FGC17 v Minister for Immigration
[2018] FCCA 2217
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FGC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2217 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether discretion under s.473DC ought to have been exercised – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 5H, 36(2)(a), 36(2)(aa), 46A, 65, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473FB, 473GA, 473GB, Part 7AA |
| Cases cited: CRY16 v Minister for Immigration & Anor [2017] FCCA 1549 DZU16 v Minister for Immigration & Anor [2017] FCCA 851 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1 Minister for Immigration & Citizenship v Li and Anor (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18; Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16 |
| Applicant: | FGC17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 662 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 May 2018 |
| Date of Last Submission: | 18 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr P. MacLiver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review made on 30 November 2017, amended on 27 April 2018, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
No. PEG 662 of 2017
| FGC17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 30 November 2017, amended on 27 April 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 16 November 2017. The decision of the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant seeks an order that the decision of the IAA be quashed and a writ of mandamus be directed to the IAA. To succeed in this Court, the applicant must show that the IAA fell into jurisdictional error.
The Court had before it a Court Book (“CB”) numbering 147 pages. The Court also had written submissions from the parties as follows:
a)written submissions from the applicant dated 4 May 2018; and
b)written submissions from the Minister dated 11 May 2018.
The applicant was represented by Mr Saul-Jahnke of Estrin Saul Lawyers. The Minister was represented by Mr MacLiver of Counsel.
The quality of the written and oral submissions in this matter was of a very high standard. The Court thanks Mr MacLiver and Mr Saul-Jahnke for their assistance.
Background
The Court has reviewed the factual material provided by the parties and adopts the overview outlined at paragraphs 1 to 13 of the Minister’s written submissions dated 11 May 2018 as the procedural and factual background to these proceedings. These background facts were not in dispute and provide relevantly, as follows:
a)The applicant is a Shia Muslim of Hazara ethnicity from the Jaghori District (“Jaghori”), Ghazni province in Afghanistan (CB 3 and 43).
b)On 2 February 2013, the applicant arrived in Australia at Christmas Island by boat and without a valid visa (CB 48). As a result of this entry the applicant was an unauthorised maritime arrival within the meaning of s.5AA(1) of the Migration Act 1958 (Cth) (the “Act”).
c)On 9 February 2013, the applicant took part in an initial entry interview (CB 1-20).
d)By letter dated 24 February 2016 from the former Department of Immigration and Border Protection (the “Department”), the applicant was advised that the Minister had exercised his power under s.46A(2) of the Act to allow him to lodge a valid application for either a Temporary Protection (subclass 785) visa or a SHEV (CB 21-26).
e)On 21 September 2016, the applicant lodged an application for a SHEV with the Department (CB 27-70).
f)On 12 December 2016, the applicant attended an interview with the Minister’s delegate (CB 81 and 102).
g)On 30 January 2017, the delegate made a decision refusing to grant the applicant a SHEV (CB 100-110). Relevantly, the delegate considered that there was a real risk that the applicant would suffer significant harm should he be returned to Jaghori from Kabul as a consequence of road insecurity outside Kabul but that the applicant could reasonably relocate to Kabul without facing harm.
h)The delegate’s decision was referred to the IAA pursuant to s.473CA of the Act.
i)By letter dated 6 February 2017 the IAA advised the applicant of that referral and provided him with a practice direction given under s.473FB of the Act (CB 114-115). Paragraph 20 of the practice direction states:
Submissions and new information
20.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.
j)On 27 February 2017, the applicant’s representative provided a written submission to the IAA addressing the delegate findings, primarily in relation to the finding that the applicant could reasonably relocate to Kabul (CB 121-126).
k)In a footnote within this submission, the applicant’s representative relevantly stated:
If the IAA is considering reversing or changing a finding of the Delegate, the Applicant requests that this information be put to him for comment and/or response.
