FKZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 420
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FKZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 420
File number(s): CAG 82 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 10 March 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Protection) visa (“SHEV”) – legal unreasonableness – whether the Authority fell into jurisdictional error – jurisdictional error made out – the application is upheld. Legislation: Migration Act 1958 (Cth), pt 7 AA, ss 36, 473DD(a),
473DC(3),
Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192
CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1’
Minster for Immigration and Citizenship v Li (20130 297 ALR 225
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Stead v State Insurance Commission [1986] HCA 54
Number of paragraphs: 86 Date of last submission/s: 15 February 2021 Date of hearing: 15 February 2021 Place: Parramatta Solicitor for the Applicant: Mr Kikkert Counsel for the Respondents: Mr Johnson ORDERS
CAG 82 of 2019 BETWEEN: FKZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
10 MARCH 2021
THE COURT ORDERS THAT:
1.The application is upheld.
2.An order that the decision of the Immigration Assessment Authority be quashed.
3.A writ of mandamus directed to the Immigration Assessment Authority requiring it to determine the applicant’s application according to law.
4.The first respondent is to pay the applicant’s costs fixed in the amount of $7467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is an Afghan national, of Hazara ethnicity and Shia faith from the Jaghori district, Ghazni province. The applicant departed Afghanistan legally in February 2013 and arrived at Christmas Island as an unauthorised maritime arrival on 24 March 2013.
On 29 April 2016 the applicant lodged an application for a Safe Haven Enterprise (Protection) visa (“SHEV”). On 9 March 2017, a delegate of the then Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicant’s visa.
On 22 November 2017, the Immigration Assessment Authority (“the Authority”) affirmed the delegate’s decision to refuse the applicant his Protection visa. On 20 September 2019, this Court set aside that decision and remitted the matter to the Authority for reconsideration.
In a decision dated 19 November 2019, a differently constituted Authority again affirmed the delegate’s decision not to grant the applicant his Protection visa. The applicant now seeks judicial review of the second Authority decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
At paragraphs 5 through to 16 of its decision, the Authority considered whether or not to consider new information that had come before it. A legal submission, which was not considered to be new information as it contained legal argument, referred to documents that were not before the delegate. These documents were:
•Two reports written by Professor William Maley, dated 22 November 2016 and 22 December 2016 respectively;
•A media report dated 8 March 2017 referring to an attack on a military hospital in Kabul;
•A media report dated 25 March 2017 referring to the Taliban takeover of a town in Helmand province; and
•A decision of the Administrative Appeals Tribunal (“the Tribunal”) dated May 2016 relating to another unrelated person.
At paragraph 9 of its decision, the Authority noted that the reports of Professor Maley have been updated by a new 2019 report that has been considered. The Authority found that there were no exceptional circumstances to justify considering the 2016 reports.
At paragraph 10 of its decision, the Authority found that the two media reports are now somewhat outdated and that there have been significant events in Afghanistan, including the applicant’s home province, since that time. The Authority found that the reports did not refer to the applicant personally, nor do they refer to or otherwise substantiate his personal claims. The Authority noted that there was more recent information before it, including information provided by the applicant and information that relates specifically to the applicant’s home province. The Authority was not satisfied that there were exceptional circumstances to justify considering those particular reports.
In relation to the Tribunal decision, the Authority noted that it does not relate to the applicant or his family, but does relate to a Hazara applicant. The Tribunal decision was also based on information that was before the Tribunal as at 2016. The Authority determined that as it had more recent information before it, as well as information specifically rate relating to the applicant, it was not satisfied that there were exceptional circumstances to justify considering the Tribunal decision.
At paragraph 13 of its decision, the Authority noted that a further updated report from Professor Maley dated 8 October 2019 had been provided. The Authority considered that there were exceptional circumstances justify considering this report.
At paragraph 14 of its decision, the Authority noted that updated country information prepared by the Department of Foreign Affairs and Trade (“DFAT”) in relation to Afghanistan, dated 27 June 2019, had become available. This replaced the information considered by the delegate. The Authority determined that it would consider the most up-to-date report but would not consider the report considered by the delegate, dated 2016, or a 2017 report that had been considered by the Authority in the previous decision.
