DST18 v Minister for Immigration
[2020] FCCA 1813
•18 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DST18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1813 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in applying s.473DD of the Migration Act 1958 (Cth) considered – whether the Authority overlooked a particular social group claim or overlooked material evidence or made a finding without a factual basis considered – whether the Authority decision is affected by an interpretation error considered – jurisdictional error established in relation to the application of s.473DD. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 5L, 36, 414, 425, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD |
| Cases cited: ADN18 v Minister for Home Affairs [2018] FCA 1677 Ahmed v Minister for Immigration (2001) 184 ALR 343 ANR17 v Minister for Immigration [2020] FCA 155 AQU17 v Minister for Immigration (2018) 162 ALD 442 ARG15 v Minister for Immigration (2016) 250 FCR 109 AUH17 v Minister for Immigration [2018] FCA 388 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 AWL17 v Minister for Immigration [2018] FCA 570 AYK17 v Minister for Immigration [2019] FCA 1053 AYX17 v Minister for Immigration (2018) 262 FCR 317 BCQ16 v Minister for Immigration [2018] FCA 365 BGR15 v Minister for Immigration [2016] FCA 920 BKY17 v Minister for Immigration [2019] FCA 487 BMQ16 v Minister for Immigration [2017] FCA 1197 BYA17 v Minister for Immigration (2019) 163 ALD 483 BVZ16 v Minister for Immigration (2017) 254 FCR 221 BZC17 v Minister for Immigration (2018) 264 FCR 667 CAQ17 v Minister for Immigration [2019] FCAFC 203 CDH16 v Minister for Immigration [2018] FCA 668 Cho v Minister for Immigration (1998) 55 ALD 487 CSR16 v Minister for Immigration [2018] FCA 474 CVK16 v Minister for Immigration (2017) 318 FLR 34 CVK16 v Minister for Immigration (2017) 257 FCR 297 CVV16 v Minister for Home Affairs [2019] FCA 1890 DGZ16 v Minister for Immigration (2018) 258 FCR 551 DPI17 v Minister for Home Affairs (2019) 366 ALR 665 DVO16 v Minister for Immigration [2019] FCAFC 157 DZF17 v Minister for Home Affairs [2019] FCA 979 EXV17 v Minister for Home Affairs [2018] FCA 1780 Gill v Minister for Immigration (2017) 250 FCR 309 Hong v Minister for Immigration [2018] FCA 1085 Htun v Minister for Immigration Affairs (2001) 194 ALR 244 Minister for Immigration v BBS16 (2017) 257 FCR 111 Minister for Immigration v CLV16 (2018) 260 FCR 482 Minister for Immigration v Sarrazola (1999) 95 FCR 517 Minister for Immigration v MZYTS (2013) 230 FCR 431 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZMTA (2019) 264 CLR 421 Minister for Immigration v SZOCT (2010) 189 FCR 577 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZSRS (2014) 309 ALR 67 MZZYE v Minister for Immigration [2015] FCA 1378 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration [2004] FCA 1695 Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 Saeed v Minister for Immigration (2010) 241 CLR 252 Sellamuthu v Minister for Immigration (1999) 90 FCR 287 SZDXZ v Minister for Immigration [2008] FCAFC 109 SZFDE v Minister for Immigration (2007) 232 CLR 189 SZSEI v Minister for Immigration [2014] FCA 465 SZSHK v Minister for Immigration (2013) 138 ALD 26 SZTFI v Minister for Immigration [2015] FCA 322 SZULW v Minister for Immigration [2018] FCA 1335 SZVVE v Minister for Immigration [2015] FCA 837 |
| Applicant: | DST18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2004 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Varess |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority made on 22 June 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2004 of 2018
| DST18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 June 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Afghanistan who arrived in Australia on 11 July 2013. His claims for protection are set out in his application.[1] In essence, the applicant claimed to fear harm from the Taliban because his brother, "N", worked as a truck driver for a transport company that provided supplies to the US Army. The applicant claimed that the Taliban ordered N to surrender and he did not do so. The applicant told him to disappear. The Taliban then came looking for N and told the applicant that if he did not surrender N to them they would kill him. The applicant also claimed to fear harm on the basis of being a returned asylum seeker.
[1] see Court Book (CB) 63-64; by the delegate at CB 108-109 and by the Authority at CB 223 (and see also CB 14 - arrival interview)
On 9 November 2017, the delegate refused to grant the visa.[2] Pursuant to Part 7AA of the Migration Act 1958 (Cth) (Migration Act), the matter was then referred to the Authority on 14 November 2017.[3]
[2] CB 106ff
[3] CB 130
On 22 June 2018, the Authority affirmed the delegate's decision.[4]
The Authority decision
[4] CB 217ff
Information before the Authority
The Authority had regard to the referred material. The Authority also noted that on 8 December 2017, the applicant provided a submission (via his representative) attached to which was a statutory declaration and further information.[5] The further information included details of N's former employer; a letter purporting to be sent from the former employer concerning N's disappearance; a letter purporting to be sent from the Taliban threatening the applicant; and photographs of the applicant with N. The Authority had regard at [5] to matters raised about the delegate’s decision by way of submission and then went on to consider whether it could take into account other information. The applicant’s statutory declaration[6] was described by the Authority as responding to findings made by the delegate in relation to his brother, N. The submission also referred to those findings (which included doubting that N had worked as a subcontractor for the US Army) and attached were documents relating to N and his claimed disappearance. The Authority, after considering the record of the protection visa interview and the delegate’s findings, agreed to consider the statutory declaration and the attached documents, having found that the criteria for considering new information were satisfied (both s.473DD(b) and (a)) in relation to that material.[7]
[5] CB 191-213
[6] CB 198-201
[7] CB 222 at [7]-[9]
The Authority also agreed at [10]-[11] that the passport provided by the applicant, which he obtained in Australia in 2017, after the delegate had made the primary decision, satisfied the criteria set out in s.473DD of the Migration Act for being considered.
At [12], the Authority noted that the submission “raises what appears to be a new claim that the applicant will face a risk of harm while travelling on the roads for employment purposes” (New Claim). The Authority noted at [12] that the New Claim was not raised before the delegate, nor had any supporting evidence been provided, nor had the applicant identified what employment he intended to seek or why he would need to travel outside Kabul. The Authority noted at [13] that the applicant had given detailed evidence about his former import/export business at the interview and had not claimed that he had ever been harmed or threatened due to his business, nor that he would work in employment that involved driving if returned or that he would resume his previous business. For those reasons the Authority was not satisfied that there were exceptional circumstances that justified considering the New Claim.
Authority decision on applicant’s protection claims
The Authority accepted at [25] that the applicant’s brother N worked as a truck driver and that he disappeared in March 2013 following an incident with an armed group. However, for the reasons set out at [19]-[24], the Authority did not accept at [25] that the Taliban had been seeking N prior to his disappearance; that the Taliban had visited and threatened the applicant on three occasions; that the applicant's mother received the threatening letter from the Taliban, or that the applicant's family had to relocate to another part of Kabul. The Authority considered there to be inconsistencies between the applicant's claims during the application process and interview, and the new information presented before the Authority (including finding at [24] that the letter purporting to be from the Taliban was not genuine).
The Authority considered the applicant's claim to fear harm as a returned asylum seeker who has spent time in Australia at [26]-[32]. The Authority found that the applicant had no adverse profile and was not being sought by the Taliban. The Authority noted at [30] that the applicant had a Canberra issued Afghan passport and considered that while the passport would be examined on arrival in Afghanistan, the applicant would not need or want to carry or display the passport beyond his return. The Authority noted that the applicant had a taskera which he had used as an identification document in the past.
The Authority considered at [33]-[36] whether the applicant faced a real chance of harm due to his ethnicity as a Sunni Tajik, albeit noting at [33] that no such claim to fear harm on that basis was made by the applicant. However, the Authority was not satisfied that the applicant would face a real chance of harm on the basis of his ethnicity or religion on return to Afghanistan.
Another matter considered by the Authority which had not been raised by the applicant was whether the applicant was at risk from generalised violence or attacks within Afghanistan, noting at [37] that there had been incidents involving Improvised Explosive Devices (IEDs) in his home town where the applicant’s family lived, and incidents in Kabul, at [38]. This was also a claim that had not been made by the applicant at [37]-[39]. While the Authority found at [39], having considered a relevant DFAT[8] report,[9] that the threat of harm could not be ruled out, the chance of someone like the applicant, with no government or military connection/profile, being harmed was “objectively remote and therefore not a real chance”.
[8] Department of Foreign Affairs and Trade
[9] CISEDB50AD5680: “DFAT Country Information Report Afghanistan 18 September 2017”, Department of Foreign Affairs and Trade, 18 September 2017 (DFAT Report)
The Authority concluded at [41] that he did not meet the requirements of the definition of refugee in s.5H(2) of the Migration Act and thus did not meet s.36(2)(a) of the Migration Act. The Authority also found at [44]-[45] that he did not meet the criteria for protection by means of the complementary protection provisions of the Migration Act. Accordingly the decision of the delegate was affirmed.
The current proceedings
These proceedings began with a show cause application filed on 18 July 2018. The applicant now relies upon a further amended application filed on 22 May 2020. There are six grounds in that application:
1. The Authority erred in misconstruing or misapplying the meaning of “new information” in Division 3 of Part 7AA of the Act or in misconstruing or misapplying s 473DD of the Act.
Particulars
a. The Authority held that the applicant’s submission to the IAA raised a new claim (New Claim): Authority’s Decision at [12].
b. The Authority held that it would not consider the New Claim because there were not exceptional circumstances to justify doing so, implicitly applying s 473DD: Authority’s Decision at [13].
c. The Authority thereby erred as the New Claim was not new information under Div 3 of Part 7AA of the Act, and the requirements in s 473DD of the Act did not need to be satisfied before the Authority could consider to the New Claim.
