ESQ18 v Minister for Immigration
[2020] FCCA 472
•6 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESQ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 472 |
| Catchwords: MIGRATION – Temporary Protection (Class XD) visa – decision of the Immigration Assessment Authority – whether the IAA acted unreasonably in not exercising the discretion in s.473DC – whether the IAA erred in choosing not to consider a claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, Div.3, ss.5, 5H, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB |
| Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 Minister for Immigration & Border Protection v DZU16 [2018] FCAFC 32 |
| Applicant: | ESQ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 481 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 February 2020 |
| Date of Last Submission: | 25 February 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Saul Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms S Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 481 of 2018
| ESQ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed in this Court on 15 November 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 24 August 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Temporary Protection (Class XD) visa (the “visa”).
To obtain assistance from this Court, the applicant must establish that the IAA has fallen into jurisdictional error.
The Court had before it an amended application for judicial review, a Court Book (“CB”) numbering 206 pages (marked as Exhibit 1), an outline of written submissions from the applicant dated 15 November 2019 and two outlines of written submissions from the Minister dated 4 November 2019 and 2 December 2019.
The applicant was represented by Mr Saul Jahnke. The Minister was represented by Ms Oliver of Counsel. The Court thanks both lawyers for the quality of their written and oral advocacy.
Background
The Minister’s written submissions (at Part II) dated 4 November 2019 and the applicant’s written submissions (at [2]-[10]) dated 15 November 2019 accurately summarise the relevant factual background for this matter. The Court adopts those summaries, with minor amendments, as its own and as follows.
The applicant is a citizen of Afghanistan but has never lived in that country (CB 4). Prior to arriving in Australia the applicant had lived entirely in Pakistan (CB 73 at [29]).
The applicant arrived in Australia as an unauthorised maritime arrival on 1 May 2013 (CB 125). At the time of his arrival, the applicant was still a teenager (CB 47).
On 16 June 2016, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for the visa (CB 21).
On 7 May 2017, the applicant lodged an application for a protection visa (CB 34-70). In his visa application, the applicant explained that he feared harm from the Taliban, ISIS and other terrorist and violent groups for reasons of his religion and because of the poor security situation in Afghanistan (CB 71-75).
The applicant attended an interview with a Ministerial delegate on 9 October 2017 (CB 88). It appears that during the interview the applicant raised a claim to fear harm from a specific group of Sunnis from Pakistan who had returned to Afghanistan (CB 129). The applicant also provided further information to the delegate after the interview including social media photographs, a taskera and a written submission (CB 107-120).
On 14 February 2018, the delegate refused to grant the applicant the visa (CB 125-143). The delegate found that the applicant could safely relocate to Mazar-e-Sharif in Afghanistan.
On 19 February 2018, the matter was referred to the IAA in accordance with s.473CA of the Act (CB 144).
On 13 March 2018, the applicant, through his migration agent, provided submissions to the IAA (CB 162-168). A revised version of those submissions was resubmitted on 23 March 2018 (CB 170-176). Relevantly, the submissions referred to country information which was not before the delegate.
On 24 August 2018, the IAA affirmed the delegate’s decision (CB 186-197).
The IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
In this matter, the IAA’s decision is 16 pages long and spans 52 paragraphs.
The Minister’s submissions dated 4 November 2019 at [11]-[25] provide a detailed (and accurate) summary of the IAA’s decision. The Court adopts that summary, with some amendments, as follows.
The IAA noted receipt of a revised submission from the applicant’s migration agent containing country information not before the delegate and noted that the information did not comply with the Practice Directions. Specifically, it had been provided largely by hyperlink and no explanation was provided as to why the information could not have been provided to the delegate prior to the decision being made. The IAA did not accept the hyperlinked information provided (at [3]-[9]).
The IAA also did not consider two additional country information extracts. The IAA found that neither limb of s.473DD of the Act was met in both circumstances (at [10]). The IAA confirmed that it did have regard to the remainder of the revised submissions provided (at [11]).
At [12], the IAA summarised the applicant’s claims as follows:
• He is a Shia Muslim of Hazara ethnicity. Due to fighting in the Afghan civil war his parents had fled from their home in Khoshi District in the province of Logar in eastern Afghanistan to Parachinar, in Northwest Pakistan. He was born on [date omitted] in Pakistan.
