FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFX18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3440 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA erred in relation to its consideration of country information – whether IAA erred in its consideration of “new information” – whether failure to disclose a certificate amounted to procedural unfairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 473CB, 473DE, 473DE, 473GB, 476 |
| Applicant: | EFX18 |
| First Respondent: | MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 428 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 26 September and 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 2 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 428 of 2018
| EFX18 |
Applicant
And
| MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 1 August 2018.
The IAA’s decision affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”).
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
In preparing these reasons for judgment, the Court has considered the application for judicial review filed 16 August 2018. The Court has also reviewed a court book numbering 458 pages (marked as Exhibit 1) (“CB”), a supplementary court book numbering 25 pages (marked as Exhibit 2),…
Keep reading for free
Create a free CaseChat account to read EFX18 v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCCA 3440
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the IAA erred in its consideration of country information, whether it erred in its assessment of "new information" provided by the applicant, and whether the failure to disclose a certificate issued under s 473GB of the Act amounted to procedural unfairness. The Court was required to determine if any of these issues constituted jurisdictional error, as it could not undertake a merits review of the IAA's decision.
The Court reasoned that the applicant's first ground of review, alleging incorrect country information, failed because the applicant did not identify specific information that was incorrect and instead expressed a general disagreement with the IAA's findings. The Court affirmed that the assessment and accuracy of country information were matters for the IAA. Regarding the second ground, which alleged judicial error, the Court found that the applicant's submissions largely invited a merits review and that the IAA had adequately considered the applicant's claims regarding his reasons for leaving Afghanistan and the risks he might face. The Court also addressed the IAA's consideration of new information, noting that the IAA correctly applied the cumulative requirements of s 473DD of the Act and was not satisfied that certain new claims and country information met these requirements. The Court also considered the issue of the undisclosed certificate, noting that the High Court's decision in *BVD17 v Minister for Immigration & Border Protection* [2019] HCA 34 addressed similar concerns about procedural fairness in relation to such certificates.
Ultimately, the Court found no jurisdictional error in the IAA's decision. The Court was satisfied that the applicant had been afforded procedural fairness, particularly in light of the adjournment granted to allow for the translation of the Minister's submissions. Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
1.
The application be dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH
PEG 428 of 2018
EFX18
Applicant
And
MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 1 August 2018.
2.
The IAA’s decision affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”).
3.
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
4.
In preparing these reasons for judgment, the Court has considered the application for judicial review filed 16 August 2018. The Court has also reviewed a court book numbering 458 pages (marked as Exhibit 1) (“CB”), a supplementary court book numbering 25 pages (marked as Exhibit 2), a written outline of submissions filed by the Minister dated 5 September 2019 and a supplementary outline of submissions filed by the Minister on 5 November 2019.
5.
This matter was heard over two days: 26 September 2019 and 26 November 2019. On both occasions, the applicant confirmed that he had a copy of the court book and the Minister’s written submissions.
6.
At the hearing on 26 November 2019, the applicant indicated that he had not been able to read the Minister’s second set of submissions as “they had not been translated”.
7.
The decision of Mortimer J in AAM17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1951 (“AAM17”) at [26]-[27] suggest that the Court must be satisfied that any written submissions received by an applicant had been translated so as to ensure procedural fairness. With this in mind, the Court adjourned the hearing on 26 November 2019 so that the interpreter present on the day could translate the Minister’s second set of submissions.
8.
During the course of the adjournment, the interpreter translated the written submissions. Ms Oliver of Counsel confirmed to the Court that the interpreter had sought her assistance in relation to some of the legal terms in those submissions. Ms Oliver simplified the submissions for the interpreter and then again for the Court when the matter resumed. The Court thanks both the interpreter and Ms Oliver for taking the time to ensure that the applicant was able to comprehend and understand the issues before the Court. The Court is satisfied that, as a result of what occurred here, the applicant was able to fully participate in the proceedings.
Background
9.