2. In finding that there were not exceptional circumstances to consider the New Claim, the Authority erred by one or more of:
i. misapprehending the applicant’s evidence; or
ii. overlooking material evidence or a matter relevant to whether there were exceptional circumstances to justify considering the New Claim.
Particulars
a. In determining whether there were exceptional circumstances for considering the New Claim, the Authority found that the applicant had, during his 16 August 2018 interview with the Delegate (PV interview) when describing his import/export business, “said that he employed drivers to travel to and from Pakistan and he did not do this driving himself”: Authority’s Decision at [13].
b. The applicant’s evidence during the PV Interview was that he did travel to Pakistan for the purposes of his import/export business. In particular, during the PV Interview, when describing his business, the applicant said that “by myself I was parking the car somewhere [in Sadda, Pakistan] and the local street sellers, they were coming and purchasing it from me”.
c. In the written record of the Irregular Maritime Arrival & Induction Interview (Arrival Interview), it is noted that the applicant was asked whether he had ever travelled outside his country of residence prior to leaving to come to Australia. The applicant responded “yes”, and that between 2008 and 2013 he had travelled from Afghanistan to Pakistan, with the purpose of travel being “Wholesale trade – fruit and vegetables, 1 to 4 trips each month to bring container truck back to Afghanistan” : CB20. See also the evidence at CB15, 59 and 63.
d. The Authority:
i. in light of particulars (a) and (b) above, acted unreasonably or irrationally in finding that the applicant’s evidence in the PV Interview was that he did not drive to Pakistan himself; and/or
ii. in light of particulars (a)-(c) above, erred by overlooking material evidence, or a matter, relevant to the Authority’s consideration of whether there were exceptional circumstances for considering the New Claim.
3. The Authority left its jurisdiction under s 473CC(1) constructive unexercised by failing to consider whether the applicant satisfied s 36(2)(a) of the Act on the basis of being a member of the particular social group of importers/exporters, or persons who are or used to be importers/exporters, in Afghanistan.
Particulars
a. The Delegate accepted that the applicant had previously worked as importer/exporter in Afghanistan: CB 109-10.
b. The Delegate considered whether the matter referred to in the preceding particular had the result that the applicant was a member of a particular social group under s 5L of the Act, finding that it did not: CB 110.
c. The Authority did not consider the issue referred to in the preceding particular, and thereby left its jurisdiction constructively unexercised.
4. The Authority’s Decision is affected by jurisdictional error on account of interpreter error.
Particulars
a. The applicant provided the Authority with a letter that was said to be from the Taliban, and a translation thereof: CB 204-5.
b. The translation bore the statement “Date: 21/01/1392 (Equivalent to- 1st January 2013)”.
c. The statement referred to in the preceding particular contained an error, as the correct “equivalent” date was 10 April 2013.
d. The Authority relied on the fact that the translation stated that the equivalent date was 1 January 2013 to find that the letter was not genuine, and also relied on this point adversely to the applicant’s credibility: Authority’s Decision at [24]-[25].
5. The Authority erred in misconstruing or misunderstanding the applicants’ claim or evidence, or by overlooking material evidence.
Particulars
a. At [22] of its decision the Authority found “I note firstly that the applicant has never claimed that N was taken by any armed groups or that his truck was burnt. The applicant’s claim has always been that he told N to disappear because the Taliban was looking for N personally.”
b. Contrary to this finding:
i. in the Arrival Interview written record at CB14, the applicant is recorded to have said “Six months ago [my brother] was driving a container truck and he went missing. I think the Taliban was responsible because they had previously threatened me";
ii. in the Arrival Interview written record at CB143, the applicant is recorded to have had an exchange with the interviewer consistent with this claim;
iii. in answer to question 89 on the applicant’s Form 790C at CB63, the applicant provided an answer consistent with this claim;.
iv. the Delegate’s Decision records at CB108 that during the applicant’s interview with the Delegate, the applicant stated that he “informed [his] brother of the Taliban’s request. [The applicant claimed] that [his] brother disappeared. [The applicant did not] know whether [his brother] has been killed or has fled”.
6. In the alternative to ground 5, the Authority erred in making a finding of fact that had no basis.
Particulars
a. The applicant repeats that particulars set out in ground 5.
In addition to the court book filed on 31 August 2018, I have before me as evidence three affidavits:
a)the affidavit of Farid Varess made on 31 October 2018, to which is annexed the DFAT Report;
b)the affidavit of Kristi Randall made on 1 November 2018 (Randall Affidavit), to which are annexed the transcripts of interviews conducted with the applicant on arrival on 11 August 2013 and for the purposes of the SHEV assessment on 16 August 2017; and
c)the affidavit of Nahida Nahida (Nahida Affidavit) made on 17 January 2019, to which are annexed documents concerning date conversion from the Afghan calendar to the Gregorian calendar.
I marked for identification[10] a Notice to Admit Facts issued by the applicant on 12 November 2018 and the Minister’s response made on 23 November 2018.
[10] MFI A1
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 3 July 2020. I have been assisted by those submissions.
Consideration
The applicant’s contentions
Grounds 1 and 2 – factual background
The applicant has consistently claimed that, when he lived in Afghanistan, he ran a trade business between Afghanistan and Pakistan.
On 6 August 2013, the applicant’s arrival interview began.[11] The interview was not completed that day, but resumed and was completed on 11 August 2013.[12] The recording of the first portion of this interview appears to have been misplaced by the Minister.[13]
[11] CB 3
[12] CB 3
[13] see, eg, Randall Affidavit at [3]; CB 128, 144-6. The transcript of the second part of this interview is at Randall Affidavit pages 3-22
For present purposes, the first portion of the interview is relevant. In the absence of a recording, the best evidence of what was said in the first part of the interview is in the written record of interview at CB 3-25.
The written record of interview shows that, in response to the question “Prior to this journey did you ever travel outside your country of residence?”, the applicant indicated that in the period from 2008 to 2013, he had travelled to Pakistan.[14] The “[p]urpose of travel” was stated by the applicant to be “[w]holesale trade – fruit and vegetables, 1 to 4 trips each month to bring container truck back to Afghanistan”.[15] This statement explains why, elsewhere in the arrival interview, in response to the question of how the “police and security or intelligence organisations impact on your day to day life in your home country”, the applicant stated “I was doing business and I had to pay the Afghan soldiers and Immigration bribes in order to let me pass”.[16]
[14] CB 20
[15] CB 20
[16] CB 15
Elsewhere in the record of the arrival interview, it records that the applicant stated that he was self-employed in “Wholesale Trade” from 2008 to early 2013.[17] His “Employment Details” were “[f]ruit and vegetable wholesaler, transporting produce from Pakistan”.[18]
[17] CB 19
[18] CB 19
In January 2017, the applicant applied for a SHEV.[19] In his application, the applicant completed a table providing employment details. A reproduction of relevant parts of that table is as follows:[20]
[19] CB 31ff
[20] CB 59, emphasis in original
| Date from … | Date to … | Name of business/ company… | Type of business… | Your occupation and duties… | Full address of business… | Country |
| Jan-2006 | Apr-2013 | Self-employed Wholesaling and Importing of fruits, vegetables, and produce | Wholesale/Import | Was transporting and wholesaling fresh fruits and vegetables from Afghanistan to Pakistan and was importing and wholesaling produce from Pakistan to Afghanistan. | Kabul, Paktia and Sadda Kurram Agency | Afghanistan and Pakistan |
Later in his SHEV application, in the course of explaining why he left Afghanistan, the applicant described the setting up of his business after his family relocated from Pakistan to Afghanistan:[21]
Little while after our return to our village, I was able to set up my own business of wholesaling and import of fresh fruits and produce, as well as, grocery. I used to take fresh fruits and vegetables from Afghanistan and would wholesale those in Sadda area in Kurram Agency Pakistan. I would bulk buy grocery in Sada and wholesale in Afghanistan.
[21] CB 63
On 16 August 2017, the applicant was interviewed by the delegate. A transcript of that interview is at pages 23-52 of the Randall Affidavit. It is convenient to set out the relevant portion of the transcript in full:[22]
[22] pages 37.10-39.20, emphasis added
INTERPRETER: I was working, I had a business.
DELEGATE: What was your business? Oh, the truck driving?
INTERPRETER: No I was doing the business of ah, transporting fruit to Pakistan and transporting- and from Pakistan I was like importing stuff like salt, cigarettes, milk.
DELEGATE: So, you weren’t driving the delivery trucks but you were organising them?
INTERPRETER: Yes, I was managing and supervising the others. It was others who were driving the truck. So, I was renting the transport and then I was distributing for locals.
DELEGATE: So, just to um go back and clarify. What were you importing into Afghanistan?
INTERPRETER: So, materials such as salt, cigarette milk and cream.
DELEGATE: And where in Pakistan did you get these items?
INTERPRETER: Sadda
DELEGATE: in Kurram
INTERPRETER: Further down for Parachinar.
DELEGATE: Yes, in Kurram agency.
INTERPRETER: Yes.
DELEGATE: And, how did you organise um to get these items from Sadda?
INTERPRETER: So I was transporting materials such as fruit from Afghanistan and I was distributing for the local shops there and um. Back, I was purchasing this stuff from them to bring back to Afghanistan.
DELEGATE: What items were importing into Pakistan?
INTERPRETER: Fruit. Mainly grapes and apples.
DELEGATE: So, you were, you were exporting fruit from Afghanistan into Pakistan?
INTERPRETER: Yes.
DELEGATE: And taking cigarettes, salt, milk and cream from Pakistan into Afghanistan?
INTERPRETER: Yes.
