Etr17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 632
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ETR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 632
File number(s): SYG 3298 of 2017 Judgment of: JUDGE LAING Date of judgment: 10 August 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority affirming decision not to grant a Temporary Protection (Subclass 785) visa – whether the Authority failed to substantively perform its statutory task to conduct a review – whether the Authority unreasonably failed to consider exercising its power under s 473DC(1) of the Migration Act 1958 (Cth) in relation to the updated DFAT reports – application dismissed. Legislation: Evidence Act 1995 (Cth) ss 56, 60, 69, 81(1)
Migration Act 1958 (Cth) ss 5J(1)(a), 5J(4)(a), s 473DC(1)
Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
BDI17 v Minister for Immigration & Anor [2018] FCCA 2162; 339 FLR 147
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 8 June 2022 Place: Sydney Counsel for the Applicant Ms J. Ambikapathy appeared in person Solicitor for the Applicant Mr J Moyes of D'Ambra Murphy Lawyers Counsel for the First Respondent Ms A. Carr appeared in person Solicitor for the First Respondent HWL Ebsworth Lawyers Counsel for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG 3298 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ETR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
10 August 2022
THE COURT ORDERS THAT:
1.The application 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 LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Subclass 785) visa (protection visa).
BACKGROUND
The applicant in these proceedings is a citizen of Afghanistan who is a Shia Hazara from the Maidan Wardak Province. He arrived in Australia as an unauthorised maritime arrival on 24 May 2013.
The applicant applied for the protection visa in August 2016. On 20 January 2017, the applicant attended an interview with a representative of the Department of Immigration and Border Protection (as it was).
The application was refused by the Delegate on 6 February 2017. It was referred to the IAA on 9 February 2017.
On 27 September 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA noted that it had obtained new country information on the security situation for Shia Hazaras in Afghanistan and that the information relied upon by the Delegate did not refer to the then recent attacks against Shias in Kabul in 2017. Given that the situation in relation to the Islamic State and other insurgent groups in Afghanistan remained ‘highly fluid’, the IAA was satisfied that exceptional circumstances justified considering the new information (at [4]).
The IAA accepted that the applicant was an Afghan national from the Maidan Wardak Province and a Shia Hazara who attended mosque on a semi-regular basis (at [8]).
The IAA expressed some concerns in relation to the applicant’s evidence regarding his language skills and work history. The IAA stated that it was concerned that the applicant was “either deliberately concealing his work history in Australia, or that he is actively choosing not to work so as to weaken his prospects of being able to successfully return to Afghanistan”. Whilst the IAA accepted that he had not found work or worked in Australia, the IAA did not accept that the barriers he claimed to have experienced in doing so were genuine. The IAA considered that the applicant had work experience, a strong work ethic and personal drive, and some English abilities. The IAA considered that this gave him the skillset to find work in Australia and Afghanistan should he choose to do so (at [9]-[22]).
The IAA accepted that the applicant and his family were from Maidan Wardak and left for Iran in the 1990s. Based on the country information before it, the IAA accepted that the applicant’s family owned property in Maidan Wardak. Whilst the IAA did not accept that the applicant would be specifically targeted by the Taliban due to his ethnicity or religion, it accepted that there was more than a remote chance that he would be seriously harmed in that area either by persons who had occupied his family’s land or by Kuchi nomads intending to occupy or use the land in the future. The IAA therefore accepted that there was a real chance of the applicant being seriously harmed if he returned to live in his home area. It did not accept that this risk extended to all areas of Afghanistan, specifically Kabul or Mazar-e-Sharif (at [23]-[30]).
Relying upon the country information that was before it, the IAA considered the risk to the applicant of being seriously harmed on the roads in Afghanistan because of his religious and ethnic profile to be present, but remote. Having regard to the applicant’s profile and available country information, the IAA did not accept that the applicant faced a real chance of being seriously harmed in Kabul or Mazar-e-Sharif by the Taliban, Islamic State or any person or group active in those areas in by reason of his religion, ethnicity or any imputed profile. Whilst the applicant may face some societal or official discrimination, the IAA found that this would be low level, infrequent and would not amount to serious or significant harm (at [31]-[48] and [71]).
