DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 135
Federal Circuit and Family Court of Australia
(DIVISION 2)
DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135
File number(s): ADG 294 of 2018 Judgment of: JUDGE EGAN Date of judgment: 13 October 2021 Catchwords: MIGRATION – application for protection visa – whether the ascendancy of the Taliban in Afghanistan, in August 2021, constituted a relevant jurisdictional fact or not – whether for reasons of comity a decision of another Judge of this Court arising out of the same or similar facts ought to be followed – applicable principles where decision of another Judge not followed – whether Authority was irrational in the making of its decisions – whether the Authority appropriately addressed risk issues on a general basis or on a comparative basis – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 48B(1), 473CB, 501J(1)(2) Cases cited: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10.
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153.
Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118.
Parker v Minister for Immigration and Border Protection [2016] FCAFC 185.
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992.
BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211.
DQU16 v Minister for Home Affairs (2021) 95 ALJR 352
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
NAHI v Minster for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10.
Rawson v Federal Commissioner of Taxation (2013) 59 AAR 221.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 11 October 2021 Date of hearing: 11 October 2021 Counsel for the Applicant: Dr A. McBeth Solicitor for the Applicant: Beena Rezaee Legal & Migration Counsel for the First Respondent: Mr H. Bevan SC Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
ADG 294 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: DVF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
13 October 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Further Amended Application for Review filed on 8 October 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island as an unauthorised maritime arrival on or about 29 October 2012. The applicant is a Shia Hazara from Jaghori in the Ghazni Province. At the time of the hearing before the Court, Counsel for the applicant advised that the applicant was not being held in immigration detention.
On 2 March 2016, the applicant applied for a Protection Visa.
On 4 November 2016, a delegate of the Minister for Immigration refused to grant the visa to the applicant. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.
On 1 June 2017, the Authority affirmed the decision of the delegate.
On 30 January 2018, a consent order quashing the decision of the Authority was made by a Judge of the Federal Circuit Court of Australia.
On 26 June 2018, a differently constituted Authority again affirmed the decision of the delegate.
On 30 July 2018, the applicant filed an Originating Application for Review of the decision of the Authority. At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 8 October 2021, the grounds of which were as follows:
“Grounds of application
1. The IAA failed to consider whether the applicant faced a real risk of significant harm on the roads outside Kabul, including in accessing his home area, as a necessary and foreseeable consequence of his removal from Australia.
2. The decision of the IAA was based on an irrational finding in relation to the risk of harm in Jaghori, or alternatively a finding based on no evidence, or alternatively an assessment reached by asking the wrong question.
Particulars
(a) The IAA found at [85] that the applicant’s home area in Jaghori district in the Hazarajat “sees very little insecurity or insurgency”.
(b) The country information on which the IAA purported to rely for that finding could not rationally support the finding.
(c) Further and alternatively, the finding at [85] cannot be reconciled with the finding at [90] accepting the DFAT assessment that “Jaghori is not immune from violence and insecurity.”
(d) Further and alternatively, the IAA at [90] and [91] reached its conclusions on the risk of harm in Jaghori by comparing the security situation in Jaghori with other parts of Afghanistan, rather than considering the risk of harm in Jaghori on its own terms.
(e) The finding regarding the security situation in the applicant’s home area was material to the conclusion that the applicant did not face a real chance of serious harm or a real risk of significant harm upon return to his home area.
3. The outcome of the decision of the IAA is unreasonable, or alternatively, the task of the IAA remains unperformed, because the country of reference in the IAA decision has been displaced by the Islamic Emirate of Afghanistan.
Particulars
(a) The IAA assessed the questions of whether the applicant faced a real chance of serious harm for a Refugee Convention reason or a real risk of significant harm upon return to the Republic of Afghanistan.
(b) In August 2021 the Taliban conquered Afghanistan and declared the Islamic Emirate of Afghanistan.
(c) As the applicant would be returned to a place other than the country of reference assessed by the IAA decision, the task of the IAA remains unperformed.
(d) The result of the IAA decision is legally unreasonable.”
The Decision of the Authority
At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [4] of its reasons, the Authority summarised the applicant’s claims as follows:
•“He claims his father’s name was [name omitted], and that he drove heavy machinery for the Government/NGOs and was involved in road construction. He claims his father was killed in 1385 (c. 2006) because of his work for the government and international organisations. In making this claim, he resiles from his earlier claims that his father’s name was [name omitted] and was the Principal of [name omitted], and was killed by the Taliban because of his profile with the school.
•He claims that [name omitted] is his brother. In making this claim, he resiles from his earlier evidence that they are friends and only met in Australia.
•He claims that he had another brother, [name omitted], who worked as a driver for an international aid organisation. He claims [name omitted][names omitted] started a business supplying cement to government agencies and international agencies. He claims that in 1387 (c. 2008) [name omitted] was killed by the Taliban while travelling between Kandahar and Ghazni for the business. They had thought [name omitted][name omitted] was killed, but he returned home in the winter. They feared a Taliban spy, Ibrahimi, would tell the Taliban about [name omitted][name omitted] whereabouts. [name omitted][name omitted] left, and the next time he saw him was happenstance in an Afghan grocer in Perth.
•He claims that [name omitted][name omitted] friend [name omitted] used to visit their home. As a result of their acquaintance with [name omitted], the Mullah and the villagers in Almito threatened to kill the applicant and his family, as they believed that [name omitted] was converting people to Christianity. He claims there are rumours his family has converted to Christianity, and that the rumours have spread from Jaghori to Kabul.
•The applicant left for Iran in 1389 (2010) when he was around 13 years old. He lived there for two years. He resiles from his claim that he left Afghanistan in 2007 following the death of his father, or that he lived in Iran for five years.