l)On 16 November 2017, the IAA made a decision affirming the decision not to grant the applicant a SHEV. Relevantly, the IAA found that the possibility of the applicant being harmed in relation to his being Hazara, Shi’a and/or any type of returnee on his single return trip to Jaghori to be remote (CB 140 at 32) and that as a consequence he could safely return to his home area. This differed from the decision of the delegate who found that the applicant could not return to Jaghori but could reasonably relocate to Kabul.
m)On 17 November 2017, the IAA advised the applicant of its decision and provided the applicant with a copy of its reasons for decision (CB 132 and 127-147).
n)On 30 November 2017, the applicant lodged an application with this Court seeking review of the IAA’s decision.
Synopsis
For the reasons set out below, the IAA’s decision of 16 November 2017 affirming a decision of a delegate not to grant the applicant a SHEV was not affected by jurisdictional error as alleged by the applicant in his Amended Application.
Specifically, the Court finds that under the particular factual circumstances of this case, the IAA’s decision not to exercise its discretionary power under s.473DC(3) of the Act was not unreasonable. That decision cannot, on the facts of this case, be seen to lack an intelligible justification.
The Court orders that the applicant’s application filed 30 November 2017, amended on 27 April 2018, be dismissed.
Relevant Statutory Framework
It is not in dispute that the applicant is an unauthorised maritime arrival within the meaning of s.5AA(1) of the Act and that the applicant satisfies the criteria for a “fast track applicant” under s.5(1) of the Act.
Section 473BB of the Act defines “fast track reviewable decision” as a “fast track decision” in relation to a “fast track review applicant”. That definition applies to this case as the decision of the delegate was to refuse to grant a protection visa to a person who is a fast track applicant.
Section 473CA of the Act provides that the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made.
The IAA is to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant: s.473DB of the Act.
Subdivision C of Div 3 of Pt 7AA, allows the IAA to obtain additional information in limited circumstances. Sections 473DC and 473DD of the Act set out the circumstances in which the IAA can get and consider new information as part of its review.
Specifically, s.473DC of the Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(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.
Section 473DD of the Act, in turn, provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Where the IAA does obtain new information (other than from the applicant) the particulars of certain new information must generally be given to the applicant. Subsections 473DE(1) and (2) of the Act provides:
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
There is an exception to the above obligation found at ss.473DE(3) of the Act which provides as follows:
(3)Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Note:Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DA(1) of the Act stipulates that Div 3, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that authority.
It is well established that jurisdictional error can occur in circumstances where a decision made within the context of these provisions is found to be “unreasonable”(Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26] – [28]) and can be seen to lack an intelligible justification.
The Applicant’s protection claims
The applicant put identical protection claims to both the Ministerial delegate and the IAA (CB 102 and 134 – 135).
The applicant’s protection claims were summarised by the IAA as follows (CB 134 – 135):
a)He is a Hazara Shi’a Muslim from Heidar, Jaghori in Ghazni province, Afghanistan.
b)At various time he has lived and worked in Iran and Pakistan. In late 2003 he moved with his wife and children to Pakistan because his wife and immediate family did not get along with one another.
c)His father managed a hotel in Janda. From time to time he would return to Afghanistan to help his father with the hotel. Many Taliban members would frequently come to the hotel to eat dinner. Sometime in 2004, the Afghan Government arrested two members the Taliban at the hotel. Around two or three days later, the Taliban came and took of his father from the hotel. They accused his father of helping the Afghan government. They said his father must find the two arrested members or they would hold him responsible for their lives.
d)Before the Taliban took him away his father told the applicant to close the hotel and run away because the Taliban might also arrest him. The applicant closed the hotel and left for Pakistan around two or three days later. He later found out that the Taliban had killed his father.
e)After they killed him the Taliban sent a letter to the family's mosque in Heidar. The Imam read it to the family - it said the applicant was now responsible for finding the two arrested Taliban men, otherwise he would also be killed.