The IAA did not accept that the applicant faced serious harm on the basis of his time spent living in Iran. The IAA accepted that the applicant speaks with an Iranian accent. However, having regard to the large migration flow of citizens between Afghanistan and Iran, the IAA did not accept that the applicant faced a real chance of serious harm for this reason at [49]-[53]).
The IAA also did not accept that the applicant was at risk of relevant harm because of his time in the west. The IAA noted that the applicant had arrived in Australia in his twenties, after growing up in Afghan Shia Hazara communities in Iran. It found that any western mannerisms picked up during his time in Australia would likely be minimal and unremarkable. The IAA further found that the applicant would be able to take reasonable steps to modify his behaviour in order to avoid harm. In any event, the IAA considered that country information did not support the applicant facing a real chance of relevant harm in Kabul or Mazar-e-Sharif due to his time spent in Iran and Australia (at [49]-[63]).
Whilst the IAA accepted that there were genuine security risks in Kabul and Mazar-e-Sharif, it found the risk of the applicant being seriously harmed in generalised violence was remote having regard to the applicant’s profile, government control and the size and diversity of the populations in those areas. Further, the IAA found that generalised violence in those cities would not satisfy s 5J(1)(a) or s 5J(4)(a) of the Migration Act 1958 (Cth) (the Act) (at [64]-[65]).
The IAA concluded that the applicant did not face a real chance of serious or significant harm in Kabul and Mazar-e-Sharif (at [67] and [74]).
The IAA considered that the security situation in Mazar-e-Sharif was not such that it would be unreasonable for the applicant to relocate there (at [75]).
The IAA considered the applicant’s submissions that without family, friendship and tribal networks he would be unable to find work or subsist in Afghanistan. The IAA accepted that it would be difficult for the applicant to relocate within Afghanistan without family or tribal links. However, country information indicated that single able-bodied men of working age without specific vulnerabilities may be able to subsist without family or community support. The IAA observed that the applicant had been able to forge relationships with other Hazaras in Australia. Whilst acknowledging that Afghanistan was a very different context, the IAA weighed positively his ability to develop such relationships (at [76]-[77]).
The IAA did not accept the applicant’s contention that his inability to find work in Australia demonstrated his inability to find work elsewhere. The IAA considered that his work experiences in Iran better reflected his situation than his claimed situation in Australia. The IAA noted that the applicant had given reasons for not finding work in Australia that included a lack of motivation/preference as well as study and language barriers (at [78]).
The IAA acknowledged that accessing income earning opportunities was one of the greatest challenges for returnees. Whilst the IAA accepted that conditions may be challenging in Kabul and Mazar-e-Sharif, it considered that the applicant was “young and able bodied” and had the benefit of education, work experience, language skills as well as the ability to seek out reintegration support if available. These factors led the IAA to conclude that the applicant would be able to find work, accommodation and access to services (at [79]-[80]).
Whilst the IAA accepted that the applicant’s work may not be high level or high-paying to begin with, it considered that he would be able to earn a livelihood and establish himself in an area of Mazar-e-Sharif which provided necessary infrastructure and services. The IAA did not accept that the applicant would be unable to subsist or become destitute if he lived in Mazar-e-Sharif. On balance, it considered that these factors would support him in successfully relocating and make it reasonable for him to do so (at [81].
The IAA accepted that the applicant had no current status or residence permission in Iran, and that he would not be able to return to Iran to visit his family. The IAA accepted that this would be difficult for the applicant. However, the IAA noted that the applicant’s father had recently travelled and stayed for a period of time in Afghanistan. As his family were nationals of Afghanistan and possessed refugee cards in Iran, it considered that the family may be able to visit the applicant in the future. Moreover, the IAA considered that these difficulties would exist regardless of where the applicant lived in Afghanistan. The IAA did not consider that this factor meant that it would not be reasonable for the applicant to relocate (at [82]).
