ERK19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 199
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 199
File number(s): ADG 473 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 18 February 2025 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan of Pashtun ethnicity – whether Authority constructively failed to carry out statutory task to review decision of a delegate by reason of failure to consider important evidence within the review material – whether documents comprised part of the review material – whether documents considered – whether documents significant or consequential in relation to Immigration Assessment Authority decision – whether any failure to consider documents material – whether material jurisdictional error. Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 46A, 473CB, 473DB, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177; (2021) 95 ALJR 375; (2021) 388 ALR 389; (2021) 178 ALD 1
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1
Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379; (2019) 163 ALD 469
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 9 April 2024 Date of hearing: 9 April 2024 Place: Perth Counsel for the Applicant: Mr J F Gormly Counsel for the First Respondent: Mr A Hall Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 473 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERK19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The originating application filed 26 November 2019, as amended by an amended originating application filed on 25 August 2023, and as further amended by a further amended originating application filed on 18 September 2023, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 26 November 2019 the applicant, ERK19, filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). In October 2022 the Judicial Review Application was docketed to the presently presiding Judge, and on 22 November 2022 orders were made which permitted ERK19 to file an amended Judicial Review Application and other materials. The dates for compliance with the abovementioned orders were subsequently amended by consent, and on 25 August 2023 an amended Judicial Review Application (“Amended Judicial Review Application”) was filed. Subsequently, on 18 September 2023 the Amended Judicial Review Application was further amended (“Further Amended Judicial Review Application”). The Further Amended Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 15 November 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 18 October 2019 not to grant ERK19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
MATERIALS BEFORE THE COURT
The Court has before it various materials, including:
(a)the Further Amended Judicial Review Application;
(b)the Minister’s response filed on 6 December 2019 (no amended or further amended response was filed);
(c)the affidavits of:
(i)Roshlyn Chand, sworn on 24 August 2023 (“Chand Affidavit”);
(ii)Sarah Harding, sworn on 29 August 2023 (“Harding Affidavit”); and
(iii)Jacqueline Parker, sworn on 4 April 2024 (“Parker Affidavit”);
(d)ERK19’s outline of submissions filed 11 March 2024 (“ERK19’s Outline of Submissions”);
(e)the Minister’s outline of submissions filed 26 March 2024 (“Minister’s Outline of Submissions”);
(f)ERK19’s outline of submissions in reply filed 4 April 2024;
(g)the Transcript of the hearing in this Court on 9 April 2024 (“Transcript”);
(h)the Court Book (“CB”), filed on 5 March 2020, and marked at hearing as Exhibit 1: Transcript, p 2;
(i)a document marked QVA126 - Referral to the IAA checklist, tendered at hearing and marked as Exhibit 2: Transcript, p 4; and
(j)a document marked CLF2015 Client File plus annexures, tendered at hearing and marked as Exhibit 3: Transcript, p 4.
Central to the disposition of these proceedings is a dispute concerning whether the Authority had regard to an email from ERK19 to his then representative dated 18 September 2019: CB 273, concerning a former student of ERK19 in an educational academy: CB 274-280. Although the parties referred to the former student’s documents by name the Court will refer to the former student as “R” and the documents as the “R Documents” to endeavour to ensure that there is no possible identification of ERK19 arising from these Reasons for Judgment.
