DPD16 v Minister for Immigration

[2018] FCCA 2783

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPD16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2783

Catchwords:
MIGRATION – Application for judicial review – protection application – whether the Immigration Assessment Authority failed to consider material before the delegate – writs issued – application granted.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 473CB(1)(b), 473DA, 473DB, 473DC, 473DD, 473DF, Pt.7AA
Migration Regulations 1994, Div.4 of Pt.4

Cases cited:

Minister for Immigration and Border Protectionv CRY16 [2017] FCAFC 210

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Applicant: DPD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2551 of 2016

Judgment of: Judge Riethmuller

Hearing date: 14 June 2018

Date of Last Submission: 14 June 2018

Delivered at: Melbourne

Delivered on: 27 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Lo Piccolo

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Knowles

Solicitors for First the Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 28 October 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2551 of 2016

DPD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 28 October 2016. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa. 

2. The applicant is a citizen of Afghanistan and a Shia Muslim who arrived in Australia as an irregular maritime arrival on 11 November 2012.

3. In 2015 the applicant applied for a protection visa fearing harm due to his religion, his brother's employment, and being a failed asylum seeker returning from the West. The delegate accepted that the applicant identified as Shia Muslim and that his brother had been targeted by the Taliban as a result of his employment.  However, the delegate did not accept the applicant would be at risk or that the applicant had a well­ founded fear of persecution.

4. The application was referred to the IAA on 3 August 2016.  The decision of the IAA affirmed the decision of the delegate not to grant the applicant a protection visa.

The Applicant's Claims

1. The applicant's claims are summarised at [7] of the IAA's decision as follows: 

   ·The applicant is an Afghani citizen of Qizilbash ethnicity who was born in Kandahar city, Kandahar province and practises Shia Islam. His father is deceased and his mother took him and three of his four siblings to Quetta Pakistan when the applicant was approximately 9-10 years old. His eldest brother is now residing in Germany where he is seeking asylum; however his mother and other siblings remain in Pakistan.

   ·The applicant's brother was working for international organisations including United States Agency for International Development (USAID) and Advanced Engineering Associates International (AEAI) and for close associates of Afghani politicians as a security driver. He was attacked 2 or 3 times by the Taliban and following these incidents the family moved to Pakistan as his brother was concerned that the family would be targeted due to his employment. His brother continued to work for these organisations as he was supporting the family financially.

   ·The applicant fears that he will be killed by the Taliban due to his brother's employment with non-government organisations (NGOs) affiliated with the Afghan government. He also fears harm due to his Shia religion and as a returnee from a western country.

   ·He cannot safely relocate within Afghanistan including Kabul as his brother could not stay in Kabul due to the lack of security across all of Afghanistan.

The IAA's findings

1. The IAA was satisfied that the applicant's brother was employed by foreign organisations in Afghanistan.  The IAA considered the applicant’s claims and relevant country information.  The IAA noted that the applicant’s brother was no longer employed by such organisations and had also left Afghanistan.  The IAA found at [14] that:

   14. ...Given that country information indicates that those who cease their employment are no longer of interest to insurgents, I do not accept that the applicant, a relative of a former employee, would be of interest to the Taliban on return. I am not satisfied that the applicant would be perceived as a government affiliate on the basis of his brother's former employment if he returned to Kandahar or anywhere  else in Afghanistan  and targeted  by the Taliban or other insurgents.

2. The IAA considered the applicant’s claim that as a result of returning from a Western country after residing outside of Afghanistan for many years, he may be imparted with a pro-western political opinion as a result. The IAA was ‘satisfied that there is a real chance of the applicant suffering physical harm amounting to serious harm if he returns to Kandahar due to an imputed political opinion’: see [17].

3. The IAA then considered whether the applicant could relocate to Kabul.  The IAA considered the country information regarding Kabul and submissions from the applicant's representative about an attack on a Shia religious centre in Kabul in 2015: see [19] to [22]. The IAA accepted that there have been targeted attacks on Shias in Kabul and accepted country information that:

   22. ...insurgent groups continue to target high profile groups and places in Kabul, including government institutions, political figures, ANDSF, personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries. However the applicant does not have any profile or direct association with these groups and although he may be identifiable as a Shia returnee who has lived in Pakistan and a Western country this is not likely to bring him to the attention of insurgents in Kabul.

4. The IAA found at [25]:

   25. Although I have found that there is a real chance the applicant be persecuted in Kandahar because of imputed pro-Western profile, I am not satisfied that he would be imputed any such adverse profile in Kabul, as a result from his residence in a western country, the release of his personal information by the Australian government or his brother's former employment Kabul. I accept there is evidence that returnees may face difficulties in reintegration and may be treated with suspicion at a community level due to their extensive absence, but note that the applicant would be returning to a city where there is a diversity of people including other returnees who have resided for a significant period in other countries, or have not previously lived in Afghanistan and who face similar difficulties. There is no evidence to indicate that returnees like the applicant who have lived in Pakistan for a significant period of time, and in a western country, are targeted or harmed in Kabul.