f)He fears being killed by the Taliban because they believe his father helped the government to arrest two of their members and because after killing his father, they threatened the applicant and declared him responsible for finding the arrested members. They know his name and face and he believes they are still looking for him.
g)The applicant returned to Afghanistan in secret to attend his father’s funeral. Following this, he returned to Afghanistan twice more: once in 2011 to obtain his Taskera and passport and once to fly from Afghanistan to Dubai on his journey to Australia. He feared for his life each time because he believed the Taliban were looking for him.
h)He also fears being abducted and/or killed because he is Hazara Shi’a. He has heard that Hazara Shi’as are frequently attacked outside Heidar which is itself surrounded by Pashtun villages. He has seen many armed Pashtun Taliban members patrolling the streets and his family have told him that the Taliban are active in the area around Heidar.
i)Heidar is a very small village with no work opportunities. He would have to travel outside the village for work.
j)His mother, his wife and their five children all reside together in Pakistan. His two brothers and his sister reside in Afghanistan.
The delegate’s decision
The delegate considered the applicant’s claims and accepted that:
a)the applicant was an Afghan Shia Hazara who originates from the Ghanzi province (CB 102);
b)the applicant's father was killed by the Taliban in 2004 and that the Taliban subsequently sent a threatening letter to the applicant holding him responsible for the arrest of two Taliban members by the Afghan authorities (CB 102); and
c)the applicant may have concerns regarding returning to Afghanistan considering the current security situation and insurgency (CB 102).
Having regard to the country information the delegate was also satisfied that there have been some instances where returnees have been targeted on the road returning to their home district and that if the applicant were to travel outside Kabul there is a risk of him being targeted.
Despite this the delegate concluded that the applicant was not at harm generally because he could reasonably relocate (CB 107):
… the applicant can safely and lawfully access Kabul through its international airport without having to access roads which are reported as being unsafe for returnees. As part of his [protection visa] claims the applicant has expressed no specific political or religious views which I believe would be of any interest to insurgents in Kabul. I am not satisfied that the applicant faces a real chance of persecution upon return to Kabul in the reasonably foreseeable future as a Shia Hazara or a failed asylum seeker from the West. As I have found that there is no real chance that the applicant will be persecuted in Afghanistan as a result of his race, religion, political opinion or membership of a particular social group I will not discuss this any further as part of the Refugee Criterion Assessment.
The delegate was ultimately not satisfied that the applicant was a refugee as defined in s.5H(1) of the Act or a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
The delegate then addressed the applicant’s complementary protection claims. The delegate found that there was a real risk that the applicant will suffer harm should he return to Jaghori in Ghanzi province as a consequence of the road insecurity outside Kabul (CB 108).
Despite making this finding, the delegate concluded that the applicant could reasonably relocate to Kabul and was therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Afghanistan, there is a real risk that applicant will suffer significant harm as outlined by s36(2)(aa) of the Act (CB 109).
The applicant’s request for a visa was accordingly refused.
The IAA’s decision
On 16 Novembers 2017, the IAA affirmed the delegate’s decision to refuse to grant the applicant a SHEV but for different reasons than those expressed by the delegate.
In its reasons for decision the IAA:
a)accepted:
i)that the applicant is an Afghan national and that Afghanistan is the receiving country for the purposes of the review (CB 135 at 12);
ii)that the applicant would return to and stay in Jaghori in Ghazi if retuned to Afghanistan (CB 135 at 12); and
iii)the applicant’s claims that his father was killed by the Taliban in 2004 and that the Taliban subsequently sent a threatening letter to him holding him responsible for the arrest of two Taliban members by the Afghan authorities (CB 135 at 13).
