DWZ17 v Minister for Home Affairs
[2019] FCA 1868
•14 November 2019
FEDERAL COURT OF AUSTRALIA
DWZ17 v Minister for Home Affairs [2019] FCA 1868
Appeal from: DWZ17 v Minister for Immigration & Anor [2018] FCCA 2908 File number: SAD 246 of 2018 Judge: CHARLESWORTH J Date of judgment: 14 November 2019 Catchwords: MIGRATION – decision of Immigration Assessment Authority – restrictions on power to consider new information – whether Authority exercised its powers in a manner affected by legal unreasonableness Legislation: Migration Act 1958 (Cth) ss 36, 65, 473BA, 473CA, 473CB, 473DB, 473DC, 473DD, 473JF, Pt 7AA Cases cited: DWZ17 v Minister for Immigration & Anor [2018] FCCA 2908
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Date of hearing: 18 April 2019 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: Mr P Barnes with Ms D Di Girolamo Counsel for the First Respondent: Mr DF O’Leary Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
SAD 246 of 2018 BETWEEN: DWZ17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
14 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The appellant is a citizen of Afghanistan and a former resident of Kabul. He appeals from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority: DWZ17 v Minister for Immigration & Anor [2018] FCCA 2908. The primary judge held that the Authority did not commit jurisdictional error in affirming a decision of a delegate of the now-named Minister for Home Affairs not to grant the appellant a Safe Haven Enterprise (subclass 790) visa under the Migration Act 1958 (Cth).
In the course of reviewing the delegate’s decision the Authority determined that it should not have regard to certain media articles concerning the security situation in Kabul. The Authority held that the media articles did not meet the requirements of s 473DD of the Act, which governed its receipt and consideration of “new information”.
The appellant submits that the Authority’s rejection of the media articles constituted jurisdictional error and that the primary judge committed an appealable error by failing to so find. He submits that the primary judge should have held that the rejection of the media articles was illogical or irrational when compared with its acceptance and consideration of other “new information” contained in reports concerning the evolving security situation in Afghanistan. He contends that the reasoning of the Authority was internally inconsistent and so legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the reasons that follow, these submissions should be rejected and the appeal should be dismissed.
THE VISA APPLICATION
Section 65 of the Act confers a power on the Minister to grant or refuse to grant a visa. The effect of s 65(1)(b) is that the Minister must refuse to grant a person a visa if the Minister is not satisfied that the person fulfils the visa criteria. The same obligation applies to the Authority in the exercise of its review function.
The criteria for the grant of a protection visa included the alternate criteria in s 36(2)(a) of the Act (the refugee criterion) and s 36(2)(aa) of the Act (the complementary protection criterion).
Before the delegate and the Authority the appellant claimed to fulfil these criteria for reasons that are conveniently summarised in the Authority’s written reasons as follows (at [1]):
The referred applicant (the applicant) claims to be a Shia Hazara from Afghanistan. On 17 August 2016 he lodged an application for a safe haven enterprise visa (SHEV) claiming to fear harm from insurgent groups including the Taliban due to his Hazara ethnicity and his Shia religion, his former employment as a contracted driver delivering construction materials for the Afghan and international forces, and as a failed asylum seeker from a western country who is perceived to be an infidel and wealthy. He also feared harm from the Kuchis in his home province.
The delegate concluded that the appellant was not a person to whom Australia owed protection obligations for reasons that need not be explained here.
THE AUTHORITY’S DECISION
The Authority’s review of the delegate’s decision was governed by Pt 7AA of the Act, which contains s 473BA to s 473JF.
Section 473CA required that the delegate’s decision be referred to the Authority as soon as reasonably practicable after the decision was made. Section 473CB required the Secretary of the Department administered by the Minister to give to the Authority certain material (defined as “review material”) including the material that had been provided by the appellant to the delegate. Subject to the provisions of Pt 7AA, s 473DB(1) required the Authority to review the delegate’s decision by considering the review material without accepting or requesting “new information” and without interviewing the appellant. The phrase “new information” means information that was not before the delegate and that the Authority considered to be relevant: s 473DC of the Act. The Authority had a discretion to obtain new information but was under no duty to do so. It is not disputed that the media articles forming the subject of this appeal was “new information” for the purposes of Pt 7AA of the Act.
