DVP18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 549
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 549
File number(s): MLG 2217 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 27 June 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority– safe haven enterprise (subclass 790) visa– where Applicant with numerous dependents claimed to fear economic hardship without family support – where Authority considered the Applicant able to earn a livelihood as he had done before departing Afghanistan but did not consider additional dependents, economic sustainability or whether existing family would be able to extend support – findings of failure to consider claims – findings of legal unreasonableness – application allowed. Legislation: Migration Act 1958 (Cth) ss.5H, 36(2), 65, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 134
CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611
SZSZW v Minister for Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 26 April 2023 Place: Melbourne Counsel for the Applicant: Mr S Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr N C Dour Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2217 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVP18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
27 JUNE 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
2.A writ of certiorari issue bringing the record of the decision of the Second Respondent dated 22 June 2018 in file number IAA17/03441 affirming the decision of a delegate of the First Respondent not to grant the Applicant a protection visa into this Court and quashing it.
3.A writ of mandamus issue directing the Second Respondent to re-determine, according to law, the Applicant’s application to it for review.
4.The First Respondent pay the costs of the Applicant fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 MANSINI
INTRODUCTION
In this application for judicial review, the Applicant seeks an order to quash the Immigration Assessment Authority (Authority) decision which affirmed a delegate’s decision to refuse him a Safe Haven Enterprise Visa.
The Applicant is a citizen of Afghanistan of Hazara ethnicity and Shia Muslim faith who left Afghanistan with his wife, first child and mother and has since had a second child. He challenged the Authority’s finding that he could return to farming and earn a livelihood as he had done prior to departure from Afghanistan, on grounds of failure to consider his (contrary) claim and alternative grounds of legal unreasonableness. He also contended that the Authority had failed to give genuine consideration to an additional claim to fear the Taliban and extremist groups.
For the reasons that follow, the application should be allowed.
CONTEXT
The Applicant arrived in Australia on 30 March 2013 as an “unauthorised maritime arrival” and, on 19 May 2013, participated in an entry interview.
On 29 July 2016, the Applicant (through his then legal representative) applied for a protection visa (visa application) and submitted a statutory declaration in support. On 15 December 2016, the Applicant’s representative submitted a “notification of incorrect answers” and second statutory declaration which sought to correct some parts of his earlier evidence. Further corrections to his evidence were subsequently made at interview before a delegate of the department of the First Respondent.
On 23 August 2017, a delegate of the First Respondent refused to grant the Applicant a protection visa (delegate’s decision).
On 28 August 2017, the delegate’s decision was referred to the Authority for review. On 19 September 2017, the Applicant (through his migration agent) made a written submission not previously before the delegate.
On 22 June 2018, the Authority affirmed the delegate’s decision not to grant the Applicant a visa which decision was notified to the Applicant along with a record of reasons (Reasons).
The Authority’s decision
At [2]-[5], the Reasons disclose that the Authority reached the necessary state of satisfaction and so took into account certain “new information” pursuant to s.473DD(b)(ii) of the Migration Act 1958 (Cth) (Act). Namely, the arguments with the delegate’s decision contained in the written submissions of 19 September 2017 but not the references in those submissions to the Applicant having fraudulently obtained a certification letter from the Afghanistan Embassy in Canberra on 14 April 2016 because this information pre-dated the delegate’s decision. The Authority also confirmed that, of its own motion, it had considered new information which may be described as country information on the situation in Afghanistan and material given to the Authority by the Department Secretary under s.473CB of the Act.
At [6], the Authority summarised the Applicant’s claims for protection in the following terms (thereafter repeated throughout the Reasons in similar if not identical terms):
6. The applicant’s claims can be summarised as follows:
•He is a national of Afghanistan, a Shia Muslim and an ethnic Hazara who originates from Dahan Bom in the Mir Adina sub-district of Malestan District in Ghazni Province where he had worked on his family’s farm prior to departing Afghanistan for Pakistan in 2009. He departed for Pakistan owing to the manner in which he was suffering harm from the Taliban and Kuchi nomads; the Kuchis seasonally grazed their herds on Hazara land and would beat and threaten anyone who complained, while the Taliban made regular demands for money and would take livestock or foodstuff if you did not pay and had killed his uncle for refusing to pay. His sister who still lives in Dahan Bom has told him that the Taliban have asked about him specifically and that the Taliban think the applicant has converted to Christianity because he has left the area and gone to a western country. The Taliban believe that if someone has gone to a western country they become and infidel and that an infidel should be killed.