•He claims he was born in Pakistan in 1374 (c. 1995) and travelled to Afghanistan when he was 5 or 6 years old. He resiles from his claims that he was born in Afghanistan, and travelled to live in Iran in 2007.
•He claims that he has another brother, [name omitted]. He claims that his mother and [name omitted] died in Quetta from a suicide bombing. The applicant resiles from his claim that his mother is alive and living in Pakistan.
•He claims for the first time that a friend of [name omitted][name omitted], used to visit the applicant’s family. [Name omitted] was a Christian and because of their acquaintance with [name omitted], the Mullah and the villagers threatened to kill the applicant and his family. They believed that [name omitted] was converting people to Christianity. The applicant told the applicant to leave, and she gave him money to go to Iran. There are many rumours that his family has converted to Christianity, and these rumours have spread in Jaghori and to Kabul.”
[names of persons omitted]
At [6] of its reasons, the Authority recorded the applicant’s explanation for ‘significant shifts in his evidence’ as follows:
“My life has been in turmoil from a young age. My family has been in pieces since first losing my father and[names omitted] having to leave us. The Mullah and the villagers also threatened to kill us because they thought we had converted to Christianity. Moving to Iran also resulted in a miserable life. I then found out that my mother and [name omitted] were killed in Quetta.
When I came to Australia, I was 16 years old. The smugglers in Indonesia told me that, if I listened to them and told the Immigration officers exactly what the smugglers told me to say, I would get a protection visa. I listened to them because I thought that they were experienced, and because I was young and inexperienced. I was just so desperate to have a life free from fear, danger and sadness. I deeply regret lying and I ask for forgiveness.
I did not admit that [name omitted] was my brother because my mind was set on telling the story told by the smugglers. I am ashamed of what I did. I am now determined to speak only the truth. I would really appreciate the chance to tell my story, and to talk about the miserable, dangerous life I was forced to live.”
[names of persons omitted]
At [20] and [21] of its reasons, the Authority respectively recorded what constituted a person as a refugee under the provisions of s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under the provisions of s. 5J of the Act.
On the question of the applicant’s credibility concerning money transfers made by him to people in Afghanistan since his arrival in Australia, at [43] – [47] inclusive of its reasons, the Authority said as follows:
“[43]The applicant has raised the visa application under the name [name omitted]. He now contends that he is the brother of [name omitted]. He now confirms that his father’s name was [name omitted]. I expect this means the applicant’s name is in fact [name omitted], but I am unconcerned about the spelling of his name or how he identifies in Australia. What is concerning is the claimed family composition of [name omitted] in the information before the Department.
[44] In information before the Department, [name omitted] listed a number of siblings, including a person named [name omitted], who was 15 in 2010. [name omitted] would be the same age as the applicant, and allowing for variance in the transliteration of his name, they share the same name. Based on his later evidence that [name omitted] is his brother, I am confident the [name omitted] was referring to the applicant as his brother in his evidence to the Department. [name omitted] also lists two brothers named [names omitted]. I find that their names are [names omitted], and that they are also the applicant’s siblings.
[45] The applicant contends that the money transfers were made to an agent/intermediary in Kabul to repay a man in Pakistan named [name omitted] that loaned him $8000 to come to Australia. That of itself is not implausible. However, a number of those payments were made to two people who share the same names of people now known to be the applicant’s siblings. This cannot reasonably be considered a coincidence. I consider it implausible that Ahmadi’s intended recipients would share the same names as two of the applicant’s siblings, who the applicant contends live in Pakistan.
[46] I find the applicant’s evidence about the money transfers lacks credibility. I reject his explanation for the money transfers being a repayment of a loan to a man named [name omitted]. I accept that these money transfers are often listed as ‘family support’ and I draw nothing adverse from that specifically. I also consider that receipt of this money in Kabul does not necessarily confirm these persons are in Kabul specifically. However, it is clear to me that the applicant has been transferring money to his siblings in Afghanistan.
[47] On the basis, I find that he has intentionally provided false information about the money transfers, the existence of these siblings (at the primary stage), and their location (at the review stage). I consider he has provided false evidence to conceal the fact that he has family and friends in Kabul that could assist him if he were to return, and who are not personally at threat of harm. His evidence in relation to these matters also seriously undermines his credibility overall.”
[names of persons omitted]
On the question of the applicant’s credibility concerning his family history, the Authority, at [54] – [61] of its reasons, said as follows:
“[54] The applicant’s claims shifted significantly in his submissions to the IAA. He now claims his father was killed outside Kabul while engaged in roadworks with NGOs/the government. He claims for the first time he had a brother, [name omitted], who ran a concreting business with [name omitted]. [Name omitted] was targetted and killed by the Taliban because of that profile while travelling between Ghazni and Kandahar for work. He claims his other brother [name omitted] fled the area, and the applicant travelled to Iran because of ongoing threats.
[55] In his submission explaining why he lied about his claims relating to his father and his brothers, the applicant referred to the turmoil he had faced from a young age, and the loss of his father and brother [name omitted], and [name omitted]’s departure from Afghanistan. He also referred to the threats to him and his family faced from the Mullah in terms of rumours they had converted to Christianity. He explained that when he came to Australia, he was only sixteen. The smugglers told him to tell a specific story if he wanted to get a protection visa. He said he was young and inexperienced, and his mind was set on telling the story told by the smugglers. He claimed he deeply regrets not telling the truth.
[56] I accept he was young when he arrived in Australia, and it is not implausible that he could have been misled by people smugglers about what to say. However, it was within his control to correct his evidence when he applied for a visa four years later, when he received advice from his lawyer, at the commencement of the visa interview, during the visa interview when information was first put to him, or in post-interview submissions. In terms of the interview and post-interview submissions, his evidence did not waver. When given the opportunity to correct his evidence, the applicant did not vary his evidence, but insisted his father was a school principal, that he was killed in 2007, and then provided documentary evidence to support that claim.
