EFQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 372
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 372
File number(s): SYG 2277 of 2018 Judgment of: JUDGE LAING Date of judgment: 12 May 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether the Authority denied the applicant procedural fairness or unreasonably failed to exercise its discretion under s 473DC of the Act – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 2 May 2023 Solicitor for the Applicant: The applicant appeared via telephone with the assistance of an interpreter. Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Minter Ellison Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2277 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFQ18
First Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
12 mAY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival in 2013. On 12 May 2017, he applied for a protection visa.
On 8 September 2017, the Delegate refused the application. The Delegate’s decision was then referred to the IAA for review.
On 28 June 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that it had received a number of submissions from the applicant’s representatives. To the extent that they contained arguments or submissions based upon material before the Delegate, the IAA stated that they had been considered. The IAA observed that the submissions also contained country information that was new information. The IAA found that the requirements for consideration under s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to the majority of country information that post-dated the Delegate’s decision, to the extent that it was considered relevant. An exception concerned information referring to security incidents outside the applicant’s home area, such as in Kandahar or Ghazni, which the IAA considered to be “extraneous”. The IAA found that the requirements of s 473DD were not met in relation to country information that pre-dated the Delegate’s decision. It accepted that they were met in relation to a medical certificate regarding injuries the applicant had sustained (at [4]-[9]).
The IAA accepted that the applicant was a Shia Hazara from Afghanistan, who had spent the majority of his life in Kabul and whose family still resided there. The IAA accepted that the applicant’s schooling had been impacted by the security situation in Afghanistan and that there were security incidents where he and his family used to live (at [16]-[17]).
The IAA accepted that the applicant’s father was killed in a suicide attack in 2011 (at [26]). It also accepted that the applicant was the victim of an abduction attempt in 2012, in which he sustained injuries to his arm and chest. However, the IAA considered the applicant’s claim that the Taliban or Al-Qaeda may have been responsible to be speculative. The IAA did not accept that the applicant’s family received threatening calls five or six months later. In this regard, the IAA observed that the applicant had not mentioned the calls in his entry interview despite it subsequently being claimed as the primary reason that he left Afghanistan. The IAA was not satisfied that the applicant faced a real chance of harm in connection with the attempted abduction some years earlier (at [27]-[29]).
Having regard to (then) available country information, the IAA was not satisfied that there was a real chance of the applicant being harmed in Kabul due to his ethnicity or religion. Whilst the IAA accepted that security incidents and attacks did occur, it found that country information indicated that security forces were generally capable of protecting major population centres. Having regard to this and the applicant’s circumstances, the IAA was not satisfied that the risk he faced because of his religion and ethnicity amounted to a real chance of harm in Kabul. The IAA also found that any societal discrimination that the applicant may face would not prevent him from obtaining employment or accommodation, or otherwise manifest in a way constituting serious or significant harm (at [30]-[36] and [48]).
The IAA accepted that the applicant was affected by the inadvertent disclosure of data regarding his name, nationality, date of birth and means of arrival in Australia on the Department’s website in 2014. The IAA accepted this information may have been accessed. However, having regard to country information, the IAA was not satisfied that the applicant had the kind of profile that would lead to him being specifically targeted by insurgents in Kabul, even if he were identified as a former asylum seeker from Australia. The IAA was not satisfied that Shia Hazara returnees like the applicant, who had lived in Australia for several years and had sought asylum, were targeted by the government, insurgents or other groups, due to an adverse profile or imputed opinion or otherwise. The IAA did not accept that the applicant would be unfamiliar with the Hazaragi language or the way of life in Afghanistan. The IAA was not satisfied that he would face a real chance of relevant harm in Kabul due to the data breach, his age, background, asylum application or time spent in Australia, or any combination of these factors (at [37]-[42] and [49]).
The IAA accepted that civilians had been victims of attacks from time to time in Kabul. However, taking into account the general security situation and the size and diversity of the city, the IAA found that the chances of the applicant being harmed through generalised violence were remote. The IAA also found that any harm the applicant may possibly face in relation to generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion. Accordingly, s 5J(1)(a) of the Act was not satisfied (at [43]).
As the IAA found that the applicant’s home area was Kabul, the IAA found that it was unnecessary to consider whether it would be reasonable for the applicant to relocate there (at [50]).
Based upon the above, the IAA did not accept that the applicant was a person to whom protection obligations were owed (at [45] and [52]). Accordingly, the IAA affirmed the Delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced these proceedings through an application filed on 31 July 2018. The following was stated under the heading “Grounds of application”:
1. I think the Immigration Assessment Authority (IAA) Decision Maker did not consider all of the evidence or did not take into account relevant considerations.
2. I was not afforded procedural fairness.
3. The IAA misinterpreted the law and applied the wrong legal test.
4. The IAA identified a wrong issue.
5. I think the decision is affected by bias.
Grounds 1 to 4
The grounds relied upon by the applicant, as pleaded, were unparticularised.
