EIX18 v Minister for Immigration

[2020] FCCA 619

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIX18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 619

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – significant country information adopted by Authority – careful consideration of all evidence by Authority – findings of Authority open after all evidence weighed up – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(aa), 36(2A) 46A, 473CB

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Applicant: EIX18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 442 of 2018

Judgment of: Judge Egan

Hearing dates: 18 February 2020, 9 March 2020, 10 March
2020

Date of Last Submission: 10 March 2020

Delivered at: Brisbane

Delivered on: 19 March 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the First Respondent: Mr Lettenmaier, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance

ORDERS

1. The application for review filed on 23 August 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the amount $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 442 of 2018

EIX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Afghanistan who arrived in Australia (Christmas Island) on 29 June 2013 as an unauthorised maritime arrival.

2. On 2 September 2016 the Department notified the applicant that the Minister had lifted the bar pursuant to the provisions of s.46A of the Migration Act 1958 (Cth) (‘the Act’), and the applicant was invited to apply for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise Visa (SHEV). On 21 April 2017 the applicant applied for a SHEV.

3. On 23 August 2017 the applicant attended an interview before a delegate to the Minister. On 10 October 2017 the delegate refused to grant the SHEV to the applicant.

4. On 13 October 2017 the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review. On 4 December 2017 the applicant provided written submissions and further evidence to the Authority via his legal representatives.

5. On 19 July 2018 the Authority affirmed the delegate’s decision.

6. On 23 August 2018 the applicant filed an originating application for review of the decision of the Authority. The applicant was represented by lawyers at the time of filing. The grounds for review as set out in the application were as follows:

   “Grounds of application

   1. The Tribunal made a jurisdictional error in that it unreasonably concluded, and/or relied on unreliable information and/or addressed the wrong question in concluding, that the Applicant, an Afghani Hazara Shia, does not have a well-founded fear of persecution or faces a real risk of significant harm for reasons of his religious and ethnic profile, violence in Daykundi province and on the roads or as a result of generalised violence if he returns to Daykundi, when the Tribunal found or ought reasonably to have found, that:

   (i) there are regular violent clashes between Kuchi nomads and Hazara’s around the Applicants home district;

   (ii) the Taliban are engaged in active insurgency against the Applicant’s community in the Applicants home district;

   (iii) Islamic State (IS) insurgents are targeting Shia’s on the basis of their religious profile;

   (iv) IS poses a security risk in Daykundi;

   (v) Hazaras are specifically being targeted in road travel violence and road travel is unsafe in Daykundi;

   (vi) it was reasonable, practicable and possible for the Applicant to return to Daykundi.”

7. At [2] of the reasons of the Authority, the Authority noted that it had had regard to the material provided to it pursuant to the provisions of s.473CB of the Act.

Reasons of the Authority

1. At [4] – [7] inclusive of its reasons, the Authority dealt with certain new information which had been provided to it by the applicant’s legal representatives. At [5] it was recorded that the submission contended that the new information was more current and more accurate than that which was available at the time of the delegate’s decision. At [6] the Authority found that it was satisfied that the new information was not, and could not have been, provided to the Minister before the delegate made a decision. The Authority considered the new information to be relevant and recent, and it found that there were exceptional circumstances justifying its consideration. At [7] the Authority noted that it had obtained new country information, namely reports discussing the risks to Shia Hazaras in Afghanistan, both in relation to Hazaras travelling on roads within the applicant’s home area, as well as in relation to the security assessment for persons returning from the west. The Authority found that such new country information reports related to specific profile groups of which the applicant was included, stating that it was critical to have regard to up to date analysis about such risk profiles, “… in particular given the fluid security situation in the country, and the age of some of the reports cited in the delegate’s decision.” The Authority was satisfied that there were exceptional circumstances justifying consideration of such new information. [1]

   [1]        Namely – EASO, "Afghanistan: Individuals targeted under societal and legal norms", 12

2. At [8] and [9] of its reasons, the Authority noted the relevant refugee assessment and well-founded fear of persecution criteria as respectively set out in s.5H(1) and s.5J of the Act.

3. At [10] – [17] inclusive of its reasons, the Authority summarised the applicant’s relevant past history as follows:

   “[10] The applicant claims to be a Shia Hazara from Miramor District, Daykundi Province in Afghanistan. He claims he was born in around 1993 or 1994.

   [11] The applicant provided a copy of an Afghan taskera, and a translation, with his visa application. In his written statement, he indicated that he requested his brother-in-law obtain a genuine taskera. He claimed his brother-in-law sent the document to him in Australia, but he was unsure whether the document was genuine or not.