The factual background to this matter is set out at [3]-[8] of the Minister’s submissions. The summary provided is accurate. The Court adopts the summary provided as its own. With some minor additions, it provides as follows.
10.
The applicant, a citizen of Afghanistan, arrived at Christmas Island on 16 April 2013 as an unlawful maritime arrival (CB 13 and 39).
11.
Following the lifting of the bar pursuant to s.46A of the Act (CB 16), the applicant applied for the visa relevant to these proceedings (CB 18-55). The applicant was assisted by a migration agent when preparing his application.
12.
The applicant’s claims for protection were contained in a statement provided with his visa application (CB 59-63). They can be summarised as follows:
a) he is of Hazara ethnicity and a Shia Muslim (CB 59 at [1]);
b) when he was 10 or 11 years of age (CB 61 at [29]), his father, who was a respected village elder who advised people and helped to resolve disputes (CB 60 at [13]), was abducted by the Taliban after deciding a land dispute against the interests of a man, “AK” (CB 60 at [13]-[18]). AK falsely reported to the Taliban that the applicant’s father was holding all of the weapons of the village people and that the weapons were stored at the family home (CB 60 at [18]). His father was abducted and held for a week and was released on the basis that he and his family would leave Afghanistan (CB 60-61 at [12], [21], [22] and [26]). After his father’s release, he and his family (except his three married sisters) moved to Pakistan (CB 61 at [27]-[32]); and
c) his brother, “M”, went to Iran and has not been heard from since (CB 61 at [31]);
d) another brother, “A”, went to Afghanistan to see if he could relocate there and has not been seen since (CB 61 at [32] and CB 62 at [38]). A’s wife and children live with the Applicant’s parents in Pakistan (CB 61 at [32]); and
e) he fears harm including abduction, physical assault, torture and murder at the hands of the Taliban on the basis of his Shia religion, his Hazara ethnicity, his family association of being against the Taliban and as a returnee from a Western country (CB 62).
13.
On 28 August 2017, the applicant attended an interview with a Ministerial delegate (CB 84).
14.
On 20 October 2017, the delegate refused to grant the visa (CB 96-115). While the delegate was not satisfied with the applicant’s identity as claimed, on the evidence before it the delegate was satisfied that the applicant is a member of the Shia Hazara community originating from Ghazni Province and a national of Afghanistan.
15.
On 25 October 2017, the matter was referred to the IAA (CB 120). The applicant obtained assistance from a different migration agent for the purpose of that review (CB 123).
16.
On 13 February 2018, the applicant provided approximately 250 pages of documents to the IAA, consisting of submissions and country information (CB 126-417).
17.
On 22 February 2018, the IAA wrote to the applicant and indicated that the submissions did not comply with the IAA’s Practice Direction (CB 418). The applicant was allowed until 1 March 2018 to submit revised submissions.
18.
On 23 February 2018, the applicant provided an amended submission and a “List of reports relied upon in the amended submissions” (CB 419-425).
19.
On 31 July 2018, a certificate was issued under s.473GB of the Act indicating that two documents in the applicant’s file should not be disclosed to the applicant.
20.
On 1 August 2018, the IAA affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 431-453).
IAA’s Decision
21.
The IAA’s decision is 23 pages in length and contains 88 paragraphs. Having reviewed the IAA’s decision in detail, the Court is satisfied that the Minister’s submissions (at [9]-[20]) accurately summarise the IAA’s decision. The Court adopts these submissions, with some additions, as follows.
22.
The IAA had regard to the material given to it by the Secretary pursuant to s.473CB of the Act (CB 432 at [2]).
23.