BACKGROUND
The factual and procedural background to the matter is as follows:
(a)ERK19 is a citizen of Pakistan, of Pashtun ethnicity from the Turi tribe, from near Parachinar in the Upper Kurram District - formerly the Kurram Agency - of the former Federally Administered Tribal Areas (“FATA”), now part of the Khyber Pakhtunkhwa Province of Pakistan: CB 375;
(b)ERK19 was born in 1983: CB 12;
(c)on 17 November 2012 ERK19 arrived in Australia as an unauthorised maritime arrival: CB 65;
(d)on 21 December 2015 a Departmental officer notified ERK19 that the bar under s 46A of the Migration Act had been lifted, and invited ERK19 to apply for a Temporary Protection visa or a SHE Visa: CB 27-32;
(e)on 20 February 2017 ERK19 lodged the application for a SHE Visa: CB 44-116. Essentially, ERK19 claimed to fear harm on return to Parachinar as a Turi Shia and a teacher, and as one whom the Taliban knew to have owned and operated an English language teaching academy in the area;
(f)on 9 September 2019 the Delegate interviewed ERK19 in relation to his SHE Visa application (“SHE Visa Interview”): CB 306 and Chand Affidavit at p 4;
(g)towards the end of the SHE Visa Interview ERK19 showed material to the Delegate concerning his former students. During the SHE Visa Interview the Delegate returned this material to ERK19 and asked it be provided to the Delegate with context: Chand Affidavit at p 5, transcript of SHE Visa interview on 9 September 2019 from 2:15:20 to 2:23:49; and the Delegate’s Decision at CB 310;
(h)on 22 September 2019 ERK19 emailed a PDF of post interview written submissions to the Delegate (“ERK19’s Delegate Submissions”): CB 173-258, and attached to this email: CB 172, as Outlook items:
(i)the material ERK19 had shown to the Delegate in the course of the hearing concerning his former students; and
(ii)the emails ERK19 had sent to his advisors containing the context sought by the Delegate to the photographs and documents provided to her during the hearing
(collectively: “Former Student Documents”);
(i)the Former Student Documents are reproduced at CB 259-280, being:
(i)an email from ERK19 to his representative dated 10 September 2019: CB 259, attaching photographs and other documents concerning ERK19’s former student “JH” (“JH Documents”): CB 259-263;
(ii)an email from ERK19 to his representative dated 10 September 2019: CB 264, which includes an English language test prepared by ERK19 (“English Language Test Documents”): CB 264-267;
(iii)an email from ERK19 to his representative dated 12 September 2019: CB 268, concerning ERK19’s former student “ZH” in the Cambridge English Language Centre (“ZH Documents”): CB 268-272; and
(iv)an email from ERK19 to his representative dated 18 September 2019: CB 273, concerning ERK19’s former student “R” in the National Cadet Academy, Shingak (“R Documents”): CB 274-280;
(j)except for the covering email at CB 172, ERK19’s Delegate Submissions do not otherwise refer to the Former Student Documents;
(k)ERK19’s Delegate Submissions included a section concerning the repression by the Pakistani authorities of media reports of sectarian violence: CB 182-183;
(l)on 18 October 2019 the Delegate’s Decision was not to grant ERK19 a SHE Visa, finding that ERK19 was not a person to whom Australia owed protection obligations under the Migration Act: CB 305-319;
(m)the Delegate acknowledged receipt of ERK19’s Delegate Submissions and the Former Student Documents: CB 310 and fn 25 of Delegate’s Decision;
(n)the Delegate did not make any finding on the Former Student Documents. The Delegate, at CB 314, did find that:
Having had regard to the history of conflict in Kurram... I am satisfied that despite a significant improvement in the Kurram’s security landscape since [ERK19]’s departure, there remains a degree of heightened risk to Shia Muslims. I am satisfied that while the risk of serious harm to [ERK19] may be one that is low, it is nonetheless a risk that is more than remote.
The Delegate went on to find that ERK19 could safely and reasonably relocate to Islamabad or Lahore: CB 316-317;
(o)on 22 October 2019 the Delegate’s Decision was referred to the Authority for review: CB 321;
(p)on 7 November 2019 ERK19 made submissions to the Authority which included the JH Documents: CB 356-359. This material did not include ERK19’s original covering email at CB 259, but ERK19 had already conveyed the same information in that email to the Delegate in the course of the SHE Visa interview: Chand Affidavit at p 4;
(q)further submissions were made on 11 November 2019: CB 361;
(r)the Authority did not invite ERK19 to give any new information, nor did it conduct an interview with ERK19;
(s)on 15 November 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 374-391; and
(t)unlike the Delegate, the Authority was not satisfied that ERK19 faced more than a remote chance of being harmed in sectarian or generalised violence in Upper Kurram, even if he was to resume teaching there: CB 385 at [53].
