FKZ17 v Minister for Immigration
[2019] FCCA 2521
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKZ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2521 |
| Catchwords: MIGRATION – No consideration by IAA of country information provided by an expert on behalf of the Applicant – independent country information directly contradicted country information provided by the Department of Foreign Affairs and Trade – relief sought by Applicant granted. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2) & (2A), 473CB, 473CC, 473DC, 473DD, 473DE. |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 Baker v The Queen (2004) 223 CLR 513 BMV16 v Minister for Home Affairs (2018) 261 FCR 476 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 MZYQU v Minister for Immigration and Border Protection (2012) 206 FCR 191 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; (2018) 353 ALR 600 |
| Applicant: | FKZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | CAG 101 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 13 July 2018 |
| Date of Last Submissions: | 26 July 2019 |
| Delivered at: | Canberra |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Kikkert Law |
| Counsel for the Respondents: | Mr Hoyle |
| Solicitors for the Respondents: | Clayton Utz Canberra |
ORDERS
The decision and recommendation of the Immigration Assessment Authority dated 22nd November 2017 be set aside, and the matter be remitted for further assessment by a different reviewer.
The First Respondent is to pay the Applicant’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 101 of 2017
| FKZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is an Afghani national of Hazara ethnicity and Shia religion. On 2nd May 2016, he lodged an Application for a Safe Haven Enterprise Visa (“SHEV”). He claimed to fear harm from the Taliban due to his religion and his ethnicity, as a returnee, and as a failed asylum seeker from a western country.[1]
[1] The following brief factual summary is taken from the reasons of the Immigration Assessment Authority, dated 22nd November 2017. Those reasons are located in the Court Book (“CB”) at pp.263 – 276.
The Applicant also feared harm because of his previous “adverse profile” as a long-haul truck driver who had regularly encountered, and been stopped and searched by, the Taliban when delivering goods.[2]
[2] Among the “Findings of Fact” in the Delegate’s reasons, dated 9th March 2017 (see CB 188 – 201 at p.192), the Delegate stated: “The Applicant worked as a truck driver and while driving for work, the Applicant was stopped at checkpoints and searched by the Taliban who recorded the Applicant’s personal details as per his Taskera and vehicle registration details …” Emphasis added.
In 2012, the Applicant’s brother was seriously injured from a suicide bombing in Herat province.[3] The Applicant continued to work to support his brother and his brother’s family.
[3] The Delegate recorded that the Applicant’s brother had been left disabled from a suicide bombing. See CB 192.
In early 2013, the Applicant was part of a truck convoy. After stopping to fix a flat tyre and later catching up with the convoy he found one of the drivers of one of the trucks lying dead on the side of the road near his truck. A little way further along he found a second truck, the driver missing but the driver’s seat burned up.
In relation to the same convoy, the Applicant had shots fired at his truck when he was about 2 hours from Kabul.
On 9th March 2017, a Delegate of the Minister refused to grant the Applicant’s SHEV. The Delegate found that although there was a real chance of the Applicant being harmed when returning to Jaghori from Kabul by road, he could reasonably relocate to Kabul.
On 22nd November 2017, the Immigration Assessment Authority (“the IAA” or “the Authority”) affirmed the Delegate’s decision not to grant a protection visa but did so on quite different grounds. It is from that decision that the Applicant seeks relief from this Court.
The Delegate dealt with the Applicant’s situation by deciding that there were sufficient risks in or en route to Jaghori that the Applicant should relocate to Kabul. In contrast, the IAA found that there were not relevant or sufficient risks in and around Jaghori district such that the Applicant could/should return to this region. As a result, the IAA did not consider any relocation by the Applicant to Kabul. As just noted, somewhat curiously, the decisions of the Delegate and the IAA were on different, and in some ways opposing, if not contradictory, grounds.
Grounds of Review
The Applicant’s Amended Application, filed 26th March 2018, set out the following Grounds of Review:
Grounds of Application
1) The Immigration Assessment Authority (IAA) fell into jurisdictional error by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to Jaghori.
Particulars
a) The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to Afghanistan.
b) The IAA accepted that the applicant faces a real chance of harm and persecution if he attempted to return to his home region in Jaghori District from Kabul by road, specifically through contested areas outside Hazarajat or Ghazni [at 2, 31-2].
c) However, the IAA found that the applicant does not face a real risk of significant harm within the Jaghori District itself [at 40].
d) Nevertheless the IAA also found that if the applicant “were to resume driving in the areas where he previously travelled, I accept given the frequency of his travel there is a more than remote chance he will be stopped and harmed, although the motivations may not be immediately evident.” [at 31]
e) Nevertheless the Tribunal found that the applicant “could take reasonable steps to modify his behaviour by restricting his travel to avoid a real chance of persecution on contested roads outside of Hazarajat and Ghazni.” [at 34] and that “it could reasonably be expected that he remain in Hazarajat and safe areas of Ghazni where he would be able to safely access employment relevant to his skills and the services he requires.”
f) The IAA’s finding involved a misapplication of the ‘real chance’ test. The ‘real chance’ test is objective, not relative, and is not determinative whether the risk in one place is less severe than the risk in another place.
2) The IAA fell into jurisdictional error by failing to perform its statutory task.
Particulars
a) The task of a review is to form the requisite state of satisfaction;
b) To sufficiently undertake the statutory task of review, most recent country of origin information should be considered;
c) The IAA has a duty, especially in cases where determinations are taking longer than usual, to consider most recent information;
d) The making of the decision took seven months (4 Apr – 22 Nov 2017), during which time substantial developments relevant to the applicant’s case occurred;
e) By failing to consider the most recent country of origin information, the Authority failed to undertake its statutory task of review.
3) The IAA fell into jurisdictional error by not considering relevant information, including a failure to consider all the circumstances of the applicant when deciding whether the circumstances of the case were exceptional.
Particulars
a) Various documents submitted for consideration [at 5, 6] were put before the IAA. In deciding whether there were any exceptional circumstances for considering these documents, the IAA did not state any reasons for the findings for or against exceptional circumstances.
b) This includes a media report and general analysis dated 25 March 2017, which provides general commentary and reports on a security incident in Helmand which the IAA deemed not directly relevant to the applicant’s claims.
c) The applicant has a connection to Helmand [as noted at 13, 14 and 31], and it is submitted that there was a failure to consider all the circumstances of the applicant when deciding whether the document should be considered.
4) The IAA fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth).
Particulars
a) The IAA adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD.
5) The IAA fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it.
Particulars
a) The Authority failed to give “proper genuine and / or realistic consideration” to whether there were exceptional circumstances;
b) The Authority’s finding in this regard was not based on evidence, nor did it demonstrate any engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process;
c) The Authority made this finding with no evidence outlined to support it;
d) The Authority also went on to find “as a matter of fact, that the applicant will return to Jaghori but will not take up driving employment requiring travel through contested areas on the routes he previously travelled. Given that he has tribal and family links in Jaghori, a range of employment skills and access to services, he would not have the incentive to drive on roads in contested areas which are considered dangerous. I am not satisfied that limiting where he drives for work amounts to significant harm.”
e) The finding at (d) is not based on evidence, nor does it demonstrate any engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process.
f) While it is acceptable for a decision-maker to use past or present matters to predict the future, there must be a process of reasoning to indicate why those past or present matters constitute a reliable basis for the prediction of the future.
g) There was no such justification put forward by the Authority in the present case.
6) The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
a) Various documents submitted for consideration were put before the IAA [at 5 and 6]. However in deciding whether there were any exceptional circumstances for considering these documents, the IAA did not state any reasons for the findings for or against exceptional circumstances.
b) The IAA accepted that the applicant’s truck was stopped by the Taliban, who took details of his taskera and registration and took photos of him (at [11] and [21]). The IAA also accepted that he was “stopped on a number of occasions” [at 21].
c) However the IAA went on to state that “I do not accept the applicant was specifically targeted on these occasions or he was of interest as he was released on each occasion” [at 21].
d) This finding quoted at (c) above is illogical and lacks evident and intelligible justification.
e) The IAA also went on to find “as a matter of fact, that the applicant will return to Jaghori but will not take up driving employment requiring travel through contested areas on the routes he previously travelled. Given that he has tribal and family links in Jaghori, a range of employment skills and access to services, he would not have the incentive to drive on roads in contested areas which are considered dangerous. I am not satisfied that limiting where he drives for work amounts to significant harm.”
f) The IAA’s finding quoted at (e) above is not based on evidence, did not demonstrate any engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process. As such this finding is legally unreasonable.
The IAA’s Decision
The IAA’s decision may be summarised as follows.[4]
[4] The decision is at CB pp.262 – 276.
At pars.3 – 7, the IAA set out the information before it. It confirmed that it had available to it that which was provided by the Secretary of the Department of Immigration and Border Protection under s.473CB of the Migration Act 1958 (“the Act”).
The IAA noted at par.5 that, after the Delegate’s decision to refuse the Applicant’s visa, it received submissions from the Applicant’s representative in relation to documents that were widely available, but which were not directly before the Delegate, despite some of the documents predating the Delegate’s decision. Among other things, these submissions included:
a)Two expert reports from Professor William Maley, dated 22nd November 2016 and 22nd December 2016, which discussed the safety of Shia Hazaras in Afghanistan, especially following several attacks. The IAA was not satisfied that these should have been provided to the Delegate, finding that they were general country information only, were not credible personal information, and did not fall under any exceptional circumstances for consideration.
b)A media report, dated 8th March 2017, in relation to an attack by Islamic State on a military hospital in Kabul. The Applicant’s representative submitted that the attack occurred prior to the Delegate’s decision, and was key information in relation to the fluidity of the security situation in Afghanistan. The IAA said that it constituted new information, finding that there were “exceptional circumstances” for considering it.
c)An Administrative Appeals Tribunal decision from May 2016 in relation to an Application by another Hazara. The IAA said that, notwithstanding the fact that case was determined on its individual facts and cannot be compared to the case at hand, and that there was no reason the decision could not have been provided to the Delegate previously, it was not personal credible information and there were no “exceptional circumstances” for consideration.
d)A media report and analysis dated 25th March 2017 regarding the Taliban takeover of a town in Helmand Province. Despite being satisfied that the report constituted new material, the IAA said that it was general commentary only and did not relate directly to the Applicant’s circumstances, or to the potential areas of Afghanistan relevant to the consideration of the Applicant’s relocation.
At par.7, the IAA confirmed it obtained updated country information in relation to the situation in Afghanistan for (a) Shia Hazaras, and (b) persons returning from the West, including two Department of Foreign Affairs and Trade (“DFAT”) reports dated 18th September 2017. Interestingly, the IAA acknowledged here that the information relied upon by the Delegate contained “limited analysis” of the security situation for Shias. It is not clear whether these updated reports were made available to the Applicant or his representative.
It might also be remarked that both the Delegate and the IAA relied upon what must have been general assessments of “country information” provided by DFAT regarding the security situation in Afghanistan. Yet they rejected the no less cogent, general assessments of Professor Maley from November and December 2016. Professor Maley, a specialist in the field, provided assessments that pertained not only to the security assessment in Afghanistan but also to the plight of persons akin to the situation in which the Applicant finds himself with respect to the prospect of returning to Afghanistan.[5]
[5] The Reports by Professor Maley are at CB 239 – 242 (this Report is dated 22nd December 2016) & 251 – 253 (this Report dated 22nd November 2016).
Because, in my view, the IAA deprived itself of the benefit of these expert Reports, it is apposite to take a moment to consider them.
Reports of Professor Maley & Country Information
First, at par.8 of the December 2016 Report, Professor Maley recorded two specific cases that, in his expert view, highlighted the immense dangers faced by Hazara Afghans returning to Afghanistan based on an assessment of relative safety provided by DFAT and accepted by the [then] Refugee Review Tribunal (“RRT”).
The first case involved an Afghan Hazara who had been returned to Afghanistan. Upon his return he was seized by the Taliban, on a road that was deemed by the RRT to be one where “the level of risk does not reach the threshold of a real chance.” This person was severely tortured. Professor Maley met with this person. He said there was no doubt of this Hazara’s profound trauma. He also saw unpublished photographs of the person’s injuries immediately after they were inflicted.