• Despite living his entire life in Pakistan, the applicant, as the child of Afghani citizens who are refugees, is an Afghani Citizen.
• In late 2011 or early 2012, the applicant travelled to Afghanistan for the first and only time. He spent approximately four to five days in Logar in order to obtain Afghan identity papers, and an Afghan Passport which he was able to do. He returned to Parachinar. He has never returned to Afghanistan.
• In early 2013, the applicant departed Pakistan for Australia.
• He believes that unidentified hostile Sunnis from Parachinar would identify him if he returned to Afghanistan and that he would face harm from them.
• He fears to return to Afghanistan as he believes he would be persecuted as a Hazara and as a Shia. He also fears harm from the general level of violence which prevails in Afghanistan.
The IAA raised concerns about the applicant’s taskera (which had been provided as proof of his identity), noting that the taskera did not include security features and document fraud is a major issue in Afghanistan. The IAA found discrepancies in the applicant’s versions (at the interview with the delegate and in his application) about how he obtained his taskera and questioned whether the document was genuine and whether the applicant was a citizen of Afghanistan (as claimed) or a citizen of Pakistan. As the IAA could not resolve these discrepancies, it was unwilling to rely on the taskera as proof of the applicant’s identity but otherwise observed that the applicant had put forward consistent claims about his identity whilst in Australia (at [13]-[18]).
The IAA then discussed the different ethnic groups in Afghanistan, noting that the applicant did not fit the facial profile of a typical Hazara and that some of the applicant’s answers to questions when interviewed were vague. The IAA accepted that the applicant’s family was originally from Logar Province and that they had fled in the civil war period (at [19]-[28]).
Ultimately, the IAA accepted that the applicant was Hazara and Shia and that he was an Afghan citizen (at [29]).
The IAA did not accept the applicant’s claim in relation to a conflict in 2007 between the Sunni and Shia communities. The IAA found the applicant’s evidence to be in the “broadest and vaguest terms”, “fanciful” and not convincing. The IAA concluded that the applicant had fabricated this aspect of his claim to enhance his bid for asylum (at [30]-[31]).
In considering whether the applicant had a well-founded fear of persecution on the basis of his ethnicity, his religion and the general insecurity in Afghanistan, the IAA made the following findings:
a)the IAA considered the applicant’s evidence that he had no connection with the Logar Province and had never lived there (he had spent five days in Afghanistan and did not face any harm in that short period) . It concluded that, if returned to Afghanistan, the applicant would likely reside in Kabul (at [35]-[36]). The IAA discussed country information in relation to Kabul and Shia and Hazara groups, finding that Afghan urban centres were seen as more secure than rural areas (at [37]-[40]). The IAA also considered the most common targets for insurgent attacks in urban centres. It thought it highly unlikely that the applicant would seek employment in government or security forces (which were among the common targets) and, after considering the applicant’s circumstances, was not satisfied that he would face a real chance of harm arising from his religion or ethnicity should he return (at [41]);
b)the IAA noted that, while the delegate had considered whether the applicant would face harm as a failed asylum seeker from a western country (and concluded he would not), the applicant himself had not made this claim at any time, despite having multiple opportunities to do so. The IAA did not consider the claim arose on the material and found there was nothing to suggest any obligation on the IAA to consider a claim that had not been made and which the IAA had concluded did not arise (at [42]-[43]). The Court will return to this issue in the course of considering ground 2 below; and
c)the IAA considered the applicant’s claim to fear harm arising from the general level of violence in Afghanistan and found that, while Afghanistan is a violent place, the risks the applicant would face would be random and unrelated to his profile or his wider claims for protection. The IAA acknowledged that the reasons for general violence, while personally difficult for the applicant, would not be for one or more of the five reasons referred to in s.5J(1) of the Act (at [44]-[46]).
The IAA was not satisfied that the applicant met s.36(2)(a) of the Act (at [47]).
The IAA found that the applicant would likely return to Kabul to live. Noting the country information that indicated Afghanistan was a violent society, the IAA found that even if it could be said that the level of general violence arose to a real risk, this risk would affect the population of Afghanistan generally, not the applicant personally (at [50]). The IAA otherwise found that the applicant would not face a real chance of harm on the basis of his religion or ethnicity and it followed that he would not face a real risk of significant harm if returned to Afghanistan (at [51]).