SINGLE GROUND IN FURTHER AMENDED JUDICIAL REVIEW APPLICATION
The single ground in the Further Amended Judicial Review Application is as follows:
The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:
1.The Authority constructively failed to carry out the statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate's decision because the Authority failed to consider important evidence within the ‘review material’ given to it under s 473CB.
Particulars
2.The important evidence was an email and annexures dated 18 September 2019 concerning the applicant’s former student [R] at CB 273-280.
R DOCUMENTS
The R Documents comprise the following:
(a)an email from ERK19 to his then legal representative (Simon Lekse) dated 18 September 2019 under the subject “My student of NCA” that states “This is … [R]. He was my student in National cadet Academy Shingak and he [… was] victimized in bomb blast in Parachanir”: CB 273;
(b)documents in English which appear to be medical reports, one of which is titled “CT Scan Cervical Spine” dated 13 July 2017 and describes injuries suffered by R in a bomb blast, including fractures to the spine and metal splinters in the soft tissue of the neck on the left side: CB 276 and 277-278; and
(c)photographs, presumably of R in hospital recovering from his injuries: CB 274-275 and 279-280.
WHETHER THE R DOCUMENTS FORM PART OF THE REVIEW MATERIALS
There is no dispute that the R Documents form part of the review materials, or, at the very least, that that proposition can be accepted: Minister’s Outline of Submissions at [14]; Transcript, pp 7, 17 and 18, and the Court proceeds on the basis that the R Documents are part of the review material given by the Secretary to the Authority under s 473CB of the Migration Act.
WHETHER THE AUTHORITY CONSIDERED THE R DOCUMENTS
In relation to whether the R Documents were considered by the Authority ERK19 submitted as follows:
(a)at CB 376 at [8] the Authority noted that at the end of the SHE Visa Interview with the Delegate on 9 September 2019 ERK19 produced photographs and documents relating to the former student JH: Chand Affidavit at p 4, but said that these documents "do not appear to be in the review material";
(b)these documents relating to JH were the “JH documents” which formed part of the Former Student Documents: CB 172;
(c)at CB 376 at [11] the Authority refers to the “29 page post interview submissions with supporting information” - a reference to ERK19’s Delegate Submissions attached to the same email as the Former Student Documents, country information and a further statement from ERK19: at CB 172, which were attached as PDFs, whilst the Former Student Documents were attached as Outlook items. The Authority said the JH Documents did “not appear to be in the review material”: CB 376 at [8];
(d)at CB 381 at [32] the Authority addressed ERK19’s claims concerning former students who were injured in bomb blasts in Pakistan, including his student JH;
(e)it is apparent from the Authority Decision at CB 381 at [32] that the source of these claims was what ERK19 had said of them in the SHE Visa Interview, and in his statement to the Authority in relation to JH at CB 353 at [13];
(f)the Authority does not refer to the R Documents, despite their including a medical report bearing the notation “blast injury Parachinar (23.6.17)”. This date does not coincide with country information before the Authority of the dates of other bomb blasts in Parachinar in the first half of 2017, though it is consistent with DFAT's account of Turi community estimates of Turi fatalities and casualties as significantly exceeding the casualties and fatalities from those three terrorist attacks in Parachinar in the first half of 2017 of which DFAT was "aware": Harding Affidavit at p 14 at [3.15]-[3.16];
(g)at CB 382 at [39] the Authority accepted that “ ... some of the applicant's former students have been harmed in violence in Pakistan”, but did not refer to the evidence in the R Documents that R suffered a blast injury in Parachinar;
(h)from the failure of the Authority to refer to R’s injuries as having been suffered in a previously unrecorded bomb blast in Parachinar, and the failure of the Authority to refer to any of the other Former Student Documents, it should be inferred that the Authority failed to consider at least the R Documents, likely because either it overlooked or could not open them as Outlook items in the PDF of review material compiled by the Secretary, and so limited its consideration to what was said of the former students in the SHE Visa interview;
