FES17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1003
Federal Circuit and Family Court of Australia
(DIVISION 2)
FES17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1003
File number(s): SYG 3692 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 7 December 2022 Catchwords: MIGRATION – Application for judicial review – whether the Immigration Assessment Authority failed to lawfully apply s.473DD of the Migration Act 1958 (Cth) – whether the Authority failed to properly consider the claim – whether the Authority failed to consider relevant information – whether the Authority breached the no evidence rule – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss. 473CB, 473CC, 473DD
Evidence Act 1995 (NSW), s. 55
Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707Azam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 661
CD v Central Gippsland Health Service [2022] VSC 462
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Wang v Australian Securities and Investments Commission [2019] FCA 1178
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 3 August 2022 Place: Parramatta Counsel for the Applicant: Mr Chatterjee Solicitors for the Applicant: D’Ambra Murphy Lawyers Counsel for the First Respondent: Mr Johnson Solicitors for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 3692 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FES17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
7 December 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent (“Authority”) dated 1 November 2017 to affirm the decision of a delegate (“delegate’s decision”) of the first respondent (“Minister”) to refuse to grant the applicant a subclass XE-790 Safe Haven Enterprise Visa (“Authority decision”).
2.A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473CC of the Migration Act 1958 (Cth) for review of the delegate’s decision.
3.A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority’s decision.
4.The Minister pay the applicant’s costs as agreed or assessed.
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 OBRADOVIC:
This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”), made on 1 November 2017, which affirmed the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) not to grant the applicant a protection visa, subclass XE-790 Safe Haven Enterprise Visa (“visa”).
Background
The applicant is a citizen of Afghanistan of Hazara-Sayed ethnicity and is a Shia Muslim.
On 26 March 2016, the applicant applied for a visa on the basis that he feared harm from the Taliban and Daesh due to his ethnicity and faith, and by reason of his connection with his father’s involvement with anti-Taliban campaigns. The applicant also claimed to fear harm on the basis that he would be a returnee from a Western Country.
In support of his application, the applicant raised the following:
(a)That in or around 1998, his father was killed by a roadside bomb which had been planted by the Taliban, following his father’s participation in a village council meeting which determined that the village would fight against the Taliban;
(b)That his family received threats from the Taliban and as a result the applicant, his siblings, and his mother fled to Quetta, Pakistan;
(c)That living in Pakistan was difficult. They had no legal documents and they had no proper access to medical services, education, and work, and constantly feared being deported from Pakistan;
(d)That Pakistani extremist militant groups were responsible for the deaths of at least 2000 Hazara people (not including those that have been injured) in Quetta;
(e)That he returned to Kabul, Afghanistan in May 2012 to see whether he could return his family back home, noting that at that point there had been the presence of Western and Afghan security forces for some time;
(f)That he then began volunteer work in Afghanistan with a UK registered international non-profitable organisation aimed at providing humanitarian efforts, which involved him travelling to camps to distribute food and water;
(g)That he was told by co-workers that people working for such organisations, such as him, were never safe from the Taliban by reason of their involvement with Western funded organisations. Particularly, at that time the Taliban controlled the majority of the roads across Afghanistan and were killing tens of people every week, and that it was especially dangerous for those associated with international organisations and the Afghan Government;
(h)That he returned to Pakistan after approximately two months in Afghanistan. The situation in Pakistan for Hazara people had worsened by this time and everyone was afraid to go out;
(i)That he is unable to now return to Pakistan because he has no right to residency and that he fears harm from Pakistani extremist groups by reason of his Hazara ethnicity;
(j)That he is unable to return to Afghanistan as he fears that he will be persecuted because of his father’s involvement in an anti-Taliban campaign, and that he will be subjected to serious harm by reason of his ethnicity and Shia faith from not only the Taliban but also groups who have recently gained power; and
(k)That he fears serious harm from the Taliban and other anti-government groups, as returning failed asylum seeker from a Western Country.
The applicant participated in an interview with the delegate on 2 February 2017.
On 20 February 2017, the applicant’s visa application was refused by the delegate. The delegate found that the applicant could reasonable relocate to another province in Afghanistan where he would not face a real chance of persecution or a real risk of significant harm.
On 23 February 2017, the delegate’s decision was referred to the Authority for fast track review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
The Authority’s Decision
On 1 November 2017, the Authority determined the applicant’s case. It affirmed the decision of the delegate not to grant a visa. It is noted that the applicant (through his legal representatives) provided a number of documents to the Authority for consideration consisting of articles, reports and submissions. The Authority in their reasons[1] have provided reasons as to whether these documents have been considered particularly as new information pursuant to section 473DD of the Act.
[1] At [4]-[7] of the IAA’s Decisions and Reasons dated 1 November 2017.