The IAA was not satisfied the applicant met s.36(2)(aa) of the Act (at [52]).
The IAA affirmed the delegate’s decision not to grant the applicant the visa.
Proceedings in this Court
The applicant filed an amended judicial review application on 15 November 2019 containing two grounds of review. These grounds are noted and discussed below.
Ground 1
The Immigration Assessment Authority’s (Authority) failure to consider whether to exercise its discretion to seek further information pursuant to s.473DC of the Migration Act 1958 (Cth) (Act) was legally unreasonable.
a. The delegate determined that the Applicant’s home area was Logar province and when assessing his claims for complementary protection, accepted ‘that there is a real risk the applicant will suffer significant harm if he returns to his home area in Logar Province’, but found that it would be reasonable for him to relocate to Mazar-e-Sharif.
b. When assessing the Applicant’s complementary protection claims, the Authority rejected the delegate’s finding that the Applicant’s home area was Logar province and instead decided this should be Kabul.
c. The Authority concluded that the Applicant did not face a real risk of significant harm in Kabul.
Applicant’s Submissions
The applicant’s written submissions in relation to ground 1 can be summarised as follows:
a)the applicant’s family history in Afghanistan is tied to the Logar Province. It followed that the delegate determined the applicant’s home area to be the Logar Province. When assessing the applicant’s claims under the complementary protection provisions the delegate accepted ‘that there is a real risk the applicant will suffer significant harm if he returns to his home area in Logar Province’, but found that it would be reasonable for him to relocate to Mazar-e-Sharif;
b)in assessing whether the applicant met the complementary protection criteria under s.36(2)(aa) of the Act, the IAA rejected the delegate’s finding that the applicant’s home area was the Logar Province and instead decided that it was Kabul;
c)the IAA concluded that the applicant did not face a real risk of significant harm in Kabul. However, there is no evidence to suggest that the IAA exercised – or even considered exercising – its power under s.473DC of the Act to obtain information from the applicant in relation to the risk of significant harm he faced in Kabul;
d)this case is an example of the error identified in Minister for Immigration & Border Protection v DZU16 [2018] FCAFC 32 (“DZU16”) where the Full Federal Court found that it was legally unreasonable for the IAA to fail to consider whether to invite the respondent to comment on what became the basis for the decision to affirm;
e)similarly, in the present case, the IAA did not have information on the applicant’s fears of harm in Kabul because the proposition that Kabul was the applicant’s home area was not one that was explored – or the subject of findings – by the delegate; and
f)the discretion in s.473DC is to be exercised reasonably, and any failure to consider its exercise needs to be accompanied by an intelligible justification in relevant circumstances. In the present matter, there is no evident justification, let alone an intelligible one, for the IAA’s failure to consider whether to exercise this discretion. At the very least, the IAA needed to turn its mind to whether to extend an invitation to comment, even if it were to ultimately decide not to.
Before this Court, Mr Saul Jahnke for the applicant, explained that the applicant did not consider it was unreasonable for the IAA to have found that the applicant would return to Kabul and assess his harm in that area. Rather, it was unreasonable for the IAA not to have invited him to comment on this issue. It was explained that it is not the case that the IAA “moved the goal posts”. Rather, the IAA “moved to a different stadium entirely” from the delegate. On that basis, the applicant ought to have been invited to comment under s.473DC(3).
Mr Saul Jahnke referred the Court to the case of CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 (“CSO15”). He emphasised that, had the information been put to the applicant, the submissions he made and the case he put would have been entirely different. In effect, the applicant would have adopted a different strategy.