   [12] The applicant did not produce the original of this document at the visa interview with the delegate. The delegate stressed that the applicant was asked in advance of the interview to bring his identity documents. The applicant apologised and indicated he thought the copy would suffice. The representative indicated that the taskera would be provided to the Department after the interview.

   [13] When asked how he obtained the document, the applicant explained that his brother-in-law obtained his taskera on his behalf, from his home province, using his father’s taskera. The applicant said that he stressed to his brother-in-law that it was important to his application that the taskera was genuine. He said his brother-in-law assured him it was a real taskera, and that he had obtained it personally. The applicant confirmed he had the original in his possession at home. The delegate asked him again to produce the document.

   [14] It does not appear that the applicant produced the taskera, whether in his post-interview submission, or any subsequent correspondence. I have some concerns with the applicant’s failure to provide the original version of this document, despite the applicant and his representative indicating that it would be provided. There was some doubt about the provenance of this document in the written application. While the applicant was more definitive about the genuineness of that document during the visa interview, he did not provide the original to be scrutinised by the Department. I note the country information indicates that fraudulent documentation is a major issue in Afghanistan, notably within the context of taskeras. Weighing everything, while I accept the details of the taskera are consistent with his claims, I give this document little weight in terms of his claimed identity.

   [15] What is more compelling is the applicant’s oral evidence. His evidence about his family and history travelling, living and working between Iran and Afghanistan, his repeated deportations from Iran, and the current situation for his family in Iran, was freely given and gave the impression of a truthful account.

   [16] The applicant spoke in Hazaragi through the visa interview without any obvious difficulty, and based on the photos on file, appears to have the Asiatic appearance of an ethnic Hazara. I found his account of Hazara marriage traditions, old and new, and discussion of significant religious ceremonies (Muharram and Ramadhan) and Shia prayers styles, was freely given and persuasive in terms of his ethnic and religious claims. My understanding is that these ceremonies are based on a lunar calendar, and the dates change from year to year. I give no adverse weight to the applicant’s trouble specifying dates.

   [17] Looking to all the circumstances, while I have concerns about his taskera, the weight of evidence before me supports his claims to be of a Shia Hazara background, from the Miramor District, Daykundi Province in Afghanistan. I accept he was born in or around 1993.”

   (footnotes omitted)

4. At [18] – [36] of its reasons, the Authority considered the applicant’s claims of being fearful of suffering harm at the hands of Kuchi nomads in Daykundi Province. The applicant had claimed that during the Taliban regime, Pashtun villagers would take part in discriminating against and persecuting Shi Hazaras such that Shia Hazaras who lived in Daimirdad lived in constant fear. The applicant claimed that his village in Miramor District was very close to Pashtun villagers in Ghazni. At [25] of its reasons, the Authority noted that the applicant had confirmed that his sister and brother-in-law continued to live in his former home area, and that nothing had happened to harm his sister. The Applicant had said that attention from the Taliban and Kuchi was still present with there being constant fighting because of boundary dispute issues.

5. At [26] of its reasons, the Authority cited a number of reasons for rejecting the applicant’s claims for fearing harm from Kuchi nomads. Firstly, the claims were not supported by country information which suggested that long standing clashes between Hazara farmers and nomadic Kuchi herders occurred in a different district which did not share a border with the applicant’s home province. The Authority at [27] referred to the EASO reports in support of the proposition that there was no indication that Kuchi nomads travelled between Ghazni and the Miramor District or Daykundi Province. Country information referred to at [28] of the reasons of the Authority did not indicate that Kuchi nomads were active in Daykundi, leading the Authority to find that there was no substance to the claims of the applicant that Kuchi nomads were active, violent, or had continued to push for territory in the applicant’s home area. At [29] the Authority found that that was also the case in relation to the Taliban, and any other Pashtun group. Country information suggested that Daykundi had been described as a relatively safe area where security was generally good apart from one area which was on the opposite side of the province to the applicant’s home district of Miramor. At [30] the Authority found that Taliban activity had not encroached into Miramor or the northern districts of Daykundi, nor that the Taliban or other armed groups were active in the applicant’s home district of Miramor or the neighbouring Hazara-dominated districts in Daykundi. At [31] the Authority pointed to inconsistencies in the applicant’s evidence, the Authority noting that in oral statements the applicant had not raised a claim in the applicant’s written statement to the effect that his uncle’s village had been attacked and that his own village had been threatened with attack. The Authority noted the applicant’s “spontaneous evidence at the visa interview” that rather than there being any specific threat from the Kuchi or otherwise, the applicant’s uncle and family had considered that it was in the applicant’s best interests, both in terms of security and employment, for the applicant to leave Daykundi and travel to Iran to find work. At [32] the Authority noted that though working as a shepherd travelling to many different areas, the applicant had never been harmed, nor had he encountered any violence from Kuchi nomads. At [35] and [36] the Authority considered that the applicant would not face any chance or risk of harm if he returned to his home area from either Kuchi herders, the Taliban or any other person or group active in the applicant’s home area.