5. The IAA also considered a data breach of the department in 2014 which resulted in personal information of the applicant being released. The IAA stated at [27]:

   27. I accept that the applicant's personal bio data was published and may have identified him as a person who is in immigration detention and arrived illegally in Australia. However even if the Afghani authorities, pro-government proxies or the Taliban or other insurgent groups, did become aware of the applicant’s presence in Australia and his status as an asylum seeker, there is no credible evidence before me to indicate that this would impute the applicant with an adverse political opinion and increase the likelihood of him being targeted by insurgents on return to Kabul.

6. Ultimately, the IAA concluded at [41]:

   41. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

Grounds of Application

1. The applicant applied for judicial review on 24 November 2016 and relies upon five of the six grounds in the Further Amended Application filed 16 May 2018, having abandoned ground 4.

2. The applicant’s grounds can be summarised as:

   1. The [IAA] failed to consider material it was bound to consider, and in so doing, acted unreasonably;

   2. The [IAA] failed to consider information it was bound to consider in relation to the reasonableness of the Applicant’s relocation to other parts of Afghanistan, and in so doing, acted unreasonably in the exercise of its discretion.

   3. The [IAA] failed to consider a claim or integer of the Applicant’s claim in relation to the reasonableness of his relocation.

   …

   5. The [IAA] acted unreasonably in the exercise of its discretion by failing to consider the Applicant’s request for additional time to provide the new information requested by the [IAA] in accordance with s.473DC(3), or to schedule an interview.

   6. The [IAA] was disabled from performing its statutory function as a result of the secretary’s failure to comply with s.473CB of the Act.

Ground 1

1. The substance of ground 1 is a claim that the IAA failed to consider relevant material and it thereby proceeded in a way that was legally unreasonable.  The ground particularises the material relied upon and is framed as follows:

   1.1 By letter dated 11 October 2016, the [IAA] invited the Applicant to comment on, among other things, recent country information that may be adverse to his claims.  This included (but was not limited to) the Department of Foreign Affairs and Trade’s Thematic Report on Security Conditions in Afghanistan: 1 January to 31 August 2016’ (the September 2016 DFAT report).

   1.2 The [IAA] referenced the report at CB160 (see footnote 3) and noted that this information may lead it to conclude that future attack’s upon Kabul’s Shia population are likely to be infrequent, and not to such an extent as to pose a real chance or risk of harm to the Applicant.

   1.3 The information was given by letter dated 25 October 2016 within the prescribed period (Applicant’s Response).

   1.4 The [IAA] failed to have regard to the DFAT September 2016 report and the Applicant’s Response.  The September 2016 DFAT Report specifically discusses the deterioration of the security situation in Afghanistan particularly for Shia Muslims in Kabul.

   1.5 The [IAA] was bound to have regard to the September 2016 DFAT Report and the Applicant’s Respondent to the September 2016 DFAT Report because it was highly relevant to consideration and determination of the Applicant’s claim, and the Applicant’s Response was new information within the meaning of s.473DC of the Act, which the [IAA] was satisfied fell within the circumstances provided for in s.473DD.

   1.6 In failing to do so, the [IAA] fell into jurisdictional error.

2. The substance of the applicant’s complaint in this regard looks to the findings of the IAA at [24] where the IAA said:

   24. DFAT advises that between 2002 and 2013 an estimated 5.8 million refugees returned to Afghanistan from Iran, Pakistan, as well as western countries. [FN: DFAT, “Country Information Report Afghanistan”, 18 September 2015, CISEC96CF13366, 5.17].  As Afghanistan's largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan as it offers relatively better opportunities for employment, access to services and state protection than rural areas [FN: DFAT, “Thematic Report Conditions in Kabul”, 18 September 2015, 3.16].  Returnees from western countries are almost exclusively returned to Kabul where because of Kabul's size and diversity, returnees are unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. [FN: DFAT, “Country Information Report Afghanistan”, 18 September 2015, CISEC96CF13366, 5.20].  Although DFAT has reported that there has been a reported increase in insurgent attacks within Kabul, [FN: Ibid, 3.38] there is no indication that returnees have been targeted by AGEs in Kabul on the basis of being Western.

3. The applicant relies on the DFAT Report of September 2016, which, relevantly states:

   2.6  Major security incidents in Kabul in the period January-August 2016 included:

   Between 1-4 January, the Taliban claimed responsibility for three separate suicide vehicle-borne attacks across Kabul, which killed five civilians and injured at least 56, and caused extensive damage to private homes and shops.

   On 20 January, the Taliban claimed responsibility for a suicide attack in central Kabul against a minibus transporting staff at the Tolo media organisation from work to their homes. The attack killed eight civilians and injured up to 30 others, including woman and children.