Minister’s Submissions
The Minister’s submissions in relation to ground 1 can be summarised as follows:
a)the decision in DZU16 is of little application to the circumstances of the present matter. The decision in DZU16 involve findings of unreasonableness which arose because the IAA made a relocation finding. In making such a finding, the IAA was required to consider what was ‘reasonable, in the sense of “practicable”, in terms of relocation’;
b)in this matter, the IAA made no relocation finding because it concluded that the applicant had never actually lived in Logar and was unlikely to return there. It was not required to consider whether it was reasonable or practicable for the applicant to relocate to Kabul (and to ensure that it had sufficient information to make that determination). Rather, the IAA determined whether, based on the applicant’s claims, he was a ‘refugee’ for the purposes of s.5H(1) of the Act;
c)the applicant claims that there is no evidence to suggest that the IAA ‘even considered’ exercising its discretion under s.473DC(3) of the Act. The fact that the IAA did not refer to, or explain, the exercise of that procedural power does not, of itself, lead to an inference that it failed to consider its exercise;
d)nonetheless, the applicant is seeking to radically expand the application of the principles of unreasonableness to cover any circumstance where the delegate and IAA decided the matter ‘on different bases’. This is contrary to authority that it is permissible for the IAA to reach different conclusions to a delegate on material matters;
e)even assuming that the applicant’s approach was available, the IAA did not act unreasonably in not exercising the power under s.473DC for the following reasons:
i)the applicant’s claims to fear harm were not expressed in terms of harm based on any particular geographic location. They applied equally throughout Afghanistan;
ii)before the delegate, the applicant was invited to explain the harms he might face in Kabul. He confirmed that his claims applied equally to Kabul and other cities in Afghanistan; and
iii)the applicant made claims about harms which he may face in Kabul.
f)this ground needs to be seen in the context of the applicant’s claims as a whole. The applicant’s claims are not made on the basis that he will return to Logar Province (or anywhere else specifically in Afghanistan) or that he fears harm based on his return to Logar Province. Rather, as stated in his summary of claims, his fear of harm relates to harm ‘throughout the whole of Afghanistan’;
g)the issue before the IAA was whether the applicant faced a generalised fear of harm on return to Afghanistan. He had an opportunity to make submissions on the non-location specific claims to fear harm. There was therefore nothing which was unreasonable about the IAA’s consideration of where the applicant may ultimately reside, and its assessment of these generic claims against the location, without seeking further information from the applicant about how these generic claims would arise if he were living in Kabul;
h)while before the IAA the applicant claims he fears ‘returning to his home region because militant groups from whom he fears harm maintain a presence there’ the remainder of his submissions on his ‘Shia faith’ deal with the fact that he may be the ‘target of radical anti-Shia militant groups operating in Afghanistan’. The applicant then refers solely to attacks on Shia’s in Kabul;
i)the error in DZU16 does not arise in this matter. The relevant findings in DZU16 were that the IAA ‘knew that it did not have, but the respondent was likely to have, information’, and that it did not have that information because the issue was not canvassed by the delegate. Here, the issue was explored by the delegate, such that no error is found;
j)the nature of the applicant’s claims, and the fact that he did not raise specific claims when asked about harm in Kabul by the delegate, meant that there was no information which the IAA did not know, or that it should have believed that the applicant knew. As such, the IAA did not act unreasonably in not exercising its powers under s.473DC.
Ms Oliver for the Minister highlighted that the applicant’s claims were not geographically specific. Rather, they related to the whole of Afghanistan. Ms Oliver disagreed that the applicant’s case or strategy would have been “entirely different” if Kabul were the applicant’s home area. As stressed, this was not a relocation case.
Ms Oliver referred the Court to the invitation to comment that was sent by the delegate (CB 110-116) which asked the applicant to provide reasons why he was unable to reside in Kabul (and other areas of Afghanistan). Ms Oliver referred the Court to the applicant’s response and noted, again, that the applicant’s response was broad and general and was not limited to one location or one area in Afghanistan. Hence, the applicant cannot say that, had he known the IAA was going to find he would return to Kabul and stay there, he would have adopted a different strategy.
Consideration
Section 473DC(3) of the Act provides:
…
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
It is well established that the discretion in s.473DC(3) is subject to the principles of reasonableness.
In circumstances where s.473DC represents a procedural discretion, there is no obligation on the IAA to provide reasons for exercising or not exercising that power: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [16].
In the absence of an obligation to provide reasons, the onus is essentially on the applicant to prove that the non-exercise of the discretion was legally unreasonable. Each case will be fact specific and the Court must evaluate the facts and circumstances as they arise on the materials.
In Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) the Full Court held that it was unreasonable for the IAA not to exercise the discretion under s.473DC(3) of the Act in circumstances where the IAA decided the review on the basis of relocation (noting that the applicant was not on notice that the IAA would be considering relocation and which was ultimately dispositive). At [82], the Court found:
… The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation…
In DZU16 (upon which the applicant here relies), the delegate found that the applicant in that case could safely return to Kabul. The IAA in that case found that the applicant could relocate to Mazar-e-Sharif. At [94], the Court echoed the statements that were made in CRY16 at [82].
It is not the case that the IAA is required to exercise the discretion in s.473DC(3) whenever it proposes to decide the review on a basis that differs from the delegate: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [72]; BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49.
Both DZU16 and CRY16 were cases where additional information was required that was necessary to complete the review (i.e. whether it was reasonable in the sense of practicable for the particular applicant to relocate).
In DCP16 v Minister for Immigration & Border Protection [2019] FCAFC 91, the Court noted that both CRY16 and DZU16 related to situations where the course of decision-making before the delegate meant that unless s.473DC(3) was exercised, the IAA could not complete its review (at [113]).
In CLL16 v Minister for Immigration & Border Protection [2018] FCA 348 (“CLL16”), it was found that, in circumstances where the applicant was clearly aware prior to the interview with the delegate that the question of relocation may arise, it was not unreasonable for the IAA not to exercise the power under s.473DC(3). It was noted that the applicant had addressed (in his initial statement) reasons why relocation to another part of Sri Lanka was not a reasonable option. It was also noted that the delegate had discussed the issue of relocation to Colombo with the applicant during the interview.
In AHN17 v Minister for Immigration & Border Protection [2018] FCA 1598 (“AHN17”), it was held that it was not legally unreasonable for the IAA not to exercise the discretion in s.473DC(3) in circumstances where the applicant had considered the question of possible relocation with specific reference to his previous relocation to Cairo. It was found that it was not essential for the IAA to consider seeking out further information from the applicant because he had already had an opportunity to address the issue of relocation and the fact that he had relocated previously did not make it necessary to focus intensely on the applicant’s particular circumstances.
Here, there is no issue of relocation. Rather, this matter relates to a finding about where the applicant will return to. Here, the delegate assessed the applicant’s claims on the basis that the applicant would likely return to the area where he was born. The IAA, however, assessed the applicant’s claims on the basis that he would likely return to Kabul. The IAA did not address the applicant’s claims on the basis that he would return to his home district. At [35], the IAA states as follows:
Despite his family history, on the applicants own evidence he no longer has any connection with Logar Province and has never actually lived there. If returned to Afghanistan, I conclude that the applicant would not choose to reside there. Country information indicates that the vast majority of returnees return to Kabul where there is a large Hazara Shia population. The applicant’s legal submission argues that he would not choose to live in an urban area in Afghanistan, but I observe this statement is offered in the context of the delegate finding the applicant could relocate to another city in Afghanistan. In any case, given the absence of any compelling reason for him to return to Logar I conclude that if returned to Afghanistan, the applicant would choose to reside in Kabul in preference to Logar Province.
The applicant submits that the applicant’s family “tied him” to Logar Province. In CSO15, the Court stated as follows:
42. The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed…
…
45.Read literally, that submission cannot be accepted. A decision-maker will not perform the task required of her or him if she or he simply searches for “a place” within a country of nationality where a particular applicant will not have a well-founded fear of persecution. The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.
46. If a decision-maker finds the place to which an individual is likely to return is one where the individual’s fear of persecution is well-founded, or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return, and then engage in the same fact finding.
Here, the IAA took a different view to the delegate in relation to where the applicant would return to.
The IAA was entitled to do so in circumstances where:
a)the applicant’s evidence was that he had only been to Logar Province once (for a few days), that he stayed with people there that he does not know and that he does not have contact with those people anymore (CB 73 at [29]);
b)he did not know anyone in Afghanistan and if he returned to Afghanistan he would have nowhere to live in Afghanistan;
c)the country information indicated that most returnees settled in Kabul on return.
The issue in this case is not whether the IAA erred in finding that the applicant would likely return to Kabul. Rather, the issue is whether the IAA should have asked the applicant to comment on whether Kabul was his “home area” and the risk of harm he faces in Kabul (given that this had not been the subject of any findings or exploration by the delegate).
