DZU16 v Minister for Immigration & Anor
[2017] FCCA 851
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZU16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 851 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan from the Taliban – applicant disbelieved in part but delegate finding that the applicant faced a real chance of serious harm in his home district but that he could relocate to Kabul – Authority finding that the applicant could relocate to Mazar-e-Sharif – Authority purporting to disclose “new information” to the applicant – whether error by the Authority as relocation to Mazar-e-Sharif was a new issue not simply new information – inadequate time for response to the invitation – whether the Authority should have invited written comment on the new issue or scheduled a hearing considered – whether the Authority erred in its complementary protection assessment on the issue of relocation considered – jurisdictional error established. |
| Legislation: Australian Constitution 1901 (Cth), s.75 Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 46A, 48B, 65, 66, 195A, 348, 351, 357A, 359A, 414, 417, 422B, 424A, 424B, 425, 426, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473FB, 473GA, 473GB, 473HA, 473HB, 473HC, 473HD, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: ABV16 v Minister for Immigration [2017] FCA 184 AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 AMA16 v Minister for Immigration & Ors [2017] FCCA 303 |
| Applicant: | DZU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3657 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 8 March, 28 April, 8 May 2017 |
| Date of Last Submission: | 15 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 15 November 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine the review application referred to it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3657 of 2016
| DZU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 November 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan and is 26 years of age[1]. He is an ethnic Hazara and a Shia Muslim. He appears to have arrived in Australia in March 2013. He appears to have been released from immigration detention in October 2013 and lived in the community until February 2016[2]. Information in the court book is that he was arrested for assault at that time and was taken back into detention[3].
[1] Court Book (CB) 20, 47
[2] CB 44-45
[3] CB 84
Whilst in detention the appliant saw medical staff complaining of stress and mental health problems[4]. The records indicate that he was worrying about his family in Afghanistan and thinking about traumatic events that he experienced in Afghanistan prior to his leaving. Those documents indicate that for a time at least he had been self-medicating with alcohol.
[4] CB 84-91
Also, whilst in detention, on 11 May 2016, the applicant applied for a SHEV[5]. He claimed in his accompanying statement to have fled Afghanistan to avoid having to join an armed group to fight the encroaching Taliban[6].
[5] CB 6ff, 76
[6] CB 48 [10]
The application was refused on 12 August 2016[7]. The delegate rejected claims personal to the applicant but found that if returned to his home area of Qarabagh District his chance of being subjected to serious harm for reason of his race and religion could not be described as remote or insubstantial. The delegate also found that he risked harm in travelling from Kabul to Ghazni city were he to try to rejoin his family there[8].
[7] CB 166-184
[8] CB 177-8
The delegate found that he could relocate to Kabul where, despite dangers, there was no real chance that he would be persecuted for reasons set out in s.5J(l)(a) of the Migration Act 1958 (Cth) (Migration Act).
The matter before the Authority
The papers in the delegate's file were then compulsorily referred to the Authority for the limited review provided for in Part 7AA of the Migration Act. The delegate's decision was handed to the applicant by his immigration case officer on 18 August 2016, the delivery being confirmed by an email to the Authority on 19 August. That email also records the applicant's statement that he is unable to read or write in Dari or Hazaragi[9].
[9] CB 397
The applicant was sent a general acknowledgement letter from the Authority dated 16 August 2016[10]. The letter (together with its enclosures), which said that the delegate’s decision had been referred to the Authority, was received by the applicant on 18 August 2016 at 2.20pm[11]. The email confirming delivery to him noted that the applicant was illiterate in his own language[12]. A case file note dated 22 August 2016, which recorded the applicant's response to this letter records that the applicant phoned the Authority and asked for a Dari interpreter. His call was returned using an interpreter and he was advised that there was a 21 day time frame for submissions. The applicant had confirmed that he understood that the review before the Authority was, primarily, a paper-based process; that he could submit any further information on which he wished to rely within 21 days; and said that he “ha[d] nothing further to submit”[13].
[10] CB 382-393
[11] CB 397
[12] CB 397
[13] CB 413
Then, on Thursday 27 October 2016, came an email from the Authority to [email protected] addressed to the detention centre[14]. The email stated that the attached correspondence "must be given to the detainee today", and to contact the Authority if this was unable to be done. The correspondence (Invitation to Comment) was a three page document in English containing detailed information about ISIS attacks in Kabul and analyses of the security situation in Afghanistan as a whole, and suggesting that the applicant may not face a real chance of being seriously harmed for reason of his ethnicity and religion in Kabul or Mazar-e-Sharif, and that it may be reasonable for him to relocate to those places, particularly the latter. The correspondence concluded with statements to the effect that the applicant was invited to comment on this information, but the comments were required to be received at the Authority by 1 November 2016 and if they were not received by that date a decision may be made without the Authority taking further action to obtain the applicant's views on the information[15].
[14] CB 414
[15] CB 415-417
The correspondence was not given to the applicant on that day. It was handed to the applicant on 31 October 2016 at 1.15pm[16]. At 10.53am on Tuesday 1 November 2016 the applicant contacted the Authority. A file note of that conversation records the applicant's statement that his case officer only handed it to him the previous afternoon, and that he was unable to respond by that afternoon. He is recorded as saying that he struggles to communicate in his own language, let alone writing a response in English. The Authority officer gave him two phone numbers but reminded him the response was due that day. The officer gave explicit advice to request an extension in writing but was unsure as to whether the legislation provided for the grant of an extension. The Authority officer’s advised that if the applicant wished to do so, he may “request … an extension of time” to respond to the Authority’s Invitation to Comment but he would need to submit it in writing and “specify a timeframe and the exact reasons for his request”. The applicant was also recorded as saying that he could not write an email in English[17].
[16] Affidavit of Kamlesh Praveen Kumar at [5]
[17] CB 419
The applicant made two further calls to the Authority on 1 November. In the first he is recorded as saying that he was illiterate in English and was having, "some difficulty responding to the letter". He is also reported to have said that nobody at the detention centre could assist him[18].
[18] CB 420
He did, however, at 2.36pm on 1 November 2016 prevail upon a person whose email name was "black empire" to write an email to the Authority asking for a six week extension[19]. The reply from the Authority, emailed on 2 November to [email protected] was that no decision would be made before 3 November[20]. Relevantly, that letter also stated that the Migration Act “impose[d] strict deadlines for a response to a request to provide new information”; that “the IAA is not able to extend the deadline”; that, where an Invitation to Comment on adverse information is given to an applicant, the Authority may make a decision on the review without taking any further steps to get those comments; and that, if a response were received after the due date, but prior to a decision being made, “the IAA may consider the information subject to it meeting the requirements of the Act”. The Authority’s letter of 2 November 2016 was received by the applicant at 4.45pm on the same day. Earlier, at 11.26am on 2 November the applicant's case manager phoned the Authority to advise that the applicant would be at Fairfield Local Court all that day and would not receive the Authority’s letter until late that afternoon at the earliest, or possibly the following morning[21].
[19] CB 422
[20] CB 424
[21] CB 425
Neither the applicant, nor anybody on his behalf, contacted the Authority after 1 November 2016. As it turned out, the decision was not made until 15 November 2016.
The Authority’s decision
In its reasons the Authority referred to the Invitation to Comment of 27 October 2016. It stated that the information in that correspondence was directly material to the issues before it and not before the delegate and so the Authority was satisfied that there were exceptional circumstances to justify considering the new information. It then noted the request for an extension of time to respond and the legislation which it said imposes strict non extendable deadlines for responses. It also noted its advice to the applicant that no decision would be made until 3 November, and that no response was received as at the date of the decision[22].
[22] CB 431 [3]-[4]
The Authority rejected the applicant's claims as to his personal circumstances[23], but found that the applicant is from Qarabagh and that he and his family may have felt under threat, and this may have been a catalyst to leave their home area[24]. It found, at [24][25] that the applicant would face a more than remote chance that he would face serious harm in Qarabagh and Ghazni Province, and in particularly if he were to travel on roads in the area. Attention thus turned to relocation.
[23] CB 433 [10] - 435[19]
[24] CB 435 [20]
[25] CB 436
In that respect the Authority noted that Mazar-e-Sharif, in the north of Afghanistan was considered one of the safest areas of Afghanistan, and, whilst not completely immune from terrorist attacks and whilst civilians have been victims of such attacks, those attacks were almost exclusively associated with government, international groups and security forces, and there was little evidence of the direct or deliberate targeting of civilians or ethnic or religious groups[26]. The Authority accepted that there had been a major attack targeting Shias in Mazar-e-Sharif in December 2011 and an explosion targeting Shias outside a mosque 20 kilometres from that city in October 2016[27]. It also accepted that there had been recent attacks in Kabul in which Hazara Shias were deliberately targeted. Whilst accepting that future attacks against the Hazara Shia population could not be completely discounted, the country information indicated that attacks on urban areas were likely to be occasional or infrequent. It was not satisfied that the applicant faced a real risk of harm in urban centres like Mazar-e-Sharif because of his religion, ethnicity, or any other reason[28]. The Authority did not consider “reasonableness” of relocation in the context of its assessment of whether the applicant met the criteria in s.36(2)(a) of the Migration Act.
[26] CB 436-7 [27]-[29]
[27] CB 437 [30]-[31]
[28] CB 440 [41]
The Authority did consider reasonableness in the context of s.36(2)(aa), as was specifically required by s.36(2B). In so doing it accepted that the applicant is illiterate, but that he speaks Dari and some English, and has demonstrated an ability to live outside his home area. It considered that he would be able to find work in Mazar-e-Sharif in view of the economic strength of the city, and although he does not have a support network there he is able bodied, despite having had some health issues in detention. It accepted that the stress and anxiety of detention had had a significant impact upon him, but he had no serious health concerns that require intervention. In those circumstances it was found that he had no serious vulnerabilities that would impact on his ability to relocate[29]. It found that relocation to an area such as Mazar-e-Sharif was reasonable.