The second case identified by Professor Maley (also recounted in par.8 of his December 2016 Report) concerned an Australian citizen of Afghan Hazara origin. This person was murdered by Taliban militants, who stopped a minibus on which he was travelling, and asked for him by name.
These cases documented by Professor Maley, led him to observe, at par.8 of the December 2016 Report, thus (emphasis in original):
These cases speak much more powerfully to the real dangers in Afghanistan than can country information based on diplomatic reporting by officials who, for security reasons, are severely constrained in their ability to move around the country. This is a perfectly legitimate position for an Embassy to take, but it gives rise to the risk that what appears in diplomatic cables may be more a distillation of received ‘wisdom’ in certain circles in Kabul than a full reflection of dangers existing in other parts of the country. In the light of the experiences of [the cases already noted], as well as the December 2011 and July 2016 bombings, the October 2016 and November 2016 mosque attacks, and the reported 2015 upsurge of attacks on Hazaras, any ‘country information’ suggesting that Hazara Shia are not at risk of persecution for reasons recognised by the 1951 Convention, or at real risk of harm if they seek to travel to places outside of Kabul where their families may be located, is outdated and irrelevant.
At par.10 of this December 2016 Report, Professor Maley also detailed the problems faced by returnee Hazaras who have no family or ties in areas to which they return. He considered their plight to be “perilous.” He relied on a couple of recent studies for this assessment. Alarmingly, one of the authors (Dr Kantor) of a study cited was herself murdered in a terrorist attack in Kabul in May 2015. Maley stated (underlined emphasis in original; other emphasis added):
The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers – even Afghan observers – on occasion make is to underestimate the degree of differentiation among groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) An Hazara who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation. The simplistic and superficial conclusion that urban centres such as Kabul, Mazar-e-Sharif or Herat offer safe and meaningful ‘relocation’ options for Hazaras should be avoided.
At par.12, Professor Maley documented an alarming number of reports of random attacks on Hazaras (and others) in 2016, with casualties numbering, respectively: 85 people dead and 413 injured; killing of at least 80 following a suicide bomb attack in Kabul; a further 14 people killed in a separate attack on a shrine in Kabul; and an attack on 21st November 2016 on a mosque in western Kabul that killed 30 worshippers and wounded at least 40 others.[6] These regular and fatal attacks led Professor Maley to state (par.12):
… The implications of these attacks are profound. They demonstrate a capacity on ISIS’s part to strike targets close to power centres where the presence of Afghan security forces is relatively strong; in the light of ISIS’s claims of responsibility, they put on display a commitment to attack on the basis of religious identity, plainly engaging one of the bases of refugee status under Article 1.A(2) of the 1951 Convention Relating to the Status of Refugees; and they highlight particular dangers for Hazaras, who are overwhelmingly Shiite, are physically distinctive because of their East Asian phenotypes, and make up the vast bulk of the Shiite component of the Afghan population.
[6] All internal citations have obviously been omitted.
In the light of the detail he had just outlined of the range of attacks, predominantly involving Hazaras during the latter part of 2016, Professor Maley concluded his November Report with the following comments (par.13) (internal citations omitted):
In February 2016, the Department of Foreign Affairs and Trade claimed in a Thematic Report specifically prepared for protection status determination purposes that ‘The threat of conflict-related violence faced by Hazaras is similar to that faced by members of other ethnic groups’ and that ‘DFAT is not aware of any credible evidence that everyday Hazaras are currently being systematically targeted on the basis of the Shia religion [sic].’ In the light of the subsequent carnage in Kabul, and ISIS’s explicit claims for responsibility for it, such conclusions are now completely untenable. In September 2016, the Department of Foreign Affairs claimed, in a further Thematic Report specifically prepared for protection status determination purposes, that in respect of the 23 July attack, ‘it is too early to say whether this attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks.’ Given the subsequent mass-casualty attacks of 11 October 2016, 12 October 2016 and 21 November 2016, it is equally untenable to depict the 23 July attack as an ‘isolated incident.’
In his 22nd November 2016 Report, Professor Maley provided a similarly detailed and concerning appraisal of the security situation in Afghanistan. It is sufficient for current purposes to record the following from that Report.
At par.2, Professor Maley summarily noted (emphasis added):
Western governments continue to paint a very grim picture of the dangers affecting those in Afghanistan. The Australian Department of Foreign Affairs warns as of 22 November 2016 of ‘the extremely dangerous security situation and the very high threat of terrorist attack.’ It goes on that the ‘frequency of attacks in Kabul has increased significantly’, that ‘Terrorist attacks can occur anywhere, anytime, and are particularly common in Kabul, and the southern and eastern provinces’, and that ‘Lawlessness exists in rural areas’. The US Department of State warns as of November 22, 2016 that ‘Travel to all areas of Afghanistan remains unsafe’, that ‘Extremists associated with various Taliban networks, Islamic State of Iraq and the Levant … and members of other armed opposition groups are active throughout the country.’
At par.3, Professor Maley assessed the situation in Afghanistan in the following terms (emphasis in original):
It is essential to appreciate that the situation in Afghanistan is extremely fluid …
He concluded this Report with the following self-explanatory comment (par.9):
As Patricia Gossman, Senior Afghanistan Researcher at Human Rights Watch has put it, ‘ISIS has stepped up its horrific and unlawful attacks on Shia public gatherings, making no place safe’ (‘Afghanistan: Shia Bombing Spotlights Need to Protect’ – Human Rights Watch, 21 November 2016)
It will be recalled that, at par.5 of its reasons, the IAA said (among other things) that it was “not satisfied that there are exceptional circumstances for considering” the Reports of Professor Maley. Respectfully, as set out later in these reasons, I do not agree with this almost casual assessment of Reports that are very significantly detailed in relation to the security situation in Afghanistan and which called into question the country information ultimately relied upon by the IAA. By not relevantly considering these Reports the IAA deprived itself of detailed analysis by an acknowledged expert, which included criticism of the analysis provided by DFAT. Even if, as was the case, that the IAA considered later Reports provided by DFAT, it lost the opportunity to have relatively recent, non-governmental comparative material before it regarding the recent situation “on the ground” in Afghanistan.
Subject to what is said later in these reasons, and accepting that the statutory regime in the matter before this Court is different to the statutory context in the matter before the Full Court, I note that in Minister for Immigration and Border Protection v MZYTS, the Full Court discussed at some length the statutory task required of the Tribunal.[7] This included, it said at [38] (emphasis added):
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. … While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. … but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same.
[7] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
In the result, (among other things) in MZYTS, at [46] the Full Court said (emphasis added, internal citations omitted):
Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s.36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
I will return to these matters later in these reasons.
The IAA’s Decision (cont.)
At par.8, the IAA summarised, but in some detail, the Applicant’s claims for protection. Among other things, the claims stem from his “adverse profile” as a Shia Hazara who would be returning as a failed asylum seeker from the West, and from his and his brother’s previous employment as long-haul truck drivers. The Applicant claimed that he and his brother were regularly stopped and searched by the Taliban, and that his brother was seriously injured by a suicide bombing in Herat Province in 2012. The Applicant said that he could not stop working despite being fearful for his safety as he had to provide for his brother and his brother’s family. The Applicant also claimed that in 2013, he saw another truck stopped on the roadside, the driver lying dead near it. The Applicant said he subsequently sold his truck and departed the country two weeks later.
Pars.9 – 16 set out the IAA’s factual findings. At par.9, the IAA accepted the Applicant is an Afghani national. The IAA also accepted that the Applicant does not have an existing right to reside in Iran despite living and working in Iran for several years, and that his “receiving country is Afghanistan”.
At par. 10, the IAA noted that the Applicant claimed that he was self-employed as a truck driver between 2006 and 2013. The Applicant claimed that, in the course of that employment, he was regularly stopped and interrogated by the Taliban, and on some occasions even physically assaulted. At par.11, the IAA accepted that the Applicant worked as a truck driver and had dealings with the Taliban in that employment, which included being stopped at checkpoints and the like. However, the IAA noted that it was not satisfied that the Taliban were specifically targeting the Applicant in this regard as it was not uncommon for the Taliban to erect roadblocks and road checkpoints.
The IAA did not mention, or otherwise seemingly have regard to, the Delegate noting that the Taliban in fact recorded personal details of the Applicant during one occasion when it stopped him.[8]
[8] See CB 192.
At par.12, the IAA accepted that the Applicant’s brother was seriously injured in a suicide-bombing incident in Herat. However, the IAA commented that it was not satisfied that this attack specifically targeted the Applicant’s brother. It must follow from such a finding that the attack was necessarily random. If this be so, the IAA did not comment on the consequences of this.[9]
[9] I note that when the Applicant was before the Delegate he claimed a fear, in part, from “generalised violence”, which the Delegate accepted. See CB 192.
In this regard I note that in MZACX v Minister for Immigration and Border Protection, Kenny J noted (admittedly in a different statutory context) comments by Dodds-Stretton J in relation to the consideration of acts of randomised violence (emphasis added):[10]
[36] In MZYQU [2012] FCA 1032; 206 FCR 191, Dodds-Streeton J held (at [61]) that there was jurisdictional error in treating a risk of serious harm (within s 91R(1)(b) of the Migration Act) as the only kind of harm that could affect the reasonableness of relocation. Her Honour explained (at [55] and [60]):
Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” ... may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.
...The I[ndependent] M[erits] R[eviewer] did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious within the meaning of s.91R(1)(b), it was unnecessary to do so.[10] MZACX v Minister for Immigration and Border Protection [2016] FCA 1212. An earlier and critical reference point regarding “internal relocation” was (and remains) SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] – [22] (Gummow, Hayne and Crennan JJ), and at [80] – [81] (Kirby J) regarding considerations of “reasonableness”. Among other things, his Honour noted that in such cases, there are often “logistical or safety impediments” to gaining a safe haven, and likewise that “the absence of family networks or other local support” can or may lead to such relocation proving to be “unreasonable.” In MZANXv Minister for Immigration and Border Protection [2017] FCA 307 (discussed later in these reasons) Mortimer J made similar comments to those by Kirby J.
Similarly, at par.13, the IAA recounted the Applicant’s claims relating to a roadside attack on two fellow truck drivers in Helmand Province in 2013, which resulted in their deaths. The Applicant claims he only escaped death because he had fallen behind the others due to a punctured tyre having to be replaced. After citing the findings of a report (at par.14), the IAA found that the attack on the Applicant’s colleagues was not a result of any specific targeting by the Taliban. Rather (at par.15), the IAA found that the Applicant and the other drivers were driving through a volatile region with a high insurgent presence, considered to be some of the most contested and dangerous districts in Afghanistan.
The IAA accepted (at par.16) that the Applicant’s colleagues were killed, and that the Applicant escaped harm due to the delay in his journey, but was not satisfied that the events above arose out of any adverse profiling of the Applicant due to his employment. These circumstances were lightly, if at all, analysed by the IAA, least of all from the perspective of any risk of “generalised or randomised acts of violence.”
At pars.17 – 18, the IAA set out the operation of s.5H(1) of the Act regarding who constitutes a refugee. It also referred to s.5J regarding the constitutive parts of a “well-founded fear of persecution” for the purposes of the Act.
The IAA determined (at pars.20 and 21) that the Taliban did not have any particular or specific ongoing interest in the Applicant arising out of his employment. It noted that although the Applicant had been stopped by the Taliban in “contested areas” with a “strong Taliban presence”, the Applicant had not been harmed, threatened or stopped in Jaghori or its surrounds. The IAA confirmed its stance that the Applicant was not at risk as a result of his employment because the Applicant has never worked for, or been involved or associated with, the Afghani Government or international organisations.
At par.22, the IAA discussed the Applicant’s fear that he will face harm from the Taliban due to his adverse profile arising from his return from a western country. The IAA noted that many Afghani nationals, of Hazara ethnicity or otherwise, have international links. Furthermore, the IAA said that persons who had spent time in western countries faced a low risk of violence provided they do not openly highlight their links. It acknowledged that there have been reports of returnees from western countries being kidnapped or otherwise targeted, but the IAA said that the circumstances of most of these incidents were unknown. The few that were known happened between Ghazni and Kabul, but the IAA said there is no evidence of similar incidents occurring in Jaghori.