The IAA also had regard to the submission made on behalf of the applicant (dated 23 February 2018) in so far as it:
a) expanded upon the applicant’s claims relating to his three married sisters’ continued residence in Jaghori District and the lack of harm occasioned on them as a result of the incident with AK. The IAA was satisfied that this information met the requirements of ss.473DD(a) and 473DD(b)(i) of the Act (CB 432 at[5]-[6]);
b) related to the ability of the applicant to access Jaghori by road. The IAA was satisfied that the information met the requirements of ss.473DD(a) and 473DD(b)(i) of the Act (CB 434 at [11]-[12]);
c) referred to country information that post-dated the delegate’s decision. The IAA was satisfied that this information met the requirements of ss.473DD(a) and 473DD(b)(i) of the Act (CB 434 at [14]);
d) contained argument responding to the delegate’s decision and reasserted claims and information already before the delegate. The IAA was satisfied that this did not constitute new information (CB 434 at [15]); and
e) related to new country information that the IAA had obtained. The IAA was satisfied that there were “exceptional circumstances” to justify considering this new information (CB 434 at [16]).
24.
However, the IAA did not have regard to:
a) new claims raised in the submission that the man who reported the applicant’s father to the Taliban “surely fits that of a local minor warlord” (CB 432-433 at [7]) or that the applicant would be at risk from a land dispute in relation to his family’s former land (CB 433 at [8]). The IAA found that this was new information and, whilst it accepted that the requirements of s.473DD(b)(ii) were met (in that the information was capable of being accepted as truthful) (CB 433 at [10]), the IAA was not satisfied that the requirements of s.473DD(a) were met (CB 433 at [10]). The IAA considered the new claims to be recent developments, speculative and found that they contradicted the applicant’s earlier evidence in some respects. Further, no explanation had been provided as to why the claims were not raised at an earlier point (CB 433 at [10]); and
b) country information provided with the submissions that pre-dated the delegate’s decision. The IAA was not satisfied that the information met the requirements of s.473DD(b)(i) or (ii) of the Act (CB 434 at [13]).
25.
At [17], the IAA accurately set out the applicant’s claims.
26.
At [20] the IAA accepted that the applicant was an Afghan citizen and that his home area was Jaghori (at [21]). It was noted that the applicant had not indicated that he would return to any other area in Afghanistan. On that basis the assessment was conducted on the understanding that the applicant would return to Jaghori. The IAA also accepted that the applicant was engaged as claimed (at [22]).
27.
At [23]-[29], the IAA referred to the evidence the applicant provided regarding his family composition. The IAA expressed some concern with the applicant’s evidence (at [23]) and noted that the delegate had put to the applicant its concerns about his family composition. The IAA noted the applicant’s responses to the delegate.
28.
The material given to the IAA by the Secretary included material the subject of a certificate dated 31 July 2018, issued under s.473GB of the Act (“the certificate”). The material covered by the certificate contained third-party personal information (see CB 426) and was material that had previously been put to the applicant for comment at the visa interview by the delegate. The IAA referred to this evidence at [27]-[29].
29.
Having regard to the applicant’s oral evidence, as well as evidence of money transfers, the IAA found that the applicant lacked credibility in relation to his family composition. The IAA found that the applicant had a brother or half-brother (“AH”) residing in Australia (CB 437 at [30]) and that his brother A was alive in Pakistan (CB 437 at [30]). The IAA was, however, prepared to accept that the Applicant’s brother H was missing (CB 437 at [30]).
30.
The IAA accepted that the applicant and his family left Afghanistan as a result of his father’s status as an elder in the village who became the target of the Taliban following the resolution of a land dispute (CB 437-438 at [32]-[33]). However, the IAA did not accept that the threat related to all members of the applicant’s family (CB 438 at [34]), or that the threat was ongoing or would be present in all areas of the country (CB 438 at [36]). The IAA was prepared to accept that nothing adverse should be drawn from the fact that the applicant’s married sisters continued to live in Jaghori after the rest of the applicant’s family left Afghanistan and faced no difficulties from AK or the Taliban, given that the sisters were married and had gone to live with their new families (CB 438 at [33]). The IAA noted that the lack of threat to the applicant’s sisters was also consistent with country information which indicated that “targeting” in such disputes is not exacted against women and children (CB 438 at [33]).
31.