[29] CB 442 [54]-[59]
The present proceedings
These proceedings began with a show cause application filed on 20 December 2016. The applicant now relies upon a further amended application tendered in court by leave at the trial of this matter on 28 April 2017 and filed on 1 May 2017. The grounds in the further amended application are:
1.The second respondent (the IAA) misconstrued and misapplied s.473DF(2) of the Migration Act read with s.473HD(2) and Migration Regulation 4.42(a) in setting a time limit of 1 November 2016 for the applicant to respond to its invitation to comment, sent to [email protected] on 27 October 2016 with instructions that it be given to the applicant, with the result that it failed to give the applicant the opportunity to respond envisaged by those provisions.
Particulars
(a)Given that the applicant actually received the invitation to comment dated 27 October [2016], on 31 October 2016 s.473HD(7) read with Migration Regulation 4.42(a) required that he be given until 4 November 2016 to respond.
2.The IAA failed to conduct a review as required by s.473CC(1) of the Migration Act.
Particulars
a) The content of the requirement to conduct a “review” in any particular case will be governed by;
(i) The governing statute; and,
(ii) The factual circumstances of the particular case.
b)The purpose of a “review” pursuant to s.473CC(1) was to come to the best or preferable decision on the applicant’s claims within the procedures required, permitted and limited by Part 7AA of the Migration Act. Those procedures included;
(i) The discretion for the IAA to get information from any person, including an applicant pursuant to s.473DC,
(ii) The ability of an applicant to give “new information” as defined, to the IAA (ss.473DC and 473DD)
(iii) That nothing in s.473DC or elsewhere in Part 7AA of the Migration Act precluding the IAA from informing the applicant of issues arising on the review.
c)In the current case the Minister’s delegate had interviewed the applicant and had found, on the basis of that interview together with the applicant’s claims and the country information before him that the applicant could relocate to Kabul the capital of Afghanistan.
d) The IAA saw the issue on the review as whether the applicant could relocate to Mazar-e-Sharif.
e)The issue of relocation to Mara-e-Sharif had not been raised with the applicant prior to the matter being referred to the IAA.
f)It was necessary in the conduct of the IAA’s review, in the context of the governing statute and the facts of this case for the IAA to give the applicant notice of any new issues arising on the review and give him a realistic opportunity to respond. The IAA’s failure to afford the applicant a reasonable opportunity to respond constituted a failure to lawfully conduct its review.
3.The IAA erred in that it failed to consider, prior to the issue of its letter of 27 October 2016, whether it should utilise its discretion pursuant to s.473DC(3) of the Migration Act to invite the applicant to attend a hearing to address the question of whether he could relocate to Mazar-e-Sharif.
a)The discretion to utilise s.473DC(3) was for the purpose of giving the applicant an opportunity, within a limited period of time, to submit information or evidence relevant to the issues in the review where the IAA considered it necessary in the exercise of its jurisdiction, to invite such information or evidence.
b)In circumstances where the IAA had been informed that the applicant spoke limited English (to the extent that he needed an interpreter), and did not have a migration agent at the review stage, and so may be unable to respond to a written notice in three days,
the failure of the IAA to consider whether to utilise its discretion pursuant to s.473DC(3) to invite the applicant to attend an interview to address the issue of relocation to Mara-e-Sharif constituted a failure to complete the exercise of its jurisdiction.
4.Further or alternatively to ground 3 above, the IAA erred in that it failed to consider whether it should utilise its discretion pursuant to s.473DC(3) of the Migration Act
Particulars
c)The discretion to utilise s.473DC(3) was for the purpose of giving the applicant an opportunity, within a limited period of time, to submit information or evidence relevant to the issues in the review where the IAA considered it necessary in the exercise of its jurisdiction, to invite such information or evidence.
d)In circumstances where the IAA had been informed that the applicant spoke limited English (to the extent that he needed an interpreter), and did not have a migration agent at the review stage, and so may be unable to respond to a written notice in three days, and;
e)Having been informed that the applicant only received the invitation to comment on the day before the response was stated to be due, and
f)Having information before it that the applicant was illiterate in English, and had difficulty with literacy in his own language, and
g)That the applicant could not get assistance in responding to the invitation to comment before the stated deadline whilst he was in Immigration detention,
the IAA’s failure to consider whether to seek information on whether the applicant could relocate to Mazar-e-Sharif either again by the same means, or through an interview constituted a failure to lawfully exercise its jurisdiction.
5.The second respondent’s failure to invite the applicant at an interview, or to consider doing so, as was within its power pursuant to s.473DC(3)(b) of the Migration Act, was unreasonable in the legal sense.
Particulars
(a) Having been informed that the applicant was illiterate in English, had difficulty with literacy in his own language, and could not get assistance in responding to the invitation to comment, and having been informed that the applicant had been handed the invitation to comment on the day before the response was said to be due, the failure to explore alternate means of obtaining a response turned the invitation into a charade, or an empty gesture.
6.The second respondent erred in its consideration of whether the applicant could relocate within Afghanistan in the contexts of;
(i) Section 36(2)(a) of Migration Act.
(ii) Section 36(2)(aa) of the Migration Act.
Particulars
(a)Failure to consider whether it would be reasonable for the applicant to relocate within Afghanistan in light of the level of violence in proposed areas of relocation and evidence of the applicant’s traumatic experiences in Afghanistan, his psychological problems, and other factors personal to him.
In addition to the court book filed on 1 February 2017, I have before me as evidence the affidavits of Katherine Nicole Hooper made on 1 March 2017, 7 March 2017 and 5 May 2017 and the affidavit of Kamlesh Praveen Kumar made on 7 March 2017.
The applicant and the Minister made extensive pre-hearing submissions which are quite complex and also made oral submissions over a full day on 28 April 2017, continuing on 8 May 2017.
Consideration
The legislation
The issues raised in this case are important in relation to the operation of the Authority. It is appropriate to begin with a survey of the relevant legislative provisions affecting that operation.
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[30]. It is not in dispute that the applicant was a fast track review applicant.
[30] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA (ss.473JA-473JF) establishes the Authority, the body conducting reviews of fast track reviewable decisions.
Division 2 of Part 7AA (ss.473CA-473CC) sets out the procedure for referring reviewable decisions to the Authority.
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s.473BB as, relevantly, a fast track decision in relation to a fast track review applicant.
Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Minister’s Department (Secretary) to give to the Authority certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth) (Regulations).
Division 3 of Part 7AA (ss.473DA-473DF) deals with the manner in which reviews are to be conducted by the Authority.
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the Immigration Assessment Authority”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and has been found to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority[31].
[31] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron
While it is clear that the Authority is obliged, by s.473CC, to “review” the delegate’s decision under s.65, the powers conferred on the Authority to conduct this review are more limited than those powers conferred on the Administrative Appeals Tribunal (AAT) by ss.348 and 414. Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subsection 473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the Immigration Assessment Authority considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing that the Authority “does not have a duty to get, request or accept any new information whether the Immigration Assessment Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
Subsection 473DC(3) is an important provision. It states:
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
However, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering that 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 him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.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.
Section 473DE imposes obligations on the Authority that are similar to those imposed on the AAT by ss.359A and 424A. It relevantly provides:
Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member …
…
Section 473DF is also relevant. It relevantly provides:
Invitation to give new information or comments in writing or at interview
(1) This section applies if a referred applicant is:
(a) invited under section 473DC to give new information in writing or at an interview; or
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3) The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant’s comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
Regulation 4.42 of the Regulations is prescribed for the purposes of s.473DF(2). It provides that, for a referred applicant in immigration detention, the period for giving information or comments in response to an invitation given by the Authority to the applicant is three working days after the applicant is notified of the invitation.
Regulation 5.02 provides that:
[f]or the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the Authority. It suffices only to note s.473FA(1), which provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Section 473FA(2) provides that, in reviewing a decision, the Authority is not bound by technicalities, legal forms or rules of evidence.
Division 7 of Part 7AA of the Migration Act deals with the giving and receipt of review documents. It commences with s.473HA, which relevantly provides:
Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Immigration Assessment Authority to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 473HB or 473HC; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Authority may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
…
It should be noted that s.473DE is a provision that does not state that an invitation must be given by a method specified in ss.473HB or 473HC or a method prescribed for the purposes of giving documents to a person in immigration detention.
Section 473HB sets out the methods by which the Authority gives documents to a person other than the Secretary for the purposes of provisions of Part 7AA or the Regulations that require or permit the Authority to give a document to a person and state that the Authority must do so by one of the methods specified in the section[32]. Relevantly, a document may be given by the following methods:
a)a Reviewer, a person authorised in writing by the Senior Reviewer, or a person mentioned in s.473JE(2) handing the document to the recipient[33];or
b)a Reviewer or a person mentioned in s.473JE(2) transmitting the document by email to the last email address of the recipient provided to the Authority[34].
[32] Section 473HB(1)
[33] Subsection (3)
[34] Subsection (6)
Section 473HD specifies the time at which a document is taken to have been received by a person other than the Secretary. It applies if the Authority gives a document to a person other than the Secretary by one of the methods specified in s.473HB (including in a case covered by s.473HA)[35].
[35] Section 473HD(1)
If a document is given by hand by the method in s.473HB(3), the person is taken to have received it when it is handed to him or her[36].
[36] Section 473HD(2)
If the document is given by email by the method in s.473HB(6), the person is taken to have received it at the end of the day on which the document is transmitted[37].
Ground 1 – did the Authority err in setting a time limit for the applicant to respond to the Authority’s Invitation to Comment?
[37] Section 473HD(5)
Applicant’s contentions
The Authority decided that there were exceptional circumstances which permitted it to consider the new information that it included in the correspondence attached to the email of 27 October 2016[38]. Equally, the Authority was permitted by s.473DC(3) to invite the applicant to give further information. It may be inferred, as it was in Applicant NAFF of 2002 v Minister for Immigration[39] (NAFF) at [32] that the person conducting the review thought it was necessary to give the applicant the opportunity to give further information to complete the review process[40]. In those circumstances, the review process was incomplete unless the Invitation to Comment was lawfully given to the applicant and there was no error in the Authority’s application of the law in relation to it. I therefore turn to examine the process undertaken by the Authority against the governing legislation to determine whether that process was affected by jurisdictional error.
