EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 10
•2 SEPTEMBER 2021
Federal Circuit and Family Court of Australia
(DIVISION 2)
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
File number(s): SYG 2971 of 2017 Judgment of: JUDGE STREET Date of judgment: 2 September 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Country and receiving country of Afghanistan no longer exists – receipt of evidence as to existence of country – existence of country found to be jurisdictional fact – as matter of construction the decision of IAA on country that no longer exists is illogical, irrational and legally unreasonable – relief granted. Legislation: Evidence Act 1995 (Cth) ss 55, 144
Migration Act 1958 (Cth) ss 4, 5, 5H1 5J, 5LA, 35A, 36, 36(2)(a), 36(2)(aa), 36(6), 37A, 91W, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473EA.
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 2 September 2021 Counsel for the Applicant: Mr J Williams of Counsel Counsel for the Respondent: Mr H Bevan of Counsel Solicitor for the Respondent: Sparke Helmore ORDERS
SYG 2917 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGZ17
ApplicantAND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.A writ in the nature of certiorari is granted calling up the record of the second respondent and quashing the decision made on 25 August 2017.
2.A writ in the nature of mandamus is issued requiring the second respondent to determine the review application according to law.
3.The first respondent pay the applicants costs fixed in the amount of $7,206.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 STREET:
Introduction
These proceedings were commenced on 22 September 2017 by an application seeking a constitutional writ within the Courts jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the IAA”) under Part 7AA of the Act made on 25 August 2017.
The issue in the present case is whether the applicant has made out a jurisdictional error as alleged in Ground 1 of the Second Further Amended application which is as follows:
Ground 1
The decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness give the military coup by the Taliban in Afghanistan so that the applicant's receiving country is now the Islamic Emirate of Afghanistan.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country.
Statutory Provisions
The applicant lodged an application for a Temporary Protection Visa (“the Visa”) on 30 May 2016. On 15 November 2016, a delegate of the first respondent (“the Delegate”) refused a grant of the visa.
This Court’s jurisdiction in respect of the IAA’s decision is derived from s 476 of the Act which relevantly confers on this Court in respect of the migration decision made by IAA under Part 7AA of the Act “the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution”.
It is in this Court not contested that the powers conferred by Part 7AA of the Act are conditioned by the restraint of legal unreasonableness. The scope and purpose of the review powers of the IAA under Part 7AA of the Act are informed by relevantly s 4 of the Act, which provides as follows:
Object of Act
(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3)To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5)To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
S 5 of the Act identifies relevantly the meaning of refugee is that given by s 5H, relevantly as follows:
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 refugeeif 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; or
(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
Pursuant to s 5 of the Act, the meaning of receiving country in relation to a non-citizen means:
"receiving country" , in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
Pursuant to s 5 of the Act, well-founded fear of persecution, has the meaning given by s 5J of the Act, relevantly as follows:
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-foundedfear of persecutionif:
(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.
Note: For membership of a Particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecutionif effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6)In determining whether the person has a well-founded fear of persecutionfor one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
The meaning of effective protection measures is explained by s 5LA of the Act, relevantly as follows:
Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a Particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a Party or organisation, including an international organisation, that controls the relevant State or a substantial Part of the territory of the relevant State; and
(b) the relevant State, Party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, Party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State--the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
S 36 of the Act relevantly provides as follows:
Protection visas--criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a Particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harmif:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country aPart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a Particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a Particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a Particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
The provisions in Part 2 of the Act govern the arrival, presence and departure of persons including Division 3, which governs visas for non-citizens and in that regard s 35A of the Act that provides for classes of protection visas. Section 37A of the Act provides for the class of visa being a temporary safe haven visas.
It is apparent from these provisions that the Protection Visa is a visa to permit a non-citizen to remain in Australia permanently or temporarily for a specified period until a specified event happens or while the holder has a specified status and pursuant to Division 2 s 473CA of the Act, there is a mandatory obligation for the referral of a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made being a decision of the delegate in respect of a protection visa that falls within the category of a fast track reviewable decision defined in s 473BB of the Act. The Secretary must give review material to the IAA under s 473CB of the Act. The powers of the IAA under the review pursuant to s 473CC of the Act, provide that the authority may affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions, the recommendations of the authority as are permitted by regulation.