6. At [37] – [47] of its reasons, the Authority dealt with the applicant’s claims that he feared harm if returned to Afghanistan because of his alleged non-religious beliefs. At [46] the Authority found that country information did not give any clear indication that people who did not practice their religion, or who did so in a limited way, faced mistreatment or serious harm as a consequence of their limited religious adherence within Afghanistan. The Authority found as follows:

   “[46] There is information which suggests that the Taliban and Islamic State are hardline and have targeted and killed people assumed to be apostates, and ‘insufficiently religious’, but as discussed elsewhere in this decision, I have found that the Taliban and Islamic State are not active in Daykundi, and an assessment of the country advice does not reveal the applicant as having any proximity to the profiles of those that have been assumed to be apostates, nonbelievers, or ‘insufficiently religious’ by the Taliban or Islamic State – i.e. people connected to the government, high profile occupations (judges and teachers), Christian missionaries, etc.”

   At [47] it was noted by the Authority that rather than being a non-believer, the applicant was a believer who did not fully engage in the practical requirements of his religion. It found that the applicant had no additional profile, such as apostasy or religious conversion, which would lead him to be targeted for harm. The Authority also found that it was not satisfied that the applicant would need to modify his behaviour to avoid harm. It was found that based on the applicant’s religious practice, there was no real chance that the applicant would suffer harm if he returned to his home area based upon religious considerations or practices.

7. At [48] – [55] of its reasons, the Authority dealt with the applicant’s claims related to his time in the west, and to his having sought protection in the west as an asylum seeker. This aspect of the applicant’s claims was not a ground of review raised by the applicant in his originating application and was not the subject of any written submissions filed on behalf of the applicant. In those circumstances, it is unnecessary to deal with the manner in which the Authority considered such claims.

8. Ground 1 of the application for review can be divided into claims in three parts, namely:

   a)Claims related to religious and ethnic profile – [56] – [72] of the Authority’s reasons.

   b)Safe access to Daykundi – [73] – [85] of Authority reasons.

   c)Generalised violence – [86] – [90] of Authority reasons.

Claims related to religious and ethnic profile

1. At [56] of its reasons, the Authority noted that country information did not indicate that Shia Hazaras faced serious harm or other persecution in Daykundi or throughout Afghanistan, whether from the Taliban or other armed groups, by reason of their religion, ethnicity or any related profile. At [57] it was noted that incidents on roads had decreased, there being little evidence to indicate that ethnicity or religion were essential and significant motivations for such attacks. At [58] the Authority referred to recent country information analysis which indicated that the Taliban did not have a sectarian or ethnic agenda in terms of its insurgent activities. At [60] the Authority found that Islamic State (IS) had limited influence within Afghanistan in areas outside of Daykundi. At [61] it found that IS did not have an active presence in the applicant’s home area. After weighing all of the information before it, the Authority found that there was only a remote chance, and therefore not a real chance, of the applicant facing harm from IS in his home area because of his ethnic, religious or other profiles. As to the applicant’s claims that Hazaras were particularly vulnerable to risks of attack on roads, the Authority noted that DFAT country information stated that ethnicity was rarely the primary motivating factor in road incidents, though it was conceded that Hazaras were singled out for attention if a mix of ethnic groups was stopped on a roadway. The Authority noted that whilst 15 abducted Hazaras had been killed in 2015 when abducted, all of the 2016 abducted Hazaras had been released unharmed. At [64] the Authority considered the applicant’s claims that he would need to travel outside Daykundi for health services, supplies and employment opportunities, thereby exposing him to the risk of attack on roads. To that, the Authority found that there was no information that the applicant was suffering from any health concerns. It found that the applicant could find work in his home area where he had family and tribal links. At [67] the Authority found that if the applicant needed to travel for supplies, medical help or work, the applicant would be able to travel to other Hazara-dominated areas to fulfil his needs, those being areas where security incidents and risks to individuals was low. At [68] the Authority noted that country information indicated that there were no abductions of Hazaras on the roads in Ghazni Province through 2016 and 2017. At [69] the Authority found that on the totality of the evidence before it, it was not satisfied that the applicant faced a real chance of serious harm on the roads into and out of his home area based upon his religious or ethnic profile. At [71] the Authority found that though the applicant could face some societal or official discrimination where Hazaras were not in the majority, it also found that such discrimination would be moderate, indirect in the nature of nepotism, and infrequent. At [72] the Authority found that there was no real chance of the applicant facing harm from the Taliban, IS or any other armed group within his home region, and that therefore his expressed fears in that regard were not well-founded.