The Court is satisfied that it was reasonable (in the circumstances of this case) for the IAA to not exercise, or consider exercising, the discretion in s.473DC(3) and seek the information the applicant says should have been sought.
As the Minister submits, the applicant’s claims were (largely) not geographically specific to the Logar Province. The applicant does refer to the Taliban and Daesh as having a “local presence”. However, the substance of the applicant’s claims were that he feared harm in Afghanistan generally. This is important.
The circumstances here differ from what is seen in DZU16 and CRY16. The decision does not lack an intelligible justification as it cannot be said that there was information that the IAA knew that it did not have, but the applicant was likely to have. This is so because, here, the delegate had specifically asked the applicant to address why he could not reside in Kabul. While this was not the subject of any finding by the delegate, it was a matter that was explored by the delegate during the course of the delegate’s decision-making process.
Here, the applicant was specifically asked to provide information about why he could not reside in Kabul or Mazar-e-Sharif or another area in Afghanistan (CB 114). That is, the applicant was asked to make geographically specific claims. The applicant’s response was as follows (CB 120):
…So how I can be reside in such a country or city you mentioned to me which is not safe at all and recently how many bomb blasts occurs in those cities and killeds hundreds of people and as u know all these on news and after all I never lived their so I don’t know the area and people around were is safe and where not and if I go their so my future will be dark or my life can be finshed very easlliy…
(Without alteration)
The applicant’s claims in relation to specific regions as identified by the delegate were not differentiated. The applicant indicated that he held the same fears of harm in all of the “cities”.
Further, in submissions to the IAA, the applicant’s agent made express reference to the situation in Kabul. In particular, the agent highlighted a number of attacks against Shia in Kabul and also made reference to the “reasonability of relocation” in Kabul. Although referencing “relocation”, this nonetheless addressed the applicant’s concerns as to why he was unable to return to Kabul.
As was the case in CLL16 and AHN16, the applicant was on notice that he should address why he could not return to Kabul. The applicant’s submissions about Kabul were, like his claims in general, based upon his religion and violence generally.
When considered as a whole, it was not unreasonable for the IAA to not have exercised, or considered exercising, the discretion under s.473DC(3) of the Act. There was no additional information required by the IAA in order to complete the review. Alternatively, it was not unreasonable for the IAA to consider that it already had the information necessary to complete the review in light of the delegate’s request for information and the migration agent’s submissions in response.
Ground 1 is, accordingly, dismissed.
Ground 2
The Authority’s failure to consider whether to exercise its discretion to seek further information pursuant to s.473DC of the Act was legally unreasonable in circumstances where its basis for refusal was different to the basis relied upon by the delegate, and not able to be anticipated from the delegate’s reasons.
a. The Authority failed to consider the risk of harm the Applicant would face in Afghanistan as a failed asylum seeker from a western country. The claim is referred to at CB 134 [2]-[9] and CB 135 [1]-[3].
b. When the Authority assessed the Applicant’s claims for protection, it expressly decided not to consider this claim: CB 195 [42]-[43].
Applicant’s Submissions
The applicant’s submissions in relation to ground 2 can be summarised as follows:
a)the delegate stated that ‘[w]hile the applicant has not expressly stated that he fears harm after residing in a western country for an extended period of time, I have assessed whether the applicant as a Shia who has lived outside of Afghanistan combined with the fact that he has sought asylum in Australia may lead him to being perceived to be a supporter of the Afghan government of International community by the Taliban or other insurgent groups.” The delegate went on to consider whether the applicant would have an actual or imputed political opinion as a failed asylum seeker from the West;
b)however, when the IAA assessed the applicant’s claims for protection, it expressly decided not to consider the claim related to the applicant’s political opinions – imputed or otherwise;
c)it is well established that the IAA is required to not only ‘consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body’;
d)given that the delegate identified the claim, provided country information in support of it, and assessed it (albeit in a manner which was ultimately unfavourable to the applicant), it cannot be said that this claim did not arise ‘clearly or squarely on the material before that review body’;
e)when reviewing a decision under s.473CC of the Act, the IAA must consider information that becomes available to it under s.473CB: the Act, s.473DB. The effect of this is that the IAA was required to consider the delegate’s decision;
f)importantly, the IAA was not relieved of its obligation to consider this claim simply because neither the applicant nor his agent put forward further evidence in support of it to the IAA. It is not the case that the applicant did not press the claim or advance the claim at all;
g)here, the claim in question squarely arose from the material before the IAA, specifically in the delegate’s decision record which the IAA was compelled to consider. The core statutory function of the IAA is to review the delegate’s decision and the IAA was obliged to consider all of the claims arising on the material before it – including this claim as identified by the delegate; and
h)in these circumstances, the IAA failed to consider whether the applicant faced a real chance of persecution or real risk of significant harm for reasons of him being a Shia failed asylum seeker returning to Afghanistan from a Western country and thereby fell into jurisdictional error.