This appeal turns on the application of s 473DD. It provided:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
On 27 February 2017, the Authority sent a letter to the appellant’s representatives setting out extracts from country information concerning the security situation in Afghanistan. The letter stated:
This information is relevant to your case because it may lead the [Authority] to conclude that future attacks upon the Shia population are likely to be infrequent as Islamic State’s capacity is limited; such attacks are unlikely to facilitate the rise of sectarianism in Afghanistan such as to pose a real chance or risk of harm to you. Subject to your comments, this information may form part of the reason for affirming the decision under review.
The Authority invited the appellant’s representative to comment on the information set out in its letter by no later than 3 April 2017. The appellant’s representative responded by correspondence dated 14 March, 29 March and 30 March 2017. The Authority said that the information contained in that correspondence was new information. It was satisfied that the information related to issues that had been raised “consequently to the delegate’s decision” and that there were exceptional circumstances to justify considering it. On a fair reading of the reasons, the Authority should be understood as referring to issues that had been raised by the Authority itself in its letter of 27 February 2017.
In respect of the material forming the subject of this appeal, the Authority said that the appellant’s representative had provided articles concerning attacks in Kabul. Some of those attacks had been the subject of the submissions by the representative dated 14 and 29 March and were considered. The remainder of the reports comprised three articles concerning two separate bombing attacks in Kabul in April and May 2017 and seven further articles concerning three further attacks in May and June 2017. It is not disputed that those reports had been transmitted to the Authority by the appellant’s representatives on 4 May 2017 and 12 June 2017. Of those reports, the Authority said (at [10]):
… I am satisfied the other reports of attacks in Kabul between April 2017 and June 2017 could not have been provided to the delegate. However, the representative has not provided reasons how this information is pertinent to the applicant. I do not accept that the fact that country information postdates the decision of itself constitutes exceptional circumstances. I am not satisfied that there are exceptional circumstances for considering them.
The Authority said that it had obtained country information about the security situation in Afghanistan, including in the region to which the appellant’s claims related. That information was contained in a report of the Afghanistan Analysts Network dated 19 October 2016 and a report of European Asylum Support Office dated 1 November 2016. Of those reports the Authority said: (at [11]):
… The situation in Afghanistan has evolved over recent times, and the information … addresses the broader security situation and how it may impact on the real chance or risk of harm to the applicant in Afghanistan in the reasonably foreseeable future. I am satisfied that there are exceptional circumstances for considering this information.
Later in its reasons the Authority referred again to its receipt of media articles from the appellant’s representative. It noted the appellant’s submission that an attack on the Shia Hazaras in July 2016, an attack on a shrine during Ashura celebrations in October 2016 and a further attack on a mosque in Kabul in November 2016 was evidence of the risk to Shia Hazaras in Kabul. The Authority continued (at [35]):
… The representative states there have been numerous other attacks in Kabul (and provided media reports on these attacks) although it is unclear to what extent Islamic State of Khorasan Province (ISKP), the Taliban or other insurgent groups are responsible. …
The reports to which the Authority referred in this passage may be understood as those reports it had determined should be considered in accordance with s 473DD of the Act.
The Authority accepted that there had been high-profile suicide and complex attacks in Kabul. It concluded that the Taliban was responsible for the majority of the attacks which had primarily targeted those associated with the government or the international community including groups with whom the appellant had had no association since 2010.