•He cannot return to Afghanistan as he will be killed, severely injured or abducted. The Taliban are everywhere. There is no security in his region and they recognize Hazaras by face and he will be stopped everywhere in Afghanistan and if they know the applicant is Hazara he will be killed because all Hazara people are Shia Muslims. He fears that the Taliban, Kuchis and Islamic State will kill him if he returns to Afghanistan. He also fears police as police are sometimes members of the Taliban. The police and authorities are complicit in the attacks, or take no action because they fear the extremist groups themselves. There are also incidents where there are Taliban in the police and they attack the police from the inside. They cannot protect themselves let alone protect Shia Hazaras. He faces threats from the Taliban, Kuchis and Islamic State, and in Afghanistan he faced discrimination and persecution every day.
•He cannot live in Kabul because he has never lived there. He has a sister who lives in Kabul with her husband but they would not be able to support him and without the support of a family network he would not be able to gain employment or find accommodation in anywhere in Afghanistan. He would not be able to meet his basic needs and would be at risk of abduction or being killed due to his ethnicity and religion.
(sic.)
At [9]-[29], the Authority summarised the evolution of the Applicant’s claims on the evidence that was before the delegate at the time of the delegate’s decision. This part of the Reasons are drafted in sequence, as a faithful summary, and not expressed as “findings” of the Authority. At [14], it appeared to be accepted that after school the Applicant had worked as a labourer on the family farm and then in Quetta (Pakistan, where he fled in or around 2010) as a shopkeeper and a labourer in construction. At [15], the Authority recognised that the Applicant claimed in the first statutory declaration lodged with the visa application to at that time be supporting his wife, two children and mother. The Authority also here cited the claim that the Applicant’s own family land was abandoned and he did not know if anyone was using it now. At [23], the Authority summarised the Applicant’s account given at the delegate’s interview that his father was lost (not deceased as in his first statutory declaration) and, at [24], that persons listed as siblings were in fact the children of his sisters or extended family.
From this point in the Reasons through to [62], the dissertation of the Applicant’s claims and summary of country information that was before the Authority continued but with conclusions or findings of the Authority made along the way. Most pertinent to this application for review:
(a)The Authority made various adverse findings as to the Applicant’s credibility, for example at [30]:
Given the extent to which the applicant has continually adjusted his claims, and the manner in which he has proven an unreliable source of evidence, it is difficult to accept that the applicant has now been completely forthcoming about his circumstances and those of his family. He is plainly not a credible source of information and I am not persuaded that the applicant’s father was ever missing at any time and I do not accept this.
And at [36]:
[...] But this plainly did not entail his being completely forthcoming with the Department about his circumstances and those of his family. Given this, I cannot be confident that the applicant has now been forthcoming about his circumstances and those of his family. [...]
(b)At [37], with regard to the revised information before it and contrary to the conclusion of the delegate, the Authority accepted that the Applicant is a national of Afghanistan. It also accepted aspects of the Applicant’s claims for example that while living in Afghanistan he had only ever resided in Dahan Bom in the Mir Adina sub-district of Malestan District and that the Applicant’s wife’s family and two of the Applicant’s sisters and their husbands continued to reside and farm in the Mir Adina area of the Malestan District. The Authority considered this area was sparsely populated and engaged in agricultural production.
(c)At [38]-[42], other aspects of the Applicant’s claims were recounted and certain claims about the situation in the Malestan District and his or his relatives’ circumstances were not accepted. For example:
(i)At [39], on the country information before it, the Authority concluded that the evidence did not indicate that the situation in Khas Uruzgan or Ajristan had affected the security situation inside Malestan, nor that it was foreseeable on the evidence that the security situation in Malestan would deteriorate in the future.