b)noted that as part of the applicant’s submissions dated 27 February 2017, he requested that if the IAA was considering reversing or changing a finding of the delegate, he wanted this information to be put to him for further submissions (CB133 at [5]);
c)addressed the applicants request by stating that it was under no obligation to seek comment from an applicant if the view taken by the IAA differs from that of the delegate (CB133 at [6]);
d)was satisfied that there were exceptional circumstances to justify considering obtaining new information in the form of two updated reports on Afghanistan from the Australian Department of Foreign Affairs and Trade (“DFAT”) and two reports from the United Nations Mission in Afghanistan (“UNAMA”) (“2017 DFAT and UNAMA reports”) relating to Shi’a, Hazaras and returnees (CB 133 at [7]);
e)considered the applicant’s protection claims and applied the relevant legislative provisions of the Act (CB 135 – 141);
f)considered the relevant country information, which included the 2017 DFAT and UNAMA reports, to arrive at the determination that:
i)en route to Ghazni, the relevant highway briefly passes through Maiden Wardak province where there were two incidents of abduction targeting Hazara civilians in 2015 and 34 in 2016 (CB 139 at [30]);
ii)there is no evidence of returnees being targeted on Wardak roads (CB 139 at [30]); and
iii)in relation to Ghanzi, while it was willing to accept there were two incidences of Hazara returnees from Australia being targeted while traveling in the province in 2014 and several incidents of Hazara abductions in 2015, there have been no such documented incidents involving Hazaras and/or returnees in Ghazni province in 2016 or 2017 (CB 139 at [30]),
g)gave weight to the UNAMA report’s assessment that the primary motivations for kidnappings/abductions/attacks on the roads were factors other than race and religion (ransom, hostage exchange and/or to harm those with connections to government or international community) (CB 140 at [32]);
h)having considered the relevant issues, determined that the possibility of the applicant being harmed in relation to his being Hazara, Shi’a and/or any type of returnee on his single return trip to Jaghori to be remote (CB 140 at [32]);
i)was satisfied that there is a strong military presence in Kabul and there is likely to be so in the reasonably foreseeable future and subsequently found that the chance of the applicant being harmed through a targeted attack or generalised violence in Kabul before travelling towards Jaghori was remote and therefore not real (CB 140 at [35])
j)was also not satisfied that the applicant faces a real chance of being harmed in relation to his being Hazara, Shi'a and/or any type of returnee on his return journey to Jaghori (CB 140 at [33])
k)concluded that:
i)there was not a real chance of the applicant being harmed on the basis of any imputed political profile arising from his father's and his own previous problems with the Taliban (CB 141 at [38]);
ii)there was not a real chance of the applicant being harmed on the basis of his profile as a Hazara Shi’a returnee from the west who has lived much of his life outside of Afghanistan and sought asylum in Australia (CB 141 at [38]); and
iii)there was no real chance of the applicant facing discrimination or a threatened capacity to subsist in his home area and that he can safely return there (CB 141 at [38]),
l)assessed the applicant’s complementary protection claims, finding that:
i)there is not a real chance of the applicant being harmed on the basis of any imputed political profile arising from his father's and his own previous problems with the Taliban, nor due to his profile as a Hazara Shi'a returnee from the west who lived much of his life outside of Afghanistan and sought asylum in Australia (CB 142 at [43]);
ii)the applicant can safely return to his home area of Jaghori and there is no real chance of the applicant facing discrimination or a threatened capacity to subsist (CB 142 at [43]);
iii)because ‘real chance’ equates to ‘real risk’, was not satisfied that the applicant faces a real risk of suffering significant harm in or in accessing his home area of Jaghori upon return (CB 142 at [43]); and
iv)there is no real risk of the applicant facing significant harm in his home area Jaghori including the surrounding roads and area when returning to his home area (CB 142 at [45]).
Judicial Review Application
The applicant lodged his judicial review application on 30 November 2017 and amended his application on 27 April 2018 (“Amended Application”). The applicant relied on one ground of review in support of his Amended Application.
The applicant’s sole ground of review is that the IAA’s failure to exercise its discretion to seek further information pursuant to section 473DC of the Act was legally unreasonable.