[57] The applicant knew his brother was here (he lived with him). I find his suggestion that he ran into his brother by chance in an Afghan grocer to be fanciful. As he lived with his brother, I consider it very likely he would have spoken to him about his claims and received guidance about what to do. Yet, he did not correct his evidence. He also sought to mislead the Department and the delegate about the fact that he lived with [name omitted], and that they were brothers.
[58] The applicant’s approach to his claims and evidence leads me not only to reject his claims related to his father (which he has resiled from), it also leads me to seriously doubt the claims related to his brothers are true. Had those claims been true, I consider he would have varied his evidence to some degree at an earlier juncture.
[59]As it stands, I consider the applicant’s credibility is so impugned that he cannot be affirmatively believed in relation to either set of claims. The fact that [name omitted]’s application appears to have been successful is not a significant factor for this assessment. I consider it is outweighed by the applicant’s approach to this visa application, his repeated attempts to mislead the Department, and his lack of any consistency and credibility throughout this process. It was only when his application was refused did he vary those claims to make them consistent with [name omitted]’s.
[60] I find the applicant is completely lacking in credibility, and he cannot be affirmatively believed in relation to any aspect or version of these claims. I do not accept any aspect of his claims as they pertain to his father. I do not accept his father was a schoolteacher or principal. I also do not accept his father was a concreter or road worker, or that he worked on roads with NGOs or the government. I do not accept that in 2007 or 2010 his father was harmed or killed by the Taliban or any other armed group or person. I do not accept he or his family ever received a threat letter, or were ever subsequently at threat, whether from the Taliban, Ibrahimi or any other person or group. I am prepared to accept his father has passed away, but I am not satisfied it was due to any adverse profile or that he was otherwise targetted for harm.
[61] I also do not accept any aspect of his claims as they pertain to his brothers. While I accept that he, [name omitted], and [name omitted] are brothers, I do not accept that they owned or ran a concreting business, or worked in connection with any government, military, NGO or international group. I do not accept [name omitted] was killed, or that [name omitted], the applicant or their family were ever at threat from the Taliban, the spy/warlord Ibrahimi, or any other person or group in connection with these claims, or otherwise. I consider these claims are a contrivance, as is the applicant’s claim to have an ongoing profile arising from those claims. I find he faces no chance of harm on the basis of these claims.”
[Names of persons omitted]
On the question of the applicant’s credibility concerning the location of family members in Afghanistan, the Authority, at [65] – [69] inclusive of its reasons, said as follows:
“[65] In his submission to the IAA, the applicant again varied his evidence. He contended that his mother, and another brother [name omitted], were killed in a suicide bombing in 2012. The applicant has provided a death certificate purportedly for his mother. I note the English version of this document indicates the death certificate is issued in the name of a woman named [name omitted]. The applicant has said his mother’s name was [name omitted], although it is possible she had another name. Nevertheless, as observed by the delegate, I also give weight to the fact that document fraud is prevalent in Afghanistan.
[66] The applicant also provided a photo, purportedly of his siblings in Quetta, but he has provided no detail or context to the photo. It does not indicate when it was taken, who the individuals in the photo are, or where the house is located. I am prepared to accept it is a photo of his siblings, but I do not accept his claims that it was taken in Quetta, or that it provides adequate evidence to support his contention that they live in Quetta.
[67] While I have weighed the supporting evidence, I find it superficial and unpersuasive. Given my concerns with the applicant’s credibility, and the prevalence of document fraud in Afghanistan, I also have serious doubts about the provenance of the death certificate, and find that any probative value this document and the photo have is outweighed by my significant concerns about the applicant’s credibility.
[68] The applicant’s evidence about his family has lacked consistency and credibility throughout this process. Weighing everything, I consider other evidence, such as his financial transfers to his brothers, provides clearer objective evidence that his family continues to live in Afghanistan and that his mother and siblings are alive. I consider his evidence has been contrived to reassert that he has no ties to Afghanistan, that he would have no support in the country, and he could not return or relocate there. I do not accept those contentions.
[69] In view of everything before me, I find that his mother and siblings continue to live in Almito, Jaghori District in Ghazni Province, and do so because they are not at threat, whether from the Taliban or any other person or group.”
[Names of persons and footnotes omitted]
On the question of the applicant’s life history and home district, the Authority, at [76] – [77] of its reasons, said as follows:
“[76] I do accept the applicant is a Shia Hazara from Jaghori District in Ghazni Province. It is not implausible that he has spent time working in Iran or Pakistan. That type of history is common enough in Afghanistan, with the country information before me indicating regular patterns of Afghans crossing the border(s) for work. Significantly, given my rejection of his claims relating to his father, brothers, mother and religion, I can see no reason why he would have needed to leave home at a young age, and no reason he would not have been able to return home if he did in fact travel to Iran or Pakistan for work. Thus, while I accept it is possible he may have spent some time in either Iran or Pakistan for work, I am not satisfied that he left Afghanistan in 2007 or 2010 as a young teen, and/or that he did not return to his home area if he did travel outside of the country. I consider he likely spent the vast majority of his life in Jaghori District before leaving the country for Australia.
[77] I am satisfied Jaghori District is his home area and the area he would return. Accordingly, I have considered the risk profile of him as a Shia Hazara returning to Jaghori District. I also accept that he spent a period in the west, and that he sought asylum in Australia. I have also weighed that profile.”