At hearing, Mr Saul Jahnke for the applicant accepted that the relevant claim was not raised by the applicant. Rather, it was raised by the delegate. However, it was stressed that the delegate’s decision was before the IAA and was, therefore, a claim that arose on the materials before the IAA. Further, it was argued that it is not the case that the applicant’s claim was abandoned simply because he made no submissions on it. Rather, the applicant simply did not advance the claim any further before the IAA. Silence, counsel submitted, does not amount to an abandonment – particularly in the context of a review before the IAA.
Minister’s Submissions
The Minister’s submissions in relation to ground 2 can be summarised as follows:
a)the applicant claims that the IAA was compelled to consider a claim not raised by him but which was nonetheless considered by the delegate. The applicant does not point to any part of the evidence where this claim was said to arise independently of the delegate’s decision;
b)it is clear that the delegate understood that this claim was not ‘expressly stated’ by the applicant. The delegate’s consideration of this claim arose out of an overly cautious approach. The delegate was by no means required to consider or address the claim;
c)the statutory framework under pt.7AA makes it clear that the IAA is entitled to reach its own conclusions regarding the material forwarded to it by the Secretary. It is well established that the IAA, in conducting a review of the delegate’s decision, is to conduct its review de novo and is entitled to ‘determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met’ on the information provided to it under s.473CB;
d)further, s.5AAA(2) of the Act states that it is the responsibility of an applicant to specify all particulars of his or her claim, with supporting evidence, to make out a claim for protection;
e)having been put on notice by the delegate’s decision of a potential claim which could be made, but which the applicant had not stated, the applicant took no steps to advance such a claim before the IAA; and
f)the applicant did not advance a claim to fear harm due to his time spent in a western country. The IAA was under no obligation to consider this claim.
Ms Oliver for the Minister did not agree that the delegate’s decision was a claim made by the applicant that thereby required consideration. In particular, Ms Oliver referred to [20] of the IAA’s Practice Direction and noted that the applicant did not advance the claim addressed by the delegate in any way. As such, it was not a claim the IAA was required to address.
Consideration
The issue here arises from what the IAA says at [42]-[43] of its decision, which provide:
42. I observe that in the s.65 decision, the delegate considered whether the applicant would face harm as a failed asylum seeker from a western country and ultimately concluded that he would not. The applicant has not put forward this claim, or any suggestion along these lines. I note the applicant has had multiple opportunities to put forward his full claims including in his 2016 SHEV application, his 2017 protection visa interview and his 2018 legal submission to the IAA. He has not made this claim at any time. He was assisted to prepare his written claims by a not-for-profit, migration assistance service which aims to support asylum seekers and is now represented by a migration agent in his dealings with the IAA who prepared his legal submission.
43. I have carefully considered the applicant’s case. I do not consider such a claim arises on the material, either squarely or otherwise. I observe that ‘fast-track’ statutory context is intended to encourage applicants to put forward all their claims and supporting information upfront and does not permit the IAA to consider new claims other than in exceptional circumstances. There appears to be nothing in this context to suggest any obligation on the part of the IAA to consider a claim that has not been made, and is not apparent on the material. I have concluded that this claim does not arise, notwithstanding the decision by the delegate to consider this issue.
In this matter, the delegate expressly stated (CB 134):
While the applicant has not expressly stated that he fears harm after residing in a western country for an extended period of time, I have assessed whether the applicant as a Shia who has lived outside of Afghanistan combined with the fact that he has sought asylum in Australia may lead to him being perceived to be a supporter of the Afghan government or International community by the Taliban or other insurgent groups.