The Authority also accepted that the Islamic State of Khorasan Province had an “operational presence” in Kabul, however, its operational capacity and attempts at expansion had been diminished by the Afghan National Security Force operations, battles with the Taliban and difficulties gaining local support. It continued (at [39]):
… There is evidence of an ISKP presence in Jowzjan province in north-western Afghanistan, but it has largely been confined to a handful of districts in Nangarhar and its engagement in battles with the Taliban and government forces and consistent losses have contributed to a significant weakening of the group in Afghanistan. Given its diminished operational capacity as well as alienation from the local population, I am satisfied that ISKP’s capacity and influence is limited.
(footnote omitted)
THE JUDGMENT APPEALED FROM
Before the primary judge, as on this appeal, the appellant submitted that the Authority’s conclusion that there were no exceptional circumstances to justify the acceptance of the media articles (expressed at [10] of its reasons) was irrational, given that the Authority had identified exceptional circumstances (expressed at [11] of its reasons) to justify consideration of country information reports about the evolving situation in Afghanistan. The appellant submitted that the two classes of information could not be distinguished.
The primary judge said that there was a basis for distinguishing between the information contained in the media reports and that contained in the country information reports. His Honour said:
21.… It is clear from the description of the bombing attacks in April 2017 and June 2017 that they were violent events and indicative of a country at war. How that related to the applicant himself or his claims was not clear.
22.The information referred to at paragraph 11, however, is information about the security situation in Afghanistan, judging from the description of the information. (I was told that the actual information was not included in the court book.) It was said by the Authority on considering this information:
The situation in Afghanistan has evolved over recent times, and the information addresses the broader security situation and how it may impact on the real chance or risk of harm to the applicant in Afghanistan in the reasonably foreseeable future.
23.It appears to me that country information that is about a changing or evolving security situation affecting, as it would, an assessment of the risk of harm to the applicant if he returned to Afghanistan is, of its nature, somewhat different to information about what appeared to be two – I will not say isolated – but two separate bombing attacks in Kabul without any information about the context or how that might impact on or affect the applicant himself.
It is apparent from the reasons for judgment that the country information reports were not before the primary judge on the application for judicial review. The judge proceeded from the premise that the Authority’s description of the information (extracted at [22] of his Honour’s reasons) was correct. Accordingly, the application for judicial review was decided on the basis that the country information reports contained information not only about the evolving security situation in Afghanistan but also about how the evolving situation might impact on the real chance or risk of harm to the appellant in Afghanistan in the reasonably foreseeable future.
PRINCIPLES
On his application for judicial review, the onus was upon the appellant to establish that the Authority committed jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173.
In this case it is said that the Authority’s decision was “irrational”. The word “irrational” points to a legal principle concerning the limits on the exercise of the Authority’s powers. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]:
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The power in question in this case is the Authority’s power to consider material meeting the description of “new information”. Section 473DD of the Act prohibits the Authority from considering new information unless both of the preconditions in s 473DD(a) and (b) are fulfilled. The Authority accepted that the media reports were not and could not have been provided to the delegate before the delegate made the decision under s 65 of the Act, such that the precondition in s 473DD(b) was met.
For the precondition in s 473DD(a) to be met, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information. The formation of the state of satisfaction (or dissatisfaction) involves an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [75] (Gageler, Keane and Nettle JJ).
Counsel for the appellant submitted that the formation of the Authority’s state of non-satisfaction may be affected by jurisdictional error if its conclusion that there were no exceptional circumstances justifying receipt of the media reports lacked an evident and intelligible foundation. Subject to demonstrating materiality of the error, that submission may be accepted: Li at [76], Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. However, it will not be sufficient to show that it was open to the Authority to conclude that there were exceptional circumstances justifying its consideration of the media articles. If the Authority’s conclusion fell within the range of permissible outcomes there will be no jurisdictional error: Li at [105].
DISPOSITITION OF THE APPEAL
The appellant’s arguments on judicial review invited a comparison between the content of the media articles on the one hand and the country information reports on the other so as to demonstrate that there was no rational basis to distinguish them. That could not be done without adducing the country information reports in evidence. That was not done.