The IAA considered that the applicant’s ties to Maidan Wardak were only historical in nature and that he had no need to travel there. The IAA did not consider that it would be unreasonable for him to live and stay in Mazar-e-Sharif in order to avoid harm elsewhere in Afghanistan (at [83]).
The IAA did not consider that this would constitute serious or significant harm. If the applicant was to relocate to Mazar-e-Sharif, the IAA accepted that he would likely be returned to Kabul first. The IAA considered that the risk of the applicant being harmed in an attack around the airport or on the roads was remote. It did not consider that previous insecurity on the roads or around the airport precluded safe access to Mazar-e-Sharif or meant that it was not reasonable for the applicant to relocate there. The IAA considered that the applicant would be able to safely access Mazar-e-Sharif from Kabul (at [84]).
The IAA concluded that it would be reasonable for the applicant to relocate to an area of the country such as Mazar-e-Sharif where there would not be a real risk that he would suffer significant harm. As the IAA was satisfied that the applicant could relocate to Mazar-e-Sharif, and by reference to s 36(2B) of the Act, the IAA found that the applicant was not a person to whom protection obligations were owed. Accordingly, the IAA affirmed the Delegate’s decision (at [85]-[86]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings on 25 October 2017. An amended application for judicial review was filed without objection on 8 June 2022, pressing grounds of judicial review which were as follows:
2.The IAA failed to substantively perform its statutory task to conduct a review.
Particulars
a. The Updated DFAT Reports were credible, relevant and significant;
b. The IAA made a finding that exceptional circumstances justified the receipt of new country information;…
d. The Updated DFAT Reports were available to the IAA;
e. The IAA did not consider the Updated DFAT Reports and failed to consider whether to have regard to review of the information under ss 473DC and 473DD.
3.The IAA acted unreasonably in failing to consider whether to exercise its power under s 473DC(1) of the Act.
Particulars
a. The “DFAT Thematic Report, Hazaras in Afghanistan” and the “DFAT Country Information Report” dated 18 September 2017 (Updated DFAT Reports) were credible, relevant and significant.
b. The IAA made a finding that exceptional circumstances justified the receipt of new country information.
c. The Updated DFAT Reports were available to the IAA.
d. There were material differences between the DFAT Reports relied upon by the IAA and the Updated DFAT Reports relevant to the Applicants claims.
e. It was legally unreasonable for the IAA not to have considered exercising its power under s473DC(1) of the Act to get the Updated DFAT Reports.
CONSIDERATION
There is considerable overlap between the grounds relied upon by the applicant. Both take issue with the fact that the Updated DFAT Reports were not referred to in the IAA’s decision. Ground 1 contends that the IAA’s non-consideration of the reports amounted to a constructive failure to perform its statutory task. Ground 2 contends that the IAA unreasonably failed to consider exercising its power under s 473DC(1) of the Act in relation to the reports.
Evidence
In support of the grounds, the applicant sought to rely upon three affidavits:
(a)an affidavit affirmed on 13 May 2022 annexing reports from 2015 and 2016 (Earlier DFAT Reports);
(b)an affidavit affirmed on 13 May 2022 annexing the Updated DFAT Reports; and
(c)an affidavit affirmed on 6 June 2022 annexing extracts from a decision of the IAA dated 9 October 2017 (Other IAA Decision). The Other IAA Decision identifies the decision maker in that case (Reviewer) as the same Reviewer as that in the decision under review in the present case. It refers to copies of two new DFAT reports on Afghanistan having been provided by the applicant’s representative in that case on 19 September 2017. It is apparent from the context and footnotes within the decision that the new reports were the Updated DFAT Reports.
On behalf of the Minister, Ms Carr made no objection to the admissibility of the Earlier DFAT Reports or the Updated DFAT Reports. Objection was, however, taken to the Other IAA Decision. In post-hearing submissions, two objections were pressed and developed by Ms Carr, on the basis of relevance and hearsay.