The IAA noted (at par.23) that the Applicant has resided in Jaghori for his whole life (save for his time in Australia and four years in Iran) and his family continue to reside there. The IAA confirmed that it was not satisfied that the Applicant was at risk of harm in Jaghori, either as a returnee from a western country or due to his former employment.
The IAA recorded at par.24 that the Applicant fears harm as he is a Shia Muslim of Hazara ethnicity. Citing country information, it said that various provinces, including parts of Ghazni (such as Jaghori) were “Hazarajat”, or Hazara dominated. The IAA noted that these areas are considered relatively secure and absent from “undue security risks”. Curiously, the IAA did not attempt here to confirm exactly what constituted an “undue” security risk, or how to measure security risks in order to understand what may be undue or otherwise.[11] Even more curiously, the IAA went on to note that areas “adjoining Jaghori” were reported to be unsafe and insecure due to high levels of Taliban and other insurgent activity. The impact of the proximity of this “unsafe” and “insecure” insurgent activity to Jaghori, the area the IAA is suggesting the Applicant return to was not considered in the decision.
[11] In my view, Professor Maley’s Reports provide very helpful context and analysis of different kinds of risk in Afghanistan.
The IAA cited (also at par.24) a DFAT report on the killing of Shia Hazaras in Ghazni and Zabul, and a UNHCR report in relation to increased trends of harassment, killing and kidnapping of Shia Hazaras by the Taliban and other insurgent groups. The IAA then accepted that, despite these reports, the country information does not necessarily indicate that Jaghori, or the wider Ghazni province, are areas where Shia Hazaras are more directly targeted. Such a conclusion is at significant odds with the expert opinion of, and sources cited by, Professor Maley.
The IAA said at par.25 that it was satisfied that the Applicant could return to Afghanistan and reside safely in Jaghori without a real chance of harm, notwithstanding that it had recorded that there were killings of Hazaras in Ghazni. It acknowledged that several incidents occurred in 2015 where Shia Hazaras were targeted on the roads, but no evidence of that subgroup being targeted in 2016 or 2017 on the roads in Ghazni province, or of Shia Hazaras being targeted in Jaghori itself. The IAA noted that some districts and provinces surrounding Jaghori and Ghazni had some security concerns, but there was no evidence confirming the presence of Islamic State or other insurgents in Jaghori. In saying this, the IAA made no mention of the possibility of harm, nor did it weigh the potential security risk to the Applicant, that could arise from random attacks, where a constant or consistent insurgent presence is not needed for a real risk of harm to exist.
In the course of this discussion, as one might have expected, there was no consideration of the number of Districts in Ghazni Province, of which Jaghori is but one, and how many of them are predominantly Hazara or some other religious tradition. For example, the IAA did not discuss whether the number of such districts in this province with a majority of Hazaras was in fact very much in the minority compared to other religious traditions. For comparative purposes as well as likely throwing some light on the Applicant’s safe travel outside of Jaghori, such analysis would have been useful.
At par.27, the IAA noted that the Applicant claimed that he cannot return to Jaghori as the surrounding roads are insecure and unsafe. The IAA cited country information, which indicated that Hazaras were targeted in a different province in 2015, and foreigners were targeted when returning to Ghazni in 2014, but that there were no recent reports (the IAA said) available of Shia Hazaras being targeted in or around Jaghori due to their religion or ethnicity. The IAA said (at par.28) that it was satisfied that the Applicant does not face a real chance of harm on the roads when returning to Jaghori. This is the complete opposite conclusion to that of the Delegate, and as previously stated, of Professor Maley.
The IAA noted (at pars.29 and 30) that the Applicant has the option of returning to Jaghori not by road, but via flight from Kabul to Bamiyan. Satisfied the Applicant has the financial means available to purchase such a flight purely because it is a one-way journey, the IAA noted that the return to Jaghori from Bamiyan could then be through roads in Hazarajat areas that “are considered safe”. This led the IAA to conclude that the Applicant was not at a real risk of harm upon returning to Jaghori.
At par.31, the IAA confirmed that it was satisfied that his family links would allow the Applicant to re-establish himself in Jaghori.
However, the Applicant claimed that there is no work in Jaghori so he will have to source work in the surrounding areas which would involve travelling on unsafe roads. To this, the IAA said that the fact the Applicant continued driving for 7 years despite being stopped several times by the Taliban, and the fact that he can recommence driving but in less “openly areas”, means that he could avoid a real risk of harm whilst continuing to work. Citing country information, the IAA noted that insecurity arises from areas with a strong insurgent presence, but the motivation for these attacks may not be “immediately evident”. Curiously, the Tribunal seemed to weigh up, and to be somewhat determinative, whether the Taliban has a motivation for any attack, and to separate or to distinguish between “separate criminal attacks from insurgent activity.” It is unclear whether the IAA considered such distinction of any relevance to any victim of violence. This is to say that someone killed or maimed by a bomb blast is unlikely to be interested in whether it was perpetrated by a “criminal” or a “terrorist”, the latter being simply a species of the former genus. The IAA also accepted that the frequency of the Applicant’s travels will increase any risk of harm to him. And again, for reasons unexplained, the IAA concluded (emphasis added): “I accept given the frequency of his travel there is more than remote chance he will be stopped and harmed, although the motivations may not be immediately evident.”
What was intended to be comprehended by the opaque measure of risk by reference to “more than remote chance he will be stopped and harmed” was not explained. Nor did the IAA explain what the relevance was of the motivation for such stoppage and infliction of harm. It was never explained whether “more than a remote chance he will be stopped and harmed” was intended to be some equivalent of the prescribed “real chance” test.
At par.32, the IAA found that the Applicant could avoid a real risk of harm or persecution by not driving through contested regions outside of Hazarajat or Ghazni, and cited that this behaviour modification fell within the bounds of the operation of s.5J(3). For my part, it was not clear whether the IAA actually made any assessment, based on evidence before it, of whether there were in fact any roads upon which the Applicant could travel to avoid a further or greater risk of harm. Put another way, the IAA simply made here an assertion that there were such roads. There may be an elaborate road system available to the Applicant and others. It may be, however, that there is but one main road and little more than side tracks available, all or most of which are “policed”, so to speak, by one or more insurgency or terrorist groups. The IAA simply does not explain how it came to this conclusion and the evidence used to reach it.
Notwithstanding previous discussion about the merits, or whether the Applicant could safely return to his work as a truck driver, the IAA discussed (at par.33) that the Applicant could return to Jaghori and work as a farmer or construction worker in the alternative. After it acknowledged that there are limited economic and employment opportunities in Hazarajat, the IAA found that the Applicant would be able to subsist in that area. There was no discussion of what constituted the Applicant’s ability to “subsist.” Again, in his Reports Professor Maley provided some alarming context and likely scenarios for returnees like the Applicant.
The IAA noted (at par.34) that the Applicant’s family resides solely in Hazarajat and Ghazni, and he has available to him opportunities for employment in that area. It found that the Applicant could take reasonable steps to “modify his behaviour” and “restrict his travel” for the purpose of escaping any real harm. Accordingly, the IAA said that the Applicant did not have a “well-founded fear of persecution” per s.5J(3) of the Act.
At par.35, the IAA concluded that the Applicant did not, in its view, meet the requirements of a refugee pursuant to s.5H(1) of the Act.
Pars.37 - 41 outlined the IAA’s protection assessment pursuant to s.36(2A). It restated its findings that the Applicant will not face harm in or around Jaghori or Hazarajat, that the Applicant can re-establish himself safely in Jaghori, and can pursue employment opportunities outside of his work as a truck driver. The IAA further confirmed that, because it found there is no risk to the Applicant in his home area, it did not consider the possibility of the Applicant relocating, for example, to Kabul or Mazar-e-Sharif. This was in circumstances where, as earlier observed, the Delegate’s discussion and conclusion came to the opposite conclusion, and that the Applicant could/should relocate to Kabul, not return to Jaghori.
Key legislative provisions
It is convenient here to set out key sections of the Act as they are referred to in the reasons of the IAA, and in the submissions by the parties included later in these reasons, thus (emphasis in original):
5H Meaning of refugee
1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
b) the person committed a serious non‑political crime before entering Australia; or
c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well founded fear of persecution
1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
2)A person does not have a well founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
3)A person does not have a well founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
b)conceal an innate or immutable characteristic of the person; or
c)without limiting paragraph (a) or (b), require the person to do any of the following:
i.alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
ii.conceal his or her true race, ethnicity, nationality or country of origin;
iii.alter his or her political beliefs or conceal his or her true political beliefs;
iv.conceal a physical, psychological or intellectual disability;
v.enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
vi.alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
b) the persecution must involve serious harm to the person; and
c) the persecution must involve systematic and discriminatory conduct.
5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
a) a threat to the person’s life or liberty;
b) significant physical harassment of the person;
c) significant physical ill treatment of the person;
d) significant economic hardship that threatens the person’s capacity to subsist;
e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
6)In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non citizen in Australian respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
The following provisions from Part 7AA of the Act are particularly important. First, s.473CB, relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …
The IAA’s statutory task of review is set out in s.473CC:
473CC Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
In addition to s.473DB providing for the IAA to review decisions before it “on the papers”, ss.473DC and 473DD refer respectively to the IAA “getting new information” and “considering new information in exceptional circumstances”:
473DC Getting new information
(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.
473DD Considering new information in exceptional circumstances
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.
Section 473DE is relevant to the current proceeding because of the limitations it places on the provision of “new information” to the Applicant, especially in relation to “country information”:
473DE Certain new information must be given to referred applicant
(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.
(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.
Submissions on behalf of the Applicant
The Applicant’s submissions, filed 26th June 2018, were as follows:
Submissions for the Applicant
1) The applicant is seeking review of the decision of the Second Respondent (Immigration Assessment Authority), dated 22 November 2017 affirming a decision of a delegate of the First Respondent (Minister) not to grant the applicant a Protection visa.
Grounds of judicial review
2) The applicant previously filed an application on 13 December 2017. The applicant now seeks this Honourable Court’s leave to file an amended application for judicial review based on the following grounds (the amendments have been underlined):
The Immigration Assessment Authority (IAA) fell into jurisdictional error by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to Jaghori.
The IAA fell into jurisdictional error by failing to perform its statutory task.
The IAA fell into jurisdictional error by not considering relevant information, including a failure to consider all the circumstances of the applicant when deciding whether the circumstances of the case were exceptional.
The IAA fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth).
The IAA fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it.
The IAA fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Submissions
Ground 1
3) The first ground is that the Immigration Assessment Authority (IAA or Authority) fell into jurisdictional error by applying a relative, rather than an objective, approach in assessing whether the applicant could safely relocate to Jaghori.
4) The applicant claims that there is a real chance and a real risk that he will suffer serious or significant harm if he were to be returned to Afghanistan. However, while the Authority accepted that the applicant faces a real chance of harm and persecution if he attempted to return to his home region in Jaghori District from Kabul by road, specifically through contested areas outside Hazarajat or Ghazni (at [2] and [31-32] of the Authority’s decision record), the Authority found that the applicant does not face a real risk of significant harm within the Jaghori District itself (at [40]). The Authority also found that if the applicant “were to resume driving in the areas where he previously travelled, I accept given the frequency of his travel there is a more than remote chance he will be stopped and harmed, although the motivations may not be immediately evident” (at [31]).
5) The Authority also found that the applicant “could take reasonable steps to modify his behaviour by restricting his travel to avoid a real chance of persecution on contested roads outside of Hazarajat and Ghazni” (at [34]) and that “it could reasonably be expected that he remain in Hazarajat and safe areas of Ghazni where he would be able to safely access employment relevant to his skills and the services he requires.”
6) In considering this issue, the Authority misapplied the ‘real chance’ test. The test of a real chance or real risk is whether the chance or risk actually faced by the applicant is not remote, insubstantial or far-fetched, and this chance or risk may be statistically as low as 10% (please see Chan Yee Kin v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379). This is not a relative test to be measured against other parts of the country.
