FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 875

Federal Circuit and Family Court of Australia

(DIVISION 2)

FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 875   

File number(s):

SYG 2890 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

28 November 2022 

Catchwords:

MIGRATION – Whether a failure by the Authority to refer to the “reasonably foreseeable future” test amounted to jurisdictional error – whether the failure by the Authority to refer to the test ought to give rise to a finding that the Authority did not intellectually engage on the question of what would happen in the reasonably foreseeable future – jurisdictional error established – decision quashed

Legislation:

Migration Act 1958 (Cth) s. 473CB

Cases cited:

BOT15 v Minister for Immigration & Border Protection [2018] FCA 654

SZGHS & Ors v Minister for Immigration & Citizenship & Anor [2007] FCA 1572

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

11 October 2022

Date of hearing:

11 October 2022

Place:

Brisbane

Counsel for the Applicant:

Mr B Mostafa

Solicitor for the Applicant:

Varess

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 2890 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJS18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	28 November 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The Amended Application for Review filed on 24 November 2021 be granted.

3.The decision of the Immigration Assessment Authority of 10 September 2018 be quashed.

4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.

5.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 10 September 2018.

6.The Applicant file and serve written submissions on the question of costs by 4.00pm AEST on 28 November 2022.

7.The First Respondent file and serve written submissions in reply by 12.00pm AEST on 29 November 2022.

8.The question of costs be determined on the papers.

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 Egan

Introduction

1. The Applicant was a Shia citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival in March 2013.

2. The Applicant made application for a Safe Haven Enterprise Visa (‘SHEV’) in August 2018.

3. On 29 March 2018 a delegate of the Minister found that the applicant was not owed any protection obligations by Australia. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for its review on 6 April 2018.

4. On 10 September 2018, the Authority in its written reasons affirmed the decision of the delegate.

5. At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

6. At [3] - [5] of its reasons, the Authority noted that on 1 May 2018 a migration agent acting on behalf of the applicant had sent a six page legal submission to the Authority. It was also noted that contrary to the requirements of a relevant practice direction, country information had been provided to the Authority in the form of hyperlinks.

7. As to the provision of new information by the migration agent, the Authority also noted the practice direction which required the provision of a written explanation as to why such information could not have been given to the Department before the delegate’s decision was made, or how the information was credible personal information which was not previously known, being information which may have affected the consideration of the applicant’s claims had it been known. The Authority decided that because neither of those two conditions had been met in relation to the provision of new information, such information would not be accepted for consideration.

8. At [10] and [11] of its reasons, the Authority recorded that over 300 pages of country information from 110 separate articles had been provided to the Department along with post interview submissions. The Authority recorded that although such articles were of general application to all of Afghanistan rather than in relation to the applicant’s own particular circumstances, it had nevertheless considered the content of such material.

9. At [12] of its reasons, the Authority recorded the applicant’s claims as follows:

   “[12]    The applicant’s claims can be summarised as follows:

   •The applicant was born in 1995 in [place omitted] Village, Khoshi District, Logar Province in Eastern Afghanistan. He is an Afghan citizen of Tajik ethnicity and is an adherent of the Shia faith. Around 1997, when the applicant was a young child his family departed Logar Province for Pakistan. They lived in the Pakistani city of Parachinar between 1997 and 2005, before returning to [place omitted].

   •Around 2012 the applicant decided to move to Kabul. He lived in the home of his married sister. Whilst in Kabul, the applicant secured work, on the recommendation of a friend from his home village, with ACCL International, a company that provided catering and cleaning support to an American base in Kabul. The applicant worked as a Kitchen hand/Cleaner.

   •The applicant kept his employment with ACCL International secret as he did not want it to become known that he worked on the Base since working with foreigners could lead to being targeted by anti-Government insurgents.

   •The Taliban routinely tasked persons to identify the employees at the Base. One day the applicant was departing work. He saw a man that he thought was observing him. The man attempted to speak to him. The applicant formed the view that this man was a member of the Taliban. He fled back to his home in [place omitted]. He stayed overnight in the village, and made arrangements to depart Afghanistan for Pakistan, eventually coming to Australia.

   •After he came to Australia, his friend (who had helped him to find employment) was killed by the Taliban.

   •The applicant fears returning to Afghanistan, as he believes that his period of employment with ACCL International is known to the Taliban, and that he would be considered a spy, a traitor, an infidel or otherwise be imputed to support the international community by the Taliban.

   •He also fears to return since having spent time in a western country. He believes that the Taliban would know of his attempt to claim asylum in Australia due to the 2014 data breach by the then Department.

   •He fears that as a Tajik Shia, he would be targeted by the Taliban throughout Afghanistan”.