Division 3 then provides for the conduct of the review with s 473DA of the Act providing an intended exhaustive statement of the natural justice hearing rule and subject to the provisions of the Part, the review by the IAA under s 473CA of the Act, being by considering the review material provided to the authority under s 473CB of the Act without accepting or questioning new information or interviewing the referred applicant.
S 473DB of the Act also provides that the IAA may make a decision of a fast track reviewable decision any time after the decision has been referred to the IAA. The provision of subdivision C of Division 3 of the Act provide for the IAA getting of new information and considering of new information. All these provisions are consistent with the power of review by the IAA under Part 7AA being conditioned by an implied obligation of reasonableness. This is also supported by the requirements of a written statement of reasons found in s 473EA in Division 4 of the Act.
The IAA is established under Division 8 of the Act. The alternative outcomes of the review identified in s 473CC of the Act being the correct or preferred decision on the review material. Taking into account the statutory provisions to which the Court has referred in the Act, the Court is satisfied that the outcome of the decision by the IAA under Part 7AA of the Act is conditioned by the implied obligation of reasonableness. This obviously includes reasonableness in respect of outcome.
The IAA Decision
By letter dated 18 November 2016, the IAA informed the applicant that the application for the Visa had been referred to the IAA for review and provided an attached factsheet and practice direction giving the applicant an opportunity to put on new information and submissions.
The applicant was found to be an ethnic Hazara and Shia Muslim who originates from a Particular village in Mazar-e Sharif. When the applicant was a young child, the applicant’s family departed Afghanistan for Iran. The applicant returned to Afghanistan in 2004 and at that time because of the war, the Taliban were no longer in control. The applicant then departed Afghanistan after about 6 months and relocated to Syria for the next 8 - 10 years. The applicant then travelled to Iran and departed by air for Thailand. The applicant has relatives living in Iran and a relative in Germany, as well as a relative in Australia.
The applicant fears harm at the hands of extremists in Afghanistan and Syria for reason of his Shia Muslim religion.
The IAA expressed views about the applicant misrepresenting his identity and his circumstances. The IAA referred to the applicant producing his purported afghan passport with his date of birth as documentary evidence of his identity, nationality and citizenship for inspection by the delegate. The delegate found the document to be bogus, as did the IAA. The delegate found the applicant had a provided a reasonable explanation why he had provided a bogus document.
The IAA referred to being inclined to the view that the applicant had not taken reasonable steps to provide documentary evidence of his identity, nationality and citizenship. The IAA did not however, make any such finding under s 91W of the Act.
The IAA accepted that the applicant is a national of Afghanistan and that Afghanistan is his receiving country. The IAA also accepted that the applicant is an ethnic Hazara and a Shia Muslim.
The IAA made reference to a Particular province having developed into a Taliban stronghold, as well as making reference to a Particular location and the Afghans governments fight against the Taliban. The IAA referred to country information as to their being Particular low risk of violence in certain places, like Kabul and Hazarajat.
The IAA accepted that the applicant faces a real chance of serious harm by reason of the applicant’s perceived pro-western political opinion in a Particular province and turned to s 5J of the Act and the possibility of the applicant returning to Kabul directly. The applicant articulated that there was no security in Afghanistan or safety. It is apparent from the IAA’s reasons that it turned to the Taliban’s takeover of Kabul in 1996, and the overthrow of the Taliban in 2001.
The IAA referred to the Afghan security forces and that the risk faced by Shia Hazara’s in Kabul had risen. The IAA however, also made reference to the Afghan Government again having stepped up security for Kabul’s Shia Muslims. The IAA then referred to the size of the Shia Hazara Muslim population in Kabul and was not satisfied the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Kabul.
The IAA referred to there being no evidence that Hazara’s in Kabul were specifically targeted as individuals and was not satisfied that the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Kabul from an insurgent group such as Islamic State for reason of his being a Shia Muslim or a Hazara or by reason of having lived in Syria or Iran.