7) However it is clear that the authority did in fact compare Jaghori and other “safer” areas to more “insecure” areas. At paragraph [24] of its decision, the Authority states:
“The applicant fears harm as a Shia Hazara as he is a dedicated Shia Muslim who attends mosque regularly in Australia and participates in Ramadan, Muharram and other religious festivals, which he would continue to do on return to Afghanistan. Country information indicates that Bamiyan, together with Daikundi and parts of Ghazni (including Nawur, Jaghori and Malistan), Ghor, Uruzgan and Wardak provinces are referred to as Hazarajat as these areas are Hazara dominated. Like Jaghori these areas are also considered to be relatively secure and Hazaras are generally able to move about freely in these areas without facing undue security risks. Areas adjoining Jaghori and other parts of Hazarajat which are Pashtun majority districts were reported to have high levels of insecurity and be unsafe due to the activities of the Taliban and other insurgent groups. . .” (emphasis added)
8) It is clear from the above quote that the Authority is comparing Jaghori with other areas, and that Jaghori is only “relatively secure”. It is also of concern that the Authority concludes that Hazaras are able to move about freely in these areas without “undue security risks”. What the Authority should instead have asked itself was whether the chance or risk actually faced by the applicant is not remote, insubstantial or far-fetched, even if it was statistically as little as 10% (please see McHugh J in Chan), not whether Jaghori was “relatively secure” or whether the applicant could move around in Jaghori without “undue security risk”. To reach a conclusion that there is only a remote chance of harm based on a comparison of different areas in Afghanistan is to apply a test that is not supported by the High Court in Chan or the Full Federal Court in SZQRB, or by any other authority.
9) This current matter is similar in many ways to CID15 v Minister for Immigration and Border Protection [2017] FCA 780, which involved the review of a Tribunal decision which had found that Shia Muslims were generally in general risk of being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban, but found that Shias are “relatively safe” in cities such as Islamabad or Rawalpindi as opposed to the Kurram Agency. Moshinsky J’s comments at [35-37] are relevant here. His Honour stated:
“35. The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place. I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.
36. There does not appear to be any dispute between the parties as to the principles set out in the preceding paragraph. In the Minister’s written submissions, the Minister submits that: it is true that a finding that a person faces a lower risk of harm in one place compared with another place is not the same as a finding that the person does not face a real chance of serious harm in the first-mentioned place; the risk of harm in one place may be lower than the risk in another place, and yet a person may still face a real chance of serious harm in the first-mentioned place; and a Tribunal that fails to consider whether there is, in fact, a real chance of harm will fall into jurisdictional error.
37. While the above mentioned statements of principle relate to the criteria for a protection visa on Convention grounds under s 36(2)(a) of the Act, similar principles also apply to the ‘complementary protection’ grounds in s 36(2)(aa). It has been held that the ‘real risk’ test in s 36(2)(aa) imposes the same standard as the ‘real chance’ test in s 36(2)(a): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246] per Gordon and Lander JJ (Besanko and Jagot JJ agreeing at [297], Flick J agreeing at [342]). In the context of ‘complementary protection’, the internal relocation principle is expressly prescribed by s 36(2B)(a) of the Act. Pursuant to that provision, an applicant is not eligible for a protection visa under s 36(2)(aa) in circumstances where “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.
10) In CID15, the Tribunal had noted (on the basis of DFAT information) that Islamabad (and Lahore) were “relatively free from politically-motivated, terrorist and sectarian violence” and reportedly experienced “lower levels of violence relative to other parts of Pakistan” (at [43]). The Minister had submitted that the phrase "relatively" should be constructed as meaning "relatively safe" rather than "absolutely safe" [at 40], however the Honourable Court found this was not the correct Construction of Tribunal's reasons.
“40. As noted above, the basis upon which the primary judge concluded that the Tribunal had not made a jurisdictional error was that the Tribunal was not, when using phrasing including “relatively”, comparing the safety of urban centres with Kurram Agency or other areas, but was expressing a view about the urban areas being relatively safe as opposed to being absolutely safe. In my respectful opinion, this is not a correct construction of the Tribunal’s reasons. . .”
11) Moshinsky J went on to state:
“48. In light of the above matters, I do not accept that the Tribunal was using phrasing such as “relatively” in the sense of ‘relatively safe’ as opposed to ‘absolutely safe’ (as concluded by the primary judge) or as meaning ‘mostly, albeit not absolutely’ (as submitted by the Minister). To the contrary, the matters set out above demonstrate that the Tribunal used words such as “relatively” in [42], [48], [49] and [52] to signify a comparative assessment of the level of violence, the level of safety or the degree of state protection in one place as compared with another.
49. For these reasons, I consider that the primary judge erred in her construction of the Tribunal’s reasons.
50. I also consider, for essentially the same reasons, that the Tribunal’s approach amounted to a jurisdictional error. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative, rather than an objective, approach in applying the ‘real chance’ test in the context of the internal relocation issue. This is demonstrated by the aspects of [42], [48], [49] and [52] of the Tribunal’s reasons discussed above. It is true that the Tribunal correctly stated the ‘real chance’ test at the beginning of its consideration of the relocation issue (at [38]) and expressed its conclusion (at [51]) in terms of the ‘real chance’ test. But this does not overcome the difficulty that its findings on the issue (at [48]–[49]) were merely relative findings rather than findings that would sustain the conclusion at [51]. As explained above, the conclusions in [50] depend on the findings in [48] and [49]. In these circumstances, and notwithstanding that the Tribunal correctly applied the ‘real chance’ test elsewhere in its reasons, I consider that it misapplied the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.”
Ground 2
12) The second ground is that the Authority fell into jurisdictional error by failing to perform its statutory task. The Migration Act stipulates that the task of a review is to form the requisite state of satisfaction under section 65 (criterion for grant of visa). The Authority has discretion to access and determine what new information should be considered. However to sufficiently undertake the statutory task of review (s 414), most recent country of origin information should be considered. While the Authority is not a do novo review system, it has a duty, especially in cases where determinations are taking longer than usual, to consider most recent information.
13) The making of the decision took seven months (4 Apr – 22 Nov 2017), during which time substantial developments relevant to the applicant’s case occurred. By failing to consider the most recent country of origin information, the Authority failed to undertake its statutory taks of review. In this regard, the current matter is comparable to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114. In that case a failure to consider most recent country information and a claim about increased risk of persecution if the applicant was returned to Zimbabwe constituted a failure to form ‘state of satisfaction’ required to reach a decision pursuant to s 36(2)(a).
Ground 3, 4 and 5
14) Grounds 3, 4 and 5 are interrelated, and as such are discussed under one section. Section 473DD of the Migration Act 1958 (Cth) prevents the Authority from considering new information except in exceptional circumstances. Various documents submitted for consideration [at 5 and 6] were put before the Authority. In deciding whether there were any exceptional circumstances for considering these documents, the Authority did not state any reasons for the findings for or against exceptional circumstances.
15) The documents put before the Authority includes a media report and general analysis dated 25 March 2017, which provides general commentary and reports on a security incident in Helmand which the Authority deemed not directly relevant to the applicant’s claims.
16) The applicant has a connection to Helmand [as noted at 13, 14 and 31], and it is submitted that there was a failure to consider all the circumstances of the applicant when deciding whether the document should be considered. Furthermore the Authority adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. Although the act does not define “exceptional circumstances”, the Explanatory Memorandum indicates the intention of broad discretion. According to the Explanatory Memorandum, this also may include circumstances where a new document now causes Australia’s protection obligations to be engaged, for example that it supports a threshold of persecution previously not established (Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment, 915).
17) It is helpful to compare this case with CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, which is another case that, like this case, the Authority adopted an incorrect interpretation of the term "exceptional circumstances", and where the Authority failed to consider all the circumstances of the appellant when deciding whether the circumstances were exceptional. In that case the Authority found that it was prevented from considering certain information from the appellant's father as it was "new information" and the Authority was not satisfied that there were exceptional circumstances to justify considering the new information. At [75] and [77], his Honour stated the following:
“75. The first respondent submitted that this reasoning by the IAA involves an inappropriately narrow understanding of the phrase “exceptional circumstances” as held by White J in BVZ16 at [47]. . .”
“77. In BVZ16, White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. The Minister submitted that the IAA can only consider new information if both ss 473DD(a) and (b) are satisfied. The Minister drew attention to White J’s description of these requirements as “conjunctive”. The Minister submitted, however, that White J erred in his reasoning at [9] and [35]-[36] of BVZ16 in concluding that the IAA was obliged under s 473DD to consider, and make findings on both alternative limbs of s 473DD(b) in order to be satisfied under s 473DD(a). Accordingly, so the Minister submitted, if the IAA is not satisfied as to the matter in (a), it is unnecessary for it to proceed to make findings in relation to either of the limbs in (b).”
18) Furthermore, the Authority fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to whether there were exceptional circumstances. The Authority’s finding in this regard was not based on evidence, nor did it demonstrate any engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process. In making this finding with no evidence outlined to support it, the Authority failed to give “proper genuine and / or realistic consideration” to the matter before it. The requirement for a decision-maker to give “proper genuine and / or realistic consideration” to the matter before it was summarised in para [45] of Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Griffiths, White and Bromwich JJ) as requiring the decision-maker to “engage in an active intellectual process directed at” the relevant claim or criteria.
Ground 6 (and 5)
19) There is some overlap between between ground 6 and ground 5. It is submitted that the Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such, exhibited Li unreasonableness (please see Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18). Li unreasonableness is based on the principle that unreasonableness is related to rationality and logicality.
20) The test for legal unreasonableness is whether the Tribunal’s state of satisfaction is one “which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] and [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) or that the decision was “arbitrary, capricious or clearly unjust” and lacks “evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ).
21) In Li, that Honourable Court also stated, in the joint judgment of Hayne, Kiefel and Bell JJ that “… the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognize that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified” (at [68]). The Court should be “slow, although not unwilling, to interfere in an appropriate case”.
Unreasonableness in relation to treatment of documents submitted to the Authority by the applicant’s representative
22) Paragraphs [4]-[6] of the Authority’s decision indicate that the Authority received a number of documents from the applicant’s representative, however the Authority was not satisfied that exceptional circumstances existed for considering this material. However in deciding whether there was any exceptional circumstances for considering these documents, the Authority did not state any reasons for the findings for or against exceptional circumstances. It is submitted that it was unreasonable for the Authority not to provide these reasons.
23) Furthermore, in the context of a refugee status determination decision, whereby the statutory intention is to conduct a de-novo review of a refugee status determination, it is unreasonable not to consider new country of origin information especially when an unreasonable time frame has passed and when there has been significant updates that could constitute refoulement.
Unreasonableness relating to the Authority’s finding that the applicant was not targeted/not of interest as he was released on each occasion after questioning
24) The Authority accepted that the applicant’s truck was stopped by the Taliban, who took copies of his taskera and truck registration (please see paragraph [11]). The Authority also accepted that the Taliban took his biodata and stopped him “on a number of occasions” (paragraph [21]).
25) However the Authority went on to state that “I do not accept the applicant was specifically targeted on these occasions or he was of interest as he was released on each occasion” [at 21].
26) The Tribunal’s finding that the applicant was not “of interest as he was released on each occasion” is unreasonable. Indeed, had the applicant not been released, then he would be in no position to seek protection in Australia. Were this line of reasoning followed in all protection visa matters, it would create the absurd Catch 22 situation where those that had been released by the Taliban after questioning were deemed to not be of interest or targeted by the Taliban, while those who were not released by the Taliban after questioning are in no position to seek protection in Australia!
Unreasonableness of the Authority’s finding regarding the applicant’s future employment
27) The Authority also went on to find “as a matter of fact, that the applicant will return to Jaghori but will not take up driving employment requiring travel through contested areas on the routes he previously travelled. Given that he has tribal and family links in Jaghori, a range of employment skills and access to services, he would not have the incentive to drive on roads in contested areas which are considered dangerous. I am not satisfied that limiting where he drives for work amounts to significant harm.”
28) However this finding is not based on evidence, nor does it demonstrate appropriate engagement with the submissions made on behalf of the applicant or demonstrate how they have been weighed in the decision-making process. In making this finding of fact with no evidence to support it, the Authority failed to give “proper genuine and / or realistic consideration” to the matter before it. The requirement for a decision-maker to give “proper genuine and / or realistic consideration” to the matter before it was summarised in para [45] of Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Griffiths, White and Bromwich JJ) as requiring the decision-maker to “engage in an active intellectual process directed at” the relevant claim or criteria.