Safe access to Daykundi

1. The applicant claimed that he would not be able to safely access his home area of Daykundi, and that he would be at risk on the roads if he attempted to do so. At [75] the Authority found that although one airline had ceased operating between Kabul and the town of Bamiyan from which road access could be used to reach Daykundi, the Authority found that the applicant would still be able to obtain flights between Kabul and Bamiyan through Kam Air. On the question of the financial capacity of the applicant to pay for an airfare between Kabul and Bamiyan, at [76] – [81] inclusive, the Authority closely considered the applicant’s financial position, finding that it was reasonable for the delegate to have found that the applicant had access to around $18,000. At  [78] of its reasons, the Authority pointed to a high amount of discretionary spending at places such as McDonalds, Caltex, Crown and a place called the Hookah Lounge. Having looked at the way in which the applicant has spent money, as well as the applicant’s earnings and savings over a considerable period of time, it was open for the Authority to find that the applicant would be able to purchase an air ticket to enable him to travel safely from Kabul to Bamiyam, and thereafter from Bamiyam to Daykundi by road transport. At [82] – [85] of its reasons, the Authority engaged in a consideration of the risks of travel between Bamiyam and Daykundi. It relied on DFAT country information to the effect that travel by a Hazara within Hazarajat was better than most other parts of Afghanistan. At [84] of its reasons, the Authority relied on EASO country information for its finding that there was not a real chance or risk of the applicant being harmed on the roads when travelling between Bamiyam and Daykundi, either for reasons related to the applicant’s profile, or based upon general security considerations. It also found that any temporary stay in Kabul prior to travelling to Bamiyam would not result in the applicant facing harm by reason of him being a Shia Hazara.

Generalised violence

1. At [86] of its reasons, the Authority acknowledged that there had been a deterioration in the security situation in Afghanistan, noticeably in Kabul, as acknowledged in the DFAT report dated 18 September 2017. [2] The Authority found, however, that country information relating to the security situation in areas and roads bordering Daykundi and Hazarajat suggested that such areas remained some of the most secure in Afghanistan, especially for Shia Hazaras, there being low levels of insurgent activity recorded for those areas. At [87] the Authority found that country information indicated that threats were not at such a level, scope or frequency such that the applicant would face a real chance of harm as a civilian if he returned to live in his home area. In making that finding, the Authority weighed up all of the evidence before it.

   [2]         DFAT, "DFAT Country Information Report Afghanistan", 18 September 2017,

2. The Authority appropriately engaged in a consideration of all relevant factors relating to the applicant’s safety should he be returned to his country of origin. It found that any chance of harm faced by the applicant in relation to generalised or insurgent violence in Daykundi was remote, and would be unrelated to reasons associated with the applicant’s race, religion, nationality, membership of a particular social group, or by reason of any political opinion.

3. At [89] of its reasons, the Authority found that there was no real chance of the applicant facing harm for reasons related to clashes between Hazaras and Kuchi in Daykundi, by reason of his being a non-practicing Shia, by reason of his religion and ethnic profile, by reason of his being a returnee from the west and an asylum seeker in the west, or by reason of any generalised violence during the course of travel within his home area or to and from Bamiyam.

4. At [91] – [96] of its reasons, the Authority dealt with the question of whether the applicant had a real risk of suffering significant harm should he be returned to his home area in Afghanistan. Because of its findings in relation to whether there was a real chance of the applicant facing harm should he be returned to his home area, and having examined the evidence before it based upon a consideration of the relevant criteria as set out in s.36(2A) of the Act, the Authority found that there were no substantial grounds for believing that, as a foreseeable and reasonable consequence of the applicant being returned to his home area from Australia, that there was a real risk that the applicant would suffer significant harm. It found that the applicant did not meet the relevant s.36(2)(aa) criteria.

5. The Authority closely considered all of the claims made by the applicant in a careful way. It weighed up all of the evidence before it before arriving at its decision.

6. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

7. Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The Authority clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration v SZMDS (2009) 240 CLR 611 at [131]:

   “[131] But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

9. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”The applicant has failed to establish jurisdictional error on the part of the Authority.”

10. The applicant has not demonstrated jurisdictional error on the part of the Authority

11. The application for review is without merit and is dismissed.

12. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  20 March 2020

         December 2017, CISEDB50AD7870; EASO, "Afghanistan: Individuals targeted by armed
         actors in the conflict", 12 December 2017, CISEDB50AD7868 at Court book (CB) p. 185.         CISEDB50AD568 at CB p. 200.