(ii)At [42], the Authority considered that it was not implausible that the Applicant and his family might have been affected by an incident involving Kuchi nomads in 2008 but did not accept that Malestan, or the Mir Adina area specifically, had ever been under Taliban control or even affected by Taliban influence during the post-2001 period or that during that time the Malestan location of Sangar had been a Taliban base and ultimately did not accept that the Applicant or his family had ever experienced any problems with the Kuchi or the Taliban, or from Pashtuns, inside Malestan during the post-2001 period.
(iii)Also at [42], the Authority did not accept it was plausible that the Applicant was unaware of the situation with regard to his own family’s farmland in Dahan Bom given he was in contact with his sisters and their husbands who were residing and farming land in that same sub-district of Mir Adina and considered that the Applicant had sought to conceal the fact of his family’s possession of this farmland in Dahan Bom. The Authority considered that the Applicant would thus be able to return to farming upon return to Dahan Bom in order to earn a livelihood as he had done prior to his departure for Pakistan.
(d)At [43], the Authority found (with regard to its other findings cited therein), that the possibility of the Applicant ever suffering future harm of any kind in Malestan from the Kuchi or Pashtuns more broadly, or from an extremist group like the Taliban, or Islamic State, or from some other anti-government element force, or from police acting in complicity with such groups, for reason of his being a Shia Hazara, or a returnee from a Western country where he has sought asylum (and on that basis an imputed Christian or an infidel), or even from some other factor such as generalised violence or crime, seemed remote (emphasis added).
(e)At [62]-[63], the Authority ultimately concluded that, having assessed the Applicant’s claims individually and cumulatively, they did not amount to a real chance of serious harm in Afghanistan and the Applicant does not meet the requirements of the definition of “refugee” in s.5H(1) and the Applicant does not meet s.36(2)(a) of the Act.
In relation to the Authority’s complementary protection assessment, the Authority’s consideration proceeded on the basis of the earlier findings of fact and is found at [64] to [67]. There, the Authority noted the real risk of significant harm test and confirmed that, having found that the Applicant does not face a real chance of serious harm in relation to his claims, the Applicant also does not face a real risk.
At [67], the Authority concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant does not meet s.36(2)(aa) of the Act.
THIS APPLICATION FOR JUDICIAL REVIEW
By the amended application filed on 11 April 2023 (receipt of which was not opposed), the Applicant sought relief in the form of a writ of certiorari issue to quash the decision of the Second Respondent, a writ of mandamus directed to the Second Respondent requiring it to determine the Applicant’s application according to law, and that the First Respondent pay the Applicant’s costs of and incidental to the proceeding.
The Applicant pressed grounds of judicial review in the following terms:
1.The Second Respondent (Authority) failed to genuinely consider the Applicant’s claim that because of discrimination, he would be unable to support himself and his family.
Particulars
a. The Applicant claimed in a statutory declaration of 21 July 2016 that:
i. he was supporting his wife, two children and his mother;
ii. if returned to Afghanistan, he would not be able to gain employment, meet his basic needs or support his family.
b. The Authority failed to consider whether he could support himself and his family if returned to Afghanistan.
2.The Authority made a finding which was irrational, unreasonable or supported by no evidence that the Applicant could subsist by working on his family farm.
Particulars
a. The Authority found [CB 224] that the Applicant could return to work on the family farm and “earn a livelihood as he had done prior to his departure for Pakistan”;
b. There was no evidence before the Authority as to whether the farm could support the Applicant and his family.
3.The Authority made a finding which was unreasonable that the Applicant could subsist by working on his family farm.
Particulars
a. The Authority found [CB 224] that the Applicant could return to work on the family farm and “earn a livelihood as he had done prior to his departure for Pakistan”;
b. The Authority failed to seek more information about the farm under s473DC of the Act;
c. In such circumstances, the Authority’s finding was unreasonable.
4.The Authority failed to give genuine consideration to an integer of the Applicant’s claim that he feared violence from the Taliban and other extremist groups because the government was weak, corrupt and unable to protect him.