   Grounds of Review

10. At the time of the hearing before the Court, the applicant relied upon Grounds 1 – 3 inclusive of an Amended Application for Review filed on 24 November 2021. Those grounds were as follows:

    “1. The Authority erred in assessing whether the applicant faced a relevant risk of harm on account of being a Shia Muslim by failing to consider the risks faced in the foreseeable future as opposed to the present or immediate future.

    Particulars

    a.   The Authority Accepted that the applicant was a Shia Muslim, and that he claimed to fear harm in Afghanistan on this basis: at [17]-[18].

    b.   The Authority found that the applicant was born in [place omitted] Village, Khoshi District, Logar Province, Afghanistan, and assessed the applicant’s claims on the basis that he would again live in that village on return to Afghanistan: at [18], [48]-[49].

    c.   The applicant’s submissions to the Authority highlighted that the situation for Shia Muslims in Afghanistan had deteriorated “from 2014, but particularly since 2017” and that the applicant faced a “reasonably foreseeable risk of future serious harm”: CB 551, 552.

    d.   Country information before the Authority showed that:

    i.the security situation in Afghanistan was “highly fluid” and had “deteriorated in recent years”: Department of Foreign affairs and Trade’s (DFAT) DFAT Country Information Report, Afghanistan, dated 18 September 2017 (DFAT Report) at [2.31], [2.34];

    ii.Logar Province was “said to be one of the most volatile and kinetic provinces in the region and constitutes an ‘insurgents’ highway’ from Pakistan to Kabul”, with the Taliban having the aim of ruling districts including Khoshi district: European Asylum Support Office’s EASO Country of Origin Report, Afghanistan, Security Situation, dated November 2016 (EASO Report) at p 61;

    iii.in a departure from the previous absence of religiously motivated attacks against Shia Muslims, in late 2016 and early 2017, there had been “series of deliberate sectarian attacked against Shi’a targets”, with further attacks having occurred later in 2017: DFAT’s DFAT Thematic Report, Hazaras in Afghanistan, dated 18 September 2017 at [3.5]-[3.6].

    e.   In assessing the questions of whether the applicant faced a relevant risk of harm in his home area on account of being a Shia Muslim, the Authority:

    i.Considered country information regarding the past and present situation in Logar Province, Khoshi District and other parts of Afghanistan: at [47]-[48];

    ii.Considered the absence of past harm to the applicant when he lived in [place omitted] Village, and the absence of claims of harm suffered by the applicant’s family in that village;

    iii.Conclude (footnotes omitted):

    50. The country information cited above indicates that whilst there was a spike in the targeting of Shia in Afghanistan in 2016/17, these actions all occurred in large cities of Kabul, Herat & Mazar-e-Sharif. The [sic] have been largely attributed to the ISKP, an external group. Whilst there are reports of small, presence ISKP in Logar, the overwhelming evidence suggests that the Taliban are is [sic] the major insurgent group in the area. No evidence before me indicates that Shia in Logar Province has [sic] been targeted for attacks merely for being Shia. The voluminous country information submitted on the applicant’s behalf does not suggest it either.

    51. Having considered all of the evidence, and the applicant’s personal circumstances, I am not satisfied that [t]he applicant faces a real chance of harm as a Shia or Shia Tajik.

    iv.did not refer to any potential future risk of harm that the applicant might face should the security situation in his home area deteriorate or the Taliban gain control of that area. Nor did the Authority mention the word “future” (foreseeable or otherwise) anywhere in its decision.

    f.    In the premises, the Authority erred as pleaded.

    2.The Authority erred in failing to consider whether the applicant would face a relevant risk of harm in travelling to his home area on return to Afghanistan.

    a. The Authority found that the applicant was born in [place omitted] Village, Khoshi District, Logar Province, Afghanistan, and assessed the applicant’s claims on the basis that he would again live in that village on return to Afghanistan: at [18], [48]-[49].

    b. Country information showed that returnees to Afghanistan from western countries almost exclusively returned to Kabul: DFAT Report at [5.20].

    c. Country information showed that road travel in Afghanistan was dangerous, particularly on roads that passed through areas contested by insurgents, and that the “Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common”: DFAT Report [2.38].

    d. Country information showed that the Taliban remained active in Logar, with Logar Province described as an “insurgents highway”: EASO Report at p 61-2.

    e. The Authority did not consider how the applicant would be able to access his home area on return to Afghanistan, and whether he might face a relevant risk of harm in doing so.

    f. The Authority thereby erred in failing to address a claim or issue that was implicit in the material before the Authority, or that emerged from the Authority’s finding that the applicant would return to [place omitted] Village.