The IAA was not on the evidence satisfied that the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Kabul from an insurgent group such as Islamic State or any other actor, by reason of him having returned from a western country where he sought asylum.
The IAA was not satisfied that the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Kabul from an insurgent group such as Islamic State or the Taliban or from criminality for reason of him being a Shia Muslim or Hazara or by reason of having lived in Syria or Iran and or by reason of him having returned from a western country where he sought asylum.
The IAA was not satisfied that the applicant would suffer violence or harm as a result of crime of a more generalized nature. The IAA was not satisfied that the applicant faces a real chance of serious harm if he were to return to Kabul.
The IAA found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act. The IAA also found that it would be reasonable for the applicant to relocate not only in Kabul, but in an area of the country where there would not be a real risk that the applicant would suffer significant harm.
The IAA found that there were not substantial grounds for believing as an initial and foreseeable consequence of the applicant returning from Australia to Afghanistan that there would be a real risk that the applicant would suffer significant harm. The IAA found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
REASONING
This matter was fixed for hearing today by orders made by another judge of the Court on 12 May 2021. The applicant’s representative initially requested a different hearing date, and accordingly the matter was transferred to this Court. The Court initially made orders to accommodate a change of hearing date and then the applicant’s representative confirmed availability on the original fixed hearing date. On 26 August 2021, orders were made for hearing via video and audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth). The Court also on that date foreshadowed by orders, an opportunity for leave to amend the application and the possibility of taking judicial notice of the fact that the Taliban has taken over Afghanistan and that the Taliban have declared the Islamic Emirate of Afghanistan.
The Court received detailed written submissions from both Counsel for the applicant and Counsel for the first respondent. The Court also received oral submissions. For the reasons identified in a separate judgment the Court refused the grant of an adjournment by the first respondent. The first respondent maintained that the Court should not receive new evidence as to the non-existence of the country, the subject of the decision of the IAA and maintained that the decision of the IAA was legally reasonable on the material before the IAA. The first respondent also made reference to the Minister’s discretion to take into account changed circumstances and contended that the changed circumstances approximately 4 years after the IAA decision could not amount to a jurisdictional fact and could not found a basis for legal unreasonableness. For the following reasons those submissions are rejected.
Under s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”), proof is not required for knowledge that is reasonably open to question and is (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. Taking into account the high standard in relation to s 144 the Court is in this case satisfied that it can and should take into account an unofficial publication and given the international notoriety of the international internet news article as to the characterising of the facts identified in Exhibit B, that the Taliban has taken over Afghanistan and the Taliban have declared the Islamic Emirate of Afghanistan
The takeover of Afghanistan by the Taliban since 16 August 2021 and the declaration by the Taliban of the Islamic Emirate of Afghanistan has been in every Australian newspaper as well as on numerous international internet news sites. The Court is satisfied that it is not reasonably open to question as a matter of common knowledge that since 16 August 2021, the Taliban has taken over Afghanistan. The Court is also satisfied that it is not reasonably open to question that the Taliban has declared the Islamic Emirate of Afghanistan. This means that the country and the receiving country, the subject of the review by the IAA, no longer exists. The receiving country is not the geographic area. The country, which is the subject of the findings by the IAA as the receiving country, included a governance and system of laws of Afghanistan that have ceased. The Afghan government referred to by the IAA was clearly an essential part of the characterisation of the receiving country in the findings by the IAA, as to whether the applicant met the refugee criteria or the criteria for complimentary protection. This is not a case where there has simply been a change of an elected government under an existing governance regime within existing law.