[38] Section 473DC(l)
[39] (2004) 221 CLR 1
[40] See by analogy CZBH v Minister for Immigration [2014] FCA 1023 at [55]-[56]
The applicant concedes, on the basis of the affidavit of Ms Kumar, that the Invitation to Comment was lawfully given to the applicant. The applicant also concedes that the Authority was under no obligation to invite comment on country information pursuant to s.473DE but contends that the Authority’s discretion to invite comment or information pursuant to s.473DC was enlivened. The applicant further accepts that if written comments had been invited pursuant to either section, the same time limit would have applied.
Nevertheless, the applicant submits that, even if s.473HD(7) applied to the extent that the Authority correspondence is taken to have been received by the applicant on the day it was given to him, the Authority was in error in stating that the deadline for a reply was 1 November 2016.
Secondly, although the Tribunal may have been correct in construing the time limit of three days provided for in s.473DF(2) read with regulation 4.42(a) could not be extended, it was in error in its implicit finding at [4][41] that it had no further power to invite the applicant to respond to the correspondence of 27 October 2016. This is because s.473DF(4) states that if a referred applicant does not give comments in accordance with the Invitation to Comment, the Authority may make a decision without taking further action. The legislation does not say that it has to do so. It would have been open to the Authority to issue another invitation to provide information in writing, or an invitation to an oral hearing. In circumstances where the Authority evidently considered it necessary to invite further information from the applicant, the failure to recognise that it had the power to seek that information again by the same means, or through an interview, meant that the invitation to respond was reduced to an empty gesture. The Authority's failure to understand that it could take further action to give the applicant an opportunity to comment is said to constitute a misconstruction and misapplication of the legislation.
[41] CB 431
Minister’s contentions
The Minister submits that, if the Court were to accept that the Invitation to Comment was, as the Authority said, given to the applicant pursuant to s.473DE(1), that does not necessarily lead to the conclusion that the method by which it was sent was that which is described in s.473HB(6). It is reasonably open to the Court to infer that the Authority set 1 November 2016 as the deadline for the applicant to respond to the Invitation to Comment because it assumed that the Invitation to Comment would be given to him on 27 October 2016 as directed in its email to the Minister’s Department at 2.18pm on the same day[42]. In that email, the Authority said:
The correspondence must be given to the detainee today. Please contact us urgently on 1800 205 919 if you are unable to do this.
[42] CB 414
The method employed by the Authority —that the Invitation to Comment would be given to the applicant not by the Authority directly, but by a departmental official—was “entirely appropriate” in circumstances where s.473HA(1) empowered the Authority to give the document to the applicant “by any method that it consider[ed] appropriate”, the document being one that did not have to be given to a person by a method specified in s.473HB or by a method prescribed for the purposes of giving documents to a person in detention. In this connection, it is noteworthy that, unlike ss.359A and 424A, s.473DE does not provide that an Invitation to Comment must be given by a particular method.
Alternatively, it is reasonably open to the Court to infer that the Authority gave the Invitation to Comment to the applicant by employing the method prescribed by regulation 5.02. That provision does not say that the Authority must give the invitation to an applicant directly. It may, if it so chooses, use an intermediary for that purpose.
The Minister submits that, whether or not the Court accepts that the Invitation to Comment was given pursuant to s.473HA(1), and leaving aside the fact that the Invitation to Comment did not have to be given, the next question that falls for consideration is whether the Authority fell into jurisdictional error by requiring a response to the Invitation to Comment by 1 November 2016. The Minister submits that, for the reasons that follow, that question should be answered in the negative.
The applicant has not pressed his submission that the Authority misconstrued and misapplied s.473HD, a machinery provision that deals with when a person other than the Secretary is taken to have received a document from the Authority. The applicant says that the Authority erred by requiring a response to its Invitation to Comment by 1 November 2016. This appears to be an assertion that the Authority failed to comply with s.473DF and regulation 4.42. Neither, however, amounts to a material breach of an express or implied condition of the valid exercise of the Authority’s decision-making power[43].
[43] Wei v Minister for Immigration (2015) 257 CLR 22 at 32 [23] per Gageler and Keane JJ
The Minister submits that, if it be assumed that the Authority thought that it sent the Invitation to Comment to the applicant by email pursuant to s.473HB(6) on 27 October 2016 and thought that it was taken to have been received by him at the end of that day by reason of s.473HD(5), the result cannot be jurisdictional error. That is because the Authority was not obliged to issue the Invitation to Comment in the first place by reason of s.473DE(3)(a). At worst, the error(s) would be within jurisdiction, since the applicant was never entitled to be invited to give comments on the new information contained in the Invitation to Comment.
If the jurisdictional error is said to be the Authority’s non-compliance with s.473DF (read with regulation 4.42), as the Invitation to Comment was received on 31 October 2016 and a response required the following day (and not on 3 November 2016), the result still cannot be invalidity. While s.473DF(2) is an important aspect of the Authority’s hearing procedure, and its aim is to allow a referred applicant to have a reasonable, though short, period of time within which to respond to an Invitation to Comment, it, like the materially identical s.424B(2), “does not, in its terms, impose a direct obligation on the [Authority] about the terms of the invitation”, but, rather, merely “directs that information or comments are to be given within a period [that is prescribed by regulation and] specified in the invitation”[44]. In the circumstances of the present case, any breach by the Authority of s.473DF(2) is said to have been within jurisdiction. That provision, like s.424B(2), does not establish “the kind of obligation on the [Authority] which would lead to either statutory breach or jurisdictional error”[45].
[44] SZLWQ v Minister for Immigration (2008) 172 FCR 452 at 467-468 [52] per Buchanan J
[45] ibid at 467-468 [52], applied by Bennett J in SZMTQ v Minister for Immigration [2009] FCA 1062 at [16]
The Minister further submits that, in any case, any error by the Authority was cured when it told the applicant, in its letter of 2 November 2016, that no decision on the review would be made before 3 November 2016, being the third working day following receipt of the Invitation to Comment. That was enough to comply with s.473DF(2) and regulation 4.42.
The Minister notes that, ultimately, the Authority did not make its decision on the review until 15 November 2016. Thus, the applicant had a period of 15 days to respond to the Invitation to Comment. This, too, cured any error[46]. Contrary to the applicant’s submissions, there is no evidence before the Court to suggest that he had been misled by the Authority, particularly after he received the letter of 2 November 2016.
[46] Cf M v Minister for Immigration (2006) 155 FCR 333 at 342-343 [36] per Tracey J
Resolution
It is clear from my above survey of the legislation, that an invitation issued under either ss.473DC or 473DE must provide three working days for a response, from the time of the notification of the invitation. It is clear from the affidavit of Ms Kumar that the applicant was not notified of the Invitation to Comment until it was handed to him at the detention centre on the afternoon of 31 October 2016. That being a Monday, the applicant was entitled to a period until the end of 3 November to respond. The Authority was wrong in assuming that its direction to the detention centre to deliver the letter on 27 October 2016 had been complied with, even in circumstances where the detention centre did not contact the Authority to advise its non-compliance. Having been informed by the applicant that he only received the Invitation to Comment on 31 October, the Authority should have clarified the time for response.
I otherwise prefer the Minister’s submissions on this ground. In particular, although I accept the applicant’s submission that the Authority specified the wrong period for the response to the Invitation to Comment, I accept the Minister’s submissions concerning the lack of a jurisdictional consequence of the error.
The Authority proceeded upon the basis that the Invitation to Comment was issued pursuant to s.473DE. In parts of its letter, the Authority said that the applicant was invited to comment on information “that may be the reason, or a part of the reason for affirming the [delegate’s] decision”[47]. The Authority also explained why the new information contained in the Invitation to Comment was relevant to the review[48]. Further, the Authority said that the applicant had until 1 November 2016 to respond to the invitation, and that, if he did not do so, it “may make a decision on the review without taking any further action to obtain [his] views on the information”—language that appears in s.473DF(4)(a). Still further, the Authority referred to s.473DE as the provision under which the Invitation to Comment was purportedly issued at [3][49]. I infer from the Invitation to Comment and the Authority’s reasons, therefore, that particulars of the information in question were given to the applicant because the Authority felt compelled to do so. No other inference is reasonably open. In particular, there is no basis for the inference, for which the applicant contends, relying upon NAFF (a case dealing with s.425(1)) and CZBH v Minister for Immigration[50] (a case dealing with s.426), that the Authority “thought it was necessary to give the applicant the opportunity to give further information to complete the review process” and “the review process was incomplete unless the Invitation to Comment was lawfully given to the applicant and there was no error in the Authority’s application of the law in relation to it.”
[47] cf s.473DE(1)(a): CB 415, 416, 417
[48] cf s.473DE(1)(b): CB 416, 417
[49] CB 431
[50] [2014] FCA 1023
The present case was one in which the obligation under s.473DE(1) was not engaged in relation to the information in question, since the information was country information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member. Such information is excluded from the Authority’s disclosure obligation under s.473DE(1) by reason of subparagraph (3)(a) in the same way that country information is excluded from the materially identical obligation of the AAT under each of ss.359A and 424A[51].
[51] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 357 [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
Critically, nothing in the material before the Court suggests that, had it been aware that the obligation in s.473DE(1) was not enlivened, and had it not issued the Invitation to Comment pursuant to that provision under a misunderstanding that it was compelled to do so, nonetheless the Authority would have exercised its discretion under s.473DC(3) to invite the applicant to give new information with respect to the country information. There is also no evidence before the Court (other than the applicant’s subsequent inactivity) to suggest that the applicant took, or failed to take, certain steps in relation to the review by relying upon the Invitation to Comment [52].
[52] Cf, in a different context, Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 14 [38] per Gleeson CJ
Accordingly, while the Authority erred in specifying the time limit in relation to the Invitation to Comment, the allegation of legal error thereby in making a decision on the review without taking steps to obtain the applicant’s response to the Invitation to Comment, cannot sound in invalidity for that reason alone[53]. At worst, the error made by the Authority was within jurisdiction.