Particulars
a. The Applicant claimed [CB 135] that the Afghan government was weak, corrupt and unable to protect him;
b. The Authority failed to genuinely consider this claim.
5.All errors alleged are material.
STATUTORY AND LEGAL FRAMEWORK
The criterion for the grant of a protection visa is confined by s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act is arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commences with a self-described “simplified outline” at s.473BA including that Part 7AA provides a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant cannot apply for review directly to the Authority and decisions of this kind are otherwise generally not reviewable under the Act. In conducting its review, the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority does not hold hearings and is required to conduct its review on the papers save that, in exceptional circumstances, it may consider new material and may invite a referred applicant to provide, or comment on, “new information”.
Division 3 of Part 7AA, which concerns the subject, “Conduct of review”, is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerns how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65.
GROUNDS 1 AND 2
The first and second (and third) grounds relate to the final sentence of the Authority’s Reasons at [42]. Before proceeding to consider the argument, it is instructive to extract the paragraph in its entirety:
Given that credible sources have reported that Maelstan was affected by a rare outbreak of violence between migrating Kuchi and local Hazaras in 2008 it is not implausible that the applicant and his family might have been affected by an incident involving Kuchi nomads that year. However, it is plain from the reporting of credible sources that other than the 2008 incident Malestan has not been affected by troubles of this kind and Malestan has seen no Taliban presence at all since the overthrow of the Taliban in 2001. Given that the applicant was issued his Afghan passport from Ghazni police office in October 2009 he would appear to have remained in Malestan after the incidents which occured in Malestan in 2008 and this raises serious doubts about the applicant’s claim to have departed Malestan in 2009 immediately after an incident in which he was targeted by Kuchi/Taliban and that he had hidden in the mountains and/or in a narrow river, given that it would not appear that Maelstan was affected by Kuchi migration or the Taliban in 2009, and given that it has been the Hazara rather than the Kuchi who have been ascendant in Malestan. Given the evidence before me about the situation in Malestan during the post-2001 period I do not accept that Malestan, or that the Mir Adina area specifically, has ever been under Taliban control or even affected by Taliban influence during the post-2001 period, or that during this time the Malestan location of Sangar has been a Taliban base. Given all of this, and given the extent to which the applicant has proven an unreliable source of information more broadly, I am not satisfied and I do not accept that the applicant or any of his family members were affected by the Kuchi security incidents which did occur in Malestan in 2008, and I do not accept that the applicant or any members of his family ever experienced any problems with the Kuchi or the Taliban, or from Pashtuns, inside Malestan during the post-2001 period. I do not accept that the applicant saw anyone harmed in this regard during this period or that his uncle was killed. I am willing to accept that the applicant’s sisters and in-laws continue to reside and farm in Mir Adina as he claims and that he is in contact with these persons, and that his sisters have contact with other villagers in Dahan Bom. But I do not accept that the applicant’s sisters have told the applicant that they have been having problems with the Taliban/Kuchi (or Pashtuns), or that the Taliban/Kuchi (or Pashtuns) have come to Dahan Bom village to ask about the whereabouts of those who have departed and about the applicant specifically, or that any such events have occurred or that the applicant is specifically known and of interest to the Taliban/Kuchi (or Pashtuns). Further, I do not accept that it is plausible that the applicant would be unaware of the situation with regard to his own family’s farmland in Dahan Bom given that he is in contact with his sisters and his in-laws who are residing and farming land in the same Malestan sub-district of Mir Adina. I consider that the applicant has sought to conceal the fact that his family is in possession of this farmland in Dahan Bom. I consider that the applicant will thus be able to return to farming upon return to Dahan Bom in order to earn a livelihood as he had done prior to his departure for Pakistan.
Was there a failure to consider the Applicant’s claim that he would be unable to meet his own basic needs and that of his dependents?
Respective contentions
By the first ground of the amended application, the Applicant contended that the Authority had failed to consider his claim that he would be unable to meet his own basic needs or that of his family and this was a failure to exercise jurisdiction in the sense contemplated in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42].