29) As such, the Authority (1) failed to undertake the requisite level of intellectual engagement with the question of the applicant’s future conduct; and (2) failed to provide a legally reasonably basis for a conclusion as to the applicant’s future conduct. While it is acceptable for a decision-maker to use past or present matters to predict the future, there must be a process of reasoning to indicate why those past or present matters constitute a reliable basis for the prediction of the future. There was no such justification by the Authority in the present case.
Conclusion
30) The application should be allowed with costs.
Further Submissions on behalf of the Applicant
The Applicant’s further submissions, filed 17th October 2018 on a specific issue at the request of the Court, were as follows:
Further Submissions for the Applicant
1) These further submissions are submitted to this Honourable Court in response to the Court’s orders that the parties file submissions of no more than 2 pages, addressing the reasonableness of the decision-maker in making enquiries of other authorities.
2) The applicant agrees with the Respondent’s note that the Administrative Appeals Tribunal (AAT) (and by extension the Immigration Assessment Authority (IAA)), as a part of government administration, should seek to decide similar cases consistently (Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634; Re Scott and Commissioner for Superannuation (1986) 9 ALD 491) (please see paragraph 3 of the respondent’s note). Furthermore, it is the applicant’s position that the reasonableness of the decision-maker in making enquiries of other authorities must be assessed in light of the AAT’s (and by extension the IAA’s) obligation to make "correct or preferable decision": (Drake at 591 per Bowen CJ and Deane J). In order to make the correct and preferable decision, the IAA is obligated to make reasonable enquiries concerning other decisions of the AAT in relation to comparable matters. If the IAA does not make reasonable inquiries, then the IAA had failed to meet its duty or obligation. Furthermore, by failing to make reasonable enquiries, an IAA’s decision can become legally unreasonable.
3) In this current matter, where there were recent AAT decisions than explored the dangers faced Shia Hazaras in certain parts of Afghanistan, the IAA was obligated to make reasonable enquiries in regards to similar AAT decisions. As such, it is the applicant’s position the IAA fell into jurisdictional error by failing to make reasonable inquiries regarding any relevant Tribunal decisions that would help it make the “correct or preferable decision”.
4) However, even if no such obligation arose at this point, and even if there was no legal error in the IAA’s conduct in not making these reasonable enquiries, this obligation was certainly enlivened when the Applicant’s representative provided an AAT decision to the IAA (as referred to in paragraph [5] of the decision record). Once this decision was before the IAA, the IAA had the duty or obligation to consider that decision, and it was not reasonable for the IAA to decide to have no regard to it. Even if this Honourable Court finds that there was no error prior to this point, the applicant submits that a jurisdictional error arose following (1) the applicant providing the AAT decision dated May 2016 to the IAA and (2) the applicant seeking that the IAA have regard to that decision. In those circumstances, the IAA committed a jurisdictional error by refusing to have regard to that decision.
Submissions on behalf of the First Respondent
The Respondents primary submissions, filed 6th July 2018, were as follows:
Background
1) The applicant seeks judicial review of a decision of the Immigration Assessment Authority (“IAA”) dated 22 November 2017 (“Decision”),[12] in which it affirmed a decision of a delegate of the first respondent (“Delegate’s Decision”), dated 9 March 2017, that the applicant was not a person in respect of whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (“Act”).[13]
[12] CB 262-276.
[13] CB 188-201.
2) The applicant is a citizen of Afghanistan who, relevantly:
a) arrived in Australia on 26 March 2013 as an Irregular Maritime Arrival[14] and ultimately applied for a Safe Haven Enterprise Visa (“SHEV visa”) on 2 May 2016;[15]
[14] CB 188. The entry interview for the applicant is at CB 1-26.
[15] CB 33-103. The application is dated 18 February 2016 but was apparently not received by the first respondent until 2 May 2016: CB 82. The first applicant’s statutory declaration dated 18 February 2016 in support of the application is at CB 76-81.
b) met the requirements of the definition of a “fast track applicant”: s.5(1)(a)(i)-(iii) and therefore his application was subject to, and governed by, Part 7AA of the Act
3) The IAA’s Decision was made pursuant to s.473CC of the Act. This Court has jurisdiction to hear the application under s 476(1) of the Act because the Decision is a “migration decision” within the meaning of section 5(1): DCH16 v Minister for Immigration and Border Protection [2017] FCCA 294 at [70]; AFK16 v Minister for Immigration and Border Protection (No.2) [2017] FCCA 1827.
4) The applicant made an application for review dated 13 December 2017 in which he relied on five grounds. Pursuant to orders made by the Court on 12 February 2018, the applicant was required to file an amended application by 28 March 2018. The applicant filed an amended application dated 26 June 2018, which was three months out of time. The applicant needs, and seeks, leave to rely on the amended application.
5) For the reasons outlined below, the Court should dismiss the application with costs.
The applicant’s claims and the Delegate’s Decision
6) The applicant claimed to fear harm as a result of his Hazara ethnicity, his faith (Shi’a Islam), an imputed political opinion of opposition to the Taliban by reason of his job as a truck driver and his profile as a returning asylum seeker from a Western country. The applicant was born and raised in Jaghori.
7) In general terms, the applicant’s claims were based on three matters:
a) First, the applicant and his brother were employed as truck drivers delivering goods between Wesh to Kabul and Kabul to Herat and were regularly stopped and searched by the Taliban on suspicion of working with the government or foreign NGOs. They were harassed and threatened and the Taliban recorded information about them, including their photographs and registration;
b) Secondly, his brother was seriously injured in 2012 by a suicide bombing (although the applicant continued to work as a driver); and
c) Thirdly, the applicant witnessed an incident in 2013 where he found a truck at the side of the road with the driver lying dead and further on found a second truck with no driver and the driver’s seat burned out.
8) The applicant provided a range of country information to the Delegate in a post-interview submission. Among other things, the applicant claimed that he had no familial links or social connections in Kabul or other parts of Afghanistan, could not subsist if he returned and would continue to practice his faith as a Shi’a muslim.
9) Following the Delegate’s Decision, the applicant, through his representative, provided the IAA with a further written submission which attached further country information (“IAA submission”). Some, but not all, of this information post-dated the Delegate’s Decision. The applicant made a number of arguments about reliance on recent country information. In addition, the applicant noted that the roads between Ghazni and Kabul were unsafe. He also argued that he had no means of establishing himself safely in Kabul or “anywhere else in Afghanistan”.
The Decision
10) The IAA assessed whether the documents provided by the applicant in the further submission were “new information” and could be considered in accordance with s.473DC and s.473DD at [3]-[7] of the Decision.[16] It then assessed the merits of the applicant’s claims at [10]-[41] of the Decision.[17]
[16] CB 263-264.
[17] CB 265-273.
11) In broad terms, the IAA accepted that the incidents identified by the applicant had occurred. However, it did not accept that the applicant’s vehicle was specifically targeted or the applicant was known to the Taliban given that it was common for the Taliban to set up roadblocks. The IAA did not accept that the applicant’s brother was specifically targeted in the 2012 bomb blast or that the applicant or his brother were of adverse interest to the Taliban. The IAA did not accept that the applicant was specifically targeted when stopped by the Taliban in Cheshma Salar.
12) In respect of the documents attached to the IAA submission, IAA considered the documents and stated as follows:
a) Maley expert opinions:[18] the applicant argued that these opinions (dated 22 November 2016 and 22 December 2016) should have been made available to the Delegate because they had been “widely circulated”. The documents provided nearly identical commentary. The reports were general country information and the applicant’s (different) representative had provided a post-interview submission which dealt with, among other things, reporting on the November 2016 attack on Shi’as. The suggestion that the documents should be made available because widely circulated was not persuasive; the applicant had not satisfied the IAA that the documents could not have been provided earlier or that they were credible personal information. There were not exceptional circumstances warranting their consideration.
[18] CB 251-254 (22 November 2016 report); CB 239-242 (22 December 2016 report).
b) Media report on an attack on a military hospital by ISIS:[19] the report was dated 8 March 2016, one day before the Delegate’s Decision. It was accepted as new information and the IAA considered that there were exceptional circumstances for considering it (noting that the report was relied on to demonstrate the “fluidity of the security situation”).
[19] CB 230-233.
c) a decision of the AAT dated May 2016:[20] the decision concerned an application not related to the applicant and the case was determined on its individual facts. It was not clear why the decision could not have been provided earlier or how it would have affected consideration of the applicant’s claims. The applicant did not satisfy the IAA that the material could have been provided earlier or that it was credible personal information. There were not exceptional circumstances warranting its consideration.
[20] CB 243-250.
d) Media report dated 25 March 2017 about the seizure of Sangin:[21] the document “provides general commentary and reports on a security incident in Helmand which is not directly related to the applicant’s claims”. The IAA was not satisfied that the information is “indicative of a significant change in the security situation or directly pertains to areas of Afghanistan which are relevant to the consideration of the applicant’s relocation”. There were not exceptional circumstances warranting its consideration.
[21] CB 234-238.
Grounds of review
13) The grounds advanced by the applicant, although stated to be 6 in number, involve a range of different legal characterisations not all of which are readily distinguishable and in many instances not apt to be described as potential errors of the sort contended for by the applicant (particularly in respect of the applicant’s reliance on concepts of legal unreasonableness in ground 6). The first respondent has endeavoured to disentangle the principal contentions and addresses them as they arise under particular grounds.
Ground 1: real chance of persecution
14) The essence of this ground is based on a suggestion that the IAA impermissibly compared whether Jagori would be safe by comparison with other areas. That claim is not borne out either as a matter of principle or on the basis of the IAA’s reasons.
15) The applicant distorts the nature of the IAA’s reasons by focusing on one phrase – “relatively secure” – in relation to one aspect of the reasons. A careful reading of the Decision shows that the reasons were not limited in this way. The IAA made a range of findings relating to the applicant’s alleged adverse profile with the Taliban (at [20]), the risk of harm on return to Jaghori or on the roads due to his former work as a truck driver (at [21]), the risk that the applicant would be targeted from his residence in a Western country (at [22]) and the risk that he would be imputed with a pro-government political opinion (at [23]).[22] What is notable about these paragraphs is that they contain no suggestion of any comparative exercise with other areas of Afghanistan and rely on an entirely orthodox approach both on the IAA’s assessment of the applicant’s claims and the application of relevant country information.
[22] Set out at CB 268-269.
16) In each case, the conclusion concerning the “real chance” was clearly objective and applied in accordance with principle. The same can be said for the analysis undertaken and the conclusions by the IAA in paragraphs [25]-[28] of the Decision.[23]
[23] CB 270.
17) That leaves for consideration paragraph [24], which is the part of the reasons relied on by the applicant. That paragraph deals with the question of whether the applicant feared harm as a Shi’a Hazara. It is apparent that the IAA analysed the relevant country information about certain provinces forming the Hazarajat, an area dominated by those of Hazara ethnicity. In turn, the IAA noted that the country information suggested that these provinces, like Jaghori, were reasonably secure and did not involve high levels of risk. It is in that context that the phrase “relatively secure” should be understood. Paragraph [24] does not contain any conclusion about whether there is a “real chance” of the applicant being harmed as a Hazara Shi’a. That conclusion comes in the following paragraph, being [25] of the Decision, where the IAA engages in a broader analysis of the issue. In that context, it is apparent that the analysis in [24] formed a component of the conclusion at [25].
18) This reading, which unlike the applicant’s reading is based on the totality of the IAA’s reasons read properly in context, shows there was nothing untoward or unorthodox in the IAA’s use of the phrase “relatively secure”.
19) Furthermore, the IAA’s approach does not offend against principle in the manner that the applicant’s reliance on CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (“CID15”) suggests. The error identified in CID15 arose in a very specific context: namely, a consideration of relocation in the context of whether the appellant faced harm in all areas of the receiving country. That is not the present case. However, in any event, the principles outlined by Moshinsky J at [35] were met in the present case.
Ground 2: recent country information
20) There are a number of difficulties with this ground. First, it fails as a matter of fact. The IAA had regard to the most recent country information: it decided to receive and consider two DFAT country reports that were dated two months prior to the date of the Decision. It was apparent in the IAA’s reasons at [7] of the Decision that it considered the need to have updated country information. Further, the applicant does not identify what “recent” country information the IAA was required to consider.