Ground 2 – did the Authority fail to conduct its review as required by s.473CC(1) of the Migration Act?
[53] Cf SZUSR v Minister for Immigration (2015) 304 FLR 59. See also cases such as SZTNL v Minister for Immigration (2015) 231 FCR 204 at 219-221 [48]-[54] per Griffiths J, Minister for Immigration v SZTJF (2015) 149 ALD 552 at [32] per Yates J and SZMCD v Minister for Immigration (2009) 174 FCR 415 at 417 [2] per Moore J, 430-431 [74]-[87] per Tracey and Foster JJ
Applicant’s contentions
The applicant concedes the possibility that the Authority can conduct its “review” without any input from the applicant. That question may be left open because the applicant’s input was invited in this case. The applicant submits that:
a)the Authority is permitted to make its own investigations;
b)it is open to the Authority to see the issues arising on the review as different to those found dispositive by the delegate; and
c)there is no prohibition on the Authority advising the applicant of fresh issues that arise on the review.
In the present case, the applicant was interviewed by the delegate and was aware from the questioning, and indeed from the delegate’s decision, of the issues that the delegate saw as dispositive. Those issues were addressed in submissions, apparently with considerable effect. The Authority then sought its own information, as it was entitled to do. This raised what the applicant characterises as a new issue – the possibility of relocation to Marzar-e-Sharif rather than Kabul.
The applicant stresses that the Authority should not be criticised for making its own investigations. That a review authority should use its initiative to attempt to come to the correct or preferable decision is very often a good thing. But having done so, the question which arises is what is required of the Authority so that it may make the correct or preferable decision? Had it not made further enquiries its consideration may have been limited to Kabul, about which it was comprehensively informed. It was not, or at least may not have been so informed about Mazar-e-Sharif.
The applicant submits that the Authority could not be so informed without, at the very least, informing the applicant that the issue of relocation to Mazar-e-Sharif had arisen and inviting a response. What would be lacking, unless this were done, would be the applicant’s claims or explanation as to relevant issues, which the applicant submits would be essential to making the correct or preferable decision. The Authority would effectively be deprived of the applicant’s claims or evidence or explanation, and would thus be deprived of an essential ingredient in the review process.
It is not in question that the Authority made an attempt to inform the applicant of the new issue. But as submitted previously, that attempt is said to have been ineffective, both in terms of the procedures required by the legislation and in terms of giving the applicant a real opportunity to respond. The exercise of the Authority’s jurisdiction to conduct a review was thus left incomplete.
Minister’s contentions
The Authority’s task is to review a fast track reviewable decision referred to it under s.473CA in accordance with the provisions contained in Division 3 of Part 7AA. The word “review” in ss.473CC(1) and 473DB(1) “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”[54]. That context includes the other provisions in Part 7AA, which confer powers on the Authority that are more restrictive than those conferred on the Authority under Parts 5 and 7. Unlike reviews conducted by the AAT, a review conducted by the Authority requires it to consider the review material provided to it under s.473CB without accepting or requesting new information and without interviewing the referred applicant, subject to Part 7AA[55]. That being said, the Authority’s duty to “review” a fast track reviewable decision under s.473CC(1) requires it to undertake a “fresh consideration of the application which led to the decision under review” and “to arrive at the correct or preferable decision in the case before it according to the material before it”[56], that is, either to affirm the decision[57] or to remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation 4.43 of the Regulations[58]. In so doing, the Authority is not limited to reviewing the reasons of the Minister’s delegate (as distinct from his or her decision under s.65)[59], and may exercise its decision-making power under s.473CC(2)(a) for reasons different from those given by the delegate.
[54] Minister for Immigration v Li (2013) 249 CLR 332 at 341 [10] per French CJ, referring to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brennan and Toohey JJ
[55] Section 473DB(1)
[56] Minister for Immigration v Li (2013) 249 CLR 332 at 341 [10]
[57] Section 473CC(2)(a)
[58] Section 473CC(2)(b)
[59] There is a difference between a decision of the Minister, on the one hand (cf ss.65, 66(1), and the definition of “fast track decision” in s.5(1)), and the reasons for that decision, on the other (cf s.66(2)(c))
The Minister submits that the present case is not the proper occasion to determine the metes and bounds of s.473DC, including whether, and, if so, how, it may be used by the Authority to put an applicant on notice of an issue, old or new, arising on the review. The Minister notes, however, that s.473DC refers to the Authority getting new information and not necessarily disclosing matters to a referred applicant for his or her comment (which is the purpose of s.473DE). Here, the Authority, in its Invitation to Comment, drew to the applicant’s attention the fact that it was considering the prospect of his relocating to Mazar-e-Sharif. So much is apparent from the first and second paragraphs of the final page of the Invitation to Comment. While the Authority was under no obligation to give the letter to the applicant in the face of s.473DE(3)(a), nonetheless it did so with the result that the applicant had the benefit of, first, being put on notice of the relevant issue, and, secondly, ultimately a period of 15 days following receipt of the Invitation to Comment within which to address it, as the Authority did not decide the review until 15 November 2016.
The Minister submits that, for these reasons, the Authority did not fail to comply with its obligations under ss.473CC(1) and/or 473DB(1).
Resolution
In Ground 2, the applicant contends that the Authority failed to conduct a review as required by s.473CC(1) of the Migration Act because it did not give him notice of a new issue arising on the review and an opportunity to respond to it. The new issue is said to be whether the applicant could relocate to Mazar-e-Sharif, as opposed to Kabul.
I accept that an issue (indeed a critical issue) in the interview before the delegate was the issue of relocation. A sub-issue was relocation to Kabul. The applicant was plainly aware from the delegate’s decision that relocation would be an issue in the review. He was not, however, aware from that decision that any sub-issue other than relocation to Kabul would be an issue in the review.
The question to resolve is whether the Authority could complete the review without involving the applicant in its consideration of the sub-issue of relocation to Mazar-e-Sharif. In resolving that question it is necessary to draw a distinction between what the Authority is required to do in conducting a review, and what it is permitted to do, and what it is prohibited from doing. The survey of the legislation set out above establishes that the Authority is permitted to get new information it considers relevant but is prohibited from considering new information or interviewing an applicant, save in exceptional circumstances and (in the case of new information provided by an applicant) where the new information could not have been provided to the delegate before his decision, or was credible personal information not previously known which could have affected the outcome.
The Authority satisfied itself that there were exceptional circumstances justifying its consideration of new information bearing on the relocation issue that it had got under s.473DC of the Migration Act. However, the only provision under which the Authority could be compelled to disclose the information to, or request further information from, the applicant, is s.473DE. That section did not apply to the new information in issue for the reasons given above. It follows that there was nothing in the Authority’s procedural code which required either disclosure of the new information it had to the applicant, or an invitation to provide his comments on it, or an invitation to submit additional new information, before completing the review.
I accept that, having decided that it should get new information on the relocation issue, and having decided that there were exceptional circumstances permitting the consideration of that new information, the Authority’s discretion under s.473DC(3) was enlivened. Further, there was nothing in the Authority’s procedural code which prevented it from inviting submissions from the applicant on the new information it had obtained (on the basis of the distinction between new information and submissions on then existing information drawn in the President’s Practice Direction issued under s.473FB of the Migration Act). It does not follow, however, that because the Authority had the power to engage with the applicant on the issue, it could not complete the review before doing so. Unlike the AAT the Authority is not required to invite an applicant to a hearing if it cannot make a favourable decision on the papers. In my view, the Authority is entitled to complete the review without alerting an applicant to new issues (or inviting submissions) or new information (to which s.473DE does not apply) subject to the restraints of procedural fairness and reasonableness.
I deal with the issue of reasonableness in respect of Ground 5. With respect to procedural fairness, the requirements of procedural fairness are informed by their statutory context and the general law. It is settled law that the principles of procedural fairness under the general law cannot be excluded other than by “plain words of necessary intendment”[60]. The Minister submits, and I accept, that those plain words can be found in s.473DA(1). The fact that the words “in relation to the matters it deals with”, which appear in ss.357A(1) and 422B(1), are absent from s.473DA(1) does not assist the applicant; it assists the Minister. The words “in relation to reviews conducted by the … Authority” are broader than those used in ss.357A(1) and 422B(1) and operate to exclude the common law fair hearing rule from conditioning the conduct of reviews before the Authority[61]. In other words, the provisions in Division 3 of Part 7AA (which includes s.473DC) state, exhaustively, the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The applicant’s submissions to the contrary are not accepted.
[60] Annetts v McCann (1990) 170 CLR 596 at 598
[61] See, for example, AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron; AMA16 v Minister for Immigration & Ors [2017] FCCA 303 at [19]-[21]
The applicant makes the tentative submission that an “unfettered discretion” (an expression which, in context, must be taken to refer to a discretion which excludes the requirements of procedural fairness and legal reasonableness) “may be unconstitutional, as preventing oversight by Chapter 3 Courts”. While that question was only lightly touched on in oral argument and no Constitutional challenge was raised, the Minister makes two points in response. First, both procedural fairness and legal reasonableness as conditions on the exercise of a statutory power may be excluded if inconsistent with the terms in which a power is conferred, or if otherwise inconsistent with the nature or statutory context of that power[62]. In the present case, I have accepted that s.473DA(1) supplies the “plain words of necessary intendment”[63] to exclude the general law fair hearing rule from the provisions in Part 7AA. Secondly, the fact that a power need not be exercised in accordance with procedural fairness or legal reasonableness does not necessarily have the result that it is unconstitutional. The High Court saw no difficulty with the validity of the similarly worded s.46A(7) of the Migration Act in Plaintiff M61/2010E v Commonwealth[64] (M61) at page 347 [57]-[60], for example. Their Honours held, at page 347 [57], that s.46A(7) did not clash with s.75(v) of the Constitution and that “the capacity to enforce limits on power does not entail that consideration of the exercise of a power must always be amenable to enforcement, whether by mandamus or otherwise.” Later, in Plaintiff S10/2011 v Minister for Immigration[65], the High Court held that the so-called dispensing provisions, ss.48B, 195A, 351 and 417, are not attended by a requirement that the powers contained within them be exercised in accordance with procedural fairness. At 652 [42], French CJ and Kiefel J observed that the structure of s.46A, the validity of which had been upheld in M61, resembled that of s.48B.