DELEGATE: Who was your main point of contact in Sadda?
INTERPRETER: So I didn’t have anyone to present me or to do it for me, by myself I was parking the car somewhere and the local street sellers, they were coming and purchasing it from me.
So they were buying this as a wholesale from us like a big amount and they were selling.
DELEGATE: So, your trucks would go to the market in Sadda and purchase from the market stalls and take it back to Afghanistan?
INTERPRETER: Yeah, it was not a very big you know truck. It was a pick up a middle one, small. Ute car. It was a ute.
DELEGATE: A white Toyota probably.
INTERPRETER: Yeah, probably a hilux.
DELEGATE: Was there a reason you didn’t use the much bigger markets in Parachinar?
INTERPRETER: Those were risky, those like not
DELEGATE: So how did you get to Sadda City?
INTERPRETER: It was a different route.
DELEGATE: Which route did you use?
INTERPRETER: So, we were travelling to Khost province, and then from Khost they was another route called *inaudible*and then passing from *inaudible* and then into Sadda.
DELEGATE: The purpose of the interview, I’m just showing the applicant a map of Kurram. So, here is Parachinar and down here is Sadda. Which was the route that you used?
INTERPRETER: I’m not skilled in using you know to show it in this map. I don’t know.
DELEGATE: So Pakia is here, up here. You’re saying you came down one of these routes?
INTERPRETER: So, there are three ways from Afghanistan to that area. One is through Parachinar, passing through Tari Mangal.
DELEGATE: Yeah, that's this way.
INTERPRETER: Yeah, the other one is from Khost province um and passing through Madishamur and the other way is through Shahre-naw.
DELEGATE: Did you ever use the Kharlachi border?
INTERPRETER: Yeah, that way Shahre-naw.
DELEGATE: So, this is the Kharlachi. This is the one your drivers used?
INTERPRETER: No, it was blocked.
DELEGATE: So, which one did you use? If that's blocked, and that's blocked you used this one?
INTERPRETER: Yes, that should have.
DELEGATE: And what's that one called?
INTERPRETER: Yeah, from Khost um, travelling to Madishamur and then it's back in and then [inaudible].
DELEGATE: So, for the purpose of the recording the applicant has just identified the route he took to get to Sadda City.
And did your drivers have any problems getting through to Sadda?
INTERPRETER: There was um, problem with lots of fear because there was lots of [inaudible]
DELEGATE: How were they able to get through the ah check point?
INTERPRETER: So, that was like up to the driver, he was doing something. Paying money.
On 9 November 2017, the delegate refused to grant the applicant a SHEV.[23] In doing so, the delegate accepted that the applicant had run an import/export business between Pakistan and Afghanistan as claimed, and found the applicant’s “general claims regarding his occupation” to be “credible”.[24] The delegate found that the applicant’s occupation would not make him the member of a particular social group for the purposes of s.5L of the Migration Act.[25] The delegate did not consider whether the applicant would face a real risk of significant harm on return to Afghanistan if he resumed his previous occupation or business.[26]
[23] 106-121
[24] CB 109-10
[25] CB 110
[26] CB 115-7
As noted above, in December 2017, the applicant’s representatives made a written submission to the Authority (Authority submission).[27] The Authority submission included the following:[28]
The Delegate recognised that [his home town], where the applicant’s family reside, was subject to three attacks in 2016 from Improvised Explosive Devices (IEDs). Given the applicant:
a) still needs to travel by road within Kabul, including to and from [his home town]; and
b) only has employment experience in Afghanistan with respect of importing/exporting goods from Pakistan, it is likely that any employment on return to Afghanistan would involve similar endeavours requiring the use of internal roads.
When read in conjunction with the above profile, there remains a real risk of harm given the heavy use of IEDs in Afghanistan, including in [his home town].
[27] CB 193-7
[28] CB 196 at [30]-[31], emphasis added
On 22 June 2018, the Authority made the decision. When it did so, it had before it a copy of the DFAT Report, which was also before the delegate.[29] The DFAT Report states at page 11:[30]
Road safety
2.37 Afghanistan’s road network is generally poor, particularly in the mountainous central highlands. Snowfall makes travel in winter more difficult, and can prevent travel on roads at higher altitudes for extended periods. Unsafe driving practices, such as speeding, exacerbate these problems, and traffic accidents account for the majority of fatalities on Afghan roads.
2.38 Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common. Officers operating official checkpoints—drawn from the Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads—can be inadequately trained and poorly paid. Corruption at these checkpoints is common.
2.39 Criminals and insurgents on roads tend to target people who appear wealthy or are associated with the government or the international community, in attacks that can include kidnapping for ransom (see following section). People from all ethnic groups are vulnerable to these attacks. It can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity.
[29] see CB 226 at [28] footnote 4 and CB 114 footnote 39
[30] emphasis added
Ground 1 and 2: the decision
The part of the decision relevant to Grounds 1 and 2 is [12]-[13], which states in full:[31]
The submission raises what appears to be a new claim that the applicant will face a risk of harm while travelling on the roads for employment purposes. The submission asserts that the applicant’s only employment experience in Afghanistan was as an importer/exporter of goods to/from Pakistan and that any employment he obtains on return to Afghanistan is likely to involve similar endeavours, requiring the use of roads. This claim was not raised before the delegate and the applicant has not provided any evidence to support this claim. He has not identified what type of employment he will seek beyond claiming that he will need to travel. He has not explained why he will need to travel or why any employment will require him to leave Kabul.
At the interview the applicant gave comprehensive evidence about his import/export business, which he operated from 2006 until 2013. He said that he employed drivers to travel to and from Pakistan and he did not do this driving himself. He did not claim that he, or any of his drivers, were ever threatened, harmed or involved in any other incidents due to his business. He was asked on a number of occasions about his fears on return and he did not refer to any fear relating to travelling for employment purposes. When he was asked specifically about employment in Afghanistan, he said that it would be hard for him to find a job because he would be in an area where people do not know him. He did not claim that he would only be able to find employment that would involve driving, or that he would be able to, or want to, resume his previous business. Having regard to all of the above, I am not satisfied that there are exceptional circumstances to justify considering this new claim.
[31] CB 222-223
Ground 1: the authorities
Ground 1 is that, in light of the above reasoning, the Authority erred in treating the New Claim as “new information” under s.473DD of the Migration Act. This error meant that “exceptional circumstances” were necessary before the New Claim could be considered. The applicant submits that on a correct understanding of “new information” under s.473DD of the Migration Act, the Authority should have held that the New Claim was not new information, and should have considered the claim.
There are a number of Federal Court decisions on the question of whether a new claim, made for the first time before the Authority, is “new information” for the purposes of s.473DC of the Migration Act.[32]
[32] eg, CVK16 v Minister for Immigration (2017) 257 FCR 297 at [49]-[50]; ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39]; EXV17 v Minister for Home Affairs [2018] FCA 1780; AYK17 v Minister for Immigration [2019] FCA 1053
The applicant submits that two key points of distinction between the present case and CVK16, ADN18, EXV17 and AYK17 are that, in the present case, the New Claim:
a)related to s.36(2)(aa) of the Migration Act; and
b)did not involve any new information (for example, additional evidence about the applicant’s circumstances or events in Afghanistan) being put before the Authority (leaving aside the question of whether the claim itself was new information).
The applicant submits that the fact that the New Claim, related to s.36(2)(aa) of the Migration Act, is important. The complementary protection regime under s.36(2)(aa) is an objective one in which “the subjective views of the applicant” have no part to play.[33] Thus a s.36(2)(aa) claim may be made simply by pointing to information and arguing that, objectively, that information shows than an applicant faces a real risk of significant harm. This may be contrasted with the position under s.36(2)(a), where a claim must include that the applicant has a subjective fear of relevant harm.[34]
[33] SZVVE v Minister for Immigration [2015] FCA 837 at [21]
[34] see ss.5H(1) and 5J(1)(a) of the Migration Act
With that point in mind, the applicant makes the following submissions regarding CVK16, ADN18, EXV17 and AYK17.
CVK16
In CVK16, the applicant made a submission to the Authority that began with the statement:[35]
I would like to include some crucial and different “information” to be attached to my submission. The incident relates to the criminal charge I had in this country. …
[35] CVK16 at [23], emphasis and quotation marks added by the Court
The submission then proceeded to:[36]
(a) outline the effect the charge had on the appellant;
(b) assert that the incident was “widely spread throughout [his] village”;
(c) provide details concerning the alleged circumstances giving rise to the charge and its withdrawal;
(d) explain why he had not mentioned it in his protection visa interview; and
(e) specify, for the first time, why he says he feared harm as a result.
[36] CVK16 at [25]
As the Court noted at [26], apart from the fact of “the charge and its subsequent withdrawal, everything else was new”.
The Authority found that:[37]
Although the fact that the applicant was charged with this offence was in the information considered by the delegate, I consider that the applicant’s claims to fear specific harm as a consequence is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate. While I have some sympathy for the predicament of the applicant I do not consider that there are exceptional circumstances which justify consideration of the new information, being the claims that the applicant fears harm in Sri Lanka as a result of being charged in Australia…
[37] CVK16 at [33], emphasis added by the Court
CVK16 submitted at [37] that a claim based on material that had been before the Minister’s delegate was not “new information”. This submission was made after this Court had dismissed a similar argument.[38] The Federal Court also rejected CVK16’s case, holding at [51] that the Authority’s approach was correct, stating that “the reasons of the Federal Circuit Court were correct. The Explanatory Memorandum, if it were necessary, puts the matter beyond doubt”.