21) Secondly, the suggestion that there is a free-standing obligation on the part of the IAA to consider the most recent country information is misplaced. The assessment of country information is part of the IAA’s fact-finding function. The assessment and weight given to country information is a matter for the decision-maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29. It should be noted that Ministerial Direction No.56 does not apply to the IAA’s decision-making under s.473DB(1).
22) The decision of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) is not apposite. The Court in that case was at pains to avoid any suggestion of there being an obligation on the part of the decision to consider the most recent country information. Rather, the Court analysed the relevant obligation as the requirement to form the requisite state of satisfaction in each particular case, based on the facts and circumstances of each case. That obligation miscarried in MZYTS because the tribunal did not engage with a submission advanced by the appellant before the tribunal that there was updated country information that was relevant. That is not the case here. In addition, the statutory scheme is entirely different: in MZYTS the review was undertaken pursuant to s.414 under Part 7 of the Act. Here, the review is pursuant to s.473DB(1) and within the much narrower confines of Part 7AA.
Grounds 3, 4 and 5: treatment of new information & exceptional circumstances
23) These grounds are treated together not only because they are treated in this way by the applicant but also because the grounds formulate different types of alleged jurisdictional error based on the same underlying issue: the IAA’s treatment of the documents attached to the applicant’s submission to the IAA. In particular, the applicant focuses on the IAA’s treatment of a media report concerning the seizure of Sangin, which is described in the report as a “strategic town in Helmand”.[24]
[24] CB 234-238 at CB 234.
24) In this context, it is important to focus careful attention on the nature of the reasons given by the IAA in relation to the further documents and the statutory framework within which its decision-making concerning new information is carried out. In terms of the statutory framework, the following matters should be noted:
a) The IAA’s statutory task is to review a fast-track reviewable decision referred to it under s.473CA: s.473DB(1). The High Court has made clear in M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 (“M174”) that although the “review” operates within the constraints imposed by Part 7AA it is a review of a decision “made in fact”, irrespective of whether the decision is legally effective (at 613-614). Similarly, the Full Court of the Federal Court has confirmed that the IAA’s review is not restricted to the correction of legal error in the delegate’s decision; the review is a “fresh decision”: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [68].
b) The default position or “primary rule” (per Gaegler, Keane and Nettle JJ in M174 at [22]) is that the IAA must consider the review material provided under s.473CB without accepting or requesting new information (or interviewing the applicant). The requirements of s.473DD(a) and s.473DD(b) are exceptions to the primary rule to be applied in narrow circumstances dictated by those provisions: per Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 (‘BZC17”) at [52].
c) Whether a document or information is properly classified as “new information” for the purposes of s.473DC(1) is referable to whether it is “information” (see M174 at [24]) and whether that information meets the two pre-conditions set out in s.473DC(1)(a) and s.473DC(1)(b). Those conditions must be met in order for a document or information to constitute “new information” and the IAA may reject information on that basis: per Logan J in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 at [9]-[10].
d) Pursuant to s.473DC(2), the IAA is not under any duty (or obligation) to accept “new information” given to it by an applicant: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [47]; BZC17 at [69].
e) It is not necessary to consider whether s.473DD applies unless the IAA is satisfied that the information or document is “new information” for the purposes of s.473DC(1).
f) If the IAA finds that the material before it is “new information” then it must not consider that new information unless it is satisfied that the conditions in s.473DD are met. Those conditions are cumulative and both s.473DD(a) and s.473DD(b) must be met in order for the IAA to consider the new information as part of its review: per Gaegler, Keane and Nettle JJ in M174 at [31]; BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 (“BRA16”) at [25]-[26]; AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 (“AUH17”) at [32]-[33].
g) The terms of s.473DD are such that there is no requirement for the IAA to consider s.473DD(a) before s.473DD(b). If, on the evidence, s.473DD(b) is not met then that is sufficient for the prohibition in s.473DD to be triggered: per Mortimer in AUH17 at [33]; per Barker J in BRA16 at [26]. It follows that in a particular case even if the IAA were found not to have considered one limb of s.473DD (which is not the case here, in any event) then it is very unlikely that the IAA would fall into error by doing so, so long as it properly considered and applied the requirements of the other limb of s.473DD (noting the comments of the Full Court of the Federal Court in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [46]).
h) The IAA may fall into error by construing the phrase “exceptional circumstances” too narrowly: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) at [47]. The term “exceptional circumstances” is not capable of exhaustive statement; it is not a term of art but a term with an ordinary meaning, albeit one with a broad meaning: per Gaegler, Keane and Nettle JJ in M174 at [30]; per White J in BVZ16 at [39]-[42]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) at [104].
i) The consideration of 473DD(a) and s.473DD(b) is cumulative and the consideration of those provisions may “overlap to some extent” such that consideration of the matters in s.473DD(b) may inform consideration of s.473DD(a): BBS16 at [102].
25) In light of the matters outlined above, it is apparent that the propositions for which BVZ16, BBS16 and CHF16 stand as authority should not be over-stated. In an appropriate case, the IAA may fall into error where it simply applies a finding under one limb concerning whether a document could have been provided to the Minister as the sole basis for finding exceptional circumstances. The particular circumstances of the case, and the way in which the applicant advances his or her claims, may be such that there is nothing beyond the matters in s.473DD(b) that would relevantly inform the consideration of the broader question posed by s.473DD(a), noting that these matters are likely to overlap. BVZ16 and the Full Court decisions that have considered it should not be taken as authority for the proposition that merely because there is no further analysis of “exceptional circumstances” in a decision that this shows that the IAA applied an unduly narrow construction; the case in question may simply not have required reference to other factors. In any event, no error arises if a claim fails solely under s.473DD(b) by reason of the requirement to meet both s.473DD(a) and s.473DD(b).
26) There is no warrant in the present case for drawing the conclusion the applicant seeks to draw. A careful reading of the IAA’s reasons shows that in respect of the media report about Sangin the IAA:
a) accepted that the material post-dated the Delegate’s Decision and therefore could not have been provided earlier and that it was “new information” (from which it may also be inferred that the IAA thought the material may be relevant).
b) evaluated the material and concluded that it contained “general commentary” on the seizure of a strategically important town in Helmand province by the Taliban. An examination of the article in question clearly shows that this was a reasonable assessment that was open to the IAA: the article briefly discusses the fall of Sangin but then goes on to discuss matters of broader geopolitical significance in the context of Afghanistan more generally.
c) the nature of the material in the article does not indicate any significant change in the security situation or identify and consider specific areas of Afghanistan. Again, the IAA’s conclusions on this point were clearly open to it.
d) in light of the matters outlined above, the IAA concluded that there were not exceptional circumstances to justify considering the material.
27) It is important to note that the material was self-evidently country information; it was not therefore “credible personal information” pursuant to s.473DD(b)(ii). The IAA was plainly satisfied that the material could not have been provided any earlier, thereby meeting the requirement of s.473DD(b)(i). The balance of the material went to the nature of the information contained in the article and was weighed as part of the IAA’s evaluation of exceptional circumstances. Clearly, the general nature of the information did not, in the IAA’s view, rise to a level other than “routine” (see M174 at [30]) information. That was an available view. In addition, although the applicant’s claims did refer to Helmand, they did so only indirectly: namely, because the applicant happened to drive through the area during the incident in 2013. This is the basis for the IAA’s assessment that the material was not “directly related” to the applicant’s claims.
28) Similar but not identical considerations apply to the other documents not considered by the IAA. In respect of the AAT decision, it is difficult to see how a decision based on entirely different facts about an individual unconnected with the applicant could have had any bearing on the applicant’s case. That consideration relevantly informed the IAA’s conclusion about exceptional circumstances and is plainly available: there can be nothing out of the ordinary about material that has no relationship to the applicant’s particular claims. In respect of the Maley opinions, the IAA, permissibly, weighed matters that overlapped between s.473DD(b) and s.473DD(a) in addition to noting that the reports contained general country information. From that perspective, there was nothing “exceptional” in documents containing such general information given that these documents were available prior to the Delegate’s Decision and could have been provided earlier (and the applicant did not provide any satisfactory explanation of why they were not provided earlier).
29) Put more generally, the IAA’s conclusions dealt with the matters set out in s.473DD, albeit briefly. The conclusions are explicable in the context of the proffered material and the applicant’s claims. There was nothing about the documents or the information they contained that warranted departing from the “primary rule” and permitting consideration of the documents under the statutory exceptions: per Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [52]. In any event, no error arises because in respect of the Maley opinions and the AAT decision, it was sufficient for the IAA to conclude that s.473DD(b) was not met.
30) To the extent that the applicant suggests that the IAA failed to provide reasons for its conclusions, that contention should be rejected. A proper and fair reading shows that it did give reasons. In any event, there was no obligation on the part of the IAA to give reasons; the consideration of the these issues was anterior to its task on review and the obligation to give reasons in s.473EA extends only to a written statement setting out the reasons for the decision “on the review”: s.473EA(1)(a); s.473DA(1)(b). Necessarily, the matters not considered by the IAA pursuant to s.473DD could not form part of the “review”. That conclusion is consistent with authority: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346; Minster for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 600; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [65]. The issue was recently considered by Bromwich J in CVS16 v Minister for Immigration and Border Protection [2018] FCA 951. At [29]-[30], his Honour makes clear that no jurisdictional error arises from the IAA failing to give reasons in respect of a discretionary decision under s.473DD.
31) The additional matter raised under these three grounds concerns whether the IAA gave “proper, genuine or realistic consideration” to whether there were exceptional circumstances. For the reasons outlined above, this ground cannot be made out based on a proper and fair reading of the IAA’s reasons. It is unclear from the applicant’s ground or his written submissions whether what is suggested is a lack of consideration of claims or a finding based on no evidence. The applicant’s reliance on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (“Carrascalao”) is misplaced. Carrascalao involved the Minister’s exercise of cancellation powers under s.501. At [45], the Court noted the uncontroversial proposition that the decision-maker must actively engage with the claim that is advanced. Relevantly, it does not require the decision-maker to refer to “every piece of evidence and every contention made by the applicant”. As the Court noted at [47] whether there was proper consideration is an evaluative judgment, in the context of the relevant statutory regime, bearing in mind the facts and circumstances of each case. In the present case, the applicant was not making a claim but rather seeking to persuade the IAA to depart from the “primary rule”, within the constraints mandated by s.473DD. There is no proper basis to conclude that the IAA failed to consider the documents and engage with the relevant statutory question.
32) These grounds should be rejected: the IAA’s reasons in respect of the additional documents were orthodox, conformed to principle and its conclusions were available on the material before it.
Ground 6: unreasonableness
33) This ground raises a confusing mixture of distinct claims that all, according to the applicant, can properly be classified as demonstrating the same type of error, namely legal unreasonableness. That concept is not, as appears to be the case contended for by the applicant, a residual category of error encompassing a wide ranging set of differing circumstances. Legal unreasonableness is, as the authorities make clear, fact-specific, to be read in the context of the proper construction of the discretionary statutory power which is being exercised and a conclusion not to be lightly or easily drawn: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.
34) It is important to state that the language of legal unreasonableness is not apt for all purposes, being a concept that applies to the exercise of a discretionary power. In this context, a claim that a finding is “unreasonable” is, at its root, likely to be a disguised attempt at impermissible merits review. The applicant’s ground appears at times to be making a similar attempt. A tribunal may nevertheless make a decision irrationally and thereby commit jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”); SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (“SZOOR”). In that context, as both SZMDS and SZOOR make clear, the requisite threshold for showing irrationality is very high: it is only a decision that no reasonable decision-maker could have arrived at that is impugned.
35) Paragraph [22] of the applicant’s written submissions articulates a claim that it was legally unreasonable for the IAA to fail to provide reasons. That claim fails for a number of reasons. First, the correct prism for consideration of such a claim is not unreasonableness but the statutory framework and any obligation to give reasons. Secondly, on the facts the IAA plainly did give reasons and those reasons were appropriately directed to the matters set out in s.473DD. Thirdly, and in any event, the preliminary matters considered in s.473DD did not form part of the IAA’s requirement to give reasons pursuant to s.473EA.