At paragraph 15 of its decision, the Authority noted that the first Authority review also considered reports obtained from the European Asylum Support Office (“EASO”) dated
1 November 2016 and the United Nation’s Assistance Mission in Afghanistan (UNAMA) dated 1 July 2017. Both these reports were now outdated and had been replaced by more recent information. The Authority determined to rely on the most recent reports, and that there were exceptional circumstances to justify considering them. As they replaced earlier versions, considered by the Authority in its previous decision, the Authority determined that there were no exceptional circumstances to justify considering those earlier versions.
At paragraph 16 of its decision, the Authority noted that it had formed a different view to the delegate, in relation to the applicant’s ability to return to Jaghori. The Authority noted that the previous Authority decision had also come to a different view to that of the delegate and further noted that, “…although that decision is now quashed, I consider that the issue of harm in Jaghori was squarely raised and remains an issue that the applicant is aware of”.
The Authority considered that the applicant had been provided with a real and meaningful opportunity to provide information and comment on the issue and had done so. In particular, the Authority noted that Professor Maley refers to and makes comment in relation to both the new DFAT and EASO reports that the Authority had obtained. Having regard to that information, the Authority noted that it had considered the applicability of s 473DC(3) of the Migration Act 1958 (Cth) (“the Act”), which allows for the Authority to invite an applicant either orally or in writing, to give new information to the Authority, but had decided to consider the matter based only on the new information without interviewing the applicant.
At paragraph 17 of its decision, the Authority set out the applicant’s claims for protection. These include that, whilst in Afghanistan, the applicant worked on the family farm land until 2006, when he and his brother became truck drivers. The Taliban used to stop the applicant and his brother and question them about their cargo and employers, take their photographs, identity details and registration details. The Taliban would call the applicant and his brother names, beat them and threatened them, saying not to work for the government or non-government organisations. The applicant claimed that the Taliban said that if it found out they were doing this work they would be killed.
On one occasion while travelling, the applicant stopped, to say his prayers. The applicant was attacked by the Taliban and beaten with a gun butt. In 2012, the applicant’s brother was badly injured in a suicide bombing in Herat.
In 2013, the applicant and two other drivers were driving from Herat to Kabul. The applicant stopped to change a tyre and then continued. The applicant then saw one of the other trucks on the side of the road. The body of the other driver was lying nearby. Further along the road, the applicant saw the second truck, but the driver was missing. Still further along the road, the applicant states that he heard someone calling on him to stop. The applicant did not stop and was fired upon. The applicant says that he found bullet holes in his truck.
As a result, the applicant was scared, sold his truck and came to Australia shortly thereafter. The applicant believes that the Taliban targeted him and will do so if his returns. The applicant fears harm, as a Shia and Hazara. The Taliban will also be suspicious of the applicant’s motives for returning from the West and will suspect that he has become a Christian.
After instructing itself as to the requirements for a person to be a refugee and what constitutes a well-founded fear of persecution, the Authority at paragraph 20 of its decision, accepted the applicant’s claims as to his identity, country of origin and that Afghanistan would be the receiving country for the purposes of the review.
The Authority noted that the applicant claimed that his family (his wife, children, brother and brother’s children) remain in Jaghori. Apart from the applicant’s claims in respect of the Taliban, he has not claimed to have suffered any previous harm in Jaghori and has not claimed that his family fears any harm there now. The Authority found that the applicant will return to Jaghori should he return to Afghanistan.
At paragraph 23 of its decision, the Authority accepted that the applicant and his brother worked as truck drivers from 2006 onwards. The Authority accepted that the applicant and his brother were stopped by the Taliban at different times whilst driving. The Authority accepted that the applicant and his brother were subjected to abuse, threats and beatings because they are Hazara and they were warned not to work with government or non-government organisation agencies. While accepting that these incidents occurred, the Authority was not satisfied that either the applicant or his brother had any adverse profile other than being Hazara’s and truck drivers.
At paragraph 24 of its decision, the Authority accepted on one occasion, when the applicant was travelling, the applicant was attacked whilst praying. After being beaten, the applicant was released. The Authority found that the applicant was identified as a Shia and/or Hazara and was attacked for that reason. Whilst accepting that the applicant’s brother was injured in an explosion in Herat, the Authority did not find that the applicant’s brother was targeted personally, or that the applicant was, or will be, subject to any adverse interest as a result of that incident.