It is well accepted that a decision-maker is required to consider a claim that is expressly made or clearly arises from the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] and [68].
Section 473CB(1)(a) of the Act requires the Secretary to provide the IAA with the delegate’s decision. The delegate’s decision forms part of the “review material”. Section 473DB provides as follows:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB
In circumstances where the delegate’s decision is “review material” and the delegate addressed a non-articulated claim, the question arises: did the claim arise from the materials before the IAA such that the IAA was required to address it?
Here, the applicant references AZW16 v Minister for Immigration & Anor [2018] FCCA 2229 (“AZW16”) at [27]-[31] in support of his argument.
AZW16 is not entirely applicable to the circumstances of this case. In AZW16, the applicant did actually make a claim in their statement (which was before the delegate) and the substance of that claim was also recorded in the delegate’s decision. Here, the applicant did not, at any time, claim to fear harm as a result of being a failed asylum seeker from the West. This was not disputed before this Court. Rather, Mr Saul Jahnke stated that in AZW16 at [30], it appeared that the Court indicated that the claim arose from the statement and the delegate’s decision. Hence, just one of those would suffice. Here, the delegate’s decision was enough.
While it is true that the applicant did not advance any claim of the sort evident here and that the delegate had no obligation to assist the applicant in advancing a claim (s.5AAA of the Act), the fact that the delegate did so meant that the IAA was required to address it.
The delegate’s decision is “review material”. The IAA must consider the “review material”. It is more than arguable that, here, a claim “arose on the materials” before the IAA (i.e., from the delegate’s decision itself). The delegate went into some detail when addressing whether the applicant would face any harm as a result of being a failed asylum seeker.
In these circumstances, it is at least arguable that a “claim” arose from the review material.
Despite that finding, the Court is not required to determine this point conclusively. That is so because, here, on the specific facts of this matter, it is evident that the claim was withdrawn or not pressed by the applicant.
In the context of a review before the IAA, the Minister referred to BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 at [51]:
However, whilst the delegate’s decision provides a starting point, the Authority is not confined to the issues that the delegate considered and nor is the Authority necessarily bound to consider all issues considered by the delegate. As the task of the Authority is to consider the application for a protection visa afresh, the Authority is not bound to consider matters determined by the delegate but which are no longer in issue. Just as new claims may be made, claims made before the delegate may be withdrawn or abandoned. The Authority’s task is to conduct a review in relation to those claims that are extant. It is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa. The Authority need not conduct a review in relation to a case not advanced by a visa applicant: see NABE at [60] and [62] (Black CJ, French and Selway JJ) and SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [16]- [17] (Bromberg J).
Both parties referred to the IAA’s Practice Direction in arguing that the claim was not or was abandoned. Relevantly, [20] of the Practice Direction states:
For the purposes of the review, you may provide a written submission on the following:
• why you disagree with the decision of the Department
• any claim or matter that you presented to the Department that was overlooked
Here:
a)the applicant did not himself expressly state that he feared returning to Afghanistan because of his political opinion at any time. In effect, the claim was not ever pressed by the applicant. On that basis, the applicant’s silence was, in the Court’s view, significant;
b)the applicant’s agent did not put forward any submissions about the risk or chance of harm arising from the applicant being a failed asylum seeker. The applicant was on notice that the delegate had raised this unarticulated claim and, despite having assistance with his application before the IAA, the applicant’s submissions did not address this in any way; and
c)critically, no submission was made about why the delegate was incorrect to find that no risk or chance of harm would emerge as a result of the applicant being a failed asylum seeker or why the applicant disagreed with the finding. Here, the fact that the applicant did not disagree with the delegate’s finding that he would not face harm because of the unarticulated claim can be seen to strongly indicate that he had withdrawn or abandoned the claim and had simply accepted the delegate’s finding.
Each case is fact specific. Here, once it was clear on the evidence that the applicant had withdrawn (or did not press) a claim to fear harm, the IAA was under no obligation to assess that claim, even though it formed part of the review material before the IAA.
In light of the above, it cannot be said that any jurisdictional error arises in relation to ground 2.
Conclusion
The application for judicial review has failed to identify any error in the IAA’s decision.
The application, accordingly, is dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 March 2020
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