The Authority largely accepted the applicant’s account regarding his identity, that is, he is an Afghan national with no right of return to Pakistan. They also accepted the applicant’s account that his father was killed by a roadside bomb and that his family were forced to leave the Jaghori district due to threats from the Taliban prior to their departure for Pakistan.
However and more relevantly, the Authority was ultimately satisfied that (amongst others):
(a)After 18 years of absence the applicant no longer had ties to Jaghori and that Kabul would be the area that he would return to, and as such he would not need to relocate;
(b)That the local Taliban was not aware of the applicant’s voluntary work with an international humanitarian organisation in or about May 2012, or that he was consequently imputed as a government collaborator;
(c)That the applicant would not be considered to have an adverse profile arising from incidents that occurred in approximately 1999 or by reason of his previous employment;
(d)That the applicant did not face a real chance of harm on return to Kabul from the Taliban, Islamic State or other insurgent groups in the foreseeable future;
(e)That the applicant would be targeted by the Taliban in Kabul due to his ethnicity or religion;
(f)That the applicant did not have a well-founded fear of persecution in Mazar-e-Sharif;
(g)That there is not a real chance that the applicant would be denied the capacity to earn a livelihood or that he would be the subject of economic hardship such that it would cause him serious harm within the meaning of the Act; and
(h)That the applicant in his circumstances would not be targeted as a returnee by reason of his ethnicity/religion, or imputed pro-Western political opinion, or as a failed asylum seeker, or due to generalised violence.
However, the Authority came to the view that there was a risk that the applicant would significant suffer harm in Kabul as a Shia Hazara noting that country information showed a number of recent attacks on Shias in Kabul when assembling in large and identifiable groups.
In its assessment of the applicant’s complimentary claim for protection, the Authority was satisfied that the applicant would not face a real risk of harm as it would be reasonable for the applicant to relocate to an area (not Kabul) where there would not be a real risk that the applicant would suffer significant harm.
The Authority found that the applicant would not face a real risk of significant harm in Mazar-e-Sharif which “he can safely access by air”.[2]
[2] CB: 642
determination
The applicant presses five grounds of review.
Grounds 1 and 2 – New Information
These grounds concern the manner in which the Authority dealt with the new information, contained in two reports containing country information about Afghanistan. The applicant argues that the Authority constructively failed to exercise its jurisdiction, in failing to take into account “new information” in respect of which exceptional circumstances existed to justify its consideration, and/or that the Authority constructively failed to exercise its jurisdiction by adopting an unduly narrow approach to assess whether there were “exceptional circumstances” to justify consideration of the additional information. The applicant relies on lengthy particulars in respect of the second ground.
In its reasons, the Authority considered the two reports in question. The Authority was satisfied that both reports post-dated the delegate’s decision and it was therefore satisfied that they could not have been provided to the delegate prior to a decision being made. It no doubt, considered them to be relevant. The Authority then noted that one of the reports discusses information in other sources before the delegate while the second report, although only published recently, is a summary of research undertaken previously and also relies largely on sources predating the delegate’s decision, although a number of later incidents are referred to.[3] The Authority was not satisfied that there were exceptional circumstances for considering the two reports in question.
[3] CB: 630
The applicant submits that the Authority in failing to properly consider whether there were exceptional circumstances, misconstrued what the documents were, and that it did so by incorrect references to what the information contained in the two reports was. This submission is not made out.
The reasons of the Authority, “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[4] The Authority was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.[5]
[4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [30] quoting Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456 at [22]
[5] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14] (“NAHI”)
The High Court has made clear that what will amount to exceptional circumstances is inherently incapable of exhaustive statement.[6] While s.473DD(a) does not codify what constitutes “exceptional circumstances”, and there is no requirement for the Authority to consider the factors in s.473DD(b)(i) and (ii) in deciding whether there are “exceptional circumstances”, in many cases a consideration of these factors may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances do exist.[7]
[6] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [30]
[7] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14]
Whilst the requirements of subparagraphs (a) and (b) of s.473DD are cumulative, they may nevertheless overlap with the effect that the Authority’s consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction under subparagraph (a) as to whether there are exceptional circumstances to justify considering the new information.
The Authority not only came to the conclusion that there were no exceptional circumstances, but it did so after it considered the documents in question, the information they contained as well as the applicant’s submissions to the delegate regarding relocation, the security situation and the situation for returnees. In that regard, it may be said that the Authority took into consideration all the relevant circumstances in determining whether there were exceptional circumstances.[8]
[8] Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [104]
Grounds 1 and 2 are not made out.