This claim was said to have been squarely put by the Applicant in his 21 July 2016 statutory declaration filed with the original protection visa application. The Applicant said that the Reasons disclosed no consideration of the circumstance of his dependents which had changed since he had left Afghanistan, a sufficiently detailed analysis of which was required on the related authority in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (MZANX) at [55]-[56].
For its part, the First Respondent contended that the Reasons disclosed that the Authority had expressly turned its mind to the Applicant’s claim about not being able to find employment or accommodation in Afghanistan as to meet his own basic needs: at [15]. But the Authority had rejected this claim on account of the history of farming in the Applicant’s family area and that his wife and sisters’ families also owned farms in the region. The First Respondent said that the Authority had instead rejected the Applicant’s claim in finding that the Applicant would be able to resume farming and earn a livelihood as he had done prior to his departure to Pakistan: at [42] of the Reasons.
The First Respondent opposed the Applicant’s reliance on MZANX because that was a case about relocation which requires different considerations to that where there is a finding that an applicant can return to their home area (as in the present case): citing CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [42].
The parties were naturally opposed on the question of materiality.
Resolution of Ground 1
It is well established that the Authority must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the material before the Authority: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 per Mason J at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 per Perry J at [13]-[18]; Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 at [24] (Gummow and Callinan JJ); see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at [29] per Madgwick and Conti JJ; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].
The relevant parts of the Applicant’s claims in his 21 July 2016 statutory declaration which accompanied the protection visa application were put in this way:
(a)He had dependents at that time, described in terms that he was supporting his wife, his two children (he said born in 2010 and 2013) and his mother;
(b)His father had passed away some 8 years prior;
(c)He had worked as a labourer on the family farm from when he had turned 18 years of age (he said 2005 to 2010), his mother and father had owned the land on which he worked which was abandoned and they did not know if anyone was using it now;
(d)He fled Afghanistan to Pakistan in 2010 or 2011 with his mother, wife and daughter with no right to live there, for fear of being murdered;
(e)Under the heading “Is there a safe place in the country where I will not suffer serious harm” the Applicant described his fear of returning to any part of Afghanistan for a few reasons – one of which was that without support of a family network, he would not be able to gain employment or find accommodation anywhere in Afghanistan and would not be able to meet his basic needs and would be at risk of abduction or being killed due to his ethnicity or religion.
The relevant claim is properly characterised as a claim that, if returned anywhere in Afghanistan, the Applicant would not be able to gain employment or find accommodation and would not be able to meet his basic needs which plainly included those persons who depended upon him at the time of making the protection visa application. This claim was qualified by the contentions that he would not have the support of a family network and the risk of abduction or being killed due to his ethnicity or religion.
By its Reasons, the Authority was cognisant of the Applicant’s claim to be unable to return to employment and earn a livelihood in Afghanistan which it recited at [15]. Indeed, the Authority concluded at [42] that the Applicant would be able to return to farming in order to earn a livelihood as he had done prior to his departure to Pakistan. However, beyond a broad statement that the area of his origin was sparsely populated and of agricultural land and that the family farm was still in possession of the Applicant’s family, the Reasons do not disclose any consideration of the nature of the livelihood that he would earn in farming and whether it would sustain his dependents; nor do they disclose consideration of the connection the Applicant had sought to make between his economic circumstances and the associated risk of being abducted or killed due to his ethnicity or religion.
The final sentence of [42] of the Reasons is to be read as part of the Reasons in their entirety. There were layers to this aspect of the Reasons in that the Authority made a series of adverse findings including as to the unreliability of the Applicant before arriving at the concluding sentence. Both within [42] and earlier at [30] and [36], the Authority expressly stated the difficulty and reservations it had in accepting that the Applicant had been completely forthcoming about his circumstances and those of his family. One reason for this was the Applicant’s initial failure to be forthcoming about the fact that his father was alive which the Authority considered made it difficult to accept that the Applicant was ultimately completely forthcoming about his circumstances and that of his family, that the Applicant was plainly not a source of credible information and the decision-maker was not persuaded that the Applicant’s father was ever missing: [29] and [30] of the Reasons. However, in my view, those statements are not properly read as an outright rejection of all claimed circumstances of the Applicant and his family (whether his own nuclear family and/or his extended family including that of his wife). As, in the surrounding paragraphs, the Authority specifically accepted or rejected other claims about the Applicant’s family and his familial circumstances. For example, before reaching the ultimate conclusion at [42], the Authority made a series of findings including most relevantly:
(a)It was accepted that the Applicant has a wife and two children. There is no suggestion in the Reasons that the Authority did not accept the claims that one child was born after they had left Afghanistan or (regardless of the survival of his father) that the Applicant was supporting his mother: Reasons at [24].