[38] CVK16 v Minister for Immigration (2017) 318 FLR 34 (CVK16 FCCA) at [41]-[46]
In light of the Federal Court’s statement, it is instructive to consider my reasons at first instance in CVK16 at [44]-[46]:
In my view, it would disregard what is plainly Parliament’s intention to accept the applicant’s interpretation of ss 473DC and 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. The Authority does not review decisions of delegates in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration. Further, the Authority’s function is not to deal with applications for review but to review adverse decisions referred to it by the Minister’s Department. The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. Given the limited statutory function of the Authority, it would be very odd if the Authority could consider new claims as a general rule.
In addition, it is in my view artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss 473DC and 473DD of the Migration Act.
Having rejected the applicant’s interpretation of the statutory provisions, his application must fail. I note, however, for completeness, that the applicant had provided information concerning his criminal case to the delegate. The delegate treated it only as information bearing upon the question of whether the applicant posed a risk to the Australian community. The delegate found that the applicant did not pose such a risk. There was no consideration by the delegate of the applicant’s alleged offence in respect of his claims for protection. That is unsurprising as the applicant had advanced nothing before the delegate to indicate that he might harbour a fear for that reason should he return to Sri Lanka. It was nevertheless open to the applicant to submit to the Authority that the bare facts provided to the delegate gave rise to a claim worthy of consideration. If he had done so, the Authority would no doubt have had to consider that submission. However, the applicant made no such submission. He implicitly acknowledged that the information before the delegate did not constitute a claim because he put to the Authority that the claim was a new one which the Authority should consider as exceptional. In my view, this distinction made by the applicant himself, eliminates any proposition that the Authority erred by failing to consider whether the delegate overlooked the claim.
Having approved this Court’s reasoning, the Federal Court stated its conclusion that the “new claim did involve ‘new information’ and therefore the statutory prohibition against receiving ‘new information’ also applies to the appellant’s new claim. It pertained to a different fear”.[39]
[39] CVK16 at [53]
The applicant contends that the present case falls squarely within the statements in the last paragraph extracted at [40] above. The applicant submits that the submission made to the Authority at [30]-[31][40] was, correctly, understood by the Authority to be claiming that “the applicant will face a risk of harm while travelling on the roads for employment purposes”.[41] That claim did not depend on any new information. Nor did the claim involve (or need to involve) any new expression of subjective fear so as to satisfy s.5J(1)(a) of the Migration Act (which might itself be regarded as new information on the basis that it was a “different fear”, quoted above).[42] It is said to have been a submission supported by the bare facts provided to the delegate. CVK16 both at first instance and on appeal are said to support Ground 1 in the present case.
[40] CB 196
[41] CB 222 at [12]
[42] CVK16 at [53]
ADN18
ADN18 sought judicial review of a decision of this Court refusing to grant him an extension of time under s.477 of the Migration Act. Insofar as ADN18 sought to advance an argument that might have been relevant to the present case,[43] Griffiths J found at [38] that such argument had not been put to the primary judge. His Honour stated at [38] that this Court “cannot have committed any jurisdictional error in relation to it”. Nevertheless, his Honour went on to state, at [39]:
The applicant sought to distinguish what McKerracher J said in CVK16 at [50] on the basis that this passage differed from what was said subsequently in M174 at [17] and [24]. There is no inconsistency between what McKerracher J said at [50] and these subsequent observations of the plurality in the High Court. To the extent that the applicant contended that the relevant passage in CVK16 was plainly wrong, I respectfully disagree. Justice McKerracher’s analysis at [50] is plainly correct, for the reasons given by his Honour.
[43] ADN18 at [24(b)]
The applicant submits that nothing in ADN18 impacts on the analysis of CVK16 and CVK16 FCCA set out above.
EXV17
EXV17 was an appeal from a decision of this Court dismissing EVX17’s application for judicial review of a decision of the Authority. At the appeal, EVX17 sought to rely on an amended notice of appeal. Derrington J refused to grant leave at [56] on the basis that the proposed grounds of appeal lacked sufficient merit.
There were two claims advanced before the Authority that it considered at [10] were “new information”:
the claim that there was an ongoing investigation being conducted by the Sri Lankan authorities into the appellant and, secondly, the claim that there was a real risk that he would suffer significant harm as a result of his sister’s status as an asylum seeker.
In relation to these claims, the Authority stated:[44]
There was no information before the Minister that there is an ongoing investigation being conducted by the Sri Lankan authorities in relation [to] the applicant. Although there was information before the Minister that the applicant’s sister has sought asylum in Australia, the claim that the applicant feared harm because of that was not.
[44] EXV17 at [10]
The Authority was not satisfied that there were exceptional circumstances to justify considering the claims (which the Authority regarded as new information).[45]
[45] EXV17 at [10]
Proposed Ground 1 of EXV17’s draft amended notice of appeal focussed on the claim relating to the applicant’s sister.[46] EVX17 sought to make out that there was “a distinction between new factual information and new submissions based upon existing facts”.[47] Derrington J ultimately found that:[48]
there is no need to consider in this case whether new arguments or new claims based solely on the material which was before the delegate can be agitated before the IAA: see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 and Minister for Immigration and Border Protection v CLV16.
[46] at [21]
[47] at [28]
[48] at [43]
This was because it was not possible for any claim relating to the applicant’s sister being an asylum seeker to arise on the material before the delegate. As Derrington J stated at [40]:
Here the appellant did not suggest to the delegate he had any fear of persecution because his sister was an asylum seeker and nor did he suggest that siblings of asylum seekers faced a real risk of harm if they were returned to Sri Lanka. It was not suggested that in any of the Country Information before the delegate there was any indication of persons being harmed or fearing harm because of those factors. That being so it is not possible for any Convention claim based upon either of them to arise on the material before the delegate in this case. Similarly, there was no material which suggested that the siblings of asylum seekers became subject to the risk of harm from the authorities. In order for a claim to be considered under the Complementary Protection provisions, there would need to be some evidence that some harm might be sustained by a person because a close family member had sought asylum. It was not suggested that there was any such material before the IAA.
Derrington J noted at [41] that, on the appeal, EXV17 pointed to “a statement to the effect he feared persecution as a result of his sister being an asylum seeker which appeared in the submissions made to the IAA by his advisor”. Derrington J stated at [42], that if the statement in the submission was relied upon as evidence to support the new claim, then the statement was, “unquestionably, new information”. Indeed, if such a statement were evidence, it would be evidence of a subjective fear of harm not previously articulated, that is, a “different fear” of the type identified in CVK16.
The facts of EXV17 are thus said to be distinguishable from the present case. Moreover, as noted above, Derrington J expressly eschewed at [43] any determination of the question of whether “new claims based solely on the material which was before the delegate can be agitated before the IAA”. Thus the analysis of CVK16 and CVK16 FCCA above is said to remain applicable.
AYK17
In AYK17, the applicant had stated in a written submission to the Authority that:[49]
[49] AYK17 at [7], Federal Court’s emphasis
On behalf of the applicant’s [sic] it is submitted that the Applicant holds an objective fear of harm if returned to Sri Lanka because of his imputed political opinion as a failed asylum seeker.
We submit because of the information that is available now on public domain. It is extracted below.
As some inmates who were with me were killed in incarceration, I could be seen as a potential witness of such crimes. This is one of the bases upon which I claim protection. I also claim protection as I will be imputed with the LTTE profile as they did in the early 1990s.
The Authority stated that the submission made “what appears to be a new claim that the applicant may be a potential witness to the deaths of people in incarceration”, and found that there were not exceptional circumstances to justify considering this claim.[50] The Federal Court summarised AYK17’s written submissions in relation to the Authority’s reasoning on this point as follows:[51]
AYK17 says that, in context, the new material was drawing attention to the fact that the claim of a fear of persecution based upon an imputed political opinion as a failed asylum seeker was tied to and exacerbated by his past in having been rounded up with others and in having seen other inmates killed by authorities. Counsel submitted that this would make the appellant’s particular fear of harm different to a general claim of a person having left Sri Lanka and failed in a claim to asylum (which was the more limited context for the delegate’s decision).
[50] AYK17 at 9
[51] at [19], emphasis added
AYK17 claimed at [40] that the Authority had erred in relying on s.473DD of the Migration Act to justify excluding “from consideration that part of his claim based upon his imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him”.
Farrell J referred to CVK16 and stated at [48] that the claim in CVK16 was more accurately described as one that “involved ‘new information’ and therefore the statutory prohibition against receiving ‘new information’ also applied to CVK16’s new claim”. Relying on Plaintiff M174/2016 v Minister for Immigration[52] and Minister for Immigration v CLV16,[53] her Honour accepted at [49] that:
if the new material had comprised a claim which relied only on information which was in the factual pool of information that had been before the delegate, the Authority would have been required to consider that new claim. However, as the authorities currently stand, where a new claim (such as the new material) or an elaboration of an old claim (such as that AYK17 would be imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him) relies on “new information” (that is, “knowledge about some particular fact, subject or event” which was not in the factual pool of information which had been before the delegate when the decision to refuse the visa was made), the new claim or the variation of the old claim cannot be considered by the Authority unless both paragraph (a) and one of sub-paragraphs (b)(i) or (ii) of s 473DD have been satisfied…
[52] (2018) 264 CLR 217
[53] (2018) 260 FCR 482
Her Honour’s reasoning is said to accord with what is put above regarding CVK16 and CVK16 FCCA.