(footnote omitted)
Having considered country information, the Authority, at [78] – [79] of its reasons, said as follows:
“[78] I am satisfied the applicant has not faced harm as a Shia Hazara in Afghanistan in the past. The applicant has not made claims to the contrary, and I have not accepted his claims as they pertain to his family, and his family’s profile.
[79] The applicant claims to fear harm from the Taliban. In terms of his religious and ethnic profile as a Shia Hazara, the country information before me indicates that the Taliban, which remains the main insurgent group active in Afghanistan, does not currently have a sectarian or ethnic agenda, and there is little evidence to suggest that Shia Hazaras are targeted on the basis of their religion and/or ethnicity by the Taliban or other insurgent and armed groups active in the country. A recent exception to the risk assessment for Shia Hazaras has been the emergent threat from Islamic State (Islamic State Khorasan Province, or ISKP). On the basis of the information before me, while I accept there has been a significant increase in targetted attacks against the Shia population in Kabul, Herat and Nangarhar, there is little or no indication before me to indicate that Shia Hazaras have been targetted for harm in attacks in Jaghori District or Ghazni Province by ISKP, that the group is active or has an operational presence in the area, or that there is any real chance of him being targetted by the group and facing harm in his home area.”
Grounds of Review
It is convenient to first deal with Ground 3 of the Further Amended Application for Review, a ground based upon events which both Counsel acknowledged had occurred in Afghanistan in August 2021.
The Court surmises that the applicant was emboldened to seek the Court’s leave to allow him to rely upon Ground 3 in the light of the handing down of judgment by a Judge of this Court, on 2 September 2021, in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10.
In EGZ17, the sole ground of review relied upon by the applicant in respect of a decision of the Immigration Assessment Authority, relevantly handed down on 25 August 2017, was as follows:
“Ground 1
The decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness give the military coup by the Taliban in Afghanistan so that the applicant's receiving country is now the Islamic Emirate of Afghanistan.”
The orders made by the Court in EGZ17 were as follows:
“1.A writ in the nature of certiorari is granted calling up the record of the second respondent and quashing the decision made on 25 August 2017.
2. A writ in the nature of mandamus is issued requiring the second respondent to determine the review application according to law.
3. …”
In his reasons, the learned primary judge in EGZ17 said at [37] – [42] as follows:
“[37] Further, as a matter of construction of the Act, the power vested in the review tribunal under Part 7AA of the Act, in the review of the application for a protection visa is conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national. Whilst the finding of whether the applicant is a national of a particular country is a matter of fact within the review decision of the IAA under Part 7AA of the Act, the existence of the country is as a matter of construction, taking into account the reference to country and receiving country and the definitions referred to above a jurisdictional fact. Afghanistan the country, the subject of the findings as to whether the applicant met the protection visa criteria in the present case by the IAA no longer exists. The non-existence of the country and/or receiving country, the subject of the purported exercise of review power by the IAA, is as a matter of construction of the protection visa provisions, a jurisdictional fact.
[38] Further, because the issue of whether the applicant is a national, must be determined by reference to the law of that country. The cessation of the country and its laws must be a jurisdictional fact, taking into account s 36(6) of the Act and the definition of the receiving country in s 5 of the Act which also refers to the determination of whether a person is a national by reference to “the law of the relevant country”. The text of the definition of effective protections measures in s 5LA of the Act further supports this conclusion. In terms of that provision, the relevant State for the application of the criteria is not Afghanistan and the receiving country as defined in s 5 of the Act is not Afghanistan. That country, Afghanistan, on the evidence no longer exists and the Islamic Emirate of Afghanistan is a different country, a different relevant State and a different receiving country. This text and the clear humanitarian purpose of the protection visa provision criteria in the Act support the construction that the existence of the country or receiving country is a jurisdictional fact. What Australia as a sovereign nation may or may not recognise as a foreign state is not relevant to or determinative of the application in these proceedings.
[39] It is for these reasons that the Court has accepted that further evidence may be adduced as to the cessation of the existence of the country Afghanistan, the subject of the application of the purported application of the statutory refugee criteria under Part 7AA by the IAA in its review of the application by the applicant for a protection visa. The new existence of a country being the Islamic Emirate of Afghanistan, which on the evidence, the Court finds is as a result of the takeover by the Taliban, is a new and different country to Afghanistan and is a new and different receiving country to Afghanistan which were, as a matter of focus on the reasoning of the IAA, fundamental and central in determining the review under Part 7AA in the present case.
[40] Given the finding that the country Afghanistan, the subject of the findings by the IAA, no longer exists and focusing upon the reasoning of the IAA and the outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist. The outcome, given the cessation of the country and reviewing country of Afghanistan, the subject of the reasoning of the IAA, is accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA.
[41]Given the fact that the Taliban has now taken over Afghanistan and that the country of Afghanistan as applied by the IAA to the applicant in considering the protection visa obligations no longer exists, the IAA has exceeded its statutory powers under Part 7AA of the Act, and the outcome is legally unreasonable. The applicant feared harm from the Taliban prior to the cessation of Afghanistan, that country that no longer exists. There can be no issue as to the materiality of the new country and new receiving country being the Islamic Emirate of Afghanistan to the correct application in the review under Part 7AA of the protection criteria under s 36(2)(a) or s 36(2)(aa) of the Act. A fresh review must be conducted according to law under Part 7AA of the Act that addresses the country and receiving country that now exists, being the Islamic Emirate of Afghanistan.
[42] Accordingly, the Court finds that the decision is legally unreasonable and must be quashed.”
With the greatest of respect, this Court is of the opinion that the learned primary judge’s decision in EGZ17 was plainly wrong.