The applicant particularised this ground as follows:
a.The IAA decided the matter by rejecting that the Applicant faced a real risk of significant harm in his home area of Jaghori, which was a different basis than what was relied upon by the delegate (who accepted that the Applicant would face a real risk of significant harm in Jaghori)
The way in which the applicant has particularised his claim is somewhat unclear within the context of the IAA’s decision and the delegate’s decision. In this matter the delegate considered that there was a real risk that the applicant would suffer significant harm should he return to Jaghori from Kabul as a consequence of road insecurity around Kabul (but found that he could return safely to Kabul). The IAA reached found that the possibility of the applicant being harmed on his return trip to Jaghori was remote.
In evidence, it became clear that what the applicant alleges is that jurisdictional error occurred here because the IAA acted unreasonably by not exercising its discretion to allow the applicant to make further submissions in factual circumstances where:
a) the IAA came to a different conclusion to the delegate in relation to the applicant’s ability to relocate;
b) the IAA did so after relying on new country information that had not been put to the applicant; and
c) the applicant had specifically asked to address the IAA if it came to a different conclusion to that of the delegate.
Applicant’s submissions
In summary, counsel for the applicant submitted that:
a)prior to the IAA’s review the applicant requested that if the IAA was considering reversing or changing a finding of the delegate, he have this information put to him for comment and/or response;
b)the IAA obtained new information in the form of the 2017 DFAT and UNAMA reports and relied on that information to conclude that the applicant’s risk of harm on his single return trip to Jaghori (from Kabul) was remote;
c)neither the new information nor the proposition that the applicant would be safe on his return trip Jaghori was ever put to the applicant;
d)there is no intelligible justification for the IAA’s failure to consider exercising this power under s.473DC(3) of the Act and the IAA’s explanation that it was not obligated to seek comment from an applicant in circumstances where it took a different view from that of the delegate is insufficient; and
e)given the factual circumstances of this case, it was unreasonable for the IAA not to exercise its discretionary power under s.473DC of the Act and allow the applicant an opportunity to make further submissions.
In support, the applicant relied extensively on Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (“DZU16”). These cases are summarised below.
CRY16
In CRY16, the delegate made findings that that respondent (a citizen of Lebanon) was not a credible witness. The delegate was unwilling accept that the respondent had been approached by Hezbollah to work for them, or that he had ever been directly targeted or threatened by them. As a result, the delegate did not accept that the respondent would face a real a chance of persecution or be at real risk of serious harm if he were to return to Lebanon.
There was no discussion in the delegate’s decision about the potential relocation of the respondent within Lebanon.
The IAA affirmed the delegate’s decision but on a different basis (at [5]). The IAA instead found that the respondent’s fear of harm from sectarian violence did not relate to all areas of Lebanon and that he could relocate to Beirut. This meant he was not a refugee for the purposes of s.5H(1) of the Act.
The IAA then considered the respondent’s claims for complementary protection finding that as a Sunni Muslim he faced a real risk of significant harm in his place of habitual residence but this did not extend to all areas of Lebanon, namely to Beirut, and that he could reasonably relocate to Beirut (at [6]).
On appeal from the Federal Circuit Court of Australia, CRY16 v Minister for Immigration & Anor [2017] FCCA 1549, the Full Court in CRY16 dismissed the Minister’s appeal concluding (at [82]) that:
[82] Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. 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 our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
In arriving at this conclusion the Full Court said (at [66]):
[66] We consider it to be significant that what is reasonable, in the sense of “practicable”, in terms of relocation must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration & Citizenship [2007] HCA 40; 233 CLR 18 at [24].
In the proceedings before this Court, the applicant drew the Court’s attention to paragraph [81] of the decision in CRY16 where their Honours Robertson, Murphy and Kerr JJ stated:
[81] We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.