Ground 1: the error
In the present case, the applicant submits that the New Claim depended on the fact that the applicant had previously run an import/export business between Afghanistan and Pakistan, and that there was evidence that the roads in Afghanistan were dangerous. The evidence to make out the first fact is said to have been before the delegate. Similarly, there was evidence before the delegate that pointed to the dangers of the roads in Afghanistan:
a)first, the DFAT Report was before the delegate. The DFAT Report included the passages extracted above, which showed that there were significant dangers associated with road travel in Afghanistan. Indeed, the delegate stated, apparently based on this part of the DFAT Report, that “I accept that there have been a few instances where returnees have been targeted on the roads returning to their home district.[54] However, the applicant on his return could access Kabul through its international airport without having to access the roads which are reported to have security concerns”.[55] Thus it is clear that the delegate was alive to there being risks, and considered that the DFAT Report supported the view that there were risks, associated with travelling by road in Afghanistan;
b)secondly, further on in the delegate’s decision, the delegate referred to country information about people being killed or injured as a result of their vehicles hitting IEDs on the road in the applicant’s home town where the delegate found that the applicant was from.[56] This point was expressly picked up in the submission to the Authority that it held constituted the New Claim.[57]
[54] page 11
[55] CB 114 (footnote in original)
[56] CB 116
[57] CB 196 [30]
In these circumstances, the applicant submits that the New Claim as found by the Authority at [12], “that the applicant will face a risk of harm while travelling on the roads for employment purposes” was not a claim that depended on any new information. The applicant’s representative’s submission to the Authority was a submission based on “the bare facts provided to the delegate”, and that those facts “gave rise to a claim worthy of consideration”.[58] Put another way, the New Claim “comprised a claim which relied only on information which was in the factual pool of information that had been before the delegate”.[59] As such, the Authority was “required to consider that new claim”.[60]
[58] cf CVK16 FCCA at [46]
[59] cf AYK17 at [49]
[60] AYK17 at [49]
The Authority did not consider at [13] the claim because it held that there were not exceptional circumstances to justify it doing so. Implicit in the Authority’s approach is said to be the proposition that any new claim, including claims that are in truth no more than new contentions based on material that was before the delegate, is “new information” under s.473DD. In light of the authorities referred to above, that approach is said to be incorrect.
The Minister’s contentions
The applicant argues that the issue dealt with by the Authority at [12] was previously put and that this is apparent from the transcript of the SHEV interview, annexed to the affidavit of Ms Randall (Transcript). In particular, he appears to rely on the parts of the transcript of interview that are extracted in the applicant’s submissions at [12]-[13] where, despite making clear that he himself did not drive the trucks that conveyed the material that was received and dispatched in his import/export business, the fact that trucks and driving was referred to is said to give rise to the claim that was later put by his legal representative in the Authority submission at [30]–[31][61] as follows:
The delegate recognised that [the applicant’s home town], where the applicant’s family reside, was subject to three attacks in 2016 from Improvised Explosive Devices (IEDs). Given the applicant
a) still needs to travel by road within Kabul, including to and from [the applicant’s home town], and
b) only has employment experience in Afghanistan with respect to importing/exporting goods from Pakistan, it is likely that any employment on return to Afghanistan would involve similar endeavours requiring the use of internal roads.
When read in conjunction with the above profile, there remains a real risk of harm given the heavy use of IEDs in Afghanistan, including in [the applicant’s home town].
[61] CB 196
The applicant also relies on what is said in the DFAT Report, which is referenced in the course of the Authority’s decision. In particular, he relies on what is stated there about the roads in Afghanistan at 2.38-2.39 in support of his argument that the applicant’s claim to fear harm on the roads was wrongly treated as “new information” which then had to meet the criteria in s.473DD of the Migration Act.
The applicant refers to and extracts parts of a number of decisions dealing with what is “new information” and contends that by reference to those decisions, ground one should succeed. While the Minister does not dispute that there are a large number of decisions considering the relevant issues, as it is well established that each must be determined on the specific context and claims actually made in the particular case, the Minister contends that the issue of whether there was or was not “new information” before the Authority is a matter of fact, and something upon which the Authority was entitled to form its own view, on the material before it. That is, none of the decisions referred to is sufficiently analogous to what is before this Court to be able to be relied on as authority.
The Minister submits that Ground 1 cannot succeed. First, despite what is put by the applicant to the effect that an applicant, in relation to s.36(2)(aa) of the Migration Act, can make a claim “simply by pointing to information” etc, the applicant bears a “statutory onus” of establishing his claim. Section 5AAA of the Migration Act relevantly provides as follows:
Non-citizen's responsibility in relation to protection claims
(1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
…
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non-citizen's claim; or
(b) establish, or assist in establishing, the claim.
The Minister contends that the proposition put in the applicant’s submissions, effectively, that a decision maker ought to discern a claim as being made simply because there is information before it, for example, in a DFAT country report, cannot be accepted. It is said to be inconsistent with authority and it is directly contradicted by s.5AAA.
In the Minister’s submission, nor can a claim to fear harm as a road user be said to arise from the fact that the applicant had previously run an import/export business between Afghanistan and Pakistan, and that there was evidence (in the form of a DFAT report) that the roads in Afghanistan were dangerous. In an analogous context, that is, a claim that a decision maker failed to review a decision by failing to respond to a claim, it is well established, that this includes a claim that may be said to arise from the material.[62] However, as Allsop J (as his Honour then was) stated in NAVK v Minister for Immigration[63] at [15] a claim must:
… arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[62] see Htun v Minister for Immigration Affairs (2001) 194 ALR 244 at [42]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
[63] [2004] FCA 1695
This is well established in the context of a Tribunal reviewing a decision pursuant to Part 7 of the Migration Act. But given the constraints on the Authority extending the review beyond the review material, the Minister submits that it warrants even more caution in relation to a review pursuant to Part 7AA.
Thirdly, the Minister notes that the applicant was professionally represented before the delegate and the Authority. It is well established that a relevant factor to consider in determining whether a decision maker failed to consider a claim (and thus, by analogy, whether a claim was made) is whether the applicant was professionally represented. In SZSHK v Minister for Immigration,[64] where the Full Federal Court stated at [37]:
… relevant matters to be taken into account are whether or not the claim … clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. (emphasis added)
[64] (2013) 138 ALD 26
SZSHK has been applied with approval by the Federal Court in a number of decisions.[65]
[65] see BGR15 v Minister for Immigration [2016] FCA 920 at [32]; SZTFI v Minister for Immigration [2015] FCA 322 at [56]; BMQ16 v Minister for Immigration [2017] FCA 1197 at [62]; SZULW v Minister for Immigration [2018] FCA 1335 at [80]; Hong v Minister for Immigration [2018] FCA 1085 at [41]
The Minister submits that the fact that the delegate was alive to there being country information about risks associated with travelling by road in Afghanistan is not itself a claim by the applicant to fear harm on that basis. On the contrary, it is said to be clear from the transcript of interview that the delegate gave the applicant many opportunities to make that claim: the applicant emphatically stated that he did not do the actual driving for the purpose of his business.[66]
[66] see for example what is said at transcript page 37, lines 15-16: “I was managing and supervising the others. It was others who were driving the truck”
For these reasons, the Minister submits that the Authority did not err in finding that the claim made about the roads in the applicant’s Authority submission was a new claim and one that was not able to be considered absent the criteria in s.473DD being met.
However, as is elaborated upon further in relation to Ground 2, even if (which the Minister does not concede), this claim had been made earlier and was considered by the Authority, ie, was not treated as new information, there was, in the Minister’s submissions, no realistic possibility of a different outcome. This is because, as the Authority pointed out at [12]-[13], it was not consistent with the clear evidence given by the applicant and there was no evidence provided to support that claim,[67] nor did he identify what type of employment would require him to be on the roads or leave Kabul, nor did he ever claim that he would be employed in an occupation that involved him driving. Thus the Minister submits that even if what was put in the submission was treated as a claim and reviewed by the Authority, it could not realistically have made a difference.[68]
[67] cf s.5AAA(2)
[68] cf Minister for Immigration v SZMTA (2019) 264 CLR 421 at [45]
Resolution
By this ground, the applicant contends that the Authority erred by not considering the claim described in the Authority reasons at [12], the error being that it was not, as the Authority characterised it, a new claim. On that basis, the applicant contended that it did not require consideration of the exception provided by s.473DD to what Mortimer J has described[69] as the “primary rule”, ie, that pursuant to s.473DB, the Authority must review a fast track decision referred to it “on the papers”, by considering the review material (see s.473CB) and “without accepting or requesting new information and without interviewing the referred Applicant”.
[69] see BZC17 v Minister for Immigration (2018) 264 FCR 667 at [26]
It is certainly arguable that the Authority misunderstood that the applicant, in the submission to the Authority extracted above, was not advancing a new claim that he was at risk of harm by travelling the roads in pursuit of his import/export business between Afghanistan and Pakistan.
As the Authority explores in its reasons at [12]-[13], the applicant had previously given extensive evidence about his previous occupation in Afghanistan. The Authority stressed the prior evidence that the applicant had employed drivers to travel to and from Pakistan in the course of that business. The Authority appears to have placed significance on the fact that the applicant was not driving trucks himself, and hence that he was not at personal risk of harm in the course of that business on the roads. The Authority thus viewed the assertion in the submission about the risk of harm on the roads if the applicant resumed the business to be a new claim.
While a new claim will generally involve the provision of new information, I accept the hypothetical possibility that a new claim may be based entirely on existing evidentiary material.
The applicant contends that that hypothetical situation is what occurred here. The Authority certainly already had in the referred material information about risks on the roads in Afghanistan and the information provided by the applicant, orally and in writing, about the conduct of his former business. The Authority was correct in noting that the applicant had not previously claimed to have driven trucks in the business himself. It does not follow, however, that the applicant did not travel the roads in the course of that business. At his SHEV interview, as pointed out by the applicant in his submissions in these proceedings, the applicant appeared to be saying that he also made the journey, although the circumstances in which he did so, were unclear. It may have been that the applicant drove independently to make arrangements for the purchase and sale of goods, or it may have been that the applicant rode as a passenger in a truck in order to supervise or facilitate the trade.