   On 1 February, a Taliban suicide bombing killed at least 20 people and injured 29 others in an attack outside a police station in western Kabul.

   On 27 February, a Taliban suicide bombing near the Defence Ministry in central Kabul killed at least 12 people and injured 50 others.

   On 19 April, a truck bomb attack on an intelligence training compound in central Kabul near key government ministries killed 64 people and wounded 347 others.

   On 25 May, a Taliban suicide attack in western Kabul killed 11 employees of a provincial appeals court and injured ten others, including six children.

   On 5 June, an Afghan member of parliament was killed and at least 11 people injured by a bomb planted near his residence.

   On 20 June, a suicide attack on a minibus in eastern Kabul killed 14 Nepalese security guards employed at the Canadian Embassy.  Responsibility for the attack was claimed by both the Taliban and a local insurgent group, Islamic State in the Khorasan Province (ISKP), which has pledged allegiance to ISIL.

   On 30 June, two Taliban suicide bombers killed at least 30 people and injured 50 others in western Kabul.  The overwhelming majority of the dead were police cadets returning from a graduation ceremony.

   On 23 July, two explosions occurred in Kabul targeting a peaceful demonstration of Hazaras, killing up to 80 people and wounding at least 230 others.  The attack was the single most deadly incident in Kabul since the fall of the Taliban in 2001, and the largest single attack on Hazaras since an attack on Ashura Day procession in Kabul in 2011.  The Taliban was quick to deny any involvement and to condemn the attack.

   On 24 August, a complex attack by multiple assailants occurred at the American University in Kabul, killing up to 16 people and injuring 53.  At the date of publication, no group had claimed responsibility for the attack.

   2.7  Unlike most previous major attacks in Kabul, the 23 July attack was clearly targeted at civilian Afghans.  ISKP claimed responsibility, identifying the intended targets as ‘Shia’ (of which most Hazara are adherents).  The attack was by far the largest attack carried out in Afghanistan by a group linked to ISIL, and the first attack in Kabul (excluding the 20 June attack, which was also claimed by the Taliban).

   2.8  DFAT and other commentators have previously assessed that:

   no particular group was systematically targeted in Afghanistan solely on the basis of ethnicity or religion, including Hzara/Shias;

   insurgent attacks were possible, including in Kabul;

   there were credible reports of the presence of ISIL in Afghanistan, but its capacity to carry out attacks was limited compared to other insurgent groups.

   2.9  It is too early to say if the 23 July attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks; or if it heralds the beginning of a targeted and sustained campaign in Afghanistan by groups pledging allegiance to ISIL.

4. The IAA’s references to the DFAT Report appear to be to the 2015 Report rather than the 2016 Report, for example, the IAA mentions that a major attack ‘which postdates the DFAT reports... occurred on 23 July 2016 in Kabul’: see [21]. Similar references occur at [24], where it is recorded that the DFAT Report (from 2015) noted an increase in insurgent attacks with Kabul.

5. There is no question that the 2016 DFAT Report was referred to the IAA in submissions of the applicant (the IAA recounts receiving submissions from the applicant: see [6]), and therefore had to be considered by the IAA. 

6. This case turns upon whether or not the information was of such a nature that the failure to specifically footnote or reference it in the context of the decision leads to an inference that the IAA failed to consider it. 

7. It is accepted that a decision-maker is not required to mention every piece of evidence that is before them, when properly preparing reasons for a decision.  However, if a particular piece of evidence is weighty or significant in the context of the decision, but not mentioned in the decision, it leaves open the inference that the decision-maker has failed to have regard to that piece of evidence (or submission).

8. The difficulty that confronts the applicant in this case is that the 2016 DFAT Report is ambivalent as to whether or not sectarian attacks were taking place in Kabul.  The evidence that the applicant relies on is in [2.6] (see above) where a number of incidents are recounted in the DFAT Report, rather than in any general assessment by DFAT, given the uncertainty expressed in the Report.  In this case, the IAA had regard to a number of incidents that had occurred in Afghanistan and Kabul since the DFAT Report of 2015.

9. In circumstances where a number of incidents since the 2015 Report have been referred to by the IAA, and the recommendations or advice in the 2016 DFAT Report is equivocal, I am not persuaded that the absence of a specific reference to the 2016 DFAT Report shows that the IAA failed to have regard to it in making its decision. 

10. In the circumstances, I am not persuaded that this ground is made out.

Grounds 2 and 3

1. Grounds 2 and 3 were also particularised in considerable detail as:

   2.1 By letter dated 11 October 2016, the [IAA] invited the Applicant to provide information as to why it would not be reasonable for him to relocate to other parts of Afghanistan.