DZU16
In DZU16 the delegate accepted that the respondent was an ethnic Hazara and Shia Muslim from Qarabagh district in Afghanistan.
As a consequence, the delegate was satisfied that the respondent faced a real chance of suffering serious harm amounting to persecution, and significant harm, if he returned to his home area Qaragagh, Afghanistan (at [19]).
Despite this finding, the delegate was not satisfied that the respondent would face a real risk of persecution in Kabul and that it was reasonable for the respondent to relocate to Kabul.
The matter was referred to the IAA, which considered that the respondent could relocate to the city of Mazar-e-Sharif. The delegate had not considered whether the respondent could relocate to the city of Mazar-e-Sharif (at [19]-[20] and [40]).
On appeal from the Federal Circuit Court of Australia, DZU16 v Minister for Immigration & Anor [2017] FCCA 851, the Full Court dismissed the Minister’s appeal concluding (at [94]):
[94] Further, the exercise of the power to decide lacked 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 Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The applicant submitted that both CRY16 and DZU16 support the proposition that s.473DC of the Act is to be exercised reasonably and any failure to exercise the discretion must be intelligible within the factual circumstances of the case.
The applicant argued that, in the circumstances, the IAA should have exercised its discretionary powers under s.473DC of the Act and its failure to do so cannot be justified intelligibly on the particular facts of the case.
Respondent’ submissions
The Minister submitted that the cases relied on by the applicant, CRY16 and DZU16, are distinguishable because the factual circumstances which led the Federal Court in CRY16 and DZU16 to conclude that it was legally unreasonable for the IAA not to exercise its discretion under s.473DC(3) do not exist in this matter.
The Minister submitted instead that that the factual circumstances in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”) mirrored those in this matter and should, accordingly, be applied here.
DGZ16
In DGZ16 the appellant claimed that he was a secret informant for the Counter Terrorism Service (the “CTS”) and that, as an informant, he had provided the CTS with information which resulted in a number of weapons traders being arrested and imprisoned (at [4]).
The delegate concluded that, contrary to the appellant’s claim, the CTS did not have any regional commando battalions located in his area until Spring 2013, and therefore not until after the appellant departed Iraq in July 2012 (at [15]). Further to this finding, the delegate also found that there was no CTS office in Nasiriyah during the period claimed by the appellant (at [16]).
These findings had the effect of significantly undermining the credibility of the applicant’s claims to have been a CTS informant such that the delegate was not satisfied that the appellant was in fact a CTS informant.
The appellant made submissions which contained new information and the IAA accepted the new information involved in those submissions (at [74]).
The IAA accepted that the CTS operated throughout Iraq since 2007 (at [24]), but otherwise did not accept the appellant’s claims to have been an informant or matters said to have arisen as a result of being an informant (at [25]-[36]).
The Full Court in DGZ16 dismissed the appellant’s appeal concluding at [70]-[72] that:
[70] It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).
[71] In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant’s claims largely because of the delegate’s finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant’s claims to have been a CTS informant. The delegate referred to “the significant credibility issues surrounding the applicant’s claim to have been a ‘secret agent’ for the CTS”. But the delegate also tested the plausibility of the appellant’s claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.
[72] In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
The Minister submitted to this Court that, similarly to DGZ16, the delegate here considered that there was a real risk that the applicant would suffer significant harm should he return to Jaghori from Kabul, as a consequence of road insecurity outside of Kabul. However, the IAA reached a different conclusion, finding that the possibility of the applicant being harmed on his single return trip to Jaghori (from Kabul) to be remote.
In summary, the Minister argued that, having regard to the circumstances in this matter, and in light of the circumstances in CRY16, DZU16 and DGZ16, the IAA’s decision does not involve jurisdictional error by reason of legal unreasonableness simply because the IAA did not exercise its discretionary power under s.473DC(3) of the Act.