However, at the hearing of this matter the applicant relied upon written submissions which took issue with the IAA’s reasoning at [8] of its decision. That paragraph concerned the IAA’s findings in relation to the application of s 473DD of the Act to certain country information that post-dated the Delegate’s decision. The applicant also contended that the IAA erred in not allowing him to attend an interview. The applicant confirmed at the hearing before the Court that the written submissions, although expressed to relate to grounds 1 and 2, encompassed his concerns set out at 1 to 4 of the pleaded grounds (including that the IAA misapplied the law and/or identified a wrong issue).
The IAA’s reasoning at [8] of its decision
Section 473DD of the Act provided:
MIGRATION ACT 1958 - SECT 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The impugned paragraph of the IAA’s reasoning read as follows:
8. In respect of the other country information that post-dates the delegate’s decision, while I accept it could not have been provided to the Minister, it relates to security incidents in parts of Afghanistan outside of the applicant’s home area, such as Kandahar or Ghazni. Having had regard to the applicant’s individual circumstances, the new information concerning the threat of harm in these parts of Afghanistan is extraneous. I am not satisfied that there are exceptional circumstances to justify consideration of this information.
The applicant observed, as was conceded in the Minister’s written submissions, that the IAA did not itemise with specificity the country information post-dating the Delegate’s decision to which it had concluded regard may or may not be had after application of s 473DD of the Act.
The applicant submitted that the IAA erred in its assessment at [8], which resulted in it not considering critical country information that was relevant to his case. Security incidents in other parts of Afghanistan such as Kandahar or Ghazni, it was submitted, “clearly showed a general trend that the Taliban were starting to take control of large areas of the country”. This, it was submitted, was relevant to the case that had been put forward by the applicant. The applicant submitted that the country information was “clearly crucial” to his case, “[g]iven the Taliban take-over of Afghanistan”.
I accept that the IAA did not itemise, or set out in explicit detail, the parts of the reports it had considered that post-dated the IAA’s decision. Given the number of reports referred to in submissions to the IAA, it is understandable why this approach was not taken. Instead, the IAA explained the parts of the country information it had found met s 473DD of the Act by category. In this regard, [7] of the IAA’s decision provides important context:
7. The majority of the country information not before the Minister post-dates the delegate’s decision, and on that basis, I am satisfied that this information could not have been provided before the delegate made his decision. The information predominately relates to issues before the delegate, including the security situation and Taliban presence in Kabul (the applicant’s home area), about the risks faced by Hazaras and Shias across Afghanistan from insurgent groups, and about the risks to those who return to Afghanistan as failed asylum seekers who have spent time in a western country. Insofar as the new information relates to the situation in Afghanistan for Hazaras and Shias, the security situation in Kabul, and the situation faced by those who return to Afghanistan as failed asylum seekers from western countries, I am satisfied that there are exceptional circumstances to justify consideration of this information. The new information is from credible reports that relate to events that postdate the delegate’s decision and that are material to the issues under consideration.
Therefore, I consider that the IAA made sufficiently clear in its reasons that it:
(a)had considered reports post-dating the Delegate’s decision that related to the situation in Afghanistan for Hazaras and Shias, the security situation in Kabul, and the situation faced by those who return to Afghanistan as failed asylum seekers from western countries; but
(b)had not considered reports post-dating the Delegate’s decision that related to security incidents more generally in parts of Afghanistan outside of the applicant’s home area, such as in Kandahar or Ghazni (Other Reports).
The question then becomes whether it was open to the IAA to find that exceptional circumstances did not justify consideration of the Other Reports. In this regard, in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30] per Gageler, Keane and Nettle JJ (footnotes omitted) it was stated:
30.Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
I consider that the IAA’s use of the word “extraneous” at [8] of its decision was somewhat unfortunate. Security incidents outside of Kabul that did not appear to relate specifically to the applicant’s ethnicity, religion or status as a failed asylum seeker were, arguably, of some potential relevance even if they were of less relevance than those more closely related to the applicant’s particular circumstances.
However, when read in context, I conclude that what the IAA meant by the use of the word “extraneous” was that the reports concerning incidents outside of Kabul, which did not report risks to Hazaras, Shias or failed asylum seekers, or relating to the security situation in Kabul, were insufficiently relevant within the context of its broader reasoning to have been capable of being material to its decision. This construction is supported by [7] of the IAA’s decision, in which the IAA contrastingly determined to take into account reports that it considered “material to the issues under consideration”. It is also apparent from the fact that the IAA considered the information to be “new information” that the IAA recognised that it may be of (at least some) relevance to the review: see ss 473BB and 473DC(1) of the Act.
On balance, I am not persuaded that it was closed to the IAA to find that exceptional circumstances did not justify consideration of the Other Reports. The information extracted from those reports in the submissions provided to the IAA (and which are before the Court) was in many instances limited. For example, the information referred with limited contextual detail to attacks that had been carried out by the Taliban on various dates in areas outside of Kabul such as Kandahar and Ghazni. That information did not necessarily demonstrate a “general trend that the Taliban were starting to take control of large areas of the country”, as was submitted by the applicant.