The IAA did not accept that the applicant was personally at threat arising from the incident with AK and/or from the Taliban or that any threat was ongoing or would be present in all areas of the country (CB 438 at [36]), for the following reasons:
a) the amount of time that had passed. The IAA noted that over 21 years had passed since the relevant incident had occurred (CB 438 at [37]);
b) the brevity of the Taliban’s interest in the applicant’s father. The IAA noted that the Taliban’s interest in the applicant’s father was serious but brief and was localised to Jaghori (CB 438 at [37]). The IAA noted that there was no concrete evidence that the applicant’s father had been hiding weapons and, had it been otherwise, the IAA considered the Taliban would have been less lenient (CB 438 at [37]). The IAA also considered it significant that the applicant’s father had complied with the Taliban’s request to leave the country (CB 438 at [37]);
c) given the limited nature of the father’s interactions with the Taliban, his compliance with the initial request and the significant amount of time that has passed, the IAA did not accept that the applicant and his family would be persons of interest to the Taliban in his home area, let alone elsewhere in the country (CB 438 at [38]). The IAA was not satisfied that the risks to the Applicant’s father or his family were ongoing (CB 438 at [39]);
d) the IAA found that the applicant’s claim that his brother “A” went missing in Afghanistan was not credible and was “a contrivance” aimed strengthening his claims of risk of harm (CB 439 at [40]). The IAA further found that, whilst it was prepared to accept that the applicant’s brother “H” was missing, his disappearance was in no way connected to his father’s profile in Jaghori, with AK or the Taliban (CB 439 at [41]); and
e) the changed security situation in the country (CB 439 at [43]).
32.
Having regard to country information, the IAA was not satisfied that the Taliban would have the ability or capacity to threaten or harm the applicant in his home area (CB 439-440 at [44]-[45]). Accordingly, the IAA was not satisfied that there was a real chance of the applicant facing harm arising from the incident involving his father (CB 440 at [47]).
33.
Relying on country information, the IAA found that there was not a real chance of the applicant facing harm in his home area or neighbouring Hazara-dominated areas of the Hazarajat from the Taliban or the Islamic State Khorasan Province (“ISKP”) for reasons of his ethnic, religious or any related profile (CB 440-441 at [49]-[53]).
34.
In so far as the applicant claimed to be at risk on the roads, the IAA was satisfied that the applicant would find work in Jaghori and would therefore have limited travel requirements on the roads outside of his home area (CB 442 at [54]-[56]). Accordingly, the IAA was not satisfied that the applicant faced a real chance of serious harm on the road in and out of his home area, including for medical treatment (CB 442-443 at [57]-[58]).
35.
The IAA relied on country information and evidence as to the applicant’s circumstances to find that there was no chance that he would be harmed on the basis of his asylum claims, his profile of having spent time in the west, as an infidel or spy, on the basis he was westernised or held a pro-western opinion or for any other iteration of those claims (CB 445 at [68]). The IAA also found that the applicant had ethnic and tribal links to his home district, siblings residing in a neighbouring area, and that he would not face any chance of harm for reasons of any lack of family or contacts in Afghanistan (CB 445 at [69]-[70]). The IAA otherwise was not satisfied that the applicant identified or presented as wealthy and, while it accepted he may be imputed to have some money or wealth, found any chance of harm was very remote (CB 446 at [72]).
36.
The IAA also found that there was not a real chance that the applicant would face harm in accessing his home area (CB 447 at [79]). The IAA noted that the applicant would transit through Kabul temporarily and found that the applicant could travel to Jaghori either by road or a combination of plane and road (CB 446-447 at [74]-[76]). The IAA found that the chance or risk of the applicant being harmed by generalised violence was remote (CB 448 at [81]).
37.
In assessing the applicant’s claims under the complementary protection provisions, the IAA relied on its anterior findings to conclude that the applicant did not face a real risk of significant harm for the reasons claimed (CB 448-449 at [86]-[87]).
38.
The IAA ultimately affirmed the delegate’s decision and the visa was refused.
Proceedings in this Court
39.
The application for judicial review contains two grounds as follows:
1. I believe the country information about Afghanistan used by the Department of Home Affairs is incorrect.
2. I believe their (sic) has been a judicial error in the review of my case.
40.