36) Paragraph [23] of the applicant’s written submissions articulates a different ground: that it was unreasonable for the IAA not to consider new country information. That ground is another way of agitating ground 2 and should be rejected for the same reasons.
37) Paragraphs [24]-[26] of the applicant’s written submissions appear to be an invitation to engage in merits review but dressed up in the language of unreasonableness. There is plainly nothing irrational (in the sense understood in SZMDS) for a decision-maker to conclude that an applicant was not individually targeted or the source of specific adverse interest because he was released. Such a conclusion is clearly one that a reasonable decision-maker could have arrived at, even if the applicant (as is the case here) strongly disagrees with it.
38) Paragraphs [27]-[29] of the applicant’s written submissions apparently seek to impugn paragraph [39] of the Decision, which dealt with the complementary protection claims. Again, the claim is legally unclear: it is framed as a no evidence ground, a failure to consider ground and as a legal unreasonableness ground. That suggests a need to find an appropriate legal characterisation for what is actually a further invitation to merits review. The applicant claimed that he gave up truck driving because he feared being targeted but the IAA noted that he “continued truck driving for over seven years, despite being stopped by the Taliban” (at [31] of the Decision). The IAA noted that other avenues of employment were also open to the applicant and that he would not be prevented from driving a truck in the Hazarajat (at [33] of the Decision). The IAA further found that it would be reasonable for the applicant to modify his behaviour, pursuant to s.5J(3) of the Act, to restrict any truck diving that he undertook so as to avoid “contested roads” that were outside the Hazarajat. Those matters relevantly, and properly, informed the IAA’s conclusions at [39] of the Decision. It is worth noting that in [39] of the Decision, the IAA stated that the applicant would return to Jaghori but “not take up driving employment requiring travel through contested areas”. That was clearly referable to the IAA’s analysis that the applicant feared travelling through contested areas but was not, based on his own evidence, necessarily disinclined to stop driving given he had continued to do so for seven years prior to leaving Afghanistan. The IAA further noted that the applicant had a range of “employment skills” and access to services.
39) For the reasons outlined above, this ground should be rejected both on the basis that the matters relied on do not disclose any proper basis for showing legal unreasonableness (both as a matter of principle and on the facts) and on any of the other bases that are identified by the applicant.
Conclusion
40) For the reasons outlined above, the application for judicial review should be dismissed with costs.
Further Submissions on behalf of the First Respondent
The First Respondent filed further submissions on 27th July 2018; they were as follows:
1) The Court has requested a note, of no longer than 2 pages, on whether the second respondent (“IAA”) was under a duty to make reasonable enquiries concerning other decisions of the Administrative Appeals Tribunal (“AAT”) in relation to comparable matters. This is the first respondent’s note pursuant to the Court’s request. This note should be read in conjunction with the first respondent’s written submissions dated 6 July 2018.
2) At [5] of the Decision, the IAA concluded that a decision of the AAT pre-dating the Delegate’s Decision was “new information” for the purposes of s.473DC(1) and did not meet the requirements of s.473DD. The IAA noted that the applicant had not satisfied the IAA that the document could not have been provided prior to the Delegate making a decision and the decision in question did not relate “to the applicant and while the applicant in the AAT Decision also appears to have been a Hazara, the case was determined on the individual facts”.
3) It should be borne in mind that the AAT (and by extension the IAA) is not a court. The doctrine of precedent does not apply. However, there is support for the more limited proposition that the AAT, as a part of government administration, should seek to decide similar cases consistently: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634; Re Scott and Commissioner for Superannuation (1986) 9 ALD 491.
4) The AAT is also a merits review tribunal. It follows that while there is room for the operation of some principle of consistency between decisions, that principle is limited by the fact-specific nature of each case necessarily decided on the merits. Put differently, considerations of consistency may apply to legal propositions but are unlikely to be of any consequence in relation to factual findings.
5) In the context of Part 7AA, it is clear that that the IAA (as part of the AAT) is not under any duty to make enquiries concerning other decisions. This is for a number of reasons.
6) First, the IAA, although part of the AAT, is subject to an entirely different statutory regime from that set out in Parts 5 and 7 of the Act. It is difficult to see how any duty could sensibly arise in respect of decisions made by the AAT in other Parts of the Act, where it is not acting as the IAA (unlike, for example, a decision of one tribunal under Part 7 with a different tribunal under Part 7). Subsection 473FA(1) provides that the IAA, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the Act.
7) Second, Division 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the natural justice hearing rule: s 473DA(1).
8) Third, s.473DC(2) makes clear that the IAA does not have “a duty to get…” any information in any circumstances: CMR16 v Minister for Immigration [2017] FCCA 1715 at [13]; [20]. Positing a duty on the part of the IAA to search out, albeit within reasonable bounds, different decisions that may be “comparable” or applicable is contrary to the express terms of s.473DC(2). It is also inconsistent with the position under Part 7AA that the default or “primary rule” (to adopt the formulation of s.473DB(1) that the High Court used in M174 v Minister for Immigration and Border Protection [2018] HCA 174) is that the review occurs without reference to new documents, information or further hearings and the limited nature of the exceptions to the primary rule in s.473DC and s.473DD: s.473DB(1).
9) Thirdly, that is consistent with the identification of a situation in which the IAA is required to follow a decision of the AAT, IAA or former Refugee Review Tribunal: namely, when the decision is classified as a “guidance decision” pursuant to a direction of the President of the AAT under s.473FC.[25] There would be no need for such a stipulation if the IAA were either bound to follow other decisions or under some form of general duty to seek out comparable decisions.
10) A further reason to be sceptical about any such duty is demonstrated by the facts in the present case. The applicant suggested that the handling of country information and the facts of the AAT case relied on supported his own position. However, factual considerations are a matter for each individual decision-maker and country information is part of the fact-finding function of the tribunal. The assessment of, and weight to be given to, such information is for the decision-maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29.
[25] It should be noted that the IAA may depart from a guidance decision where it is satisfied the facts and circumstances of the guidance decision are distinguishable and that, in any event, non-compliance with a guidance decision does not mean that the decision is invalid: s.473FC(2); s.473FC(3). Further, there are currently no guidance decisions published by the IAA.
Supplementary Note on behalf of the Applicant
In response to correspondence from Chambers seeking further information and clarification from both sides on several points, a supplementary note was filed on behalf of the Applicant on 19th July 2019. That note provided as follows:
Note requested by this Honourable Court
1) On 8 July 2019, this Honourable Court requested that the parties file a note addressing several issues. In regards to question (a), about the significance of the Delegate making a finding that the Applicant could relocate to Kabul, and the IAA making a different finding, namely that the Applicant could return to Jaghori, in which case, the IAA said it was unnecessary to consider any relocation to Kabul, it is the Applicant’s position that this inconsistent approach caused the IAA to fall into jurisdictional error. The Applicant notes that Ministerial Direction No. 56 – Consideration of Protection Visa provides as follows:
“It is undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as a starting point a common set of guidelines and country information.”
2) Ministerial Direction No. 56 was made under s. 499 of the Migration Act 1958 (Cth) on 21 June 2013 and has effect from 22 June 2013. It is currently in force.
3) In regards the question (b) raised by this Honourable Court, it is submitted that the different findings/approaches by the Delegate and the IAA amounted in the Applicant being unable to know what case he had to meet before the IAA. A critical part of procedural fairness is ‘the hearing rule’, which requires a person be told the case to be met and given the chance to reply before a decision is made that negatively affects a right, an existing interest or a legitimate expectation which they hold. Kioa v West (1985) 159 CLR 550 is authority that a decision maker needs to disclose the ‘critical issues’ to be addressed, and of information that is credible, relevant and significant to the issues (please see, for example, para [40] of their Honour’s judgment). This denial of procedural fairness resulted in the IAA falling into jurisdictional error.
4) In regards to this Honourable Court’s question at (c) about whether or not notice was given to the Applicant by the IAA that it was taking a different approach to that of the Delegate, it is the Applicant’s position that no such notice was given, and no explanation has been provided by the IAA why it did not provide this notice.
Supplementary Note on behalf of the First Respondent
In response to correspondence from Chambers seeking further information and clarification from both sides on several points, a supplementary note was filed on behalf of the First Respondent on 26th July 2019. That note provided as follows:
Note
1) The Court has requested a note in relation to questions posed by the Court concerning the delegate's finding that it was reasonable for the applicant to relocate to Kabul and the IAA finding that there was no risk of harm to the applicant if he were to return to Jaghori. This note should be read in conjunction with the first respondent's written submissions dated 6 July 2018 and its note dated 27 July 2018.
2) There is a threshold issue that arises. The matters raised by the Court relate to an aspect of the IAA's decision that is not the subject of any ground of review; it raises a new issue not the subject of any argument in the proceedings, in writing or at the hearing. If the applicant were to raise the issue at this point in the proceedings he would have to seek leave to rely on a further ground and potentially leave to re-open the proceedings where judgment is reserved. If the Court proposes to determine an issue raised without reference to any pleaded ground of review then it is unclear on what basis it can do so. It is respectfully submitted that if the Court proposes to determine the issue then this procedural difficulty should be addressed.
3) Notwithstanding this difficulty, the first respondent sets out briefly below the matters pertinent to the issue raised. In that context, it should be borne in mind that the delegate found that the applicant was at risk of harm in travelling to Jaghori. Given this, the delegate considered whether the applicant was at risk of harm in all areas of the receiving country and concluded that the applicant was not at risk in Kabul. In relation to complementary protection, the delegate found that the applicant could reasonably relocate to Kabul. The need to consider relocation was predicated on the finding that it was unsafe to return to Jaghori. In contrast, the IAA found that there was no risk of harm in returning to Jaghori and, consequently, did not need to consider the issue of whether it was reasonable to relocate to another area of Afghanistan.
4) The IAA did not make any jurisdictional error in proceeding as it did for two reasons. First, It is well-established that s.473DA(1) is an exhaustive statement of the natural justice hearing ule and that the common law rules of procedural fairness are excluded under Part 7 AA. There is no room for the application of statutory procedural fairness mechanisms such as s.424A and s.425 in Part 7 of the Act. There is no obligation, seen in terms of procedural fairness, to put dispositive issues arising on the review to an applicant or to alert the applicant to the fact that the IAA will affirm a decision on a different basis from the delegate. In this regard, see: DBE 16 v Minister for Immigration and Border Protection [201 7] FCA 942 at (58]-(65]; BCQ16 v Minister for Immigration and Border Protection (2018] FCA 365 at [71]; DGZ16 v Minister for Immigration and Border Protection (2018] FCAFC at (75]-[76] and (81]; BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 at [32]; CMQ16 v Minister for Immigration and Border Protection [2018] FCA 881 at [14]-(23]. It follows that (3] of the applicant's note is misplaced.
5) Secondly, the IAA's decision not to invite the applicant to give further documents or information pursuant to s.473DC(3) was not unreasonable. A discretionary power such as. 473DC(3), is to be exercised reasonably: per Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW) at [89]. In considering whether a decision is unreasonable due regard must be given to the broad zone of "decisional freedom'' that a decision-maker has (per French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). Reasonableness is informed by the subject matter, scope and purpose of the legislation in question: per Thawley J in BCQ16 v Minister for Immigration and Border Protection (2018] FCA 365 [71 ];per Kiefel CJ in SZVFW at [11 ]-(13]; per Nettle and Gordon JJ in SZVFW at [88]-[90]. The test for unreasonableness is necessarily stringent: per Kiefel CJ in SZVFW at (11]. The applicable principles in relation to s.473DC(3) have been set out by Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17). His Honour noted (at [38]-[49]) that there may be circumstances in which it is legally unreasonable to fail to consider exercising the discretion under s.473DC(3): Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16) at [82]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (DZU16) at [80]-[81].
6) This case might be said to bear superficial resemblance to the decisions in CRY16 and D ZU 16. Closer examination reveals that is not so. The critical issue in both of those cases was a decision by the IAA to depart from the findings of the delegate concerning relocation in one place by considering relocation to a different place. The consequence was that the IAA had no information personal to the applicant by which to assess the reasonableness of relocation (the question not having been addressed by the delegate). The failure to consider exercising the discretion was unreasonable because by doing so the IAA disabled itself from its statutory task: CRY16 at (82]. No such issue arises here. The IAA did not make a relocation finding; it did not need to. It accepted that it was safe for the applicant to return to his home in Jaghori where his family resided, making any consideration of relocation moot. The mere fact that the IAA departed from the findings of the delegate is not determinative. It was permitted to do so and it cannot be said to be unreasonable, within the context of the statutory scheme of Part 7 AA, for the IAA in this case not to provide the applicant with an opportunity for further comment.