   2.2 In the Applicant's Response, the Applicant provided information that he could not relocate to other areas of Afghanistan because he is a person who will stand out in Afghanistan because of his westernised appearance, religious views, political opinion and attitude. He claimed that his visible visible body piercings would also make him stand out, and this will expose him to harm in Afghanistan. He also claimed that because he is ‘a close relative of a former employee of government affiliated bodies he is likely to be known to anti-government entities in his home area and elsewhere particularly if he comes to the attention of anti -government entitles' because of his westernised appearance, political opinion or attitude.

   2.3 The [IAA] recorded that there was no aspect of the new information received on 25 October 2016 that was not considered.

   2.4 At no stage did the [IAA] consider the Applicant's actual political and religious views, or his westernised appearance including his visible body piercings.

   2.5 The [IAA] was bound to have regard to the information because it had satisfied itself that there were exceptional circumstances justifying its consideration under s.473DD and would otherwise be an unreasonable exercise of discretion.

   2.6 In failing to do so, the [IAA] fell into jurisdictional error.

   …

   3.1 The Applicant claimed that he was not safe in Kabul due to the numerous attacks specifically targeting Shia Muslims. He also claimed that he is a 21 year old who has lived outside Afghanistan for more than 11 years and faces harm in other areas of Afghanistan because he is a Shia Muslim and a person who will stand out in Afghanistan by being plainly westernised in appearance, his visible body piercings, his political opinion and attitude. He claimed this will expose him to harm in Afghanistan and impact his ability to secure employment. He also claimed that because he is ‘a close relative of a former employee of government affiliated bodies he is likely to be known to anti-government entities in his home area and elsewhere particularly if he comes to the attention of anti - government entitles because of his westernised appearance, political opinion or attitude.

   3.2 At no stage did the [IAA] consider the Applicant's actual political and religious views, or his westernised appearance including his visible body piercings.

   3.3 In failing to do so, the [IAA] fell into jurisdictional error.

1. In substance, the applicant claims that the IAA failed to have regard to his actual political and religious views and his westernised appearance (including body piercings).

2. This is not a case where the IAA proceeded to consider relocation without giving the applicant an opportunity to address the issue (cf Minister for Immigration and Border Protectionv CRY16 [2017] FCAFC 210): see the invitation to the applicant at CB p.159.

3. The claim that various matters were not considered by the IAA does not accord with the reasons given by the IAA.  At [15], the IAA squarely identified the claim with respect to western opinions or western appearance saying:

   15. I have considered whether the applicant's return from a Western country will impute him with a pro-Western political opinion on return by the Taliban and associated extremist groups including Daesh. The applicant claims that he will be easily recognisable as a foreigner due to the change in his appearance, style of living and manner, which he would be unable to change quickly.

4. The applicant’s religion was squarely considered by the IAA concluding that he did not face a real chance of persecution as a Shia upon return to Kabul: see [23].

5. The IAA goes on to consider returnees from western countries at [24] and [25], with respect Kabul. 

6. The IAA has also considered whether or not the various claims cumulatively create a real risk of significant harm saying:

   35.  I have found that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the West whose information was inadvertently released by the Australian government, or as a Shia whose brother was formerly employed with an NGO with links to the USA. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons.

   36. Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul. DFAT indicates that the security situation is better in areas where government forces maintain strong control, such as major urban areas like Kabul, but attacks remain a common occurrence even in these areas. [FN: ibid, 2.33] however the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO's Resolute Support Mission and other coalition forces, other security services, international organisations and foreign missions of some countries, although mosques, schools, hospitals and other civilian targets are also vulnerable. Although attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties. [FN: ibid, 2.35] The Afghan government maintains effective but not absolute, control in major urban centres, particularly Kabul. [FN: ibid, 5.1] In Kabul the Afghan army and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. Although the Afghan security forces are quick to respond to insurgent attacks when they occur violent attacks within the city are common. [FN: DFAT, “Thematic Report Conditions in Kabul”, 18 September 2015, 2.31] People associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul, [FN: ibid, 3.38] but I am satisfied that the applicant does not have such a profile in Kabul. I am not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul.

   37. After cumulative consideration of the applicant's circumstances, I am not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul.

7. To the extent that the claim relates to an imputed political opinion, westernised appearance, and religion, it appears to have been dealt with by the IAA. 

8. In submissions, the applicant’s counsel also referred to the applicant’s ‘actual political … views’ (see [26] of applicant’s written submissions), although the applicant’s actual political views were not one of the grounds for his claim relied upon by him before the delegate: see [7] of the IAAs decision. 

9. In the written submissions, prepared by the applicant’s agent for the IAA, the reasons given against relocating to Kabul relate to his western appearance and imputed political opinions, and his religion: see [14] to [17] of the submissions at CB p.172.  The submissions go on at [25] and [26] (at CB p.175) listing the various matters (which did not include actual political opinion) and complained that the delegate had failed to consider the various matters ‘cumulatively’.