Ground 3 – Disregarding Relevant Information
The applicant submits that the Authority failed to exercise its jurisdiction by wholly disregarding material before it that was directly relevant to a finding on which the ultimate decision rested, being the capability of the applicant to subsist in Mazer-e-Sharif. The report[9] which was before the Authority, which the applicant submits the Authority failed to have any regard to, was said to be the best available evidence before the Authority as to the situation for returnees or internally displaced persons forced to relocate to Mazer-e-Sharif.
[9] Amnesty International, My Children Will Die This Winter: Afghanistan’s Broken Promise to the Displaced (Amnesty International, 2016)
The report, the applicant submits, speaks specifically to the ‘on the ground’ situation in Mazar-e-Sharif. The methodology of the report is explained as:
This report is based on two research missions to Afghanistan in November 2015 and February 2016, each two weeks in length. The Amnesty International delegation conducted interviews with more than 100 displaced individuals in IDP camps and settlements in Herat, Kabul and Mazar-e-Sharif.[10]
[10] Affidavit of Justin Moyes filed 22 July 2022
As noted earlier in these Reasons for Judgment, the Authority was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.[11]
[11] NAHI at [14]
In respect of its conclusions as to the reasonableness of internal relocation, the Authority set out the basis of its conclusions and the information upon which such conclusions were based.[12] Such reasons spoke to a consideration of reports of unemployment and underemployment being high across the country, but that large urban areas offer relatively greater opportunities of employment. The Authority noted that there is unemployment and underemployment in Mazar-e-Sharif.
[12] CB: 643-644 at [50]-[56]
It is correct that the Authority did not make express reference to the report, however, this does not of itself mean that the report was not considered or that it was overlooked.[13] The materials which were available to the Authority were extensive. The Court is generally entitled to infer that a matter not mentioned, was at a minimum, not considered by the Authority to be material.[14]
[13] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (“SZSRS”)
[14] SZSRS at [33]; see also Azam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 661 at [58]
The Authority’s approach was open to it.
Lastly, a second report provided to the Authority as new information (and the subject of grounds 1 and 2),[15] cannot be said to have failed to be considered by the Authority if the Act prohibits such a report from being considered.
[15] Edmund Rice Centre, The responsibility to Protect – Afghanistan’s Current Situation, Drivers of Migration and Returnees Experience (Edmund Rice Centre, 2017)
Ground 3 is not made out.
Ground 4 – No Evidence
It is well established that a “no evidence” ground will fail if there was any evidence to support a particular factual finding or inference.[16] However, as held by Bromwich J in Wang v Australian Securities and Investments Commission[17]
The “no evidence” ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all: see Bruce v Cole (1998) 45 NSWLR 163 at 188-189 per Spigelman CJ (Mason P, Sheller and Powell JJA agreeing). It follows that the no evidence ground of review will not always be defeated by identifying a mere “skerrick” of evidence if it can be shown by the party asserting the “no evidence” ground not to have been also legally probative in making the finding in question.
[16] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [575]; Australian Broadcasting Tribunal v Bond [1990] HCA 33at [94]; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], [91].
[17] Wang v Australian Securities and Investments Commission [2019] FCA 1178 at [68]
Furthermore, in CD v Central Gippsland Health Service[18] it was held that
The principle that evidence must be “probative” or “rationally probative” has been said to have the consequence that it is inaccurate to say that the “no evidence” ground is “restricted to circumstances where there is quite literally, no evidence at all”. It might be said that the better view is that material that is not probative is not evidence. As Basten JA said in Amaba Ltd (under New South Wales administered winding up) v Booth:
Implicit in the statement that there is no evidence to “support” a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of “relevance”, on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”: Evidence Act 1995 (NSW), s 55(1).
(citations omitted)
[18] CD v Central Gippsland Health Service [2022] VSC 462 at [274]
As already noted, notwithstanding that the Tribunal found that the applicant faces a real risk of significant harm in Kabul, it was not satisfied that the applicant faces a real risk of significant harm in Mazar-e-Sharif “which he can safely access by air”.[19]
[19] CB: 462
It further found that it was reasonably for the applicant to relocate to Mazar-e-Sharif where he does not face a real risk of significant harm “and which he can safely access by air”.[20]
[20] CB: 464
The finding that the applicant could safely access Mazar-e-Sharif by air, is part of the overall finding that it was reasonable for the applicant to internally relocate to that city. It is well recognised that
Internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven… [21]
[21] SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [80]-[81]
Therefore, the finding that the applicant could safely access Mazar-e-Sharif by air was a critical finding to the Authority’s overall determination in affirming the delegate’s decision not to grant the applicant a visa.
Except that such critical finding was not based on any evidence for reasons explained below.
The extent of the evidence before the Authority in respect of air travel to Mazer-e-Sharif was limited to the material provided to it pursuant to s.473CB of the Migration Act 1958 (Cth).