In the circumstances, the primary judge was entitled to proceed on the assumption that the Authority’s own description of the country information reports was correct, namely that they contained contextual information about how the appellant might be affected by generalised or targeted violence. The primary judge concluded that the media articles contained no such contextual information and so could be rationally distinguished by the Authority. Based on the material before the primary judge, there is no appealable error affecting these conclusions. The appeal should be dismissed on this basis.
The country information reports were adduced in evidence on this appeal, however Counsel for the appellant did not make detailed submissions in relation to their content. The focus of the appellant’s argument was that the Authority was incorrect to state (as it did at [10] of its reasons) that the media articles that had been submitted by the appellant had not been accompanied by submissions explaining how the information contained in the articles was “pertinent to” the appellant. It was said that this conclusion was not open to the Authority to make because the Authority itself had invited the provision of the information. Reliance was placed on the Authority’s letter to the appellant in which the appellant’s representative had been invited to comment on country information concerning generalised violence in Afghanistan. As the media reports contained information concerning generalised violence, the Authority ought to have concluded that the reports were provided in response to its own invitation, so it was submitted.
It may well have been open to the Authority to conclude that the particular media articles now forming the subject matter of this appeal were intended by the appellant’s representative to form part of the appellant’s response to the Authority’s invitation for comment. However, demonstrating that such a conclusion was open to the Authority will not, without more, demonstrate jurisdictional error.
The reasons of the Authority demonstrate different approaches taken to different materials submitted by the appellant’s representatives at different times. The Authority’s invitation to comment required a response to be submitted by no later than 3 April 2017. The Authority considered the submissions and materials provided to it before that date. It concluded that those materials were to be regarded a response to the issue that it had raised. The issue raised for comment by the Authority was a narrow one. It had not invited comment on the security situation in Afghanistan per se. Rather, it had invited comment on commentary and analysis of the situation by which it might be concluded that ISIS had lost its influence and control in Kabul. The question of the operational capacity of ISIS in Kabul was pertinent to the appellant because of his claim that he would be targeted by ISIS as a Shia Muslim and a person of Hazara ethnicity.
In relation to the material provided by the appellant before 3 April 2017, the Authority accepted and considered media articles the appellant had provided about attacks targeting Shia Hazaras in July and October 2016. However, in relation to other attacks to which the appellant had referred, the Authority said it was unclear the extent to which insurgent groups such as ISIS or the Taliban were responsible. Implicitly, the Authority gave no weight to some of the media articles it had received prior to 3 April 2017 because they did not inform the questions in respect of which it had invited comment.
It has not been shown that the particular media articles forming the subject of this appeal (being those provided after 3 April 2017) contain contextual information allowing any conclusion to be drawn about whether the attacks referred to therein were attacks for which the insurgent groups feared by the appellant had claimed responsibility. Nor has it been demonstrated that the attacks were anything other than generalised attacks on the civilian population or targeted against government officials (being attacks of the kind that the Authority accepted continued to occur). The articles were not accompanied by any submission concerning, for example, any trend that might be inferred from the attacks to which the articles referred. They were merely attached to an earlier email describing them as “updated” information.
The articles did not address the particular issue to which the Authority’s correspondence to the appellant was directed, namely the influence and operational capacity of ISIS in Kabul. Against the background of that correspondence, it was open to the Tribunal to conclude that the media articles submitted to it in May and June 2017 were not responsive to the issue raised in its letter of February 2017 and otherwise lacked contextual information informing its assessment of the risk of harm to which the appellant would be exposed should he be returned to Kabul. It is in that sense that it was open to the Authority to conclude that the new information contained in the country information reports was pertinent to the appellant but the media articles submitted in May and June 2017 were not. The Authority’s state of non-satisfaction that there were exceptional circumstances justifying receipt of those articles fell within the range of permissible outcomes of the task to be performed under s 473DD of the Act and so was not affected by legal unreasonableness.
It follows that the appeal must be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 14 November 2019
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