There is binding principle that the Court is not in a position to receive fresh country information because this engages in impermissible merits review. Under this principle, the Court cannot receive fresh evidence as to a change in the security situation of the receiving country. That principle has no application to evidence that the country and the receiving country, the subject of the application of the criteria by the IAA, has ceased to exist. The cessation of the existence of Afghanistan of which the IAA found the applicant was a national and is the applicant’s receiving country, is distinguishable from and falls outside the said binding principle and accordingly the Court can receive fresh evidence upon the exercise of the review jurisdiction of the IAA in order to do justice and reason under s 75(v) of the Australian Constitution. Accordingly, the Court is not receiving fresh country information that concerns the receiving country of Afghanistan, rather the Court is receiving evidence as to whether that receiving country exists. The Court is also satisfied that the fact of the Taliban takeover of Afghanistan and the declaration of the Islamic Emirate of Afghanistan as identified in the international news internet site article tendered into evidence and marked Exhibit B is relevant within s 55 of the Evidence Act. The power to admit evidence exists to serve the demands of justice and in this case to exclude evidence as to the cessation of the existence of Afghanistan being the country and receiving country, the subject of analysis by the IAA in the present case, would not advance the demands of justice.
Further, as a matter of construction of the Act, the power vested in the review tribunal under Part 7AA of the Act, in the review of the application for a protection visa is conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national. Whilst the finding of whether the applicant is a national of a particular country is a matter of fact within the review decision of the IAA under Part 7AA of the Act, the existence of the country is as a matter of construction, taking into account the reference to country and receiving country and the definitions referred to above a jurisdictional fact. Afghanistan the country, the subject of the findings as to whether the applicant met the protection visa criteria in the present case by the IAA no longer exists. The non-existence of the country and/or receiving country, the subject of the purported exercise of review power by the IAA, is as a matter of construction of the protection visa provisions, a jurisdictional fact.
Further, because the issue of whether the applicant is a national, must be determined by reference to the law of that country. The cessation of the country and its laws must be a jurisdictional fact, taking into account s 36(6) of the Act and the definition of the receiving country in s 5 of the Act which also refers to the determination of whether a person is a national by reference to “the law of the relevant country”. The text of the definition of effective protections measures in s 5LA of the Act further supports this conclusion. In terms of that provision, the relevant State for the application of the criteria is not Afghanistan and the receiving country as defined in s 5 of the Act is not Afghanistan. That country, Afghanistan, on the evidence no longer exists and the Islamic Emirate of Afghanistan is a different country, a different relevant State and a different receiving country. This text and the clear humanitarian purpose of the protection visa provision criteria in the Act support the construction that the existence of the country or receiving country is a jurisdictional fact. What Australia as a sovereign nation may or may not recognise as a foreign state is not relevant to or determinative of the application in these proceedings.
It is for these reasons that the Court has accepted that further evidence may be adduced as to the cessation of the existence of the country Afghanistan, the subject of the application of the purported application of the statutory refugee criteria under Part 7AA by the IAA in its review of the application by the applicant for a protection visa. The new existence of a country being the Islamic Emirate of Afghanistan, which on the evidence, the Court finds is as a result of the takeover by the Taliban, is a new and different country to Afghanistan and is a new and different receiving country to Afghanistan which were, as a matter of focus on the reasoning of the IAA, fundamental and central in determining the review under Part 7AA in the present case.
Given the finding that the country Afghanistan, the subject of the findings by the IAA, no longer exists and focusing upon the reasoning of the IAA and the outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist. The outcome, given the cessation of the country and reviewing country of Afghanistan, the subject of the reasoning of the IAA, is accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA.
Given the fact that the Taliban has now taken over Afghanistan and that the country of Afghanistan as applied by the IAA to the applicant in considering the protection visa obligations no longer exists, the IAA has exceeded its statutory powers under Part 7AA of the Act, and the outcome is legally unreasonable. The applicant feared harm from the Taliban prior to the cessation of Afghanistan, that country that no longer exists. There can be no issue as to the materiality of the new country and new receiving country being the Islamic Emirate of Afghanistan to the correct application in the review under Part 7AA of the protection criteria under s 36(2)(a) or s 36(2)(aa) of the Act. A fresh review must be conducted according to law under Part 7AA of the Act that addresses the country and receiving country that now exists, being the Islamic Emirate of Afghanistan.
Accordingly, the Court finds that the decision is legally unreasonable and must be quashed.
In these circumstances, the applicant is entitled to prerogative relief.
I certify that the preceding forty-three (43) paragraphs are a true copy of the written reasons for judgment of Judge Street published in open Court on 2 September 2021. Associate:
Dated: 2 September 2021
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