(i)it is significant that when the Authority went into any detail about ERK19’s former students, it was according to information given by ERK19 other than in the Former Student Documents. In the Authority Decision at CB 381 at [33] the Authority refers to a former student who had been taken by the Pakistan military - ERK19 had made this claim in a statement attached as a PDF to the same email as the Former Student Documents attached as Outlook items: at CB 204, but not in the Former Student Documents. The information about the former student JH was taken from the SHE Visa Interview and a later statement to the Authority which the Authority treated as not being “new information”: CB 376 at [8], the Authority not being able to find the JH Documents in the review material;
(j)it is also significant that the Authority did not specifically refer to any of the other Former Student Documents, for example, the English Language Test Documents and the ZH Documents;
(k)ERK19 does not contend the Authority's obligation to consider the R Documents derived from the importance or consequence of the documents, but from its primary obligation under s 473DB(l) of the Migration Act to consider the “review material”, of which the R Documents were a part; and
(l)the obligation to “consider” the review material is to “read, identify, understand and evaluate” it: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) ALD 304 (“Plaintiff M1/2021”) at [24] per Kiefel CJ, Keane, Gordon and Steward JJ.
In relation to whether there was a failure to consider the R Documents by the Authority, including whether the R Documents were substantial and consequential to the outcome of the Authority Decision, and whether any failure to consider them was material to the outcome of the Authority Decision, ERK19 submitted as follows:
(a)in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 (“BVD17”) at [14] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court said of the review task of the Authority: "the primary obligation of the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material given under s 473CB";
(b)it is accepted that the absence of an express reference to evidence in the Authority Decision does not necessarily mean that the evidence was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 (“SZGUR”) at [31] per French CJ and Kiefel J;
(c)it is also accepted that it is not necessary for the Authority to refer to every piece of evidence presented to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46] per French, Sackville and Hely JJ, but rather that the “fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [111] per Robertson J;
(d)the R Documents were “substantial and consequential” to a central and dispositive claim of the applicant, one that had been accepted by the Delegate and was supported by DFAT country information, namely that there was a real chance ERK19 would face violence in his home area from militant groups. The evidence of a previously unreported bomb blast in this area amounted to a component integer of that central claim, as well as the claim that such attacks were under-reported: SZRKT at [111] per Robertson J; and
(e)in assessing the importance of the R Documents it is relevant to note that the Authority's assessment of risk of harm in sectarian or generalised violence is somewhat fragile: CB 385 at [53]. For example one basis for the Authority's conclusion that ERK19 did not face more than a remote chance of harm in Upper Kurram from explosive devices or as a result of generalised violence was that “the evidence before me… does not indicate that such incidents are currently routine or common... or that the incidence of such violence is increasing”: CB 385 at [53]. The Authority then went on to state “the country information referred to above [apparently a reference to the DFAT 2019 report and the applicant's submissions] that violence within the Kurram Agency was decreasing”: CB 385 at [53]. The Authority does not cite any country information in the review material to otherwise undermine DFAT’s “moderate risk” analysis, which it cites at CB 383 at [44].
