration into Jaghori province, there was a real chance that the applicant would face harm from the Taliban in Jaghori for reasons of his ethnicity, religion, or any other reason: DR at [27].12.3) However, by reference to the relevant country information, the IAA found that the Applicant's home province of Ghazni was one of the most volatile in Afghanistan. Roads linking Kabul and Hazara areas of Ghazni were unsafe, and the Taliban and other anti-government elements carried out attacks and abductions against Hazaras. Given the ongoing security concerns in the province, the IAA accepted that there was a real chance that the Applicant would suffer serious harm as an ethnic Hazara on surrounding roads leading to Jaghori if he were to attempt to return there: DR at [28]-[29].Fear of harm in relation to other part of Afghanistan12.4) The IAA did not accept, however, that the applicant as a Shia Hazara faced a well-founded fear of persecution in relation to all areas of Afghanistan other than Ghazni, (cf s 5J(1)(c)). It concluded that the Applicant could safely relocate to the cities of Kabul or Mazar-e-Sharif in Balkh province: DR at [43]-[46]. 12.5) The IAA found that, as it had not accepted that the applicant faced a real chance of serious harm in Jaghori District from the Taliban for any reason, it did not accept that he would be personally pursued by the Taliban outside his home area: DR at [31].12.6) The IAA also noted that Kabul and Mazar-e-Sharif are some of the safest cities in Afghanistan for Hazaras and both provide viable options for people for internal relocation and resettlement: DR at [32], [38] and [40]. While some insurgent attacks do occur in each city, incidents targeting Hazaras are infrequent and the attacks are almost exclusively targeted against the government: DR at [42]. There was nothing before the IAA to indicate the applicant would face a real chance of harm from an insurgent group because of his ethnicity or any other adverse profile: DR at [43].12.7) The IAA accepted that, as a Shia Hazara, with no familial links in either Kabul or Mazar-e-Sharif, the applicant may be subject to a degree of discrimination. However, the IAA was not satisfied that there was a real chance that the discrimination would rise to the level of serious harm within the meaning of s 5J of the Act. Nor was the IAA satisfied that the applicant's capacity to exist or earn a livelihood would be threatened: DR at [45]; and while there were reports that asylum seekers returned to Afghanistan are targeted due to their perceived pro-Western values or political opinions, the IAA noted, referring to DFAT country information, that none of the reports was from Mazar-e-Sharif and low-profile Hazaras faced a low risk of being targeted. The IAA also noted that the applicant would be returning with no identifiable links to the international community or Afghan government and did not accept that the applicant would be imputed with an adverse political opinion if returned to Mazar-e-Sharif or Kabul: DR at [44]-[45].13) In light of the foregoing, the IAA was not satisfied that the applicant faced a real chance of persecution relating to all areas of Afghanistan in the reasonably foreseeable future, and so did not meet s36(2)(a) of the Act. Complementary protection 14) The IAA next considered whether the applicant faced a real risk of significant harm on return to Afghanistan under s 36(2A). It adopted its earlier conclusion that there was a real risk of significant harm if he were to return to Jaghori: DR at [51]. However, after referring to s 36(2B) of the Act and, on the basis of similar reasoning to the refugee decision, the IAA found that it would be reasonable for the Applicant to relocate to Mazar-e-Sharif or Kabul where there would not be a real risk that he would suffer significant harm. Accordingly, the IAA concluded that the Applicant did not meet s 36(2)(aa) of the Act.
Ratio Decidendi
Legal Principle Established
In Minister for Immigration and Citizenship v SZIAI (“SZIAI”), the High Court said, at [25] (internal citations omitted):[2]The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[2] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429. In SZIAI, the High Court found that there was no factual basis for making such inquiry. In my view, such is the case here also, for the following reasons. In Minister for Immigration and Citizenship v Li, the High Court (Hayne, Kiefel and Bell JJ) said, at [66], [76] and [82], (the latter being referred to in Minister for Immigration and Border Protection v CRY16 at [67]) (internal citations omitted; emphasis added)):[3][66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[82] It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough"…[3] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (“CRY16”).