The Authority was, nevertheless, correct in finding that the claim of fear advanced in the submission was new. The applicant had not previously claimed to have been harmed in the conduct of the business (whether by travelling or otherwise) and the claim advanced of a fear flowing from the resumption of the business was thus new information.
Accordingly, I find that Ground 1 has not been established.
Ground 2
Applicant’s contentions
Ground 2 identifies asserted errors in the reasoning that the Authority deployed to conclude that there were not, under s.473DD(a) of the Migration Act, exceptional circumstances to justify considering the New Claim. At [13], the Authority set out a number of matters, all of which were relied upon by the Authority to justify this conclusion. This first of the matters relied upon by the Authority went to whether the applicant actually travelled between Afghanistan and Pakistan when he previously ran his import/export business:
At the interview the applicant gave comprehensive evidence about his import/export business, which he operated from 2006 until 2013. He said that he employed drivers to travel to and from Pakistan and he did not do this driving himself.
This holding is said to be important. If the applicant had not travelled between Afghanistan and Pakistan when he previously ran the business, then the submission that he faced risk on the roads on return of Afghanistan faced significant difficulties.
In holding that there were not exceptional circumstances to justify considering the New Claim, the Authority is said to have erred in the following ways:
a)first, in light of the evidence that the applicant actually gave in his SHEV interview, the Authority’s finding regarding whether the applicant had actually claimed, in his SHEV interview, to have travelled to Pakistan in the course of his business was unreasonable or irrational;
b)secondly, the Authority overlooked material evidence relevant to whether or not the applicant had previously travelled to Pakistan in the course of his import/export business;
c)thirdly, the Authority overlooked a matter relevant to whether exceptional circumstances existed. The matter overlooked was the fact that the applicant had previously travelled between Afghanistan and Pakistan in the course of his import/export business. The fact of the applicant having done so was a matter that bore upon whether there were exceptional circumstances to justify considering the New Claim, especially in light of the way the Authority reasoned at [13].
Unreasonableness or irrationality - authorities
Irrationality “may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result”.[70]
[70] ARG15 v Minister for Immigration (2016) 250 FCR 109 at [47]; Minister for Immigration v SZRKT (2013) 212 FCR 99 at [150]-[158]
A pertinent example of illogical or irrational fact finding, based upon the decision maker’s misapprehension of the applicant’s evidence at interview, appears in Gill v Minister for Immigration.[71]
[71] (2017) 250 FCR 309
In Gill, the Administrative Appeals Tribunal (Tribunal) had affirmed a decision by which Mr Gill was refused a Skilled (Provisional) (Class VC) visa. The Tribunal’s ultimate reason for refusing the visa was that Mr Gill failed to meet PIC 4020, at [28]. This conclusion was informed by the Tribunal’s findings at [28] that Mr Gill’s evidence was “lacking in credibility and detail”, that a work experience letter (Letter) supplied on Mr Gill’s behalf in order to obtain a skills assessment was not genuine, and that the Tribunal reasonably suspected that the skills assessment was obtained because of a false or misleading statement (being information in the Letter).
The Letter stated that Mr Gill had attained over 900 hours of commercial cooking experience, and provided details of various dishes that he had been involved in preparing, including “rissoles”.[72] At the Tribunal hearing, there was considerable discussion between the Tribunal and Mr Gill in which the Tribunal perceived that Mr Gill was discussing “risotto”, whereas in fact the word used by Mr Gill was “rizolos”.[73] In its reasons, the Tribunal stated that Mr Gill had said that his duties included the making of “risottos”, and relied upon Mr Gill’s lack of knowledge regarding the ingredients of the “risottos” to form the view that the Letter was not genuine.[74]
[72] at [22]
[73] at [23], [69]
[74] at [24]-[25]
Griffiths and Moshinsky JJ noted at [69] that the primary judge had found that Mr Gill used the word “rizolos” rather than “risotto”. Their Honours stated at [70] that the “Tribunal’s misunderstanding that the appellant was referring to ‘risotto’ was an important part of the Tribunal’s reasoning for concluding that the work experience letter was not genuine and the appellant was not a credible witness”. At [71]-[72], their Honours stated:
The Tribunal’s findings concerning risotto were not supported by logical grounds and lacked any probative evidence. They were predicated on a fundamental misunderstanding of the dish to which the appellant’s oral evidence related. Because the Tribunal erroneously believed that the appellant’s evidence was directed to risottos, it disbelieved him when he said that he prepared the dish, which he described as “rizolos”, using rice and flour. Moreover, this error also contributed to the Tribunal’s adverse credibility finding based upon its belief that the appellant could name only one of the popular dishes served at the Bistro.
Applying the approach of Crennan and Bell JJ in SZMDS, we consider that it was not open to the Tribunal to make the adverse findings which it did relating to this aspect of the appellant’s evidence. That was because the Tribunal had a critical misunderstanding that the appellant’s evidence was directed to “risottos” when, in fact, it was not.
The plurality then referred at [73]-[77] to other findings by the Tribunal, some of which were, and some of which were not, properly characterised as illogical or lacking probative evidence. Their Honours noted at [79] that there were a number of other matters, not impugned by Mr Gill, that the Tribunal had relied upon in concluding that the Letter was not genuine and that Mr Gill’s evidence was not credible. The Minister submitted that those matters showed that the erroneous fact-finding by the Tribunal on matters such as the risotto matter were immaterial.[75] The plurality at [82] rejected that submission on the basis that it could not be said that the Tribunal’s weighing up of all the relevant factors (including the factors in relation to which there had been errors in the fact-finding):
would have produced the same outcome if the Tribunal had not taken into account its illogical and erroneous findings of fact relating to risottos, the crumbing of chicken schnitzels and the appellant’s identification of the most popular dishes. In other words, this is not a case where illogical findings of fact were not material to the Tribunal’s ultimate conclusions…
[75] at [79]
Subject to a matter that is not relevant to the present case, Logan J agreed with Griffiths and Moshinsky JJ at [2]. At [10], his Honour stated:
as Griffiths and Moshinsky JJ demonstrate in their joint judgment, founded upon a fundamental misunderstanding of answers given by Mr Gill in the course of his evidence before the Tribunal to questions inspired by the contents of the work experience letter. The Tribunal did not properly direct itself as to the facts. The resultant and necessary inference is that the Tribunal’s satisfaction was not reasonable.
Gill was applied in CDH16 v Minister for Immigration,[76] where Kerr J found at [74] that the Authority had erred by premising its reasoning on a misapprehension of CDH16’s evidence in his interview with the Minister’s delegate. The Authority found that CDH16 could reasonably relocate within Iraq to Nasiriyah.[77] Part of the Authority’s reasoning as to why it was reasonable for the applicant to do so was that the applicant had tribal ties in Nasiriyah.[78] This reasoning was informed by an earlier holding by the Authority that CDH16 had stated at his protection visa interview that he “has tribal ties in Nasiriyah”.[79] However, the applicant has made no such statement in the interview.
[76] [2018] FCA 668
[77] CDH16 [36], where [47] of the Authority’s reasoning is set out
[78] CDH16 [36], setting out [46] of the Authority’s reasoning
[79] [32] of the Authority’s reasoning, set out at CDH16 [36]
Though the Minister submitted that the Authority’s statement at [32] of its reasoning, regarding the content of CDH16’s interview, was correct,[80] Kerr J disagreed.[81] His Honour held that the misapprehension of CDH16’s evidence was material, relying on [82] of Gill.[82] His Honour did so because “shorn of the jurisdictional error in relation to the IAA’s fact finding, it is quite impossible to conclude that no other decision was open to the Authority”.[83]
[80] see CDH16 [63]
[81] CDH16 at [74]
[82] CDH16 at [75]-[77]
[83] at [77]
Unreasonableness or irrationality – present case
In the present case, the applicant submits that his evidence at his SHEV interview was that he travelled to Pakistan in the course of his import/export business. It is said to have been unreasonable or irrational for the Authority to characterise the applicant’s evidence as being that he had employed others to do the travelling back and forth. This is so because, though the applicant stated at the interview that he hired drivers for his business,[84] the following two passages are said to show, unambiguously, that he travelled with the drivers to Pakistan:[85]
[84] Randall Affidavit page 37.11-16
[85] Randall Affidavit pages 37.19-20; 38.7-9
DELEGATE: And where in Pakistan did you get these items?
INTERPRETER: Sadda
…
DELEGATE: Who was your main point of contact in Sadda?
INTERPRETER: So I didn’t have anyone to present me or to do it for me, by myself I was parking the car somewhere and the local street sellers, they were coming and purchasing it from me.
The applicant submits that, especially when these passages are borne in mind, the only way in which the whole of the relevant evidence to the delegate (set out at [25] above) can be read is that the applicant travelled to Pakistan for his business.
The Authority is said to have been wrong to characterise the applicant’s evidence to the delegate as being that the applicant employed others to travel to and from Pakistan. That error is said to have been material, because the Authority relied on it in finding that there were no exceptional circumstances to justify considering the New Claim. If the Authority had understood that the applicant’s business in Afghanistan involved him travelling in this manner, this may have led the Authority to a different outcome on the “exceptional circumstances” point, and resulted in the Authority considering the New Claim.