At paragraph 26 of its decision, the Authority accepts the applicant’s description of the incident whilst travelling in a truck from Herat to Kabul as set out in the applicant’s claims. The Authority found that whilst it is possible that the trucks were ambushed by the Taliban, reports of road violence before the Authority indicated that it could equally have been other extremists or criminal groups who attacked the trucks. At paragraph 28 of its decision, the Authority found the applicant’s belief that it was the Taliban who ambushed the trucks, to be speculative.
At paragraph 29 of its decision, the Authority took into account the applicant’s evidence that on previous journeys, his name and registration details were taken by the Taliban and that he was mistreated, and accepted that the incidents had occurred, however, it was not satisfied that this indicated that the applicant was of personal and ongoing adverse interest to the Taliban.
At paragraph 30 of its decision, the Authority found that the applicant has never been of personal, adverse interest to the Taliban and or any other group prior to the attempted ambush. The Authority was not satisfied that the applicant was personally identified, or that he would be of any adverse interest to any group or person now, some six years later, because of the incident, or from having his personal details previously recorded. The Authority was not satisfied that the applicant would be of interest in the reasonably foreseeable future to the Taliban or any other extremist group or that he faces a real chance of harm for any reason arising from his past history, including having been a truck driver.
At paragraph 31 of its decision, the Authority accepted that, as reported by Professor Maley, at June 2019, Afghanistan was the least peaceful country in the world, replacing Syria. The Authority goes on to quote from Professor Maley’s report that no region was immune from violence. Opportunistic and targeted attacks can occur throughout the country. As at 8 October 2019, the United States Department of State, warned that travel to all areas of Afghanistan is unsafe because of a critical level of kidnappings, hostage taking, suicide bombings, widespread military combat operations, landmines and terrorist and insurgent attacks.
At paragraph 32 of the Authority’s decision, a further extract from Professor Maley’s report is set out, noting that in late October 2018, Taliban forces undertook co-ordinated attacks against Hazaras in Khas Uruzgan, Malestran and Jaghori. Many asylum seekers in western countries originate from these districts.
Paragraphs 33 through to 39 of the Authority’s decision, are a summary of up-to-date country information from a variety of sources, including specific information in relation to Ghazni and other locations with a high Hazara population. The security situation in the Hazarajat has been considerably better than in most other parts of Afghanistan in recent years. However, there is clear evidence of the Taliban targeting government officials and Afghan national security force employees. As of June 2019, government security forces had reclaimed several districts in Ghazni that have been under Taliban control for several years. The EASO noted that in August 2018, while travel from Kabul to Ghazni was said to be possible, it was “risky”.
At paragraph 40 of its decision, the Authority took into account Professor Maley’s concern that the motives for insurgent attacks in Ghazni and Jaghori were ethnic or religiously based, other information indicated that this was less likely. This included a Taliban statement that it was not targeting people for ethnic or religious grounds. In relation to the collapse of the peace talks, while Professor Maley’s concerns were understandable, the Authority concluded that the information before it does not indicate that there has been any deterioration in the security situation since September 2019.
At paragraphs 41 to 45 of its decision, the Authority concluded that it was not satisfied that Shia Hazaras in Jaghori were generally facing targeted attacks or serious harm from the Taliban and or other anti-government elements because of their religious and ethnic profiles. They faced far more risk in Kabul. The Authority concluded that it was not satisfied that on the evidence before it, that the risk of being harmed by sectarian attacks as a Shia or Hazara in or around Jaghori was more than a remote chance.
As the applicant was not a member of the Afghan government or Afghan security forces, whilst he did have a risk of harm due to generalised violence, this was remote. The Authority was also not satisfied that the applicant would face harm in the form of general or societal discrimination as a Shia or Hazara.
At paragraphs 46 and 47 of its decision, the Authority deals with the applicant’s employment as a long-distance truck driver prior to leaving Afghanistan in 2013. The Authority noted that the applicant has not claimed that he will need, want or intend to work as a driver should he returned to Afghanistan. The applicant told the delegate that his brother no longer works as a driver. The applicant did not claim that there was no work in Jaghori and that he would have to leave and face harm on the roads. The Authority was satisfied that the applicant had skills as a bricklayer in Australia and that he would be able to support himself and his family in Jaghori in the future and that he would not need to leave Jaghori to obtain work.
Paragraphs 49 and onwards of the Authority’s decision, deal with the applicant’s fears of being a returned asylum seeker from Australia. The Authority was not satisfied that the applicant would face more than a remote chance of harm as a result of his time in Australia or for having been in the West (including any imputation of being Christian).