[62] Minister for Immigration v Li (2013) 249 CLR 332 at 371 [92] per Gageler J; Minister for Immigration v Singh (2014) 231 FCR 437 at 445 [43] per Allsop CJ, Robertson and Mortimer JJ
[63] Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ
[64] (2010) 243 CLR 319
[65] (2012) 246 CLR 636
There is force in those submissions, although I make no finding on them. In any case, the Minister is not contending in these proceedings that s.473DC(2) displaces what Gageler J described in Li at page 371 [92] as the “default position”. In other words, the Minister does not contend that s.473DC(2) operates to exclude the implication of reasonableness in powers such as ss.473DC(1) and (3). It is not necessary in the present case to identify the metes and bounds of s.473DC(2). It suffices to say that the content of the requirement to exercise the powers in ss.473DC(1) and (3) reasonably will depend upon the relevant statutory and factual context, which includes provisions such as ss.473DB(1)(a), 473DC(2) and 473FA(1) as well as the overall structure and purpose of Part 7AA.
In respect of this ground (and putting to one side the issue of legal reasonableness) I conclude that there was no constructive failure of jurisdiction by the Authority in completing its review by including the sub-issue of relocation to Mazar-e-Sharif without any effective reference to the applicant. To the extent that the process followed by the Authority was procedurally unfair, it was authorised by the statutory procedural code under which the Authority operates.
Grounds 3 and 4 – did the Authority err in failing to consider inviting the applicant to attend a hearing or comment in writing on the question of relocation to Mazar-e-Sharif?
Applicant’s contentions
The applicant contends that the issue of relocation to Mazar-e-Sharif was a new issue arising in the review that needed to be addressed at an interview. It is implicit in the applicant’s submissions that an Invitation to Comment on country information, even if validly issued was an inadequate mechanism to deal with the new issue. The applicant contends that the Invitation to Comment was, in any event, purely a mechanical exercise and took no account of the applicant’s detention or the lack of an interpreter or migration agent to assist him.
The arguments in Ground 4 substantially duplicate the arguments in relation to the failure to consider inviting the applicant to an interview, save for the fact that in this ground the invitation would have been to provide written material.
Minister’s contentions
In so far as the applicant asserts the existence of a duty to consider inviting him to give new information, whether in writing or at an interview, the Minister refers to, and repeats, his earlier submissions.
The question as to whether the Authority’s failure to exercise its discretion under s.473DC(3)(a) or (b) was a constructive failure of jurisdiction does not arise in the circumstances of this case, for the reasons that, first, the Invitation to Comment did not have to be given to the applicant (in which case he never had an entitlement to respond to the country information), and, secondly, nothing in the material before the Court indicates that, had the Authority known that the country information was not caught by s.473DE(1), it would have exercised its discretion to invite the applicant to comment on it pursuant to ss.473DC(3)(a) or (b)[66]. While it is plain from the letter and [3] of the Authority’s reasons that the Authority felt compelled to issue the Invitation to Comment, it did not go on to say that, in the event that it were wrong, it would have done so pursuant to s.473DC(3) in any event.
[66] Cf SZUSR v Minister for Immigration (2015) 304 FLR 59
Further, the Minister submits that the applicant’s submissions proceed upon an incorrect construction of the provisions in subdivision C in Division 3 of Part 7AA of the Migration Act.
In the present case, the Invitation to Comment contained particulars of new information (specifically, country information) which the Authority obtained from a source. The Authority “g[o]t”[67] the material in question, being information that was not before the delegate when he made his decision under s.65 and which the Authority considered may be relevant to the review. The Authority did so pursuant to s.473DC(1).
[67] cf s.473DC(1)
Having done so, the Authority then decided that it would consider the new information pursuant to s.473DD, having been satisfied that there were exceptional circumstances to justify it doing so[68].
[68] CB 431 [3]
Subdivision C of Division 3 of Part 7AA of the Migration Act is entitled, “Additional information”. Section 473DC empowers the Authority to get new information. Section 473DD empowers the Authority to consider new information in certain circumstances. Section 473DE compels the Authority to give certain kinds of new information to a referred applicant. Section 473DF sets out the requirements of an invitation to give new information or to comment on new information.
The Minister submits that s.473DE is the only provision in Subdivision C of Division 3 which sets out the circumstances in which new information is to be put to an applicant for his or her comment. Country information (being a type of information that comes within the scope of s.473DE(3)(a)) is excluded from that provision. So, too, new information that is non-disclosable information[69] and new information that is prescribed by the Regulations, namely, new information given by an applicant to the Authority for the purposes of the review[70].
[69] section 473DE(3)(b)
[70] section 473DE(3)(c), read with regulation 4.41
If, as in the present case, s.473DE(1) is not enlivened, s.473DC ought not to be construed in such a way as to require the Authority to put to an applicant particulars of new information which would otherwise not have to be put to him or her pursuant to s.473DE. Such a construction would circumvent the operation of s.473DE(3)(a) and not promote “internal logical consistency and overall consistency”[71] of the provisions in Division 3 of Part 7AA.
[71] Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at 22 [35] per French CJ, Hayne, Kiefel and Nettle JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ
The applicant’s construction would also offend the principle in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[72]. There, Gavan Duffy CJ and Dixon J (as his Honour then was) said[73]:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[72] (1932) 47 CLR 1
[73] at 7
Section 473DE deals with the kinds of new information that must be given to an applicant for his or her comment. Section 473DC, however, says nothing about the Authority giving new information to an applicant for his or her comment and should not be read in such a way that it encroaches upon the topic covered by s.473DE. However, that would be the result of the applicant’s construction of ss.473DC and 473DE. It should not, therefore, be adopted.
Further, the Minister submits that the argument proceeds upon a flawed factual premise. Contrary to the applicant’s submissions, the counterfactual contemplated by the argument that the Authority ought to have exercised its discretion pursuant to s.473DC(3) initially (ie on or before 27 October 2016) cannot include the Authority having issued the Invitation to Comment purportedly pursuant to s.473DE(1). The applicant would otherwise be having it both ways.
Resolution
In this ground, the applicant contends that the Authority failed to complete the exercise of its jurisdiction by:
a)failing to invite him to give new information at an interview pursuant to s.473DC(3)(b) “initially”;
b)failing to invite him to give new information, in writing or at an interview, pursuant to ss.473DC(3)(a) or (b), on or after 1 November 2016;
c)failing to consider inviting him to give new information at an interview “initially”; and/or
d)failing to consider inviting him to give new information in writing or at an interview on or after 1 November 2016.
Consistently with my finding in relation to Ground 2, these grounds also fail.
First, there is a relevant distinction to be drawn between new issues (or sub-issues) and new information relating to those issues[74]. In the context of this case, there is nothing in the Authority’s procedural code requiring it to disclose the new information that it had obtained or seek comment on it. The Authority could have invited the applicant to provide new information in writing or at an interview but it was not required to do so. There is nothing in the Authority’s procedural code which prevented it from inviting submissions from the applicant on the new sub-issue of relocation to Mazar-e-Sharif but, again, it was under no obligation to do so. The Authority, in contrast to the AAT, is under no obligation to reveal to an applicant new issues that may be dispositive, and the principles set out in SZBEL v Minister for Immigration have no application[75].
[74] See BWL16 & Ors v Minister for Immigration & Anor [2017] FCCA 3 at [48] and [54]; ABV16 v Minister for Immigration [2017] FCA 184 at [41]-[58]
[75] AMA16 v Minister for Immigration & Ors [2017] FCCA 303, op cit, at [20]
As I noted in DBE16 v Minister for Immigration & Anor[76] at [66] good administration may lead to disclosure and an invitation to comment or provide information but, absent an unreasonable failure or refusal to do so, neither the Authority’s procedural code, nor the general law, imposes an obligation to do so.
[76] [2017] FCCA 287
Further, unless the failure to consider exercising its discretion was unreasonable, there is no error of jurisdiction in the Authority not considering its discretion to disclose information or issues or invite new information, or comment, or submissions.
In that regard, I have accepted that the Authority proceeded on the false premise that it was compelled to disclose the new information under s.473DE and there is no evidence that the Authority turned its mind to the possible application of s.473DC, or an extension of its previous invitation to the applicant to make a submission.
Ground 5 – was the Authority’s failure to invite the applicant to an interview, or to consider doing so, unreasonable?
Applicant’s contentions
The applicant contends that, having been informed that the applicant was illiterate in English, had difficulty with literacy in his own language and could not get assistance in responding to the Invitation to Comment, and having been informed that the applicant had been handed the Invitation to Comment on the day before the response was said to be due, the failure to explore alternate means of obtaining a response reduce the Invitation to a “charade” or an empty gesture.
This ground raises the issue of the reasonableness of the Authority's conduct in issuing the Invitation to Comment in writing in the first place and in failing to consider alternative means of giving the applicant an opportunity to address the matters raised in the Authority's letter of 27 October 2016 on or after 1 November 2016.
The applicant submits that his statement of claims was interpreted to him[77]. He also asked for a Dari interpreter during his telephone conversation with an Authority officer on 22 August 2016[78]. In the telephone conversation of 22 August 2016 he also said, through an interpreter, that he did not have a migration agent for his Authority case. Those facts must reasonably have put the Authority on notice that his English was limited and that it would be futile to expect him to be able to respond to a detailed letter containing country information in three working days, even if the Invitation to Comment was delivered in accordance with s.473HD.