Overlooking material evidence - authorities
The law regarding whether the overlooking of evidence constitutes jurisdictional error is clear. In the context of the Tribunal, the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”.[86] The same approach is applied in the context of the Authority.[87]
[86] SZRKT at [111] (approved in Minister for Immigration v MZYTS (2013) FCR 431 at [70] and Minister for Immigration v SZSRS (2014) 309 ALR 67 at [52]
[87] eg, ANR17 v Minister for Immigration [2020] FCA 155 at [32]-[35]
As to whether evidence was overlooked, it is true that the mere fact that evidence is not expressly addressed by a decision maker does not necessarily show that it was overlooked.[88] Rather, the Court must consider whether to draw the inference that a matter was overlooked by having regard to “all of the evidence and other material before the Court”.[89] Inferences may be drawn that a matter was not considered in light of the matters that were expressly considered.[90] The more significant the matter that is not expressly addressed, the easier it is to infer that the matter was overlooked.[91]
[88] cf, eg, SZSRS at [34]
[89] SZDXZ v Minister for Immigration [2008] FCAFC 109 at [25]
[90] eg, BYA17 v Minister for Immigration (2019) 163 ALD 483 at [55]
[91] cf DZF17 v Minister for Home Affairs [2019] FCA 979 at [50]
Overlooking material evidence – present case
In the present case, as noted above, the Authority found at [13] that the applicant’s evidence in the SHEV interview was that “he employed drivers to travel to and from Pakistan and he did not do this driving himself”. However, there was a range of evidence to show that, though the applicant had drivers who travelled to and from Pakistan, he also travelled to and from Pakistan. The relevant evidence is in:
a)the SHEV interview, quoted above;
b)the arrival interview, referred to above; and
c)the applicant’s SHEV application, set out above.
This evidence is said to have been so plainly against the view that the applicant did not travel to and from Pakistan, if it had been considered:
a)it would have been referred to; and
b)the Authority would have had no choice but to (and would certainly have been more likely than not to) refrain from finding that the applicant had not so travelled.
The applicant submits that the express finding of the Authority thus warrants the conclusion that this material was overlooked.
The applicant contends that, as to the overlooking constituting jurisdictional error, an important part of the Authority’s reasoning as to why there were not exceptional circumstances for considering the New Claim was its holding that the applicant has stated in the SHEV interview that he employed others to travel to and from Pakistan. The applicant submits that, if the Authority had not overlooked the evidence referred to above, the Authority would likely have realised that there was much more substance to the New Claim than was the case if the applicant had not travelled to Pakistan when he previously ran the business. The overlooking was thus important in the Authority’s application of s.473DD(a) of the Migration Act, and the Authority’s error was jurisdictional.
Overlooking a matter relevant to whether there were “exceptional circumstances” under s.473DD
Whether, in a given case, there are “exceptional circumstances” of the type required under s.473DD may be affected by a “variety of matters”.[92] Generally, “consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances”.[93]
[92] BVZ16 v Minister for Immigration (2017) 254 FCR 221 at [43]
[93] BVZ16 at [41]; Minister for Immigration v BBS16 (2017) 257 FCR 111 at [104]
In circumstances where the Authority characterises a “new claim” as “new information”, one matter that is likely to bear upon whether there are exceptional circumstances for considering that new claim is the degree to which the factual premises for it are already present in the material that was before the delegate. If the bulk of the relevant factual material is not itself “new information”, then this may bear upon whether a “new claim” advanced largely (though not exclusively) on that material ought to be considered. The Authority’s own reasoning in the present case supports such an approach.
A fair reading of the decision at [12]-[13] is said to show that the Authority had regard to what it perceived to be inconsistencies between the evidence before the delegate and the New Claim, or parts of the evidence before the delegate that might undermine the New Claim. That is, the Authority looked to see the extent to which the New Claim was already supported in the material before the delegate (leaving aside that, for the reasons addressed above in relation to this Ground 2, the Authority is said to have erred).
The applicant submits that in doing so, however, the Authority failed to consider the fact that the applicant had previously travelled to and from Pakistan in the course of his import/export business. Aside from what he has already submitted, the relevance of this fact is said to be demonstrated by, for example, the Authority’s statement at [13] that the applicant had “said that he employed drivers to travel to and from Pakistan and he did not do this driving himself”. If it was relevant for the Authority to consider whether the applicant employed drivers to make the trip to Pakistan, then a fortiori it was relevant for the Authority to consider whether the applicant made that trip, regardless of whether he was actually driving.
Despite this, [12]-[13] of the decision is said to disclose that the Authority did not do so. The matters to which the Authority had regard are those stated at [12]-[13], as the Authority’s closing sentence (“[h]aving regard to all of the above…”) makes clear. The Court is entitled to treat [12]-[13] as being the Authority’s “complete explanation” or “real reasons” for why it proceeded as it did under s.473DD in relation to the New Claim.[94] A fair reading of the paragraphs shows that the Authority erred in failing to address a matter relevant to its decision under s.473DD.
[94] cf AYX17 v Minister for Immigration (2018) 262 FCR 317 at [61]; CVV16 v Minister for Home Affairs [2019] FCA 1890 at [31]
The applicant must prove two matters to make out this ground. First, that there was a translation error. Secondly, that the translation error resulted in jurisdictional error.
Translation error
The Nahida Affidavit is said to establish the translation error. That affidavit was made after the Minister, on 23 November 2018, disputed [1], [2], [4] and [5] of the Notice to Admit. The operative paragraphs of the Notice to Admit stated:
1. The document appearing at page 205 of the Court Book (CB) filed in these proceedings (Translation) is a translation of the document appearing at page 204 of the CB (Original).
2. The date “21/01/1392” (Afghan Date) appearing on the Translation is an accurate translation of the date, in the official Afghan calendar, that appears on the Original.
3. The calendar used in Australia is the Gregorian calendar.
4. The date “1st January 2013” appearing on the Translation is not the equivalent, in the Gregorian calendar, of the Afghan Date.
5. The date in the Gregorian calendar that is equivalent to the Afghan Date is 10 April 2013.
If the facts in these five paragraphs are established, then the translation error relied upon by the applicant will be made out. The facts in the five paragraphs are established as follows.
The fact in [1] is established as:
a)CB 204 and 205 comprise annexure B to the applicant’s statutory declaration of 8 December 2017; and
b)at [7] of that statutory declaration,[132] the applicant states that annexure B consists of a letter and an English translation.
[132] CB 198
The fact in [2] is established by Ms Nahida’s translation of the letter in CB 204, which appears at page 15 of the Nahida Affidavit. Ms Nahida’s translation of the document shows that the date used in the original document is, once “translated” into the Arabic numerals used in the Roman script, “21/01/1392”. As Ms Nahida states (and as would be inferred from the document being said to originate from Afghanistan), such a date appears to be given in the Afghan calendar.[133]
[133] Nahida Affidavit at [11]
The fact in [3] is admitted by the Minister.[134]
[134] see the Minister’s response to the Notice to Admit Facts filed 23 November 2018
The facts in [4] and [5] are proved by the Nahida Affidavit, in particular at [13]-[16].
Jurisdictional error?
As to the translation error resulting in a jurisdictional error, the applicant addresses, first, the materiality of the error, and secondly, the statutory context of Part 7AA of the Migration Act, within which the error operated.
As to materiality, as [24] of the decision shows, the mis-dating of the translated Taliban Letter with the date “1st January 2013” was the sole cause of the Authority finding that the Taliban Letter was not genuine. The letter was an important piece of evidence in support of the applicant’s case. As much was recognised by the Authority at [9], where the Authority, in deciding to have regard to new information including the Taliban Letter, stated:
I also take into account that the new information is clearly relevant to the core of the applicant’s claims and if true, is highly probative of significant matters that were rejected by the delegate.
Thus the Authority’s own reasons suggest that, if the Authority had not found the Taliban Letter to be non-genuine, the applicant could have obtained a different outcome on the review. Materiality is said to be established.
As to the statutory context, Part 7AA sets out the decision-making process for the Authority, in particular in Division 3. Division 3 commences with s.473DA, of which subsection(1) states:[135]
(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.
[135] counsel’s emphasis retained
Subsection 473DB(1) states:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
The opening words of the sub-section make it clear that the effect of s.473DB(1) is qualified by other provisions within Part 7AA. Those other provisions include ss.473DC and 473DD. For present purposes, the relevant effect of those sections is that:
a)the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”: s.473DC(2); and
b)for “the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless” the matters in s.473DD(a), and if applicable, (b), are satisfied.
Section 473DD is the foundation of the Authority’s “power to consider” new information.[136] As its statutory context, including s.473DA(1) (set out above) shows, it is an “expression of one aspect of the natural justice hearing rule” insofar as that rule applies to reviews conducted by the Authority.[137] The concern of the natural justice hearing rule is that “procedural fairness be applied in the process of decision-making in circumstances where a person’s rights or interests may be affected by the decision”.[138] Given the limited aspects of the natural justice hearing rule that exist within Part 7AA, the aspect of that rule manifested by s.473DD is an important one insofar as the slender preservation of procedural fairness within Part 7AA is concerned.
[136] CAQ17 v Minister for Immigration [2019] FCAFC 203 at [80]
[137] cf CSR16 v Minister for Immigration [2018] FCA 474 at [40]
[138] Saeed v Minister for Immigration (2010) 241 CLR 252 at [2]
In other statutory contexts, translation errors have been found to have stultified administrative decision-making by virtue of the effect of the errors on provisions designed to accord procedural fairness. In the context of Part 7 of the Migration Act, jurisdictional error has been found in relation to reviews under s.414 where translation errors have caused the hearing process required by s.425 of the Migration Act to miscarry.[139] For such a finding to be made, it is not necessary that an applicant was prevented from giving any evidence; errors of a less drastic nature may be sufficient to conclude that the decision-making process has miscarried.[140]
[139] eg, SZSEI v Minister for Immigration [2014] FCA 465 at [114]-[115]
[140] SZSEI at [72]-[73]
Applying an analogous approach to the present case, the applicant contends that the error in the translation of the Taliban Letter stultified the Authority’s exercise of the power under s.473DD, and caused the Authority’s review under s.473CC to miscarry. Though the Authority decided to exercise its power under s.473DD to consider the Taliban Letter, the Authority was prevented from meaningfully doing so by the translation error. Considered from the applicant’s perspective, the error “denied him procedural fairness, or recourse to the natural justice hearing rule” so far as s.473DD provides for it, in relation to the Taliban Letter.