10. Under the heading Political Opinion (at CB p.176) of the submissions, submissions are only made with respect to the applicant’s brother’s work with NGOs and government affiliated organisations which may lead to an imputed political opinion.  No submission was made with respect the applicant’s actual political opinion.

11. The case, as put by the applicant, was dealt with by the IAA. 

12. In the circumstances, I am not persuaded that the applicant has made out grounds 2 or 3.

Ground 4

1. Ground 4 was not pursued by the applicant at the hearing.

Ground 5

1. Ground 5 was particularised as follows:

   5.1 The [IAA’s] letter dated 11 October 2016 invited the Applicant to provide information in relation to his claims and as to why it would not be reasonable for him to relocate to other parts of Afghanistan. The Applicant was given 14 days to provide the information.

   5.2 At 3.32pm 25 October 2016, the [IAA] released documents to the Applicant under the Freedom of Information Act 1985 (FOI).

   5.3 At 10.20pm on 25 October 2016, the Applicant provided information in response to the [IAA’s] 11 October 2016 request. In paragraph 2 of the Applicant's Response, the Applicant stated that was seeking to make submissions in accordance with paragraph 27 of the [IAA’s] Practice Direction within 7 days of the receipt of the documents released under FOI

   5.4 At 11.21am on 26 October 2016 the Applicant formally requested additional time to obtain the FOI documents and provide a response to the request for further information under s.473DC and in accordance with Practice Direction 1.

   5.5 At 3.43pm on 26 October 2016 the [IAA] refused the request for additional time citing that any submissions were required to be submitted within 21 days of the matter being referred to the [IAA].

   5.6 As the information had been requested by the [IAA] pursuant to s.437DC, the information was due on 25 October 2016 in accordance with reg. 4.42(b)(ii). The [IAA’s] reference to 24 August 2016 was an erroneous reference to the requirements of paragraph 26 of the [IAA’s] Practice Direction.

   5.7 It follows that the [IAA] did not consider the Applicant's request for additional time to provide the information and did not schedule an interview.

   5.8 In the circumstances, the [IAA’s] failure to do so was an unreasonable exercise its discretion in s.437DC.

2. The applicant was notified of the delegate’s decision on

   
   

   20 July 2016.  On 3 August 2016, some 14 days later, the referral of the decision to the IAA was formally acknowledged by the IAA.  On 26 August 2016, the IAA sent the applicant an invitation to comment, issued under its practice direction.  Following an email from the applicant acknowledging the IAA’s letter of 3 August 2016, and stating that no further information had been received since, the IAA issued another invitation to comment on 11 October 2016.  The second invitation to comment allowed the applicant until 25 October 2016, a period of 14 days as the invitation was sent to his email address.

3. On 25 October 2016, the last date for responding to the invitation of the IAA, the applicant’s solicitors sent an email to the IAA saying:

   I act on behalf of [the applicant], for whom a response falls due today. Accordingly, I seek urgent access to a full copy of [the applicant’s] IAA file. It is imperative that we have regard to this in preparing [the applicant’s] response to the Authority’s invitation.

4. It appears that a Freedom of Information (‘FOI’) request (signed by the applicant the previous day) was also forwarded: see CB pp.162 to 164.  The FOI request also sought a full copy of the department’s file as held by the IAA with respect to the applicant’s application. 

5. On 25 October 2016 (presumably after the FOI request was made), the IAA requested further documents from the Minister, saying (at court book pp.166 and 167):

   We have received a file referral from you in relation to the above applicant. The documents listed below appear to be missing or incomplete:

   We do not appear to have received the following documents for the applicant in the referred documents to the IAA, these documents were however listed in the delegate’s decision:

   1. Scanned copy of a ‘Certificate of Excellence’ awarded to ‘Ahmad’ for ‘hard work as an ASO Driver for New Industrial Park’. The certificate was issued in December 2010.

   2. Scanned copy of an employment confirmation letter from ‘Advanced Engineering Associates International’ in Kandahar to [the applicant’s brother].

   3. Scanned copy of a ‘Certificate of Appreciation’ awarded to [the applicant’s brother] from Advanced Engineering Associates International dated March 15 2007.

   4. Scanned copy of a reference letter to [the applicant’s brother] from Advanced Engineering Associates International. The letter details attacks by the Taliban whilst he was working with USAID.

   5. Scanned copy of an employment letter to [the applicant’s brother] stating he has worked for Advanced Engineering Associates International on the USAID Afghanistan Energy Assistance Program as an ‘Armoured Vehicle Driver’.

   6. Two scanned copies of an employment recommendation letter for [the applicant’s brother] from Advanced Engineering Associates International. The letters are dated 16 April 2009 and 17 July 2007.