[77] CB 50
[78] CB 413
The applicant submits that, considering that the intent of s.473DC(3) was to give the applicant an opportunity to give information so that the Authority may complete the review, the failure to initially invite the applicant to an interview, or at least to consider doing so, reduced the invitation to give new information to a hollow shell, an empty gesture, or to put it bluntly, an exercise in futility, and was thus legally unreasonable within the meaning of that term in Minister for Immigration vLi.
In addition, the Authority was clearly put on notice on 1 November 2016 that the applicant had only received its correspondence the previous afternoon, and that he had no means of responding in English by 1 November[79]. Indeed at [55][80] it accepted that the applicant, "may be illiterate and have had little education". In those circumstances too the failure to consider, at that stage, whether to issue another invitation in writing or to an interview was, in the context of the purpose of s.473DC, legally unreasonable.
[79] CB 419-420
[80] CB 442
Minister’s contentions
The Minister contends that the applicant was sufficiently put on notice of the relocation issue by the Invitation to Comment and relies upon his earlier submissions in relation to this ground.
The present case is said to be “strikingly similar” to SZUSR v Minister for Immigration[81]. In that case, the former Refugee Review Tribunal (RRT) had issued an invitation to the applicant pursuant to s.424A of the Migration Act. Several requests for extensions of time were granted but there came a point where the RRT refused to grant a further extension and simply proceeded to make a decision on the review. The applicant asserted, amongst other things, that the RRT’s failure to exercise its discretion to give to him further time to respond to the letter was unreasonable. The Minister argued, relevantly, that the Invitation to Comment did not have to be issued in the first place, as the matters raised in the invitation did not comprise “information” for the purposes of s.424A(1)(a) and that any complaint of legal unreasonableness, therefore, fell away. That submission was accepted by Judge Nicholls[82]. The Minister submits that this Court ought to adopt the same approach if it accepted that the Invitation to Comment did not come within the scope of s.473DE(1).
[81] (2015) 304 FLR 59
[82] at 89 [159]-[163]
The Minister submits that, to assess whether the Authority acted unreasonably in the circumstances of the present case, the Court must “focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law”[83]. While the context of the present case on or before 27 October 2016 included the applicant’s lack of English language ability or an agent, it also included the following important legislative provisions:
a)the Authority is required, ordinarily, to review a decision of the Minister’s delegate on the papers without accepting or requesting new information or inviting an applicant to an interview: s.473DB(1);
b)the Authority has a broad discretion as to whether it invites an applicant to give new information in writing or at an interview: ss.473DC(1), (3);
c)the Authority is under no obligation to get, request or accept any new information whether it is requested to do so by an applicant, any other person, or in any other circumstances: s.473DC(2);
d)the Authority is only required to give particulars of certain types of new information to an applicant, country information (which is not specifically about the applicant and is just about a class of persons of which the applicant is a member) not being one such type: s.473DE(3)(a).
[83] Minister for Immigration v Singh (2014) 231 FCR 437 at 446 [45]
The combined operation of those provisions is said to have the result that, on or before 27 October 2016, the Authority did not act unreasonably by not exercising its discretion pursuant to s.473DC(3) to invite the applicant to give new information.
Nor, in the Minister’s submission, did the Authority act unreasonably by not exercising its discretion pursuant to s.473DC(3) to invite the applicant to give new information on or after 1 November 2016. It would make a “mockery” of s.473DE(3)(a) if the Authority could be compelled to exercise its discretion pursuant to s.473DC(3) to invite an applicant to give new information (and, in the process, for the Authority to give new information to the applicant) in circumstances where an invitation purportedly pursuant to s.473DE(1) has already been given and the time for responding has passed.
The Minister submits that the applicant’s argument would also make a “mockery” of the express power in s.473DF(4)(a) for the Authority to make a decision on the review without taking any further action to obtain an applicant’s comments on new information given under s.473DE(1) if those comments have not been given in accordance with the invitation. Of course, the power under s.473DF(4)(a) must, like all statutory powers, be exercised reasonably. The difficulty faced by the applicant in these proceedings, however, is that s.473DE(1) was never engaged, with the result that any complaint of legal unreasonableness vis-à-vis the exercise of discretion under s.473DF(4)(a) could not, at least in the circumstances of the present case, establish jurisdictional error.
Resolution
I have already found that the Authority thought that it was acting pursuant to s.473DE of the Migration Act in sending its letter of 27 October 2016, whereas that section was inapplicable in the circumstances. In the applicant’s submission the issue disclosed in that letter, that Mazar-e-Sharif was potentially a viable place for relocation, did have to be given to the applicant because reasonableness and procedural fairness, so far as it applied in this case, required that to be done. I have rejected the proposition insofar as it depends on procedural fairness but I accept it in respect of the principles of unreasonableness. The reasoning for that is as follows.
First, the delegate based his decision of 12 August 2016 on the availability of Kabul as a place of relocation[84]. The Authority, confronted with the new information that Kabul was dangerous, decided that Mazar-e-Sharif, which had been unmentioned prior to the letter of 27 October, was a viable place of relocation. Therefore in the absence of notice, the applicant and any advisor he may have had could not have known that relocation to Mazar-e-Sharif was an issue before the Authority.
[84] CB 365-379
It was objectively unfair for the Authority to conduct the review on the basis of that new sub-issue without effective reference to the applicant. The attempt by the Authority to bring the issue to the applicant’s attention and invite a response was ineffective because the time for a response was wholly inadequate, given the applicant’s circumstances, and the Authority proceeded under the wrong section of the Migration Act and applied the wrong time limit. Even if it had applied the correct time limit, that would have been an inadequate time for the applicant to respond given his detention, his lack of English and his lack of advice or professional assistance. There is no evidence that the Authority considered any alternative procedure. As noted above, the Authority had available to it the discretions conferred by s.473DC, as well as its administrative discretion to extend its earlier invitation to the applicant to make a submission. Consistently with my findings on Grounds 3 and 4, however, the general law cannot provide a remedy for that unfairness unless the conduct of the Authority was legally unreasonable.
As the Minister points out in his submissions, the Authority’s mistaking the source of its power does not result in invalidity of an act done otherwise within power.
In the absence of clear words to the contrary, a statutory discretion has to be exercised reasonably[85]. In considering what is “reasonable” close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions[86]. What is reasonable in the context of Part 7AA must be seen in the context of:
a)there being considerable restrictions on the natural justice hearing rule;
b)the lack of requirement for an oral hearing;
c)the fact that the Authority did not have the power to remit the application to the delegate with a direction that he or she consider a particular factual issue[87]; and
d)as Gageler J said in Li at [99], albeit in the context of Part 5 of the Migration Act, restrictions on natural justice gives added significance to the implied requirement of the review authority to act reasonably. His Honour continued at [102]. Again in the context of Part 5:
The permissive terms in which the power to adjourn is conferred on the MRT make clear that the power itself carries no duty on the MRT to consider its exercise. The overriding duty of the MRT to review a decision may nevertheless require the MRT, acting reasonably, to consider exercise of the power in a particular case. (footnote omitted)
[85] Minister for Immigration v Li (2013) 249 CLR 332 at [26], [29], [63], [88], [94]
[86] ibid at [72], [94]-[95]
[87] Section 473CC(2)(b) read with regulation 4.43 of the Regulations
Applying those principles to the current case, the discretion in s.473DC(3) exists to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision. In circumstances where, as here, the applicant could not have known of the issue dispositive of the review of his case without being informed, and where there is a power to inform him of that issue and seek information or comment relevant to it, the failure to exercise or consider exercising the relevant power to inform him of the issue lacks an evident and intelligible justification, in addition to having resulted in an unfair procedure.
Thus, contrary to the Minister’s submissions, it was unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue that it found dispositive. Although it thought it was acting under s.473DE in sending the letter of 27 October 2016 it should have acted or considered acting pursuant to s.473DC(3). Given that the giving of that letter, at least insofar as raising the issue about relocation to Mazar-e-Sharif was concerned, was fundamental to the review, it follows that an error in identifying the relevant statutory provision, calculating a statutory response time, or unreasonableness in insisting on a particular form or timeframe of response, would unreasonably deny the applicant the opportunity to respond consistently with the provisions of Part 7AA and thus is a jurisdictional error.
Further, given the applicant’s circumstances, of which the Authority was plainly aware, which imposed severe limitations on his capacity to respond in writing, especially within a three working day time limit, the Authority needed to consider the option of inviting the applicant to an interview to address the issue of fundamental importance to the outcome of the review. In the circumstances of this case, the failure by the Authority to consider its power to conduct an interview was unreasonable.
I conclude that it was unreasonable for the Authority to fail to consider proceeding under s.473DC(3), to proceed incorrectly under s.473DE, to impose an incorrect deadline for a response and to fail to correct its error in relation to time when informed by the applicant of the day on which the Invitation to Comment had been received.
I find that this ground has been established.
Ground 6 – did the Authority err in considering whether the applicant could relocate within Afghanistan?
Applicant’s contentions
The Authority did not consider whether in the context of s.36(2)(a) of the Migration Act it was "reasonable" for the applicant to relocate to a centre like Kabul, or more particularly Mazar-e-Sharif. It did consider reasonableness in the context of s.36(2)(aa), as s.362B(a) required it to do.
In the applicant’s submission, the Authority was required to consider reasonableness of relocation in the context of s.36(2)(a) read with s.5H(1). This is because, as Black CJ said in Randhawa v Minister for Immigration[88]:
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.
[88] (1994) 52 FCR 437, 442
In the applicant’s submission, there is nothing in the leading High Court authority of SZATV vMinister for Immigration[89] which is inconsistent with this. Thus, to the extent that the Authority did not consider the reasonableness of internal relocation in the context of s.36(2)(a), it was in error.
[89] (2007) 233 CLR 18
Moving on to what the Authority did consider, it may be noted that it referred to the applicant's health issues as follows[90]:
The applicant is a young male, and while he has had some health issues in detention I am satisfied that he is an able bodied man. The applicant is not married and has no children. He speaks Hazaragi, Dari and some English, and while I accept that the [stress] and anxiety of detention has had a significant impact upon him the medical evidence before me does not point to the applicant having significant health issues that require intervention. Allowing for those difficulties I am satisfied that he has no serious vulnerabilities that would impact on his ability to relocate to Mazar-e-Sharif.