The Other IAA Decision is relevant to the matters contended by the applicant, including that the Updated Reports were available to the IAA. The evidence is also relevant to the applicant’s contention that the case of APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17), which is relied upon by the Minister and considered further below, is distinguishable. In these circumstances, I do not accept that the low threshold posed by s 56 of the Evidence Act 1995 (Cth) is incapable of being met. Whether I accept the applicant’s arguments regarding the significance of the evidence is, of course, another question.
I also do not accept that the evidence ought to be excluded under the hearsay rule. The evidence is admissible for at least one non-hearsay purpose i.e. demonstrating the knowledge or state of mind of the Reviewer. Section 60 of the Evidence Act 1995 (Cth) therefore applies. I also accept Ms Ambikapathy’s argument that the evidence is capable of being regarded as an admission by the second respondent for the purposes of s 81(1) of the Evidence Act 1995 (Cth). It is, on the face of it, adverse to the IAA’s interest in the outcome of the proceeding. This is because it is relied upon by the applicant in support of his arguments that the IAA’s decision is affected by jurisdictional error. Given my conclusions in this regard, it is not necessary for me to determine whether the document is additionally a ‘business record’ for the purposes of s 69 of the Evidence Act 1995 (Cth).
I would therefore not exclude the Other IAA Decision on the bases relied upon by the Minister.
Grounds
In support of the grounds of his application, the applicant relied upon the decision in BDI17 v Minister for Immigration & Anor [2018] FCCA 2162; 339 FLR 147 (BDI17). In that case, it was considered that “[a]t the very least, the [IAA] should consider getting any updated DFAT report on the country of reference where it is reasonably practicable to do so” (at [70]). The IAA’s failure to do so despite the report in question being available nearly a month before its decision was found to have been legally unreasonable (at [71]-[72]).
A different outcome was reached in the later decision of APH17. In that case, the applicant also contended that the IAA’s failure to consider obtaining an updated DFAT report under s 473DC of the Act was legally unreasonable. After considering the statutory context of s 473DC and case law relevant to the applicant’s argument, the Court reasoned as follows:
56. The appellant submits that I would draw two inferences: first, that the Authority did not have the 2017 Report before it; and secondly, that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report or, perhaps more accurately, to ensure that it had the current DFAT report before it. I accept that the former, but not the latter, inference is available.
57. As to the former, in its decision record the Authority refers to the 2015 Report on a number of occasions as well as to other country information including, for example, UK Home Office, “Sri Lanka: Tamil Separatism Version 2.0”, 19 May 2016 and US Department of State, Sri Lanka - Country Report on Human Rights Practices 2015”, 13 April 2016. In contrast, it makes no reference to the 2017 Report. Had the 2017 Report been before the Authority, it is likely that it would have referred to it in its decision record.
58. As to the latter, there is nothing in the Act that requires the Authority to give reasons for the exercise or non-exercise of its discretionary powers under Pt 7AA of the Act. That the Authority did not mention, in this case, the discretion conferred by s 473DC of the Act does not support the drawing of an inference that the exercise of the discretion was not considered by it: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].
59. Thus I would not infer that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report simply because of the lack of a reference to undertaking that assessment in its decision record. There is nothing to suggest that such an inference should be drawn. For example, there is no evidence that the Authority was aware that the 2017 Report had been published. The appellant accepts that the Authority did not have constructive knowledge of its existence at the time it made its decision. It is equally open to infer, based on the facts of this case, that the Authority did turn its mind to whether there was a more up-to-date DFAT report available but it did so prior to the publication of the 2017 Report, which occurred only six days prior to the date of the Authority’s decision. This demonstrates the danger in drawing the inference urged by the appellant.