The submissions to the IAA did refer to a BBC report from January 2018 which indicated that the Taliban controlled 4% of the country and were openly active in 70% of the country. This was said to have been higher than previous estimates. However, that information as set out in the submissions to the IAA did not specify when the previous figures had been assessed, what they were, what was meant by the term “openly active”, nor how this informed the risk in Kabul (beyond what was argued by the applicant’s representatives). It is difficult to assess the extent to which this information differed from the country information that was otherwise before the IAA, given that the reports cited in the IAA’s decision are not in evidence.
It is apparent from the IAA’s decision that the IAA was aware that the Taliban and other militant groups were active in various parts of the country, and that the “government [did] not exercise uniformly effective control over all parts of the country, particularly in rural areas” (at [34]). The IAA acknowledged that civilians had been the victims of attacks in Kabul from time to time (at [43]). The IAA expressed that it had considered the country information before it relating to the security situation in Kabul, including that provided after the Delegate’s decision (at [7], [32]-[36] and [43]). However, having regard to that country information, the IAA was not persuaded that the evidence “overall” supported that the Afghan government or security forces were losing control of Kabul based upon the country information that was before it when it undertook its assessment in 2018 (at [34]-[36] and [43]).
To impugn the IAA’s assessment by reference to the events that subsequently occurred would be to engage in impermissible, hindsight-based reasoning relying upon information that was unavailable to the IAA. Whilst I appreciate that the situation in Afghanistan has changed significantly since the IAA’s decision in 2018, I am unable to let this influence my decision in this matter. I am only permitted to consider whether the IAA’s decision was relevantly open to it, based upon the material that was before it at that time. As was submitted by the Minister’s Counsel, it may be open to the applicant to apply for Ministerial intervention based upon the changed situation in Afghanistan. However, that situation is not properly capable of influencing the outcome in these proceedings.
The IAA appears to have found that the Other Reports were insufficiently capable of bearing upon its decision to justify a finding of exceptional circumstances. This was in circumstances where the IAA had before it country information indicating that although the security situation varied in different parts of the country, the government and Afghan security forces appeared to be capable of maintaining effective control in Kabul. It has not been demonstrated that it was relevantly closed to the IAA, reasoning in 2018, to have found that the requirement of exceptional circumstances was not met in these circumstances.
Did the IAA deny the applicant procedural fairness by not inviting him to an interview?
As was explained in the Minister’s written submissions, the IAA’s procedural fairness obligations in a fast track matter such as the present were limited under Part 7AA of the Act: s 473DA(1). Subject to considerations of reasonableness, the IAA was not under a duty to get, request or accept any new information, including through an interview, and even if requested to do so: s 473DC of the Act.
The applicant relied upon Article 14 of the International Covenant on Civil and Political Rights, which he submitted referred to an entitlement to “a fair and public hearing”. I am not persuaded that this article applied to reviews by the IAA. In any event, an international treaty of this nature was not capable of overriding the clear provisions of the Act.
I am also not persuaded that it was unreasonable for the IAA to have proceeded to a decision without inviting the applicant to an interview.
It is not apparent from my own review of the materials that any request for such an interview was made. Neither party was able to direct me to any part of the materials indicating that this occurred. The Minister submitted that it did not and the applicant acknowledged that this may be correct.
Nor does there appear to be any basis for finding that the circumstances of this case otherwise rendered the non-provision of an interview relevantly unreasonable. The applicant’s representatives made detailed submissions in writing to the IAA. Those submissions largely focussed upon country information, and upon issues taken with the Delegate’s reasoning based upon the material that was before the Delegate. The applicant has not pointed to any circumstance that may have rendered the non-provision of an interview unreasonable, having regard to his representative’s submissions and the approach taken by the IAA.
Grounds 1 to 4 are therefore unable to succeed.
Ground 5
Ground 5 contended that the Tribunal’s decision was affected by bias.
It is well established that bias is a serious allegation which must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow JJ. However, the applicant has not directed attention to any evidence before the Court capable of establishing this allegation. An inference of bias is not to be drawn from the mere fact of adverse findings in the IAA’s decision: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
There is nothing that has been raised by the applicant, or that is apparent from my own review of the materials, that appears to be capable of establishing that the IAA’s mind was closed to persuasion in the present case. Nor have I identified any matter that may cause a fair minded lay observer reasonably to apprehend that the IAA may not have brought a fair and impartial mind to the review: see Jia Legeng at [72] per Gleeson CJ and Gummow J and Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37] per Rares and Jagot JJ.
In these circumstances, ground 5 is unable to succeed.
CONCLUSION
For the above reasons, no jurisdictional error has been demonstrated by the grounds relied upon by the applicant. No such error has been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 12 May 2023
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