[90] CB 442 [58]
However, information before the Authority was that:
a)he had reported to IHMS in detention that he had had traumatic experiences in Afghanistan[91];
b)there had been serious attacks in Kabul, and Hazara Shia had been targeted[92];
c)there had been a major attack on the Shia community in Mazar-e-Sharif in December 2011, and an attack on a Shia mosque just 20 kilometres from the city in October 2016[93].
[91] CB 85
[92] CB 438 [35]
[93] CB 437 [30]-[31]
In addition the Authority accepted that there had been recent attacks in Mazar-e-Sharif, although not at a level that there was a real risk of the applicant suffering significant harm[94]. It also found that he may face discrimination there[95].
[94] CB 441 [49]
[95] CB 437 [29]
In MZACX v Minister for Immigration[96] (12 October 2016) at [35], Kenny J considered the principles relating to relocation thus:
In considering the possibility of relocation within a visa applicant's country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case.
[96] [2016] FCA 1212
Her Honour's reference to the relevance of "lower levels of harm" draws from the judgments of Dodds-Streeton J in MZYQU v Minister for Immigration[97] especially at [61]-[62], and Davies J in MZZJY v Minister for Immigration[98] at [21]. The principle established in those cases was expressed by Davies J in MZZJY at [21] in this way:
The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate.
[97] (2012) 206 FCR 191
[98] [2014] FCA 1394
The Authority proposed that the applicant could reasonably be returned to a city in which there had been a serious attack on people like himself five years before, and a nearby attack the month before the decision. It failed to take this, and the violence that it found did exist in Mazar-e-Sharif, into account. It also failed to take into account the trauma which he had reportedly suffered in Afghanistan, as well as the societal discrimination which it found that he may suffer. In failing to take into account the cumulative effect of these factors the Authority failed to lawfully consider the issue of relocation.
Minister’s contentions
In this ground, the applicant says that the Authority did not consider the reasonableness of his having to relocate within Afghanistan.
There are two responses to this ground.
First, contrary to the applicant’s submissions, the Authority was not required to consider the reasonableness of relocation in the context of determining his claims for protection under the Refugees Convention.
Sections 5H and 5J of the Migration Act provide:
Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country …
…
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
(Emphasis added)
The effect of s.5J(1)(c) of the Migration Act is that the decision-maker needs only to consider whether an applicant faces a real chance of persecution in all areas of the country to which he or she will return (commonly referred to as the “first limb” of the relocation test). Section 5J does not, however, deal with the broader question as to whether relocation is reasonable in the circumstances of a particular case (commonly referred to as the “second limb” of the relocation test).
Nothing in the judgment of Black CJ in Randhawa at 442 or in the judgment of the High Court in SZATV, to which the applicant has referred in his submissions, affects the Minister’s construction of s.5J(1)(c). Those cases provide that a person has a well-founded fear of persecution if, relevantly, it is not reasonable in the circumstances for a person to relocate to a particular region in his or her country of nationality even if he or she does not face an appreciable risk of persecution in that place. Subsection 5J(1) now deals exhaustively with the concept of a well-founded fear of persecution, with subparagraph (c) codifying the relocation test.
Secondly, and in any event, the Authority considered the reasonableness of the applicant’s having to relocate to Mazar-e-Sharif in the context of determining his claims for complementary protection at [49]-[61][99], as it was required to do by force of s.36(2B)(a). Even if the Minister’s construction of s.5J(1)(c) were not correct, there is no sound reason for the Court not to treat the Authority’s findings as to the reasonableness of relocation—which were purely factual—as applying equally to the reasonableness of relocation in the Refugees Convention context[100]. Where the Authority has made those findings, the result cannot be jurisdictional error for the same reason that the result would not be jurisdictional error where a decision-maker refers to findings of fact that it has made in assessing an applicant’s circumstances against the criterion in s.36(2)(a) when determining his or her claims for complementary protection[101].
[99] CB 441-443
[100] See Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pages 10-11, 171-172 [1181], [1183]
[101] SZSGA v Minister for Immigration [2013] FCA 774 at [56]-[57] per Robertson J; SZSHK v Minister for Immigration (2013) 138 ALD 26 at 34 [32] per Robertson, Griffiths and Perry JJ
The applicant’s complaints about the Authority’s relocation analysis appear to be that the Authority’s consideration of the reasonableness of relocation miscarried because it did not have regard to certain attacks on Shias in Kabul and in Mazar-e-Sharif in 2011, the societal discrimination which it found the applicant would suffer, and the trauma that he said he had suffered in Afghanistan (the last mentioned point being raised, according to the applicant, in a medical record at CB 85).
The Minister submits that these submissions should be rejected for the following reasons.
Contrary to the applicant’s submissions, the Authority relevantly considered the incident that led to the applicant’s trauma[102], although it went on to reject the claim that the incident had occurred[103]; his health issues, medical records, illiteracy, lack of education, the stress of the application process and the difficulties that he has faced in Australia and while in detention[104]; attacks on Hazara Shias in Mazar-e-Sharif and in the Balkh Province more broadly, particularly in December 2011 and in October 2016[105]; violence against Hazara Shias[106]; societal discrimination against Hazara Shias in Afghanistan[107]; and generalised violence[108].
[102] at CB 434 [13]
[103] at CB 435 [19]
[104] at CB 434-435 [18], 442 [55], [58]
[105] CB 437 [30]-[31], 438 [35], 441 [49]
[106] CB 437-439 [32]-[40], 441 [48]
[107] CB 437 [29], 440 [45]
[108] CB 437 [32], 441 [49]
The fact that some of these findings were made in the context of the Authority’s consideration of the applicant’s claims for protection under the Refugees Convention is of no consequence, since those findings were picked up by the Authority in that section of its decision which dealt with the applicant’s claims for complementary protection[109].
[109] CB 440 [45], 441 [48]-[49]
Nor, in the Minister’s submission, can it be said, as appears to be suggested by the applicant, that the Authority misapplied the relocation test because it incorporated into its assessment of the reasonableness of relocation the risk of lower levels of physical harm being sustained by the applicant, as the Authority did in this case at [49][110] (read with [61][111]). The Authority also did so earlier in its reasons at [36] and [40][112], where it spoke of the applicant’s risk or chance of “harm” (that is, of an unspecified kind)[113] in Mazar-e-Sharif. The Authority’s approach does not reveal any jurisdictional error, as Mortimer J held in MZZZA v Minister for Immigration[114] at [39], [41]-[42] and [45]. In that case, her Honour also observed, at [42], that nothing in the judgment of Davies J in MZZJY at [21], to which the applicant has referred at [34] of his submissions, suggests otherwise.
[110] CB 441
[111] CB 443
[112] CB 439
[113] Cf MZYQU v Minister for Immigration (2012) 206 FCR 191 at 201 [60]-[62] per Dodds-Streeton J; MZACX v Minister for Immigration [2016] FCA 1212 at [35] per Kenny J
[114] [2015] FCA 594
There being nothing in the Authority’s reasons to suggest that it overlooked some aspect of the applicant’s claims in relation to relocation or that it misapplied or misconstrued s.36(2B)(a), the Authority’s findings as to relocation should not be disturbed, the question of reasonableness being one of fact for the Authority[115].
[115] SZBGC v Minister for Immigration [2005] FCA 1168 at [26] per Emmett J
In post hearing submissions, the Minister contends that the Authority did not fall into the error identified in Ponnudurai v Minister for Immigration[116], which had been referred to in argument.
[116] [2000] FCA 91
In Ponnudurai, Burchett J held[117] that the RRT had not addressed the question whether the applicant’s fear of persecution “was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution”; rather, it asked itself whether the applicant was “most” at risk or whether he was a person “particularly” at risk. Those findings, his Honour held, “diverted [the Tribunal’s] attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant’s account of particular arrests he claimed to have suffered.”
[117] at [12]
In SZQDG v Minister for Immigration & Anor[118], Nicholls FM (as his Honour then was), said the following of Ponnudurai[119]:
In Ponnudurai the Tribunal was found to have rejected the applicant’s claims relating to specific incidents in the past (as it has done here). However the error was said to have been that it also rejected the applicant’s claim in that case to also fear harm as a young Tamil male by comparing the level of risk with other particular young Tamil males, those from the north and east, who were said to be particularly at risk. The error therefore was that the Tribunal was diverted from the correct test of a well-founded fear of persecution and the assessment of a real risk of this analysis of comparative risk, which failed to address the applicant’s own level of ‘real risk’.
[118] [2011] FMCA 836
[119] at [120]
His Honour distinguished Ponnudurai[120].
[120] see [77]-[88]
By contrast, in the present case, it cannot be said that the Authority rejected the applicant’s claim to fear generalised violence in Mazar-e-Sharif by comparing his level of risk with that of other Hazara Shias.
In SZQKE v Minister for Immigration & Anor[121], an appeal from a decision of mine in which I also distinguished Ponnudurai[122], Cowdroy J said:
In the appeal now before the Court, the Reviewer has clearly assessed the risk of persecution resulting from the appellant’s potential return to Afghanistan by a clear statement to the effect that the appellant will not be exposed to a risk of persecution if he returns to Bamyan, because Hazaras are not subject to persecution in that province. In contrast, the decision-maker in Ponnudurai appears to have acknowledged that Tamils are at risk of persecution in Sri Lanka. There is a vital distinction between Ponnudurai and the present matter. In view of the factual difference, the Court is satisfied that Ponnudurai does not provide any assistance to the appellant.
[121] [2012] FCA 514
[122] see SZQKE v Minister for Immigration & Anor [2011] FMCA 846 at [41]
Similarly, the Authority, in the present case, had found that the applicant did not face a real chance of serious harm in Mazar-e-Sharif for reasons relating to the Refugees Convention, or a real risk of significant harm[123]. Those findings are not being challenged in these proceedings.