    3. The Authority second respondent (Authority) fell into error in refusing to accept or consider new information provided by the applicant on the basis that the applicant had not complied with Practice Direction 1, Practice Direction for Applicants, Representatives and Authorised Recipients, dated 6 February 2017 (Practice Direction) in circumstances where the applicant had complied with the requirements of the Practice Direction discretion under s 473FB to refuse to accept, or consider under s 473DD, new information was not enlivened in respect of some or all of the new information.

    Particulars

    a.   Section 473FB(5) of [the] Act provides that the Authority is not required to accept consider new information or documents if an applicant fails to comply with a relevant practice direction that applies to that applicant.

    a.   In its submissions to the Authority, the applicant sought to rely on media articles which were “new information” for the purpose of Part 7AA of the Act.

    b.   At [9] of its decision, the Authority refused to accept (and so refused to consider under s 473DD) the new information on the basis that the applicant had purportedly not complied with the requirements of the Practice Direction that:

    i.if an applicant relies on new information such as country information or media articles they must provide a copy of that information or extract parts of the information on which they rely and it is not sufficient merely to provide hyperlinks or lists of articles; and

    ii.if the applicant wishes to provide new information it must provide reasons why the requirements of s 473DD(b)(i) and/or (ii) are met.

    c.   Contrary to the conclusion of the Authority at [9], in his submissions to the Authority the applicant did provide extracts on the parts of the information on which he relied.

    d.   Contrary to the conclusion of the Authority at [9], it is not necessary for an applicant to provide an explanation as to why the requirements of s 473DD(b)(i) and/or (ii) are met where such basis is obvious on the face of the materials themselves (DHV16v Minister for Immigration [2018] FCCA 349 at [93]) and in the case of the news articles relied upon by the applicant, they either post-dated the decision of the Delegate or post-dated the date by which the applicant to provided his submissions to the Delegate so the requirements of s 473DD(b)(i) were met on their face.

    e.   Further or alternatively to the preceding particular, the applicant provided to the Authority an explanation in writing as to why the requirements of s 473DD were met, at least in respect of the new information that post-dated the Delegate’s Decision, as he provided the dates that the new information was published and stated that the information” was not available before the delegate, when deciding on the applicant[‘s] visa”: CB 551.”

11. As to Ground 1, at [11] of the First Respondent’s written submissions, it was conceded that the Authority “ … did not recite the “test” that it must consider the applicant’s risk into the reasonably foreseeable future.”

12. It was submitted on behalf of the applicant that when assessing a claim that an applicant had a well-founded fear of persecution, a decision maker must consider such claim not only by reference to what has happened in the past, and as to what the situation was at the time of the decision, but also by reference to what might occur in the reasonably foreseeable future. It was submitted on behalf of the respondent that even though the Authority did not record what the correct test was, it ought not to be inferred that the Authority did not know what it was. It was further submitted on behalf of the first respondent that because it had been submitted to the Authority that the delegate had failed to apply the reasonably foreseeable future test, the Authority must be taken to have known what the appropriate test was.

13. The problem with the respondent’s submission in that regard was that nowhere in its reasons did the Authority advert to its having appreciated, and applied, such test. Reference to [4] of the reasons of the Authority in the submissions of the first respondent does not assist the first respondent. Those reasons were as follows:

    “[4]I note that the legal submission argues that in the s.65 decision the delegate made unreasonable assumptions, failed to give proper consideration to risks faced by the applicant and misinterpreted evidence. Further, the legal submission suggests that the applicant's fear of persecution relates to all areas of Afghanistan and that it was unreasonable for the delegate to consider relocation for the applicant. In my view, these arguments mischaracterise the delegate's findings, but in any case, as this is a de novo review of the applicants claim, I have reached my own conclusions. While I have considered all argument in the legal submission, my findings are generally consistent with those of the delegate (for the reasons outlined below).”   

14. In circumstances where the Authority had in its reasons referred to country information which it had before it without demonstrating that it had contextually considered what might happen in the reasonably foreseeable future based upon the content of such country information, one cannot be assured that the Authority intellectually engaged in a consideration of such question.

15. In SZGHS & Ors v Minister for Immigration & Citizenship & Anor [2007] FCA 1572, the Court was considering a situation where the Tribunal had set out in template form what the correct test was. However, when dealing with whether or not such inclusion of a template protected the decision maker in the Tribunal from a later finding that no proper consideration of the test had been applied by the Tribunal, at [2], [3] and [26], of SZGHS Allsop J (as His Honour then was) said as follows:

    “[2]The appeal is a difficult one. I differ from the Federal Magistrate not without hesitation. My disagreement with her Honour’s reasons rests not on the statement, or perceived error in expression, of principle, but rather in my assessment of what the reasons of the Tribunal reveal in the context of the facts and the material put before it. In my view, the reasons of the Tribunal demonstrate a failure to assess the first appellant’s claims to have a well-founded fear of persecution by reference to his claims, to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future.