First, though it is well accepted that for reasons of judicial comity a judge should usually follow a decision of another judge of the same Court, there is an exception where a judge is of the view that an earlier decision of another judge, based upon the same, or substantially the same facts, was plainly wrong. When considering just such a circumstance involving a judge of the Federal Circuit Court making findings contrary to the reasons of another judge of that Court involving the same factual scenario, the Full Court of the Federal Court in BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 per Allsop CJ, Moshinsky and O’Callaghan JJ at [62] – [63] said as follows:
“[62] Secondly, we do not accept the submission based on the line of cases to the effect that a judge should follow the judgment of another judge of the same court unless persuaded it is clearly wrong. It may be accepted that, for reasons of judicial comity, a judge of a court should usually follow a decision of another judge of the same court unless the judge is of the view that it is plainly wrong. The practice has been expressed in different ways on different occasions: see, for example, the cases discussed by French J (as his Honour then was) in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [74]- [76] (recently applied by Perry J in Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963 at [15]- [16]). It is unnecessary for present purposes to express a view on the different formulations that have been adopted in the cases, and it is undesirable to adopt any rigid formulation. It is sufficient to refer, by way of example, to the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204:
The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.
[63] In the course of considering the Tribunal’s reasons for decision, the primary judge referred to the judgment of Judge Riley and to the reasons for decision of the Tribunal on the question whether the consequences of a past act could engage the complementary protection criterion: see the primary judge’s reasons at [30]-[42]. The primary judge expressed his agreement with the reasoning and conclusions of the Tribunal, and provided reasons for forming this view. Although not expressed in these terms, it is apparent that the primary judge formed the view that Judge Riley’s reasoning and conclusion on the point were wrong, for the reasons the primary judge gave. It was therefore open to the primary judge to depart from the judgment of Judge Riley on the issue, consistently with the practice described above.”
This Court is not constrained, in the circumstances of this matter, from not following the reasons of another Judge of this Court where such reasons are considered by the Court to be plainly wrong. The Court also respectfully adopts the approach of Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153, at [1] – [32].
Second, as to the Court’s function on judicial review, it has been held that the Court has to look at the legality of the exercise of a power, or the performance of a duty, rather than events which have occurred subsequent to the exercise of such power, or the performance of such duty, when determining the issue before it. In Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118, Steward J said as follows:
“In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made. Ruddock v Taylor is an example of this principle. In that case, a visa had been twice cancelled pursuant to s 501(2) of the Migration Act on the basis that the defendant visa holder had failed the character test in s 501(6). Mr Taylor was detained pursuant to s 189 following each decision to cancel his visa. Section 189 relevantly empowers an officer to detain a person where the officer knows or reasonably suspects that the person is an “unlawful non-citizen”. Both decisions to cancel these visas were quashed by orders of this Court. Mr Taylor made a claim for damages for false imprisonment. This was based on the proposition that the quashing of each cancellation decision demonstrated that each decision was “legally infirm”. That proposition was rejected by this Court. Gleeson CJ, Gummow, Hayne and Heydon JJ said:
“The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. ... what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in [the earlier quashing decision] or upon the Court later publishing its reasons in that case.”
Here, the plaintiff candidly conceded that when the Minister decided to cancel his visa, that decision was, at that time, entirely valid. He did not dispute that, at that time, each of the matters upon which a lawful exercise of the power conferred by s 501(3A) of the Migration Act depended were then in existence. That being so, that is the end of the matter. The legal efficacy of a decision cannot be undone by events which did not exist when the decision was made.”
(footnotes omitted)
Albeit that the applicant had asserted in the subject matter that the decision of the Authority ought to be quashed on grounds going to jurisdictional error, it is of note that prior to leave being granted to the applicant to rely upon Ground 3 of the Further Amended Application for Review, it had not been earlier asserted, on behalf of the applicant, that the making of the decision by the Authority was unreasonable, and not a lawful exercise of power, or alternatively, that the “ … task of the IAA remains unperformed …”. In the particulars of Ground 3, and in the applicant’s consolidated submissions filed on 8 October 2021, it was claimed that the decision of the Authority was vitiated for jurisdictional error because of the absence of a jurisdictional fact – namely the existence of a receiving country. [1] The factual basis for that claim was clearly based upon events which had occurred in Afghanistan well after the handing down of the Authority’s decision.
[1] Paragraph 42 of the Applicant’s Submissions
In Parker v Minister for Immigration and Border Protection [2016] FCAFC 185, when dealing with the question as to whether an exercise of power might have miscarried or not, Mortimer J at [74] – [77] inclusive said as follows:
“[74] I agree with Griffiths and Perry JJ’s reasons for rejecting this ground. I would only add a further reason to distinguish Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220. That is the terms of s 10(1) of the Crimes (Appeal and Review) Act 2001 (NSW), which provides:
On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.
[75] The text of s 10(1) does not suggest that a conviction is made, retrospectively, invalid. Rather, it “ceases to have effect” on being annulled. The provision also requires that “any enforcement action previously taken” is to be reversed upon annulment, but the decision of the Minister is not properly characterised as “enforcement action” on the conviction.
[76]The appellant did not apply for annulment of the conviction until after the Minister’s cancellation decision had been made. The appellant had had two years since the time of conviction to make the annulment application: see [22] and [47] of the primary judge’s reasons. Without an application for annulment, and an exercise of power under the Crimes (Appeal and Review) Act, the appellant’s conviction was in effect and was presumed to be valid.
[77]The appellant’s submission that the “outcome” of the Minister’s cancellation decision is, after the annulment, legally unreasonable misunderstands the Court’s function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.”
(underlining added)
The Court agrees with the submissions made on behalf of the first respondent to the effect that the only relevant jurisdictional fact for the Court’s consideration was the decision maker’s state of satisfaction, or non-satisfaction, as to whether the applicant fell within either the refugee or complimentary protection criteria, respectively, under either s. 36(2)(a) or s. 36(2)(aa) of the Act.