During the proceedings counsel for the applicant responded to the respondent’s submissions in relation to the effect of DGZ16 saying that the present case was distinguishable because DGZ16 involved the IAA making a decision on the same material that was before the delegate (DGZ16 at [71], [72] and [76]) – unlike here where new country information was accessed and relied on without comment from the applicant.
Consideration
Reasonableness
“Unreasonableness” can be inferred in circumstances where it is unclear how the decision maker arrived at their decision not to exercise a discretionary power: Li at [76]. The inference is made having regard to the facts and to the statutory purpose to which the discretion to obtain new information under s.473DC(3) of the Act is directed: Li at [82] and CRY16 at [83].
The applicant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [67].
A conclusion that the exercise of the discretionary decision-making power is unreasonable arises where the decision “lacks an evident and intelligible justification” (Li at [76]) and involves scrutiny of the factual circumstances in which the power comes to be exercised: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48].
It is accepted that the discretionary powers conferred on the IAA by s.473DC of the Act are to be exercised reasonably (CRY16 at [81]-[82]) and that there are circumstances in which it may be legally unreasonable not to consider the exercise of the discretionary power under s.473DC(3) of the Act (DZU16 at [88]).
In order to be successful here, the applicant must show that the IAA’s decision not to exercise its discretionary powers under s.473DC(3) of the Act was ‘unreasonable’ because the decision cannot be justified intelligibly on the particular facts of this case.
Was in unreasonable for the IAA to not exercise its powers under s.473DC(3) of the Act?
For the reasons that follow, the Court finds that the IAA’s failure to exercise its discretionary power was not unreasonable in the circumstances.
The IAA’s statutory obligations
The applicant requested, as part of his submissions to the IAA dated 27 February 2017, that if the IAA was considering reversing or changing a finding of the delegate, that this information be put to him for comment and/or response. This request was repeated at paragraph 5 of the IAA’s reasons.
The IAA does not have a statutory duty to request any new information even if it is asked to do so by an applicant or by any other person under s.473DC(2) of the Act, a point touched upon by the IAA in paragraph 6 of its decision as follows:
I am conducting a fast-track review and under the Act. Section 473DB of the Act provides that subject to the other provisions of Part 7AA, the review is to be conducted on the material provided by the Department without interviewing the applicant and without accepting or requesting new information. There is no right to a hearing. Nor is there any obligation on the IAA to advise if adverse credibility findings are to be made, or any general obligation to otherwise seek comment from an applicant if the view taken by the IAA differs from that of the delegate.
The Court accepts that this is an accurate summary of the IAA’s obligations under Pt. 7AA and it broadly restates the Full Court’s comments in DGZ16 at [74] – [76] as follows:
[74]We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
[75]There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[76]It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
The Court agrees with the respondent’s submissions that DGZ16 is applicable to the facts of this case in a way that both CRY16 and DZU16 are not. Those cases, which criticise the IAA for not exercising its discretion, involve the IAA addressing a new issue that had not been dealt with by the delegate. That is not the case here.
2017 DFAT and UNAMA country reports
The DFAT and UNAMA reports ultimately relied on by the IAA contained updated analysis on risks relevant to these classes of persons and were published in 2017, after the delegate’s decision. Given that these reports post-dated the delegate’s decision this information was not available to the delegate.
The IAA was satisfied that there were exceptional circumstances to justify considering this new information, saying (CB133):
All the country information reports considered by the delegate are now more than one year old, the most recent of which was from October 2016. These reports were all published in 2017, after the delegate's decision and derive from sources I consider reliable and authoritative. They contain updated analysis on risks relevant to these classes of persons which were not available to the delegate. Given the fluidity of the security situation in Afghanistan, I consider it is necessary to give proper consideration to the updated information.
The IAA referenced the 2017 DFAT and UNAMA reports on various occasions throughout its reasons, including in relation to road security in the Ghanzi province and the risk of road kidnappings/abductions faced by Hazaras travelling by road between Hazarajat and Kabul (CB139 at [30] and CB 140 at [31]).