6. Notably, all of these documents were documents provided by the applicant to the delegate, and therefor would all have been within the applicant’s knowledge.  As they are documents that ought to have been provided by the Secretary, the provision of them can be categorised as the Secretary completing the obligations upon the Secretary under the Migration Act 1958 (‘the Act’), rather than the IAA ‘getting’ new information under s.473DC of the Act.

7. The IAA also wrote to the applicant on 25 October 2016 advising that the IAA file was released to the applicant.  This was met by a response from the solicitors for the applicant in an eight page letter later dated 25 October 2016.  Relevantly, for this ground, the letter sets out (at CB pp.170 to 177):

   3. The applicant also seeks to make submissions made in accordance with paragraph 27 of the IAA Practice Direction 1, which permits the Applicant to provide a written submission on why the Applicant disagrees with the decision of DIBP, as well as any claim or matter that the Applicant presented to the DIBP that was overlooked. The applicant proposes to briefly address those issues herein and provide complete submissions within seven days of receipt of documentation from the IAA as requested under FOI.

   Request for Access to Documents under FOI

   4.  An FOI request was made directly to the IAA on 25 October 2016, requesting copies of all of the Applicant's documentation held by the IAA in relation to this matter. We received an incomplete portion of that documentation at 3.32pm today.

   5.  As a matter of procedural fairness, the Applicant needs to have regard to the information held by the IAA to properly present his case. It is submitted that the IAA must allow [the applicant] an additional seven days in which to present submissions under paragraph 27 of the IAA Practice Direction 1 after the release of these documents. To decline to do so, it is submitted, would be unreasonable. It is crucial that the Applicant be afforded the opportunity to properly present his case to the IAA.

8. The response to the request for additional time (a modest seven days) was made on 26 October 2016 pointing out that the time limit had expired on 24 August 2016 under the practice direction, though, as appears from the material, the submissions received on 25 October 2016 were considered.  The IAA said:

   I refer to your correspondence of 25 October 2016 requesting additional time to make a submission.

   Under the Practice Direction for Applicants, Representatives and Authorized Recipients, submissions should be given to the IAA with 21 days of the date on which the case was referred to us by the Department of Immigration & Border Protection.  As the case was referred on 3 August 2016 this 21 day period ended on 24 August 2016.

   The IAA has considered your request but is not prepared to allow additional time.  Any submissions must be received by 24 August 2016.  A submission received after that date, but before the decision is made may be considered.

   Please note that under the Practice Direction, any submission should be concise and no longer than 5 pages.

9. The submissions on behalf of the Minister in this regard point out:

   50. The applicant applied for a protection visa on 7 July 2015.  At the time of the Authority’s decision on 28 October 2016, the applicant had had some 15 months to gather materials in support of his case.  He was notified of the delegate’s decision in July 2016 and that decision made clear what issues were relevant to the review.  The applicant had also received the Authority’s invitation to comment on 11 October 2016 [FN: The Authority had earlier, on 26 August 2016, sent to the applicant’s last known address an invitation to comment on the adverse information [CB 153-154].  The applicant does not appear to have received that invitation to comment [CB 155].] and, with the assistance of his representative, was given an additional two weeks to prepare any response.  His response and submissions were submitted by his representative on 25 October 2016.

   51.  On 25 and 26 October 2016, the applicant’s representative requested additional time to submit further information.  That request was considered by the Authority and the Authority’s reasons for refusing the request do not lack an evidence and intelligible justification. [FN: Cf. Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, [82] and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32, [79]-[81] and [85].]  Further, in the statutory context of the Authority’s decision-making power, that refusal was not legally unreasonable.  Among other things, the Authority did not, despite any request from the applicant, have a duty to get, request, or accept any new information. [FN: Section 473CB of the Act. See also ss 473DB, 473DD and 473FA of the Act.].  The applicant had had considerable time to prepare his case, and his representative had had an opportunity to make, and had made, detailed submissions on the issues relevant to the review.

10. The effect of failing to give the information or comments within the timeline is set out in s.473DF. This section permits the IAA to make a decision on the review without taking any further action to get the information or comments, or taking any further action to enable the applicant to take part in a further interview.

11. It does not appear to me that s.473DF prohibits the IAA from receiving comments or further information after the date provided, it simply enables the IAA to make a decision without taking any further steps to obtain that material.

12. Thus, the question arises as to whether or not it was legally reasonable for the IAA to proceed to make a decision without the further information that was foreshadowed, even though they were permitted to do so by s.473DF(4) of the Act.

13. There does not appear to be any time limit upon an applicant asking the IAA to consider new information under s.473DD (none of the Regulations in Division 4.4 of Part 4 of the Migration Regulations 1994 cover this particular section). 

14. In substance, the scheme of the provisions places time limits upon responding to invitations to provide further material, and assumes that, generally, matters will be determined on the papers (see s.473DB) without receiving new information, and without offering a specific opportunity to provide new information (see s.473DA).