[123] CB 441 [48]
As to the applicant’s risk of generalised violence in Mazar-e-Sharif, the Authority did not[124] incorrectly interpret the law or misapply it to the facts. It weighed the evidence about recent attacks in that city and the applicant’s claims to fear harm with the size and diversity of the city, the presence of security and armed forces, the applicant’s lack of any profile or proximity to those with a profile, and the fact that the city is one of the safest in Afghanistan and has the lowest numbers of civilian victims in its city centre, before finding that “the risk of the applicant being harmed in generalised violence as a civilian is remote, and therefore there is not a real risk of him facing significant harm on this basis within Mazar-e-Sharif.”
[124] at CB 441 [49]
The Authority quoting country information that stated that Mazar-e-Sharif “is one of the safest cities in Afghanistan” is said to be unremarkable in circumstances where that observation was made in the context of considering the applicant’s risk of suffering generalised violence—that is, to borrow some words of Kirby J in SZATV[125], violence that is “nation-wide”. The Minister submits that no jurisdictional error arises from the Authority’s reasons at [49][126] for this reason, or at all.
[125] at page 46 [93]
[126] CB 441
While not raised by the applicant, the Minister also notes my judgment in SZVJE v Minister for Immigration[127]. In that case, the Tribunal reasoned “essentially on the basis of relative risk within Pakistan rather than focusing on the degree of risk in Lahore itself”[128]. The Minister submits that that case can be distinguished from the present case. Unlike the Tribunal in SZVJE, the Authority made an assessment of the level of risk faced by the applicant in Mazar-e-Sharif at [27]-[41][129] and 441 [48]-[49][130]. It did not conclude that the applicant could reasonably relocate to Mazar-e-Sharif where there would not be a real risk of significant harm based “solely or essentially” on a comparison of risk between that city and the rest of Afghanistan. The “proper foundation” of which I spoke in SZVJE at [30] is said to have been laid by the Authority in the present case in the abovementioned paragraphs.
[127] [2016] FCCA 594
[128] at [28]
[129] CB 436-440
[130] contrast SZVJE v Minister for Immigration & Anor [2016] FCCA 594 at [20], [28]-[29]
Resolution
I accept the Minister’s submission, as set out at [137]-[140] above, that, following the insertion of ss.5H and 5J into the Migration Act, the Authority was not required to consider the reasonableness of relocation in its assessment of the applicant’s claims to be a refugee. It remained necessary to consider the reasonableness of relocation in considering the complementary protection criterion. The question is whether the Authority erred in that regard. Given that the question of the reasonableness of relocation only arises in respect of the complementary protection assessment, the Court is entitled to expect a free standing assessment of that issue, and earlier Court decisions permitting decision makers to draw on assessments relevant to the refugee criterion should be treated with caution.
In my view the Authority did fall into error in its relocation assessment, by failing to consider whether the level of violence in Mazar-e-Sharif rendered it unreasonable (as opposed to unsafe) to relocate. The Authority dealt with the issue of relocation at [47]-[61] of its reasons as follows:
Section 36(2B) provides that there is taken not to be a real risk that a person will suffer significant harm in a country if:
• it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm
• the person could obtain, from an authority of the country, protection such that there would not be a real risk that the person will suffer significant harm, or
• the real risk is one faced by the population of the country generally and is not faced by the person personally.
I have found the applicant would not face a real chance of being seriously harmed in Mazar-e-Sharif for reasons relating to his religion, ethnicity, actual or imputed political opinion, membership of the particular social groups of returnees from the west (westernised) or failed (Hazara Shia) asylum seekers, or for any other profile arising from these characteristics. For the same reasons, I am satisfied that the applicant would not face a real risk of significant harm for these reasons in Mazar-e-Sharif.
In terms of generalised violence, I accept the security situation in Mazar-e-Sharif is credible, but I give significant weight to the EASO assessment that the city is one of the safest in Afghanistan and, along with Herat, has the lowest numbers of civilian victims in its city centre.[131] I have also weighed the evidence about recent attacks in the city and the attack in Balkh district. While I accept there are credible security risks in the city, when having regard to the size and diversity of the city, the presence of security and armed forces, and the applicant's lack of any profile or proximity to those with such a profile, I find the risk of the applicant being harmed in generalised violence as a civilian is remote, and therefore there is not a real risk of him facing significant harm on this basis within Mazar-e-Sharif.
[131] EASO, "EASO COi Afghanistan Security Situation 2016", 20 January 2016, CIS38A801239S, at p.30,145-149. IM16/00608
Accordingly, I have considered whether it would be reasonable for the applicant to relocate from Qarabagh to an area of the country such as Mazar-e-Sharif where there would not be a real risk that he will suffer significant harm. The applicant claims that he cannot safely relocate within Afghanistan.
The delegate asked him questions about relocation to Kabul in his visa interview, but not Mazar-e-Sharif. The delegate discussed with the applicant the better opportunities for employment and access to services, as well as security.
The applicant responded that every moment that Hazaras live in Afghanistan they feel they are under threat. He stated that Hazaras feel at risk and are living under a high level of pressure. He stated that this is why he put his life at risk to seek asylum in a country with a bright future. He said in terms of remaining in Afghanistan, it is better to die than live in that situation. He stated that he hates the name of his country. His only aim is to remove his family from the country and give them safety.
On 27 October 2016, I wrote to the applicant to invite his comment on country information about the security situation in Mazar-e-Sharif and Balk Province, and the question of whether it would be reasonable for the applicant to relocate to the city. While the applicant sought an extension of time to respond to the invitation, no further comment or submission was received at the date of this decision.
I accept that relocating to Mazar-e-Sharif would be challenging, however there are a range of considerations that indicate the applicant could successfully relocate to the city and that it would be reasonable for him to relocate to this area.
I accept that the applicant may be illiterate and have had little education. I have weighed that against the prospect of him relocating, however I also note that he has travelled through Iran, including living and working in the country without the assistance of his father. As a result he has several years of work experience as a painter and an ability to live independently. The applicant speaks Dari and Hazaragi, and has some English abilities, which he demonstrated during the interview clarifying his responses through English at times. While I accept that there are economic difficulties throughout Afghanistan, I have also noted above the range of factors that point to the strength of Mazar-e-Sharif, including its status as a commercial and financial centre, its diversity, and strong educational standards. Considering all the circumstances, I am satisfied that he would be capable of finding work and shelter and accessing essential services in the city.
I accept that the applicant has not lived in Mazar-e-Sharif, but he has shown the resilience, adaptability, and capability of relocating himself elsewhere, as evidenced by his time in Iran.
The representative has claimed that the applicant has for a long period of time been living in Iran, under a strict Shia regime in Iran. The applicant made little reference to his religious practice in the interview when questioned by the delegate. I accept he is a Shia, but I do not accept that his time in Iran would be so significant that this would be a barrier to him returning to Afghanistan, or relocating to Mazar-e-Sharif. I accept the applicant has the distinguishable physical appearance of a Hazara, but I do not accept this would prevent him from relocating to Mazar-e-Sharif. While Hazaras are not in the majority in this city, there is a reasonable Hazara population in the city, and I have found he would not be at risk of harm on the basis of his religion or ethnicity there.
I accept that he would not have family or tribal support networks in the city. UNHCR and DFAT advice indicates that relocation to urban areas is more successful for those that possess family and tribal connections. The exception to this is single able-bodied men and married couples of working age without specific vulnerabilities.[132] The applicant is a young male, and while he has had some health issues in detention I am satisfied he is an able-bodied man. The applicant is not married and has no children. He speaks Hazaragi, Dari and some English, and while I accept that the stress and anxiety of detention has had a significant impact on him, the medical evidence before me does not point to the applicant having serious health concerns that require intervention. Allowing for those difficulties, I am satisfied he has no serious vulnerabilities that would impact on his ability to relocate to Mazar-e-Sharif.
I accept there would be challenges in terms of him being unable to visit his family outside of Mazar-e-Sharif. However, I am not satisfied that those familial and social barriers outweigh the factors that suggest it would be reasonable for the applicant to relocate to Mazar-e-Sharif, and avoid the serious harm he fears in his home area. In terms of accessing Mazar-e-Sharif, I note that there remains general insecurity on the roads in Afghanistan, in particular in Ghazni and Zabul, however I could only identify one security incident on the Kabul-Mazar Highway.[133] I note that there is an international airport in Mazar-e-Sharif which accepts daily flights from Kabul.[134] On the information before me, I am satisfied the applicant would be able to safely access Mazar-e-Sharif from Kabul.
Considering all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to an area of the country such as Mazar-e-Sharif where there would not be a real risk that the applicant will suffer significant harm. As I am satisfied that the applicant could relocate to Kabul [sic, Mazar-e-Sharif], there is not a real risk that the applicant will suffer significant harm in Afghanistan.
[132] UNHCR, "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan", 19 April 2016,
UN6C8EFBB3, at p.8-9; DFAT, "DFAT Thematic Report Conditions In Kabul - September 2015", 18 September 2015, CISEC96CF13367, at p.9-10.
[133] DFAT, "DFATThematic Report: Hazaras in Afghanistan", 8 February 2016, CIS38A8012186, at p.7-8; EASO, "EASO COi Afghanistan Security
Situation 2016", 20 January 2016, CIS38A8012395, aJ p.33, 51.
[134] Zabihullah lhsas, "Balkh airport terminal inaugurated", Pajhwok Afghan News, 9 June 2013, [accessed 11 August 2016].
It is apparent that, while the Authority considered the applicant would not face a real risk of significant harm in Mazar-e-Sharif, it did not consider whether the established risk of generalised violence in the city rendered it unreasonable for the applicant to relocate there. In considering the reasonableness of relocation, as opposed to the risk of relocation, the Authority only considered the risk of violence in accessing the city, not living in it. This was the error identified by the Federal Court in MZACX, MZZJY and MXYQU, as referred to in the applicant’s written submissions set out at [132]-[133] above. The risk might have been “remote” as found by the Authority, but it did not follow that the risk was so low as to avoid the need to consider it in relation to the reasonableness of relocation.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 June 2017
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