In relation to whether the R Documents were considered by the Authority the Minister submitted that:
(a)it is open to argument (but not necessary to decide) that the Authority did not consider the R Documents. The Authority relevantly stated that it: “had regard to the material given by the Secretary under s 473CB [of the Migration Act]”: CB 375 at [4]; “[took] into account the comprehensive post-interview submission and information provided therein”: CB 375 at [7]; considered “the comprehensive 29 page post-interview submission with supporting information”: CB 376 at [11]); and was “not satisfied on the evidence before [it] that the applicant will have no other option than to return to teaching if he returns to Pakistan”: CB 381 at [36]. Noting that the absence of an express reference to evidence does not necessarily mean it was not considered: SZGUR at [31] per French CJ and Kiefel J, and that it is not necessary for the Authority to refer to every piece of evidence provided to it: WAEE at [46] per French, Sackville and Hely JJ, the inference is reasonably available that the Authority did take into account the R Documents but did not consider that they demonstrated that ERK19 faced a real risk of serious harm;
(b)it is accepted that the Authority appears to have operated under the misapprehension that the JH Documents (relating to another former student and also included in the 22 September 2019 email: CB 259-263) were not in the “review material”: CB 376 at [8], although, the materials relating to JH were provided again as attachments to a statutory declaration from ERK19 dated 7 November 2019: CB 351-359 and were taken into account by the Authority: CB 376 at [8];
(c)it is also accepted that there is no reference to the R Documents in the Authority Decision. While the Authority states that “[t]he applicant has referred to former students who were injured in bomb blasts in Pakistan, including his student JH”: CB 381 at [32], the only former student referred to in the context of bomb blasts is “JH”; and
(d)it is not necessary for the Court to determine this issue in light of the Minister’s submissions in relation to the third step of ERK19’s argument.
In relation to whether there was a failure to consider the R Documents by the Authority, including whether the R Documents were substantial and consequential to the outcome of the Authority Decision, and whether any failure to consider them was material to the outcome of the Authority Decision, the Minister submitted as follows:
(a)turning to the third step in ERK19’s argument, it is not correct to say that the R Documents were both substantial and consequential to ERK19’s claim that he would face violence in his home area from militant groups. Put differently, the R Documents were not significant and consequential in the sense of being determinative of the Authority Decision and going to jurisdiction. The R Documents simply confirm a parallel factual finding made by the Authority in relation to another former student (JH), which was held by the Authority not to support the conclusion that ERK19 faced a real chance of serious harm (or a real risk of significant harm) in his home area from militant groups;
(b)in relation to JH, the Authority accepted that JH was injured in a bomb blast: CB 381 at [32], but held that it was “not satisfied … that [it] demonstrate[d] any reason that the applicant is, or will be, of adverse interest to any group or person arising from his association with … former students”: CB 381 at [34]: The Authority also earlier stated that while the statutory declaration from JH was credible personal information, it simply referred to JH’s personal experience of being harmed in a bomb blast and his belief that this occurred because he was a teacher, and it did not add anything to ERK19’s own claims: CB 377 at [15]. The Authority then said “I am not satisfied that the applicant will be of adverse personal interest to the Taliban or other extremists arising from his past work as a teacher”: CB 381 at [36]. The Authority went onto find: CB 382 at [39] “I accept that some of the applicant’s former students have been harmed in violence in Pakistan. I note however that the applicant has not claimed he or any member of his family or extended family has ever been targeted or harmed in such violence” (with the exception of a Taliban letter discussed at CB 380-381 at [29]-[31]). The fact that the Authority accepted that ERK19’s former students had been harmed in violence in Pakistan, but then held that despite this it was not satisfied that ERK19 will be of adverse interest to the Taliban or other extremists arising from his past work as a teacher, suggests that it was unnecessary for the Authority to make a finding regarding the R Documents because they were subsumed into the Authority’s more general findings concerning ERK19’s former students: WAEE at [47] per French, Sackville and Hely JJ;
(c)ERK19 also contends that the R Documents were important as evidence of a previously unreported bomb blast in his home area and that such attacks were under-reported: ERK19’s Outline of Submissions at [35]. However, evidence of one additional bomb blast in Parachinar in 2017 could be of little consequence to the decision, particularly in light of the fact that the Authority had regard to DFAT country information on this very issue: CB 382-383 at [40]-[42]. The DFAT country information proved determinative in the Authority’s analysis, and after considering this information the Authority relevantly stated: at CB 385 at [53]):
I accept that civilians have been killed and injured in targeted attacks in the past, as well as being harmed as bystanders, from explosive devices, or as a result of generalised violence, but the evidence before me (including the table of news reports provided by the applicant) does not indicate that such incidents are currently routine or common in Parachinar city or the Upper Kurram, or that the incidence of such violence is increasing. I also note the country information referred to above that violence within the Kurram Agency has been decreasing. Having regard to all of the above, I am not satisfied that the applicant faces more than a remote chance of being harmed in sectarian or generalised violence in Upper Kurram, even if he was to resume teaching there.