On the question as to what relevantly constituted a jurisdictional fact, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, at [36] – [37] it was said per Gummow and Hayne JJ as follows:
“[36] For the purposes of this case, only the criteria set out in s 36(2)(a) are relevant as there was no suggestion that the respondent was eligible for a protection visa on the basis that he came within s 36(2)(b).
[37] Further, s 65 of the Act provides that the Minister is to grant a visa sought by valid application "if satisfied" of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a "jurisdictional fact" or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).”
(underlining added)
Being bound by established authorities referred to above, and thereby necessarily uninfluenced by the humanitarian implications arising from the crisis which has unfolded consequent upon the ascendency of the Taliban in Afghanistan, the Court finds that the learned primary Judge in EGZ17 was plainly wrong, and committed jurisdictional error, in:
(a)Being influenced by events in Afghanistan, subsequent to the handing down of the decision of the Authority on 25 August 2017, when handing down judgment in that matter; and
(b)Finding that the existence or otherwise of a changed regime in Afghanistan was relevantly a jurisdictional fact.
Notwithstanding the above, it ought to be noted that irrespective of the dismissal, in this Court, of filed applications for review in respect of adverse protection visa decisions made in circumstances such as the present, it has been recognised that where there are changed circumstances in the applicant’s country of origin after the making of such protection visa decisions, the relevant Minister has power to allow a non-citizen to make further application for another protection visa, based upon such changed circumstances, in fulfilment of Australia’s non-refoulement obligations. In BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211, Kerr J addressed that very question, at [93] – [95] inclusive, saying as follows:
“[93] This does not mean that no consideration can be given to such changed circumstances. Changed circumstances undoubtedly can have grave consequences. For example, a referred review applicant may have been found by the IAA not to face any real prospect of harm. If, after such a decision, an extremist group such as ISIS were to take control over a place to which the IAA had found a review applicant could safely return, that new circumstance would need to be taken into account.
[94] As events subsequent to Tiananmen Square are a clear illustration, the Executive Government and/or the relevant Minister have powers capable of being drawn on to shield those who might otherwise be required to return to a country where it is accepted that a person faces a real risk of persecution by reason of changed circumstances. Successive Australian Governments have committed themselves to act on the basis that no-one will be refouled (returned) to a place where they reasonably fear persecution. That remains so irrespective of the exhaustion of a person’s legal avenues of appeal.
[95] It will be for the Appellant to make such a case to the executive arm of government should he be so advised.”
Section 48B(1) of the Act relevantly provided as follows:
“Section 48B Minister may determine that section 48A does not apply to non-citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.”
Further, having regard to the provisions of s. 473JA(1) of the Act, whereby the Immigration Assessment Authority was constituted ‘within the Migration and Refugee Division’ of the Administrative Appeals Tribunal, it is at least arguable that the Minister has power to set aside a decision of the Authority – it being a body within a division of the Administrative Appeals Tribunal – and substitute for it a decision more favourable to the applicant. Section 501J(1) and (2) of the Act relevantly provided as follows:
“Section 501J Refusal or cancellation of protection visa--Minister may substitute more favourable decision
(1)If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision.
(2)For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.”
The Court is not required to consider whether any exercise of power under either s. 48B(1) or s. 501J(1) of the Act would, or would not, be in the public interest. The Court is also not required to finally consider whether or not the Minister may be able to exercise power under s. 501J(1) in respect of a decision of the Immigration Assessment Authority, as opposed to the exercise of power being confined to a decision of the Administrative Appeals Tribunal as so constituted. However, it seems incongruent, and inconsistent, for it to have been the intention of the legislature that the Minister would have the power under s. 501J of the Act to set aside a protection visa decision of the Administrative Appeals Tribunal, and to substitute a more favourable decision in its stead, but not have the power to do so in respect of a protection visa decision of the Immigration Assessment Authority.
Albeit unrelated to the matters required to be decided by this Court, the lawyers for the Minister have concisely clarified the Minister’s position, in relation to this, and other like matters, in a memorandum sent to Judge’s chambers on 12 October 2021, the relevant contents of same, which were not objected to, being as follows:
“1. This memorandum is provided pursuant to the Court’s direction of 11 October 2021.
Position with respect to Afghan nationals generally …
2. On 17 August 2021, the Minister announced that no Afghan visa holder, including those on bridging visas, currently in Australia will be asked to return to Afghanistan while the security situation there remains dire. See ( (copy annexed).”
Ground 3 of the Further Amended Application for Review is without merit and is dismissed.
As to Ground 1 of the Further Amended Application for Review, such Ground was a claim that the Authority had failed to consider whether the applicant faced a real risk of significant harm for the purpose of his travelling from Kabul to his home region as a necessary and foreseeable consequence of his removal from Australia. Counsel for the applicant submitted that such ground was based upon a consideration of the provisions of s. 36(2)(aa) of the Act.
Of relevance to the applicant’s claims are the findings of the Authority at [80] – [85] of its reasons, which relevantly were as follows:
“[80] The delegate concluded that the applicant would face a real chance or risk of harm on the basis of his profile in travelling on the roads between Kabul and Ghazni. The applicant would first be returned to Kabul, and I accept he would need to travel on the roads to return to Jaghori District in Ghazni Province. However, I am not satisfied he would face a real chance of serious harm because of his ethnic or religious profile if he were to travel on the roads.