(b)The Authority also accepted that the Applicant had worked as a labourer on the family farm in the period before he left Afghanistan: Reasons at [6].
(c)It also found that the Applicant was in contact with his sisters and his in-laws who were still farming in Dahan Bom in the Mir Adina area of Malestan and that he had sought to conceal that his family still owned the farm land in Dahan Bom: Reasons at [41]-[42].
Then, at [43], the Authority went on to address country information about the geographical terrain, demographics of the Hazara population and information that insurgent attacks that can occur tend not to be ethnically motivated. It then made specific findings of a remote possibility of the Applicant ever suffering future harm of any kind in Malestan from the Kuchi or the Pashtuns more broadly.
The Authority also considered the Applicant’s ability to travel safely back to his home region via Kabul and his ability to afford an airfare to Bamyan (on earnings from his employment in Australia): Reasons at [50] to [52]. There, country information in the form of the “DFAT Country Information Report: Afghanistan” dated 18 September 2017 (DFAT Report) was cited as a reference for the assessment of danger in transit via Kabul and the conclusion that security incidents including abductions of civilian travellers were few in recent years.
Against this backdrop it can be seen that, notwithstanding its acceptance of the Applicant’s changed circumstances (in terms of those dependent on him) since his departure from Afghanistan, the Authority failed to consider what was required to support them or the Applicant’s capacity to support them or how a return to farming as before he departed for Pakistan would accommodate this need. The Reasons do not disclose whether the livelihood would be earned on the family farm (which the Authority found still existed and was sought to be concealed but where the Applicant had not been, by then, for some years) or another farm or the sort of earnings that would be required to meet the Applicant’s needs. There were findings made about his degree of contact with and the circumstances of his extended family but no engagement with his claim about the lack of familial support or consideration of what familial support would be provided. There was no consideration at all as to how the Applicant’s future employability or ability to earn a living would be affected by his claimed fears to harm on account of his ethnicity and/or religion – in my view, [43] of the Reasons does not canvass the claim in that respect. I do not consider the Reasons at [50] to [52] to reflect consideration of the Applicant’s economic circumstances relevant to the claim subject of Ground 1. There was no consideration given to other parts of the DFAT Report which addressed the economic circumstances or viability of employment (see, for example at 3.8 of the DFAT Report). Further, in my opinion, this is not a case where the Reasons could even arguably be interpreted as subsuming the relevant findings in more general statements.
The scope of the obligation to actively consider a particular claim, integer or evidence will vary according to the circumstances of the particular case: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) at [26], [77]-[78], [108]. An omission by the Authority to address in its reasons a question of finding on a material issue may support an inference that the Authority had not considered it to be material, and so indicate a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ) and [69], [75], [82]-[84] (McHugh, Gummow and Hayne JJ).
This is not a relocation case as was the circumstances in MZANX wherein the assessment of the risk of harm was found to be a separate question to the reasonableness and practicability of the relocation: see also SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41. However, I accept that the principle on which the MZANX and other relocation cases turns is applicable to a case like the present having regard to the purposive connection by the words “owing to” within the context of the statutory purpose and the Convention on which it was based. That is, that a person is not in need of protection of the international community within the scope of the statute if it would be reasonable for a person to return to a region of their country of origin where they would be safe from persecution – whether or not that it is the region where they had once lived.