(d)the Authority’s assessment of the risk of harm relating to sectarian or generalised violence in Upper Kurram is not “somewhat fragile” as argued by the applicant. The Authority referred to the assessment in the 2019 DFAT report that Turis in the Kurram Agency faced a moderate risk of sectarian violence: CB 383 at [44]. However, the Authority also noted DFAT’s assessment that there had been an overall reduction in levels of violence: CB 382 at [41], and that there had been a significant decrease in the number and severity of attacks: CB 383 at [42]. In any event, mere disagreement with the Authority’s assessment of DFAT country information is not sufficient to show jurisdictional error. Having regard to the evidence and country information, it was reasonably open to the Authority to conclude that ERK19 did not face more than a remote chance of being harmed in sectarian or generalised violence in Upper Kurram. As a result, even if the Court found the Authority failed to take the R Documents into account, there was no jurisdictional error because if the R Documents had been taken into account by the Authority, it would not have altered the Authority conclusions or led to a different decision being made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1 at [30] per Kiefel CJ, Gageler and Keane JJ.
CONSIDERATION
The use of the words “must give” in s 473CB(1) of the Migration Act imposes upon the Secretary of the Minister’s department a mandatory requirement to provide the review material to the Authority: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422 (“EVS17”) at [32] per Allsop CJ, Markovic and Steward JJ. Where there is a breach of s 473CB(1)(b) of the Migration Act by the Secretary of the Minister’s department in not giving to the Authority all the material provided by an applicant to a delegate prior to the making of a delegate’s decision, there is an error (specifically the failure to provide the material to the Authority). Whether, however, the error is jurisdictional depends upon whether the error was material: EVS17 at [41]-[42] per Allsop CJ, Markovic and Steward JJ; Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379; (2019) 163 ALD 469 (“CPA16”) at [33] per Yates, Murphy and Moshinsky JJ.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 at [22] per Gageler, Keane and Nettle JJ the plurality described how the Authority's review under Pt 7AA of the Migration Act worked, as follows:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
In DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177; (2021) 95 ALJR 375; (2021) 388 ALR 389; (2021) 178 ALD 1 at [16]-[17] per Kiefel CJ, Gageler, Gordon and Steward JJ the plurality in the High Court described the “overriding duty” of the Authority to review the fast track reviewable decision referred to it by the Minister, the “procedural duty” to conduct that review by “considering” the review material provided to it by the Secretary and the qualification of that procedural duty under Pt 7AA of the Migration Act as follows (footnotes omitted):
16.The overriding duty of the Authority to “review” the fast track reviewable decision referred to it by the Minister is accompanied by a procedural duty to conduct that review by “considering” the review material provided to it by the Secretary without accepting or requesting “new information”, being “a communication of knowledge about some particular fact, subject or event” that was not before the Minister when the delegate made the referred decision, and without interviewing the referred applicant. That procedural duty as to the manner of conduct of the review is qualified only by the Authority having specific procedural powers to “get” new information and in specified circumstances, and on specified conditions, to “consider” that new information. Performance of the procedural duty subject to the potential for exercise of these powers exhausts the requirements of “the natural justice hearing rule” in relation to the review.