    [3]The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).

    …

    [26]This paragraph purports to display a consideration of the appellants’ full circumstances. It does however concentrate upon the "current political situation". It gives no regard to the fact that one of the incidents in 1999 (in which the first appellant was beaten and hospitalised) was consequent upon campaigning for the FLP, which is likely to re-occur.”

1. The bare assertion of the test in the reasons of a decision maker was again the subject of consideration by Markovic J in BOT15 v Minister for Immigration & Border Protection [2018] FCA 654, where at [53] – [59] inclusive it was said:

   “[53]The Minister contended that the appellant was inviting the Court, despite the flow of the relevant part of the Tribunal’s decision and the invoking of the right test, to find that the Tribunal did not do what it expressly said it did and what it looks like it did. The Minister submitted that this is clearly a case where the Tribunal has applied the correct test.

   “[54]The appellant relies on SZGHS v Minister for Immigration and Citizenship[2007] FCA 1572 (SZGHS) at [2] where Allsop J (as his Honour then was) held that the reasons of the tribunal in that case demonstrated:

   ... a failure to assess the first appellant’s claims to have a well-founded fear of persecution by reference to his claims, to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future.

   [55]     Relevantly at [3] his Honour also said:

   The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).

   [56]In my opinion the same can be said about the Tribunal’s conclusion at [96] of its decision record in this case.

   [57]In SZGHS the first appellant claimed to fear harm from extremists in Fiji due to his support of the Fiji Labour Party and of Indian Fijians. Before the Tribunal the first appellant described three incidents which gave rise to his claim including, among others, being abused and beaten to unconsciousness and being threatened. Allsop J considered particular parts of the Tribunal’s decision and at [28] concluded that:

   ... looking at all of the reasons of the Tribunal, there was a failure to address the reasonably foreseeable future in the context of the claims made. The dealing with the three incidents was based on immediate facts – no elections looming and the character of the present government. This reflected a focus on immediacy which was no real assessment of whether in the future, with elections looming, with the first appellant campaigning for the [Fiji Labour Party], he would not face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him...

   [58]In the present case, in addressing the issue of the appellant’s claim to fear harm because of the withdrawal of foreign troops, the Tribunal considered a range of country information, in part described at [34]-[44] above. The information referred to by the Tribunal in turn considered the impact and effect of foreign troop withdrawal up to the date of the relevant reports and seems to be forward looking in one case only – that is, in the opinion piece from the Wall Street Journal extracted at [94] of the Tribunal’s decision record where it notes that “[t]his political reconciliation makes it likely that the security forces will continue to respect central-government authority”. I accept the Minister’s submission that it is permissible for the Tribunal to speculate about the future based on past events and present circumstances. But the vice in the Tribunal’s decision is that it did not, in my opinion, undertake any such speculation. Its findings at [95] were limited only to the present. They cannot be construed as addressing the future. The Minister relies on [96] as the finding as to the future where the Tribunal stated:

   The Tribunal does not accept that the [appellant] has a real chance of serious harm or a real risk of significant harm arising from the withdrawal of foreign troops from Afghanistan, now or in the reasonably foreseeable future.

   [59]That conclusory statement does no more than set out the test. It is a bare assertion that is insufficiently explained and lacks logical connection to the material and analysis that precedes it. There is no consideration by the Tribunal of what may happen after the completion of the withdrawal of foreign troops and of how the country information demonstrates that the appellant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. Its focus on the near completion of the withdrawal of foreign troops looks to the past and present and, possibly, to the near future, and not to the reasonably foreseeable future.”

2. The Authority considered the applicant’s claims largely by reference to country information but made no reference to the reasonably foreseeable future test. It cannot be inferred from any of the headings in the reasons of the Authority that the Authority directed its mind to such test in reaching its decision. Those headings, relevantly, were “Refugee assessment”, “Well-founded fear of persecution”, “Refugee: conclusion”, “Real risk of significant harm” and “Complementary protection: conclusion”. In such circumstances, reading the reasons of the Authority as a whole, the Court is not persuaded that the Authority properly intellectually engaged in a consideration of what harm the applicant might face in the reasonably foreseeable future should he be returned to Afghanistan or Pakistan.

3. In the light of the Court’s findings, it is unnecessary for the Court to deal with Grounds 2 and 3 of the Amended Application for Review.

4. The Court finds that the Authority fell into jurisdictional error and that its decision ought to be quashed.

5. And it is so ordered.

6. The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       28 November 2022