15. In these circumstances, if an applicant seeks to persuade the IAA to consider new information that is not in response to an invitation, then they must provide that prior to the IAA member determining the case.  The result is that there is no specific time limit, and it is for the IAA to consider whether or not to grant an extension of time when an applicant has sought to place further material before the IAA.

16. In this case, at best, the purpose of the adjournment was to enable the advisor to consider any additional material that may be disclosed in the documents and to consider the interview with the delegate. This could only lead to a request that the IAA consider new information under s.473DD of the Act.

17. Unlike many cases in this jurisdiction, the period of the adjournment sought was a defined and short period that would have been no more than was clearly necessary for a professional advisor to review material and to provide submissions.  It is not a case where the FOI request could be outstanding for an undefined period of time as the material was provided to the advisor on 25 October 2016. 

18. In this case there is nothing before me to indicate what relevant further material was sought to be put before the IAA.  The adjournment was to consider the nature of the interview and the documents sent to the IAA generally.  No specific issue or conflict was raised: this was, in substance a fishing expedition, on one level.  However, on another level, newly appointed advisors wish to see the whole file and hear the interviews to properly understand the case in order to put submissions.

19. It appears clear that the reference by the IAA to the August date for the time for submissions was erroneous.  This indicates that an irrelevant consideration was taken into account in determining whether or not to grant an extension of time to receive further submissions. 

20. In the circumstances, it appears to me that the IAA has erred in taking an irrelevant consideration into account in deciding not to grant the modest extension of time of seven days from the date the applicant’s advisors received his file for the IAA.

21. Providing the file in these circumstances gives rise to a reasonable expectation of sufficient time to consider its contents. Seven days had been sought (a time sufficiently short that it could not be considered a delaying tactic in the circumstances of this case). Prime facie it appears to me that, in these circumstances, the determination by the IAA, even if they were not confused as to the time period within which to provide information had expired, was legally unreasonable. 

22. Ironically, had the IAA awaited the submissions it may have been drawn to the IAA’s attention that it was missing the document the subject of ground six and thereby enabled it to avoid the error discussed below.

Ground 6

1. The applicant frames the ground as follows:

   6.1 The Secretary failed to give the [the IAA] the Statutory Declaration dated 18 November 2015 and supporting documents (see CB 92-111) the Applicant submitted in support of his application for a Temporary Protection Visa (TPV) in accordance with s. 473CB of the Act.

   6.2. Compliance with section 473CB of the Act is pre-condition to the Authority exercising its decision making powers under section 477CC of the Act.

   6.3. The Applicant's statutory declaration provided significant detail regarding the claims outlined in his TPV application and was before the delegate at the time of the delegate's decision made pursuant to s. 65.

   6.4. The Applicant’s statutory declaration was material to his claims and the failure to consider this evidence could have impacted on the outcome of the decision.

1. On 18 November 2015 the applicant forwarded to the department, by email, a statutory declaration: see applicant’s email at CB p.92.  The statutory declaration is 54 paragraphs across six pages appearing at CB pp.93 to 99 (the last page containing only the jurat).  The statutory declaration sets out the applicant’s case.  It is conceded that the statutory declaration was not provided to the IAA by the Secretary.   Annexed to the statutory declaration was 11 pages of supporting documents, including references, an article from Stars and Stripes and certificates, which appear at the CB pp.100 to 111. 

2. It was conceded by counsel for the Minister that there was a failure to comply with s.473CB(1)(b) of the Act, which relevantly provides:

   1. The Secretary must give to the Immigration Assessment Authority the following material ( reviewmaterial ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   …

   (b)  material provided by the referred applicant to the person making the decision before the decision was made;

3. The Minister relies upon Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] in support of the proposition, that unless the material was significant and material to the outcome of the review, the failure to provide it to the IAA would not result in jurisdictional error.

4. The Minister argues that, in this case, all of the matters, set out in that material, were either uncontentious or irrelevant to the outcome in the IAA, and as a result no jurisdictional error has arisen, or alternatively the circumstances are such that the Court should exercise its discretion to refuse to grant relief. 

5. The applicant points to [14] of the IAA’s decision where the IAA says:

   14. Given the security situation in Kandahar, which the European Asylum Support Office (EASO), reported as being among the most volatile in southern Afghanistan, where anti-government elements (AGEs) were actively operating and frequently carry out insurgency activities [FN: EASO, “Country of Origin Information Report: Afghanistan Security Situation”, 31 January 2015, CISEC96CF1191, p.66] with the Taliban's efforts focused on regaining control over Kandahar city,[FN: Ibid, p.68] I accept that the applicant's immediate family members would have been vulnerable in Kandahar particularly due to his brother's employment and left Afghanistan due to these safety concerns. However since the applicant's departure from Afghanistan in approximately 2004-2005 there has been a significant change in his brother circumstances. He is no longer employed by USAID or AEAI and has also left Afghanistan. Additionally the applicant left Afghanistan approximately 10 years ago. Given that country information indicates that those who cease their employment are no longer of interest to insurgents, I do not accept that the applicant, a relative of a former employee, would be of interest to the Taliban on return. I am not satisfied that the applicant would be perceived as a government affiliate on the basis of his brother's former employment if he returned to Kandahar or anywhere else in Afghanistan and targeted by the Taliban or other insurgents.