The delegate’s decision found that the “country information does not support that person with the applicant’s profile are targeted in Mazar-e-Sharif, including at the airport or in transit from the airport to the city”. This is evidence (or information) that the applicant might safely access the city once he was at the Mazar-e-Sharif airport. But the question remains, how is the applicant supposed to access Mazar-e-Sharif airport, and do so safely?
The evidence before the Authority was universally that road travel in Afghanistan was dangerous. Clearly, given the finding of the Authority that the applicant could safely access Mazar-e-Sharif by air, it was not contemplating any road travel for the applicant to Mazar-e-Sharif. Such road travel is in any event, not safe for the applicant based on the Authority’s findings.
The Authority found that “Although returnees from western countries are almost exclusive returned to Kabul country information indicates that there is an international airport in Mazar-e-Sharif accepting flights from Kabul and international locations.” The footnotes of the Authority’s reasons note a website
Most importantly however, the information did not identify any grounds upon which a finding could be made that the applicant could safely access Mazar-e-Sharif by air, whether from Kabul or an international location. This is particularly important noting that according to its own findings the applicant would most likely be returned to Kabul (where he was found to be at real risk of significant harm) before having to internally relocate to Mazar-e-Sharif.
It is not just a matter of illogicality of the Authority’s reasoning as to the applicant’s ability to safely access Mazar-e-Sharif where it found that he would likely be returned to Kabul, where he was at real risk of significant harm:
(a)The information did not reveal that flights to Mazar-e-Sharif were accessible to the applicant nor that he could do so safely.
(b)The information did not identify which international locations such flights were available from.
(c)The information did not reveal whether and how such flights might be accessible to the applicant, including for example the frequency of such flights, the costs of such flights, nor how and when the applicant might be able to access such flights.
There was not a skerrick of probative evidence about any of these matters.
Contrary to the Minister’s submissions, the information identified is not enough to overcome the “no evidence” ground. At its highest the information revealed that the city had an airport that accepted flights from Kabul and international locations, but that was it. There was not a skerrick of evidence that the applicant could access Mazar-e-Sharif by air nor that he could do so safely.
Ground 4 is made out.
Ground 5 – Failure to consider a claim
The applicant contends that the Authority failed to determine a substantial or clearly articulated claim or an integer of a claim, that the applicant faced a risk of harm by reason of his ethnicity as a Sayed, but that it did so on the basis of his ethnicity as a Hazara. The applicant also contends that the Authority erred in its consideration of his claim that he was at risk of societal discrimination.
The Authority was only bound to deal with the application before it, even one which may not have been clearly articulated by an applicant, but which arises on the basis of evidence and material before it.[22] It is well accepted that such an unarticulated claim must be raised squarely on the material before the Authority.[23]
[22] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] (NABE”)
[23] NABE at [68]
The material before the Authority discloses that the applicant claimed to be “Hazara-Sayed” and “Sayed-Hazara” ethnicity. However, it is not apparent from the material that the applicant himself though sought to differentiate in his claims between “Hazaras” and “Hazara-Sayeds”. Indeed, in his submissions to the Authority, the applicant was referred to as a “Hazara” and a “Shia-Hazara”. There was no suggestion that the applicant sought to differentiate between Hazara-Sayeds, Hazaras and/or Sayeds in his submissions.
The Authority, it is correct to say, did not make any findings that the applicant is of Sayed ethnicity. In the circumstances of the material before the Authority, there was no separate claim or an integer of a claim based on the applicant’s Sayed ethnicity. As such, the submission that the Authority failed to consider all of the essential elements of the claim or claims raised by the material or the evidence is rejected.
In respect of the second limb of ground 5, namely that the applicant expressly identified a claim of societal discrimination that the Authority never considered: the Authority identified that probative material supporting the claim was already before the delegate, and it recognised that such a claim was made.
The Authority referred to country information that there was no evidence of a policy of official discrimination in areas under government control and that ethnic and religious minorities had their own media outlets, political parties and representatives. It referred to country information that indicated that all levels of ethnic groups were represented at all levels of central government and had a level of control over how government programs were implemented in regions. In its reasons it specifically referred to nepotism in the employment context, and concluded that even if the applicant was subjected to that limited form of discrimination it would not result in serious harm as defined in the Act.
The Authority did address the applicant’s claim of societal discrimination and it rejected it. There was no error in the Authority’s consideration of the applicant’s claim.
Ground 5 is not made out.
Conclusion
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
If the Court is wrong about the jurisdictional error made out, the Court asks that the Minister intervene and exercise his discretion in the circumstances of this matter and grant the applicant a visa.
57 I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 7 December 2022
2
16
0