[81] Outside of Kabul, DFAT identifies some risks to Hazara Shias, in particular on the roads in and out of the Hazarajat, however it equivocates as to whether this is motivated by religion or ethnicity. Analysis from Landinfo analysed a number of attacks purportedly against Hazara Shias in 2015 and 2016. That report indicated that the causes of incidents on the roads were complex and could be explained on the basis of factors other than ethnic and religious factors. In terms of violence on the roads, sources cited by Landinfo agreed that the incidents did not seem to be based on sectarian violence, but rather they were local conflicts, or that the abductions were a bargaining chip in negotiations with central or local authorities. Landinfo goes on to state that a ‘well-informed international organisation’ was of the view that the incidents were often related to unresolved conflicts between two local communities; which may concern grazing rights, rights to water resources or access to travel through an area. Some of the incidents can also be directly linked to the unresolved Hazara-Kuchi conflict. A large number of the incidents on the road network are also explained by insurgents looking for persons affiliated with the authorities and security forces. The report also pointed out that the Hazara areas in the central highlands experience few security incidents compared with the rest of the country. It states that if the intention was to target Hazaras, these areas would experience attacks.
[82] Information before me indicates few examples of recent targeted attacks against the Shia Hazara population in the country. What incidents have occurred, principally on the roads, have decreased in number in recent years, and often had complex motivations outside of religion or ethnicity. In fact, in DFAT’s latest report, UNAMA did not record any such incidents occurring in Ghazni Province in 2016, or the first half of 2017.
[83] In returning to Jaghori, I consider the applicant would have few reasons or needs to travel often on the roads. His family is in Jaghori, a Hazara area within the Hazarajat that sees little in the way of insurgent or other security incidents. I also consider he would likely have some experience in travelling on the roads, particularly if he travelled between Almito and Iran. I give weight to the fact that the applicant has no broader profile (such as connections with the government, authorities or security forces, involvement in the Kuchi-Hazara or other intertribal conflicts, or other high-risk profile groups). I have no reason to consider he would have such a profile on return. It follows that I consider he would be low profile. Weighing the evidence before me, I accept there is a level of insecurity on the roads, however I consider the chance of the applicant facing serious harm on the roads in Afghanistan because of his religious, ethnic or any other related profile is remote.
[84] While I accept the security situation for Shia Hazaras in Kabul is elevated, I consider the applicant’s stay in Kabul would be brief, in order to facilitate his travel home to Jaghori. Given the occasional, albeit serious, nature of attacks in Kabul, I consider there to be not a real risk or chance of the applicant facing serious harm for any reason during his brief stay in Kabul prior to travelling to Jaghori.
[85] Given the overall security assessment for his home area in Jaghori District, which is a Hazara dominant district in the Hazarajat and sees very little insecurity or insurgency, and given his lack of other risk profile, I consider there is not a real chance or risk of the applicant facing harm on the basis of his religious, ethnic profile or any other profile in his home area of Jaghori District, or Ghazni Province overall, whether from Islamic State, the Taliban or any other person or group.”
(footnotes omitted)
It was submitted on behalf of the applicant that though the Authority had considered the refugee criterion for the purposes of s. 36(2)(a) of the Act – namely a consideration of whether harm might be suffered as a consequence of persecution based upon specified characteristics, including ethnicity and religion – the Authority had failed to consider the risk of harm under the complimentary protection criterion in s. 36(2)(aa) of the Act which, it was submitted, focused on the consequences of removal, not upon persecution for any particular reason.
The applicant relied upon DQU16 v Minister for Home Affairs (2021) 95 ALJR 352 at [18] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ where it was said:
“[18]As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen's removal to a particular State.”
(footnote omitted)
However, as was submitted on behalf of the First Respondent, regard also ought to have been had to [19] of DQU16 where it was said:
“[19] The fact that the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011, containing what became s 36(2)(aa), recorded that Australia's non-refoulement obligations under the ICCPR and the CAT are "absolute and cannot be derogated from" does not support the contention that the principle in Appellant S395 has any application in assessing the complementary protection criterion under s 36(2)(aa). The relevant question is not what the ICCPR and the CAT provide, but rather the statutory question posed by s 36(2)(aa), which engages some, but not all, of Australia's non-refoulement obligations under the ICCPR and the CAT33. The statutory question, namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non-citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.”
The Authority was entitled to refer to, and rely upon, findings made by it in respect of the s. 36(2)(a) criterion, when considering the complimentary protection criterion under s. 36(2)(aa) of the Act. The Authority not only recognised that Shia Hazaras had an elevated profile in Afghanistan due to their religion and ethnicity – something which was conceded by both Counsel – but also that in the most recent DFAT country information report dated 18 September 2017, there had been no record of any security incident occurring in Ghazni province either in 2016, or in the first half of 2017. The Authority referred to other earlier Landinfo country information which indicated that in respect of attacks on Shia Hazaras in 2015 and 2016, there were a number of complex factors, other than ethnic and religious factors, which were involved in incidents of violence on roads. At [83] of its reasons, the Authority noted that although there was a level of insecurity on the roads, it considered as remote the chance of the applicant facing serious harm on the roads in Afghanistan because of his religious, ethnic or other related profile. It did so after having weighed up all of the evidence before it.
The Authority was entitled to collectively have regard to all of the country information before it when arriving at its conclusion that as a necessary and foreseeable consequence of his being returned from Australia to Afghanistan, there was not a real risk that the applicant would suffer significant harm. The Authority recognised that there was a security problem within Afghanistan, noting at [90] – [91] of its reasons as follows:
“[90] In relation to generalised, insurgent and criminal violence, I accept there has been a deterioration in the security situation in the country, notably within Kabul. I also accept DFAT’s assessment that Jaghori is not immune from violence and insecurity.18 However, the country information indicates the security situation for civilians is markedly better in Jaghori and other neighbouring Hazara-dominant areas in the Hazarajat. As an example, Jaghori reported only one security incident in the November 2016 EASO report.19
[91] There are obvious risks to civilians in the country, including within Jaghori, but when having regard to the applicant’s lack of any profile or proximity to those with a risk profile, the absence of advice to suggest that a person with the applicant’s profile would be at a real chance or real risk of harm, even in any cumulative sense, and giving weight to the greater security and lower numbers of security incidents in Jaghori and the other Hazara-dominant areas in the Hazarajat, I find the chance or risk of the applicant being seriously harmed in generalised, insurgent or criminal violence in his home area is remote.”