The applicant’s submissions apprehended that the Minister may contend that DVO16 v Minister for Immigration[141] stands against the applicant succeeding on Ground 4. DVO16 is presently under appeal in the High Court.
[141] [2019] FCAFC 157
DVO16 dealt with alleged translation errors in an interview between DVO16 and a delegate of the Minister in the context of a later review of that delegate’s decision by the Authority. The submissions on the part of DVO16 on judicial review took an approach that is not the same as the approach outlined in these submissions above. DVO16 did not focus on the stultification of the Authority’s power under s.473DD. Instead, he focussed on an alleged deprivation of the Authority’s opportunity to consider exercising its discretion under s.473DC, and an alleged failure to “complete the task of jurisdiction imposed by s.473CC, ie to ‘review’ the decision of the delegate”.[142]
[142] see at DVO16 at [71]-[73]
Steward J rejected at [88] DVO16’s submissions on the basis that the “detrimental impact on the review process” of the alleged translation errors was “not particularly material”. His Honour at [86] otherwise left open the possibility that, if the errors had been material, the case could have been “within the principle in SZFDE”.[143]
[143] SZFDE v Minister for Immigration (2007) 232 CLR 189
Greenwood and Flick JJ were of the view that the:[144]
errors in translation and the failure to translate responses made by the Appellant were such, with respect, that the questions being asked by the delegate were not being accurately conveyed nor answered and the difficulties being experienced by the Appellant were such that his inability to comprehend what was being asked of him was not being conveyed to the delegate.
[144] DVO16 at [5]
However, their Honours nevertheless found at [9]-[13] that no jurisdictional error was made out.
The applicant submits that as the submissions made above differ from the submissions made in DVO16, DVO16 does not preclude the applicant succeeding in this Court. However, the applicant formally submits that DVO16 is wrongly decided, and that, had it been correctly decided, it would likely have provided yet another reason why the applicant’s case on Ground 4 should succeed.
I also prefer the Minister’s submissions on this ground. It is submitted by the applicant that because the Authority made a finding that was adverse to the applicant about a document provided by the applicant, based on what was said to be the date in that document, this constitutes jurisdictional error because the document is now said to have contained a translation error in relation to that date. This ground cannot succeed. As a general principle, if an applicant provides false or misleading information to the Authority, the Authority does not err by relying upon it.
The Minister refers again to s.5AAA of the Migration Act. The Minister submits that the only way in which an error of translation in a document provided by the applicant in support of his case could give rise to jurisdictional error is if there is an independent obligation on the Authority to verify the accuracy of the material it is provided. There is manifestly no such duty.[145] Nor does DVO16 and which the applicant contends is “wrongly decided”, assist the applicant. The errors in issue there were apparently made by an interpreter provided at an interview. By contrast, the document in issue in this case was provided by the applicant. The applicant bore the responsibility of providing evidence in support of his claim.[146] There is no basis for any contention that the Authority has an obligation to identify any mistranslation before a document provided by an applicant in support of his case can be relied on.
[145] see s.5AAA(4) in particular
[146] section 5AAA(2)
The applicant does not suggest that his advisers deliberately provided a false translation to the Authority. Fraud can thus be discounted. Mere incompetence or inattention by those assisting the applicant in provided material on his behalf cannot establish jurisdictional error.
Grounds 5 and 6
Grounds 5 and 6 can be dealt with together. Each ground focusses on [22] of the decision, which is referred to at [130] above. In particular, at [22], the Authority highlighted what it perceived to be an inconsistency between the Employer Letter and the applicant’s evidence regarding what had occurred to N. In doing so, the Authority made the following finding regarding the applicant’s evidence:
the applicant has never claimed that N was taken by any armed groups or that his truck was burnt. The applicant’s claim has always been that he told N to disappear because the Taliban was looking for N personally.
As outlined above, the applicant stated at his arrival interview, in August 2013, that he thought the Taliban were responsible for his brother’s disappearance.[147] Thus the Authority was plainly incorrect to state that “the applicant has never claimed that N was taken by any armed groups”. This alone is said to show error on the Authority’s part, as this finding regarding what the applicant had “never claimed” was not supportable on the evidence, or can only have been made while overlooking the evidence in the applicant’s arrival interview.
[147] CB 13
Authorities relevant to this point are discussed above in relation to Ground 2. The applicant contends that either the Authority made the finding at [22] having regard to the material at CB 13, in which case the finding was irrational or unreasonable,[148] or overlooked that evidence. He submits that the latter appears more probable, given that his arrival interview is not referred to anywhere in the decision.
[148] see the discussion regarding Gill and CDH16 at [87] and [90]-[91] above
In any event, the applicant submits that, the Authority’s irrational or unreasonable reasoning, or overlooking of relevant evidence, was important. As noted above, at [25], the Authority relied on the “inconsistencies” that it had identified in the evidence to disbelieve much of the applicant’s version of events. The Authority did so in a cumulative way, “[h]aving regard to all of the above, I consider that the inconsistencies in the evidence cast significant doubt…”. Thus it cannot be said that the Authority would have reasoned as it did at [25] had it not made the mistake that it did.[149] Put another way, this is not a case where the finding that was made in error was “not material” to the decision-maker’s “ultimate conclusions”.[150]
[149] cf Gill at [82]
[150] Gill at [82]
The case may be contrasted with cases such as Minister for Immigration v SZOCT,[151] where the decision-maker drew upon a number of matters “singularly and cumulatively” in support of a finding that SZOCT was not a credible witness at [83]. Because the decision-maker’s conclusion on credibility at [83]-[84] (which was ultimately fatal to SZOCT’s visa application) was supported by a number of matters independently of one another (as well as cumulatively), the fact that there had been illogical or irrational reasoning in relation to one of those matters was insufficient to demonstrate jurisdictional error.
[151] (2010) 189 FCR 577
Minister’s contentions
The Minister contends that this ground, while presented as a claim that the Authority committed jurisdictional error, goes no higher than seeking to cavil with a finding made by the Authority about the applicant’s claims pertaining to his brother N and N’s disappearance. The Authority stated at [22] that in one of the parts of the new information which the Authority agreed to consider, at [9], it was stated that “On 25 March 2013, N’s truck was stopped by an armed group and burned and N disappeared”. The Authority commented that the applicant had never claimed that N had been taken by any armed groups or that his truck was burnt, but the Authority goes on to state at [23] in any event that the letter refers only to N being stopped and harmed while on the road, but does not refer to N or any other driver or member being targeted by the Taliban personally, nor to any threats made.
The applicant contends that it is incorrect to say the applicant had not previously claimed that N was taken by an armed group or his truck burned. The Minister submits that the passages referred to in the particulars do not assist him in establishing any jurisdictional error. At its highest, at his arrival interview, the applicant said that he thought the Taliban had taken his brother, and he also made claims concerning threats he received himself relating to his brother. Given what is stated at [23], it is not clear how what is contended could extend beyond, at its highest, a small factual error (which the Minister does not concede). It is said to be well established that an error of fact will not constitute jurisdictional error absent some other element, such as the applicant meeting his onus of demonstrating how any such error fundamentally affects the exercise of the Authority’s jurisdiction.
The Minister submits that, in addition to what is said in s.5AAA, it is well established that an applicant for judicial review has the onus of establishing her/his case in judicial review proceedings,[152] and that involves also carrying the onus of establishing that any error that was made is material.[153] In light of what is stated by the Authority at [23], the Minister submits that he has not met that onus.
[152] see Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67], [91]-[92]
[153] see SZMTA at [4], [41], [46]
In respect of Ground 6, the applicant relies on the same sentence at [22] of the Authority’s decision, and the same particulars to Ground 5, to contend that the Authority erred in making a finding that had no basis in fact. The applicant does not identify what ground of judicial review appears to be relied on. If it is contended that there was no evidence to support that finding, it is patently unable to be made out, given what was said by the applicant in his various statements. As Mason CJ stated in Australian Broadcasting Tribunal v Bond[154] at 356, so long as there is “some basis for an inference – in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place”.[155]
[154] (1990) 170 CLR 321
[155] see also MZZYE v Minister for Immigration [2015] FCA 1378 at [54] per Murphy J
The Minister submits that there was material available to the Authority upon which the impugned finding could be based. In the absence of any identification as to how a wrong finding of fact (the existence of which is not conceded) could constitute jurisdictional error, this ground must also fail.
Resolution
Strictly speaking, the Authority was incorrect in stating that the applicant had never previously claimed that N had been taken by the Taliban. At his arrival interview, the applicant had said that he thought that the Taliban had taken N. That apparently was not based on any hard evidence but it was the applicant’s concern. I am inclined to think that the applicant is correct in asserting that the Authority’s silence in relation to the applicant’s arrival interview indicates that the Authority did not refer to that evidence. Thus, the Authority did make a factual error.
The more substantial question is whether that error goes to jurisdiction. The Minister relies heavily upon s.5AAA of the Migration Act. It is, in my view, unhelpful to speak in terms of the visa applicant bearing an onus of proof. However, the section does make clear that it is for the applicant to satisfy decision makers that the material they advance should impact upon the outcome.
In my view, while the conclusion reached by the Authority was not on all fours with the letter of everything put by the applicant at various times, it was consistent with the substance of his claim in relation to his brother; namely, that he had disappeared and the applicant did not know what had happened to him.
In my view, the failure of the Authority to grasp the nuances in the applicant’s claims and evidence, arising in particular from what he said in his arrival interview, did not go to its jurisdiction.
I reject these grounds.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 August 2020
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