60. Putting that to one side, even assuming that the Authority failed to consider the exercise of the discretion under s 473DC to get the 2017 Report, it was not legally unreasonable for it not to do so in this case. As set out above, what is reasonable must be considered in the context of the statutory scheme. The exercise of discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority does not have a duty, among other things, to get or request new information: see CCQ17 at [32]. As Thawley J further observed in CCQ17 at [48], the statutory scheme contemplated by Pt 7AA is one of limited review on the papers with a default position of not accepting or requesting new information pursuant to s 473DB(1). In that context, any failure to consider the exercise of the discretion under s 473DC could not be seen as unreasonable: see Peko-Wallsend at 45; SZJTQ at [40]. That is particularly so in circumstances where there is no evidence that the Authority had actual knowledge of the 2017 Report and it is accepted by the appellant that the Authority did not have constructive knowledge of its existence at the time it made its decision.
I find that the above reasoning applies in the present case. Whilst the IAA did obtain some updated country information before making its decision, it did not state whether or not it considered the availability of updated DFAT information at that or any other time. The lack of reference to the discretion under s 473DC of the Act is an insufficient basis to find that its exercise was not considered.
The applicant sought to distinguish APH17 by reference to the IAA’s findings in this case that exceptional circumstances justified consideration of other updated country information due to further attacks and the ‘highly fluid’ nature of the situation. However, this does not establish whether or not the availability of updated DFAT information was considered. As was found in APH17, it may be that the IAA considered whether such updated information was available prior to publication of the Updated DFAT Reports. Even assuming that the report was published and generally available at the date of the documents, this was only 9 days prior to the IAA’s decision. This was a similar timeframe to that considered in APH17 at [59].
Absent evidence of knowledge on the part of the IAA, as constituted in this case and prior to the decision under review, I consider that I would be obliged to follow APH17 in declining to find that the IAA’s non-exercise of the discretion under s 473DC(1) was unreasonable. I would reject that the IAA “failed to substantively perform its statutory task” for similar reasons. The latter ground (ground 2) was premised upon similar arguments to ground 3, including that the IAA failed to consider exercising its discretion to obtain and consider the Updated DFAT Reports. To the extent that separate submissions were made by the applicant in respect of the ground, they were brief in nature. The applicant did not explain how the ground would be able to succeed if I did not accept his arguments seeking to distinguish APH17.
The applicant additionally sought to distinguish APH17 by reference to the Other IAA Decision. This document was said to demonstrate that the IAA was aware of the Updated DFAT Reports from at least 19 September 2017 and that they were available to the IAA from at least that time.
As was submitted by Ms Carr for the Minister, however, at most the Other IAA Decision demonstrates knowledge on the part of the IAA as constituted by the Reviewer by the time of their decision in the other matter on 9 October 2017. Even if the reports were provided to the IAA more generally on 19 September 2017 in connection with another review, there is no evidence that they would have been communicated to the Reviewer in question at that time. Ms Ambikapathy accepted at hearing that IAA reviewers would not generally be taken to have constructive knowledge of all country information that had been received by the IAA within the context of other reviews.
The Practice Direction suggests that documents may be provided to the IAA generally at specified addresses. However, I do not have specific evidence before me regarding the process or timing of document or case allocation to particular decision makers at the IAA. The evidence relied upon by the applicant only establishes that this particular Reviewer was aware of the Updated DFAT Reports by 9 October 2017. That date was nearly two weeks after the decision under review.
I therefore do not accept that the knowledge of the IAA in the present case is capable of distinguishing it from APH17.
Given my findings above, it is unnecessary for me to determine the issue of materiality. Even if I had accepted that the numerous differences between the reports relied upon by the applicant were capable of affecting the outcome of the review (either singularly or in combination), I would not have concluded that the grounds relied upon by the applicant were able to succeed. This is because, for the reasons given above, I do not accept that it has been established that the IAA as constituted had knowledge of the Updated DFAT Reports even if it was available to them publically or through some investigation of the IAA’s records. In the absence of such knowledge, I do not accept that this case is relevantly distinguishable from APH17. The same outcome must therefore follow in the present case.
CONCLUSION
For the above reasons, I conclude that the application must be dismissed.
I will hear from the parties in relation to costs.
1 I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 10 August 2022
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