17.The Authority performs its duty to consider the review material provided to it by the Secretary by examining the review material physically provided to it so as to form and act on its own assessment of the relevance of that material to the review of the referred decision…
In Plaintiff M1/2021 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ the obligation to “consider” the review material was identified as being an obligation to “read, identify, understand and evaluate” the review material (and see also to similar effect BVD17 at [14] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
In the Authority Decision the Authority (emphasis added):
(a)said that it had regard to the material given to it by the Secretary under s 473CB of the Migration Act: CB 375 at [4];
(b)said that it took “into account the comprehensive post-interview submission and information provided therein”: CB 375-376 at [7];
(c)noted that in relation to “the applicant’s former student, “JH”, who was injured in a bomb blast in Pakistan” that the JH Documents did not appear to be in the review material, but that the JH Documents had been considered as they were attached to a statutory declaration by ERK19: CB 376 at [8];
(d)noted that ERK19 had “referred to former students who were injured in bomb blasts in Pakistan, including his student JH”: CB 381 at [32];
(e)found that it was “not satisfied on … [ERK19’s] evidence” that ERK19 was “of adverse interest to any group or person arising from his association with any of these former students”: CB 381 at [34]; and
(f)“accept[ed] that some of … [ERK19’s] former students have been harmed in violence in Pakistan”: CB 382 at [39].
It is accepted that the Authority did not specifically refer to the R Documents. But it did not need to do so, there being no obligation to specifically refer to each piece of evidence before the Authority: WAEE at [46] per French, Sackville and Hely JJ. Nor does the absence of specific reference to the R Documents mean that the R Documents were not considered: SZGUR at [31] per French CJ and Kiefel J.
Submissions by ERK19 about if, or how, documents provided to the Authority by ERK19 were, or were not, accessed are little more than speculation, and are to be disregarded.
When the actual reasons of the Authority are examined it can be seen that the Authority said not only that it examined the referred material, but also the comprehensive post-interview submission and information provided therein, that is ERK19’s Delegate Submissions which included the Former Student Documents, and included in which were the R Documents: see [4(h) and(i) above]. Moreover, it is apparent that in its reasons the Authority distinguished between the “former student”, JH, and other “former students” (so more than one former student) including those injured in bomb blasts and those harmed in violence in Pakistan, descriptions which fit the substance of the harm alleged in the R Documents and the description of what is said to have happened to R. In circumstances where the Authority said it had regard to the referred material and to ERK19’s Delegate Submissions which included the R Documents, and where its description of events fitted the substance of the harm alleged in the R Documents and what is said to have happened to R (or at least was not inconsistent therewith), it is not evident to the Court that the Authority did not consider the R Documents. In the Court’s view the Authority therefore complied with its obligations under Pt 7AA of the Migration Act in the conduct of its review of the Delegate’s Decision.
Although, given the conclusion reached in the preceding paragraph, it is strictly unnecessary to do so, the Court considers that even if the Authority had not had regard to the R Documents no material jurisdictional error would arise because:
(a)the findings made in relation to JH, and the other “former students”, do not support a conclusion that ERK19 would face a real chance of serious harm or real risk of significant harm from militant groups in his home area (be that in or around Parachinar or the Kurram District more broadly);
(b)whilst accepting that some of ERK19’s former students had been harmed in violence in Pakistan, the Authority was not satisfied that ERK19 would be of adverse interest to the Taliban or other Sunni extremists, and that is a finding of sufficient generality that it subsumes what is referred to in the R Documents: WAEE at [47] per French, Sackville and Hely JJ; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ, which is just another example of that violence already considered and adjudicated upon by the Authority, which had regard to relevant country information in so doing: see CB 382-383 at [40]-[42], and in reaching conclusions thereon: CB 385 at [53].
CONCLUSION AND ORDERS
The Court has concluded that the Authority Decision is not affected by jurisdictional error. It follows that the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to orders for costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 February 2025
0
18
1