6. It is argued that the statutory declaration bears upon this on the basis of the contents of [26] of the statutory declaration where the applicant says:

   26. It was no longer safe for our family to stay in Afghanistan as we considered there was a real risk we would be targeted, based on the above three occasions, for the following reasons:

   a. We lived together as a family and feared that when the Taliban inevitability tried to target our brother, they would also kill or seriously harm us, just as they had the other people residing in the compound on the second occasion referred to above.

   b. This is because in my culture families live together in the one house.  Family members are often used to directly target enemies.  Whole families can be tarnished for the conduct of single family members.

   c. Our family were considered foreign sympathisers because of [the applicant’s brothers] work as a driver with USAID and its affiliates.  The references that I have provided (Annexures A-1) demonstrate the important and valued work my brother was doing for USAID and its affiliates and how connected he was to the foreign forces.  In the eyes of the Taliban this made my brother, and by extension my family, enemies.

7. Paragraph 48 also goes to the issue where the applicant says:

   48.  I believe that members of the Taliban remember my brother and would target me by association.

1. Notably, neither of these claims appear to be based in the applicant’s actual experience, but rather represent the claims that he makes and the concerns that he expresses.  These paragraphs are different to, for example, a person recounting that they had been the subject of specific threats or claims, which they are aware of from their own knowledge.

2. There is no question that the IAA dealt with these issues as integers that had to be determined.  The real question is whether there is any material of significant evidentiary value in the statutory declaration, in the circumstances.

3. At [17], the applicant gives evidence in his statutory declaration of events that had occurred to his brother (presumably having been told of this by his brother).  That evidence is:

   17. [The applicant’s brother] was fearful of our family’s safety because of three specific occasions, that I am aware of, when he was targeted by the Taliban/anti-foreign organisations as a result of his work with USAID and / or its affiliates.  I am unaware of the exact order that these occurred in.

   Occasion One

   18.  A car [the applicant’s brother] was driving in the course of his employment for USAID was the target of a suicide bombing.  I think my brother’s employer [LM] was in the car at the time, but I cannot be sure of this.  To the best of my knowledge this is the 26 November 2008 incident referred to in the letter of [LM] (undated) attached to this statement (Annexure A)

   Occasion Two

   19. On another occasion, two people on motorcycles rode alongside the USAID car [the applicant’s brother] was driving and started firing bullets into the car. [The applicant’s brother] and his passengers were not killed as the car was an armoured vehicle.  To the best of my knowledge this is one of either the June 2005 incident or April 2007 incident referred to in the letter of [LM] (undated) attached to this statement (Annexure A).

   Occasion Three

   20. On another occasion, [the applicant’s brother] was sleeping at night with the foreign engineers in a compound in Qalat when the Taliban attacked.  The Taliban killed the guards at the entry of the Compound by slitting their throats.  They entered [the applicant’s brothers] room. [The applicant’s brother] was lucky that some local people came and the Taliban fled.  To the best of my knowledge this is the August 2007 incident referred to in the letter of [LM] (undated) attached to this statement (Annexure A).

1. The proceedings before the IAA are unique in this area of the law. Section 473DB requires the IAA to consider a review on the basis of the review materials provided to it, without accepting or reviewing new information, and most importantly, without interviewing the referred applicant.

2. The information in the statutory declaration largely raises issues that have been dealt with by the IAA and adds little direct evidence by the applicant (although hearsay evidence is admissible before the IAA).  However, in the absence of the statutory declaration, the IAA did not have the applicant’s narrative of his circumstances which he said gave rise to his fears.  The IAA was then limited to the impressions of the delegate as to the applicant’s circumstances, rather than being able to assess the applicant’s evidence holistically on the basis of the narrative that the applicant set out in his statutory declaration together with the decision of the delegate. 

3. Looking at the matter as a whole, I am not persuaded that the IAA was able to perform its function in the manner reasonably contemplated by the provisions of Pt.7AA of the Act, in circumstances where the significant narrative given by the applicant in the form of a statutory declaration was not provided to the IAA: this is not an ancillary document, but a central feature of the applicant’s case.

4. In the circumstances, I am persuaded that the failure of the Secretary to provide this document to the IAA did result in the IAA being unable to properly perform its function. 

5. For this reason, the applicant has established jurisdictional error under this ground. 

6. I will, therefore, make orders for the issue of a writ of certiorari and to remit the matter to the IAA to hear and determine afresh, possessed of all of the appropriate material.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 27 September 2018