The Authority found that the applicant would have little reason or need to often travel on roads upon his return to his home province which had experienced less security incidents relative to other parts of Afghanistan. The Authority appropriately engaged with the applicant’s claims and did not err in finding that the applicant did not satisfy the relevant complimentary protection criteria. There is no merit to Ground 1 of the Further Amended Application for Review.
As to Ground 2 of the Further Amended Application for Review, such ground was a claim that the Authority made irrational findings having regard the content of country information upon which it was asserted that the Authority had relied. Specifically, reference was made to the respective findings of the Authority in [83] and [85] of its reasons as referenced by footnotes 11 and 13 thereto.
As to footnote 11, such footnote referred to an EASO country information report dated November 2016. It was submitted on behalf of the applicant that the finding of the Authority that the applicant’s home town of Jaghori “sees little in the way of insurgent or other security incidents”, was at odds with what was contained in the EASO report, and that it was irrational for the Authority to have so found. [2] The Court was taken to p. 94 of the EASO report which found that “Security in the province of Ghazni was fragile and that AGE’s (anti-government entities) posed a major challenge.” The Court was taken to page 97 of the EASO report, which in part stated “In November 2015, Uzbek members of the IS abducted Hazara people from Jaghori District, Ghazni and killed them in Zabul province.” The footnote to such finding referenced an Afghan news report that 110 people had been killed as a result of Taliban – IS clashes in Zabul on 9 November 2015. Such footnoting, it ought to be noted, does not establish that the people abducted by Uzbek members of the IS referred to in the report numbered 110. Another interpretation of the footnote was that 110 people had been killed as a result of Taliban – IS clashes, and that such deaths were unrelated to the persons referred to as having been abducted and killed in Zabul Province. The report was ambiguous. What was not ambiguous, however, was the recording of Jaghori (also spelt Jaghuri) as the lowest recorded area for security incidents in the Ghazni Province from September 2015 to May 2016. Jaghori was recorded as having had one (1) security incident, as opposed to Ghazni which had been recorded as experiencing 321 such incidents.
[2] Annexure BR-4 to the Affidavit of Besmellah Rezaee filed on 19 July 2021.
Counsel for the applicant conceded that a high bar had to be met to establish that the Authority had made irrational findings. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
It was common ground that the choice and weight to be given to country information was a matter for the Authority. As was said in NAHI v Minster for Immigration & Multicultural and Indigenous Affairs [3] at [11] per Gray, Tamberlin and Lander JJ:
“[11] … The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that.”
[3] [2004] FCAFC 10.
Whether or not a finding is factually based or not is a question of law. The Court finds that the schedule of security incidents as set out on p. 95 of the EASO report constituted the basis for the Authority’s finding at [83] of its reasons that Jaghori was an area that saw little in the way of insurgent or other security incidents. It was open for the Authority to so find. In Rawson v Federal Commissioner of Taxation (2013) 59 AAR 221 at [83] – [84], Jagot J said:
“[83]Whether a fact is supported by any evidence is a question of law; so too is the question as to what amounts to material that could support a factual finding (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355, Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]). The latter is a question of law because, before a fact may be found, “there is the preliminary question whether the evidence reasonably admits of different conclusions” (Australian Broadcasting Tribunal v Bond at 355 citing Commissioner of Taxation (Cth) v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150 at 155, 157 and 160). As the reasons in Commissioner of Taxation (Cth) v Broken Hill South Ltd at 155, 157 and 160 disclose if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal.
[84]The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.”
There is no merit to the claim that the relevant findings at [83] and [85] of the reasons of the Authority to the effect that there was little in the way of insurgent or other security incidents in the Jaghori District were irrational. The findings were open on the evidence before the Authority. Another reasonable and logical decision maker could have arrived at the same decision.
As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
It was further claimed that it was irrational, in the light of the Authority’s findings at [83] and [85] of its reasons, for the Authority to have found, at [90] of its reasons, that “Jaghori is not immune from violence and insecurity”. There is no merit to such claim.
The Authority recognised that violence and insecurity occurred in Jaghori. It did so in the context of having referred to country information which categorised Jaghori as having the lowest number of recorded security incidents in Ghazni Province. It was an appropriate finding to be made in the light of country information which identified Afghanistan as a country in which there was an elevated risk profile to all civilians living in the country, relative to other countries. The criticism of the Authority was one made with an eye too keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
There is no merit to the claim that the reasons of the Authority were internally contradictory so as to render them irrational.
The applicant had further claimed that the Authority fell into error by assessing the question of whether there was a real risk that the applicant would suffer significant harm under s. 36(2)(aa) of the Act on a comparative basis, rather than confining its assessment of risk to the applicant’s home area of Jaghori alone. There is no merit to such claim.
At [90] – [91] of its reasons, the Authority was focused upon the security situation in the applicant’s home area of Jaghori. That the Authority considered such question by partly referencing the security situation in other parts of Ghazni Province, or Kabul, was of no moment. The Authority specifically found, at [91] of its reasons, that the chance or risk of the applicant being seriously harmed in “generalised, insurgent or criminal violence in his home area” was remote. Again, the criticism made of the Authority that the Authority had erred by noting in [90] of its reasons that the security situation in Jaghori was “markedly better” than in neighbouring areas was so made with an eye too keenly attuned to error.
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 October 2021
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