This matter was heard over two days. The applicant appeared on both occasions without legal assistance. The applicant was assisted by a Hazaraghi interpreter on both occasions.
41.
Noting the remarks of the Federal Court that it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (see DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]), the Court provided the applicant an opportunity to do so.
42.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include, but are not limited to, the following categories:
a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b) where the decision-maker ignores relevant material: Craig at [198];
c) where the decision-maker relies on irrelevant material: Craig at [198];
d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e) where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16] [17]; and
g) where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
43.
The Court also explained to the applicant that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It was explained that the Court cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
44.
When asked to explain to the Court what he believes the IAA “did wrong”, the applicant made various submissions which the Court will consider below. Otherwise, the applicant’s submissions were directed to telling the Court that Afghanistan was not safe. Regrettably, the Court cannot entertain submissions of this sort. The Court is restricted to an analysis of whether the IAA has fallen into jurisdictional error.
45.
The Minister acknowledged in written submissions filed 5 September 2019 that the applicant’s matter was one that might be affected by the High Court’s decision in BVD17 v Minister for Immigration & Border Protection [2019] HCA 34 (“BVD17”). The issue in BVD17 was whether, as a matter of procedural fairness, the IAA was obliged to disclose that it had been notified (under s.473GB(2)(a)) that a certificate (under s 473GB(5)) applied to certain materials.
46.
Here, the Secretary had issued a certificate under s.473GB. This was not disclosed to the applicant in the course of the IAA’s review.
47.
The Minister argued that the Court could determine the application on the basis of the principles articulated in Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111 at [96]-[100]. In fairness to the applicant (who was unrepresented) the Court adjourned the matter part heard to a date after the delivery of BVD17. Orders were made for the Minister to file written submissions addressing BVD17. The applicant was given an opportunity to respond in writing.
48.
The matter came back before the Court on 26 November 2019. The Court again gave the applicant an opportunity to make any oral submissions he wished to make.
Consideration
Ground 1
1. I believe the country information about Afghanistan used by the Department of Home Affairs is incorrect.
49.
The Court notes that the applicant refers to the “Department of Home Affairs”. To the extent that this is a reference to the delegate, and an assertion that the delegate relied on incorrect country information, this Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4).
50.
If the applicant is referring to the IAA’s decision, a difficulty arises in addressing this concern as the applicant has not identified what particular country information was “incorrect”. At the first hearing the Court asked the applicant to explain his concerns in relation to the country information relied on by the IAA. He stated that it is “obvious and clear” that in Afghanistan there are many attacks and suicide bombings and it is not a safe place. He stated that this is “obvious and everybody knows”. Unfortunately, that submission rises no higher than disagreement with the country information and the IAA’s decision. It seeks an impermissible merits review of the IAA’s decision.
51.
The choice, assessment and accuracy of the country information is a matter for the IAA -- not this Court: NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11]-[13].
52.
The IAA referred to numerous sources of country information, as it was entitled to do so. Further, the country information that the IAA relied on was country information that the applicant himself had supplied to the IAA or, bar one country information report, was referred to by the delegate. To the extent that the applicant disagreed with the accuracy of the information, he ought to have put that to the delegate. He did not do so.
53.
Insofar as the IAA relied on new country information, being a report footnoted as “EASO, “Afghanistan: Individuals targeted under societal and legal norms”, 12 December 2017”, the Court notes that this report was specific to the applicant’s circumstances and was, on its face, entirely relevant to the IAA’s overall consideration of the matters before it. Once again, the accuracy of that information was a matter for the IAA.
54.
For finality, the Court notes that the “EASO information” was not required to be put to the applicant under s.473DE of the Act as it fell into the exception in s.473DE(3)(a). This is expressly noted by the IAA at [16] where it states:
The analysis fro these reports relates to specific profile groups the applicant claims to fear harm on the same bases…
(Without alteration)
55.
Hence, the new information was about a “class of persons” which the applicant is, or claims to be, a member of.