7) The matters raised by the applicant at (2] of his note are not pertinent. The applicant has not shown how guidance, subject to the terms of the Act (see above), leads to a jurisdictional error in the present case.
Consideration and Disposition
The first matter to note is that, in general terms, I agree with the comments in the Minister’s submissions regarding (using my words) a certain difficulty in identifying with sufficient accuracy and precision both the Applicant’s formal Grounds of Review and the particulars in support of them. Sometimes there is a certain overlap or elision of the two; other times it is perhaps more a question of emphasis as to how a particular issue was put by each of the parties. In any event, also as a general proposition and for ease of reference, I accept the helpful articulation of the six Grounds of Review as they are set out in the Minister’s primary submissions.
Before considering the Grounds of Review, I need to record my own comments and findings in relation to the IAA’s reasons. Some of the following matters have already been noted in the course of summarising the IAA’s decision. My particular concerns, which cumulatively lead to the conclusion that the statutory task of the IAA under s.473CC has relevantly failed, are as follows:
(a)In my view, there is a fundamental procedural issue where, as here, the Delegate determined the Applicant’s case in one way, but the IAA determined it on a totally different basis, albeit that the end result of a denial of a protection visa was the same. Before the Delegate, the case was conducted and determined on the bases of (i) “internal relocation”, (ii) it was unsafe for the Applicant to return to his original Jaghori province, and (iii) the Applicant could and should relocate to Kabul. Before the IAA, while the reasons of the Delegate and the submissions related to “internal relocation”, the decision of the IAA was contrary to that of the Delegate. The IAA held that there was no need for the Applicant to relocate to Kabul because he would be living in Jaghori, an area that was considered to be “relatively secure” (reasons par.24);
(b)The general assessment by the IAA of the relative safety of Hazaras in Jaghori province relied upon a Thematic Assessment by DFAT dated 5th September 2016. This particular assessment (and others) was specifically criticised in the detailed reports (dated November and December 2016) provided by the Applicant from Professor Maley. But the IAA had rejected these Reports on the basis that the requirements of s.473DD(b) had not been met (par.5). So, on the one hand, the IAA had available to it expert information that critiqued (and strongly criticised) Thematic Assessments provided by DFAT, but on the other hand, it had formally rejected this later, expert evidence;
(c)I accept that Bromwich J has recently held that there is no obligation upon the IAA to provide reasons in relation to the exercise of its discretion under s.473DD.[26] However, in the current instance, deciding not to consider the Reports of Professor Maley deprived the IAA of information that was relevant because it was directly at odds with country information provided by DFAT, and which also provided a detailed critique of that information. The country information from DFAT was ultimately relied upon by the IAA, adversely to the Applicant;[27]
[26] See CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29] – [30].
[27] See also the comments by Mortimer J in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [30].
(d)Moreover, in providing no reasons for rejecting the expert Maley Reports (accepting – again – that there was no legal requirement to do so), the IAA provided no assistance let alone insight to the parties (or ultimately to this Court) to comprehend why later, expert Reports, did not come within the broader, and therefore outside of the unduly narrow, interpretation of the term “exceptional circumstances” as discussed by White J in BVZ16 v Minister for Immigration and Border Protection. This expansive approach has since been approved in two recent Full Court decisions, BBS16 and CHF16;[28]
[28] See Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102] – [106]; CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 at [44] – [45].
(e)Further, a detailed critique and adverse assessment by a recognised expert (Professor Maley) of material provided by DFAT, which material was ultimately relied upon by the IAA in making a decision that was adverse to the Applicant, in my view, must be viewed as constituting “exceptional circumstances”. “Exceptional circumstances” for the purposes of s.473DD has been interpreted and applied in an ever-growing number of cases as including “circumstances that are unusual and out of the ordinary course.” One would hope (and expect) that a strong critique of Departmental advice by an independent expert would readily come within such a definition, particularly where, as here (at par.7) the IAA itself confirmed that there was “limited analysis” of the security situation for Shias before the Delegate;[29]
[29] See Baker v The Queen (2004) 223 CLR 513 at [173] (Callinan J); Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [51]; BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [39] – [48] (White J).
(f)Without repeating observations made earlier in the course of summarising the IAA’s reasons, it is sufficient to note the following:
(i)The account by Professor Maley of the torture of one returnee to Afghanistan and the murder of another by the Taliban;
(ii)The documented (also by Maley) randomised killings and maimings in late 2016 with particular focus on randomised attacks on Hazaras;
(iii)The US State Department warning on 2nd November 2016 that “travel to all areas of Afghanistan remains unsafe … extremists associated with various Taliban networks, Islamic State of Iraq and the Levant … and members of other armed opposition groups are active throughout the country”;
(iv)The IAA made no mention of the Delegate’s finding that the Applicant had his personal details recorded by the Taliban during one of the occasions when they stopped and checked him;
(v)The IAA made no reference, or gave any consideration, to acts of “randomised or general acts of violence”;[30]
(vi)The IAA did not explain, at par.24, what it meant by parts of Ghazni being “relatively secure”; nor did it explain the import and consequence for the Applicant in stating that areas adjoining Jaghori were reported to be “unsafe and insecure” due to high levels of Taliban and other insurgent activity;
(vii)The IAA’s further conclusion, at par.24, that the country information before the Authority did not indicate that Shia Hazaras had more recently been targeted. This was in circumstances where earlier reports indicated such targeting of Hazaras, and the IAA had determined to exclude the two Reports of Professor Maley, which dealt in part with this particular issue. Excluding those Reports made this finding at par.24 possible. In my view, including and considering those Reports made such a finding problematic, if not unsafe, bordering on impossible;
(viii)At par.31, the IAA concluded that, if the Applicant resumed truck driving (presumably, because he was unable to find gainful employment otherwise), “there is a more than remote chance he will be stopped and harmed.” Notwithstanding this finding, the IAA persisted in holding that the Applicant could reasonably relocate to Jaghori. It did not explain whether “more than a remote chance” was the equivalent to, or otherwise different or removed from, the “real chance” test;
(ix)There was no evidence before the IAA that confirmed either the number of roads (if any), or the relative safety of them, upon which the Applicant could safely travel for the purposes of its finding (par.32) that he could modify his behaviour to minimise his potential risk of harm or persecution.
[30] Cf. the consideration of “randomised violence” by Dodds-Stretton J in MZYQU vMinister for Immigration and Border Protection (2012) 206 FCR 191 at [61], cited with approval by Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [36].
For the reasons just given, in my view, the IAA failed to perform its statutory task in accordance with the well-known principles set out by Robertson J in SZRKT and by the Full Court in MZYTS.[31] In addition to the references already given, it is sufficient for current purposes to set out only the following passage from Robertson J’s judgment in SZRKT at [111] (emphasis added):
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[31] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [77] and [97]; Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431 at [31] – [36].
The question posed by his Honour is the basal question/issue in the current matter in the light of the errors and omissions to which I have referred.
Further, at [112] in SZRKT, Robertson J said that whether the Tribunal [IAA] was “obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document.” Factors relevant here, his Honour said, were (a) the cogency of the evidentiary material, and (b) the place of that material in the assessment of the review Applicant’s claims. His Honour’s comments were approved by the Full Court in ARG15 v Minister for Immigration and Border Protection at [60].[32]
[32] ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109.
It is important also to recall the Full Court’s comments in MZYTS at [52] (emphasis added):
In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
Simply because the IAA referred to and then rejected (without reasons, which it was entitled to do under Part 7AA of the Act) the two Maley Reports does not, in my view, quarantine that decision from judicial scrutiny. Those Reports were led by the Applicant (just as the Full Court said in MZYTS) precisely to contradict the evidence from DFAT regarding the security situation in Afghanistan. The IAA relied upon the Departmental material and made no further reference to the Maley Reports.
Indeed, a more recent Full Court decision in BYA17, commented in this regard as follows (emphasis in original):[33]
Bromwich J held in CVS16 at [29] that s 473EA(1) does not require the IAA to set out whether or not new information satisfies the criteria in s 473DD in its reasons because s 473EA(1) “is directed to the decision, and reasons for decision, on the review itself”. As such, Bromwich J held that the IAA did not fall into error in failing to state its reasons in respect of the discretion in s 473DD (at [25] and [29]).It was not submitted that the decision in CVS16, which is directly on point, was wrongly decided and should be overruled. That notwithstanding it is important to stress that “there may well be circumstances where the lack of any information in the reasons as to the exercise of the discretion supports an inference that the exercise was not considered”, as the Full Court in BVD17 also observed at [50]. An example of such a case is the decision of Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at[56]- [58].
[33] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44.
In BYA17, which involved a failure by the IAA to consider various “news reports”, which were accepted as not containing information that was “personal” to the Appellants in that case, the Full Court held, at [54] and [55] (emphasis added):
[54] It follows that while the information was not directly about the appellants, it potentially provided independent and objective corroboration of important aspects of their claims to fear harm which were otherwise regarded as speculative by the IAA, including: as to the reach of the drug smugglers and the lengths to which they may go for revenge; and as to the risk of harm posed to the husband if he were detained in prison even for a short time, which the IAA accepted may occur (see above at [18]). It follows, with respect, that we do not agree with the primary judge that the news reports were of “marginal relevance” only, being the reason given by his Honour as to why he did not infer that the IAA had failed to consider the information.
[55] That being so, in our view the IAA’s failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in the exercise of its functions under s 473DD or in arriving at its substantive decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). In other words, these considerations provide a proper basis for inferring on the balance of probabilities that the IAA “... failed in the discharge of [its] exact function according to law”, being to form a state of satisfaction under s 473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 (Dixon J).
In conclusion, at [57] in BYA17, the Court relevantly said:[34]
… it should be borne in mind that absent satisfaction of the criteria in s 473DD, the review of a fast track reviewable decision under Part 7AA is limited to the material before the Minister at the time that she or he made the initial decision. As such, a decision on whether to consider new information is a decision about the very scope and nature of the review decision. … Absent any mention therefore by the IAA of an applicant’s request for new information to be taken into account, an applicant would be left entirely in the dark as to whether even the very limited statutory rules of procedural fairness applicable to the fast track review were complied with by the IAA.
[34] See also the Full Court’s comments at [58] – [61] in relation to a ground of appeal in the following terms: “Was the failure to consider whether the news reports met the criteria in s.473DD material to the IAA’s decision?”
It is apposite to note here briefly the comments of the High Court in Plaintiff M174/2016 regarding the proper exercise by the IAA of its powers conferred under Part 7AA of the Act.[35] For example, at [21], the plurality (Gageler, Keane and Nettle JJ) said (internal citation omitted):
There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
[35] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481.
In the light of the principles just outlined, and the range of matters set out in [69] (a) – (f) of these reasons, the IAA did not, in my view, relevantly and properly undertake its statutory task in relation to this Applicant. In addition, and in the alternative, in my view, the exercise by the IAA of its discretion, as prescribed by the High Court in M174/2016, relevantly failed.
Because of the consideration of the IAA’s decision already canvassed, I can and will be relatively brief in relation to the formal Grounds of Review.
First, by reference to par.2 of the Applicant’s submissions, Grounds 2 – 4 have already been dealt with and found to be established.
Secondly, I accept the Minister’s submissions regarding Grounds 5 and 6 in relation to whether the IAA undertook a “proper, genuine and or realistic consideration” of the Applicant’s claims, and whether the IAA’s decision was infected as lacking intelligible justification and or was legally unreasonable. Accordingly, those Grounds of review have no merit and must be dismissed.
Thirdly, in my view, the Court’s consideration of the Applicant’s Grounds 2 – 4 properly and more adequately address what seems to be intended by the Applicant’s Ground 1. In my view, it is unnecessary to address the Applicant’s claims further.
For the reasons given, the relief sought by the Applicant, including costs, should be granted.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 September 2019
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