During the proceedings counsel for the applicant responded to the respondent’s submissions in relation to the effect of DGZ16 by saying that the present case was distinguishable because DGZ16 involved the IAA making a decision on the same material that was also before the delegate (DGZ16 at [71], [72] and [76]).
However, it is clear from the IAA’s reasons and the footnotes to the reasons is that the findings made by the IAA in relation the applicant (including the finding that the risk of the applicant being harmed on his return to Jahori was remote) were based on multiple sources, many of which predate the applicant’s SHEV interview with the delegate.
For example, information from the DFAT report “DFAT Thematic Report – Hazaras in Afghanistan”, dated 8 February 2016 (in relation to Hazaras travelling by road between Kabul and the Hazarajat) was referenced by the delegate in relation to the following statement in the delegate’s reasons (CB 104):
DFAT assess that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than Pashtun passengers
The IAA also referenced this same report at [31], albeit in conjunction with the 2017 DFAT report, of its reasons which state:
On the one hand, DFAT suggests Hazaras are particularly at risk of road kidnappings/abductions and other attacks when travelling by road between the Hazarajat and Kabul and in provinces bordering the Hazarajat and assesses that once a group of travellers is stopped, Hazaras are more likely to be selected for kidnapping or violence.
Under s.473DC the IAA is empowered to obtain new information. This new information can only be considered in certain circumstances as per s.473DD. Section 473DE requires the IAA to give certain kinds of new information to a referred applicant and s.473DF of the Act sets out the requirements of an invitation to give new information or to comment on new information.
Importantly, the IAA was not statutorily required to seek comment from the applicant in relation to reports it had obtained because these reports fall within ss.473DE(3)(a) of the Act, which is not in dispute. Nor was the IAA obligated to seek comment once it had determined that there were exceptional circumstances for considering them.
In relation to whether the IAA should have allowed the applicant to make further submissions about the new country information or any other issue, within the context of a case where:
a)there is no authority for the proposition that the IAA cannot come to a different conclusion to that of the delegate;
b)the IAA assessed the same issues scrutinised by the delegate and one of those issues was the ability to return to Jaghori or relocate to Kabul;
c)much of the information used by the IAA to inform its findings in relation to the risk of harm faced by the applicant travelling by road to Jaghori from Kabul was already before the delegate and considered by the delegate;
d)the IAA merely supplemented the information considered by the delegate with the 2017 DFAT and UNAMA reports; and
e)there is no statutory obligation to seek further comment from an applicant, even if he has specifically asked for such an opportunity,
the Court finds that the IAA was under no obligation to provide the applicant with the 2017 DFAT and UNAMA reports pursuant to ss.473DE(3)(a) of the Act. Further, within the specific facts of this case, where the IAA relied on new information there is no implied requirement, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it has formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond: as per DGZ16 at [74].
It was entirely open to the IAA to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond: DGZ16 at [76].
Overall, in the particular factual circumstances of this case, the IAA was under no obligation to seek new information from the applicant (whether requested to do so or not). Within the specific statutory context in which the IAA conducts its review, and which the IAA specifically referenced and analysed, it cannot be said that the IAA’s decision not to exercise its discretion to allow the applicant an opportunity to provide further submissions lacks an intelligible justification.
As a consequence, it cannot be said that the IAA failed to conduct its review as required by s.473CC(1) of the Act.
Conclusion
For the reasons outlined above, the Court concludes the IAA’s exercise failure its discretionary power, having carefully considered the statutory and factual context before it, was not unreasonable. Rather, it was entirely logical and duly justified. The particular circumstance of this case fall short of engaging any obligation upon the IAA to exercise the power under s.473DC(3) of the Act.
The applicant’s sole ground of review must therefore fail.
Orders
The applicant’s application filed 30 November 2017, amended on 27 April 2018, is dismissed.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 5 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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