In any event, to the extent that the Applicant here had squarely raised his fear of economic harm and inability to sustain his dependents without family support and on account of his ethnicity or religion, consideration of that claim was required. Contrary to the First Respondent’s submission, the Authority’s consideration of the Applicant’s claim failed to pay regard to a relevant and material claim as I have found it was raised in the material before the Authority.
In my opinion, in the particular circumstances of this case, the result was material in the sense that there is a realistic possibility that the decision-maker could have made a different decision were it not for the error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34. That is particularly so given there was country information before the Authority in the form of the DFAT Report which was relevant had the Authority engaged with this claim in the way that was required. Specifically, at 3.8, the DFAT Report included information about the high degree of prejudice at the community level and societal discrimination. DFAT reported that ethnic, tribal or familial connections will often be more important than merit in employment decisions for both government and private sector positions. Further, that access to those connections is crucial in a weak and deteriorating economic environment in order to secure or maintain opportunities for personal livelihood. Whilst the Authority was entitled to make the credibility findings that it did, the Authority did not entirely discount the Applicant’s evidence and importantly accepted components of the evidence about his dependents (including his mother) that, together with other relevant information before the Authority, point to at least the possibility of a different outcome were the claim given the necessary consideration.
Accordingly, the first ground succeeds.
Was it legally unreasonable and/or irrational to find that the Applicant could return to farming and earn a livelihood as he had done prior to his departure for Pakistan?
In the event that the resolution of Ground 1 were in error, I turn to consider Ground 2 which related to the legal unreasonableness of the same part of the Reasons (the final sentence of [42]).
Respective submissions
The Applicant argued that the Authority’s Reasons were legally unreasonable and/or irrational to the extent that it found that the family farm had not been abandoned and that the finding addressed at Ground 1 above was not based on any evidence from which such conclusion could be drawn.
Whereas the First Respondent argued that the finding that the Applicant can return to farming upon his return and earn a livelihood as he had previously does not reach the necessarily stringent standard for a finding of irrationality or unreasonableness. And, insofar as this ground alleges that the Authority erred in finding “that the farm was successful enough to support the Applicant, his mother, his wife and his children” (as the Applicant contended), that submission conflated the assessment under relocation with the assessment of a returnee (as submitted above) and mischaracterised the Authority’s finding at [42], which was not a finding as to whether the farm was or is abandoned but a finding, when the paragraph is read as a whole, that the Applicant’s family were in possession of a farm in the Dahan Bom region, which possession the Applicant had sought to conceal, and that the Applicant could farm and subsist in that region just as his wife’s family and his sisters’ families do.
Resolution of Ground 2
The Authority’s consideration must be within the bounds of legal reasonableness and must be proper, genuine and realistic: Plaintiff M1/2021 at [25]-[27].
An illogical or irrational finding may constitute a jurisdictional error. However, mere disagreement with the decision-maker’s findings is not enough. The decision must be affected by extreme illogicality or irrationality: SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611 (SZMDS) at 647-648.
The Full Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [31]-[35] held that:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
[…]
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The irrational finding must be either in relation to or material to the decision-maker’s conclusion regarding the statutory criteria: SZMDS at 648; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 134.
Having regard to the above analysis of the Reasons in relation to Ground 1, in my view, the finding that the Applicant would be able to earn a living as he had done prior to his departure for Pakistan was irrational in that it lacked sufficient justification in the evidence that was before the Authority. That is the case notwithstanding the Authority’s conclusion that the family farm remained in the Applicant’s family, given the other matters the Authority had accepted and were before it but apparently not considered.
Accordingly, I consider the decision was affected by legal unreasonableness and the second ground would also succeed.
In light of this conclusion, it is unnecessary to determine the remaining grounds and I decline to do so. It may be noted, however, that there is no general obligation on the Authority to get new information: Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [27]. The power to get new information (as it related to Ground 4) is expressed in permissive terms - the Authority may get new information and is one discretion which the Authority may consider whether to exercise upon return of this matter to it for determination in accordance with the law.
CONCLUSION
For the above reasons, the application for judicial review is allowed. I will order accordingly and that the First Respondent pay the Applicant’s costs in the scale amount of $8,371.30.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 27 June 2023
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