56.
No error arises in relation to ground 1.
Ground 2
2. I believe their (sic) has been a judicial error in the review of my case
57.
Ground 2 is not entirely clear. It is difficult for the Court (and the Minister) to identify what the applicant is alleging.
58.
The Court assumes the reference to “judicial error” to be a reference to “jurisdictional error”.
59.
When asked at the first hearing what he meant by this ground, the applicant stated that the IAA did not consider his situation and tried to tell him that if he used an alternative route to reach his home area then he would not be at risk. The applicant disagrees with the IAA’s findings in this regard. The applicant also stated that he told the IAA about what had happened to his father (explaining that this caused him to leave Afghanistan) and that the IAA did not consider this or did not believe him.
60.
On one level, these submissions invite impermissible merits review. As the Minister submitted, the IAA considered the risk the applicant would face when travelling to his home area and, based on the country information, was not satisfied that the risk or chance of harm met the requisite level. It was open for the IAA to make that conclusion on the materials before it. While the applicant might disagree with the findings made (as might this Court), this does not amount to jurisdictional error.
61.
As for the applicant’s claim about the reasons he left Afghanistan, the IAA clearly considered the applicant’s claim in this regard. In particular, it accepted that the applicant and his family had moved because of an incident that involved his father and his father’s profile (at [32]).
62.
The IAA addressed this issue at [34]-[37] and found that the applicant was not at risk on the basis of the applicant’s father’s profile and the incident that caused the family to leave. The IAA’s reasons are logical and clearly address the applicant’s claim. Again, the fact that the applicant disagrees does not evidence jurisdictional error.
63.
Ground 2, as supplemented by the applicant’s oral submissions, fails to establish jurisdictional error.
Additional Issue – New Information
64.
The Minister’s submissions also addressed the Court in relation to the IAA’s consideration of the “new information”. Those submissions provided as follows:
30. The IAA has the power to accept and consider new information, provided it is satisfied that the requirements of section 473DD had been met. The requirements in section 473DD(a) and (b) are cumulative requirements – the IAA must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of section 473DD are satisfied (Plaintiff M174/2016 v Minister for Immigration and Border Protection and another [2018] HCA 16 at [31]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [36]; BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [17]-[18] and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [31]). It self evidently follows from the fact that the requirements in paragraphs (a) and (b) of section 473DD are cumulative and that if one of those requirements does not exist, then the IAA must not consider the new information (BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).
31 In the present case, the IAA correctly applied the provisions of section 473DD of the Act in considering whether to have regard to new information in this case. In many respects, the IAA concluded that there was a basis to consider new information presented by the Applicant. It was only in three respects that the IAA concluded that it could not have regard to new information, being:
(a) two new claims raised in the Applicant’s submissions, being that AK was a minor warlord and that the Applicant was at risk of harm in relation to a land dispute over the family’s former land. In relation to these new claims, the IAA accepted that the requirements of section 473DD(b)(ii) were satisfied, as the information was capable of being accepted as truthful (consistent with the decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] per Bromberg J). However, the IAA was not satisfied that the requirements of section 473DD(a) were met (see CB 432-433, [7]-[10]). In the First Respondent’s submission, the findings of the IAA under section 473DD(a) were open to the IAA and the findings do not involve error of the kind found in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[106] and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; and
(b) country information that pre-dated the delegate’s decision. The IAA was not satisfied that the information met the requirements of section 473DD(b) of the Act (CB 434, [13]). The First Respondent submits that IAA has not erred by not explicitly referring to the requirement in section 473DD(a) of the Act in relation to this new country information. Given that the requirements in section 473DD(b) were not satisfied, and that this finding was enough to trigger the prohibition in section 473DD, it is submitted that it was unnecessary for the IAA to explicitly consider section 473DD(a) in relation to this information (see AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33]).
65.
On 13 February 2018 the IAA was provided a 10 page written submission (in addition to a significant bundle of country information from the applicant’s representative). This is the “new information” that the IAA refers to.
66.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.