At paragraph 56 of its decision, the Authority noted that there was a chance that the applicant could be stopped on the roads whilst travelling from Kabul to Ghazni. Information before the Authority did not indicate that civilians had been recently targeted for harm for ethnic or religious reasons.
At paragraph 58 of its decision, the Authority was not satisfied that any other anti-government element had a presence Ghazni or had been targeting Shia Hazaras. The Authority considered the risk of any harm from such groups was remote. Accordingly, the Authority was not satisfied that the applicant met the requirements of the definition of a refugee or that he met the complimentary protection assessment requirements, and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon, are set out in an Amended Application filed with the Court on 17 December 2020.
Some six grounds of judicial review are relied upon, which are set out in the Amended Application, and include very lengthy particulars. The grounds now relied upon, (less particulars), are as follows:
Ground One
The Immigration Assessment Authority (IAA) fell into jurisdictional error by failing to perform its statutory task.
Ground Two
The IAA fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD (a) of the Migration Act 1958 (Cth).
Ground Three
The IAA fell into jurisdictional error by failing to provide the applicant with procedural fairness.
Ground Four
The Tribunal fell into jurisdictional error by having regard to the first IAA decision despite that decision been quashed by this Court.
Ground Five
The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Ground Six
The IAA fell into jurisdictional error in that it did not perform the procedural duty imposed upon it by s 473DD of the Migration Act 1958 (Cth) in its conduct of the review in accordance with AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.
THE APPLICANT’S SUBMISSIONS
Ground one asserts that the Authority fell into jurisdictional error by failing to consider a number of documents that were made available to it, including two reports written by Professor William Maley dated November 2016 and December 2016, various media reports, country information reports prepared by dated September 2017, together with other reports from the EASO and report from UNAMA dated 1 July 2017.
By failing to take into account this information, the Authority failed to undertake its statutory task of review or reach the required state of satisfaction. Reliance is placed on Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114. This involved a failure to consider the most recent updated country information report. In this case, the applicant wished the Authority to consider the information set out above, however, the Authority declined to consider this material. It was submitted that some of the Authority’s findings could have been contradicted had this material been considered, including whether the motives for insurgent attacks on Ghazni and Jaghori were ethnically or religiously based. It was also submitted that Professor Maley’s reports may have shed information as to why two Hazara returnees to Afghanistan had been, in one case killed, and in the other severely tortured.
In relation to ground two, the applicant submitted that the Authority fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in
s 473DD(a) of the Act. The Authority failed to identify in the decision record what the “exceptional circumstances” for considering or not considering the new information were. In CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [75] and [77], it was held the Authority failed to consider all the circumstances of the applicant when deciding whether the circumstances were or were not exceptional.
In relation to ground three, it is alleged that the Authority fell into jurisdictional error by failing to provide the applicant procedural fairness. The Authority indicated that it had “formed a different view to the delegate in relation to the applicant’s ability to return to Jaghori”. The Authority also made reference to a previous Authority decision which had been quashed. It was submitted that the Authority did not raise this issue with the applicant or provide the applicant with the opportunity to provide information or comment on the issue. In so doing, the applicant was not provided with a real and meaningful opportunity to provide information and comment on the issue.
In relation to ground four, it was submitted that the Authority fell into jurisdictional error by having regard to the first Authority decision, despite the first decision having been quashed by this Court. By having regard to this decision which was quashed, the Authority fell into jurisdictional error.
In relation to ground five, it is alleged that the Authority erred in its decision in that it lacked an evident and intelligible justification and as such, exhibited unreasonableness. It was submitted that the Authority is a part of government administration and should seek to decide similar cases consistently: see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (“Drake”). In order to make the correct and preferable decision, the Authority is obliged to consider other decisions, including those of the Tribunal, in relation to comparable matters. The applicant sought to provide a Tribunal decision dated May 2016, and the Authority, it was submitted, had a duty or obligation to consider it. It was not reasonable for the Authority to have no regard to it. It was also submitted that it was unreasonable for the Authority to have regard to the first Authority decision, as that decision had been quashed.
The legal representative for the applicant relied upon his written submissions in relation to grounds one to five, and did not wish to be heard further on them.
In relation to ground 6, it was submitted that the Authority failed in its statutory duty, by not considering the new information provided to it, in accordance with AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”). It was submitted that AUS17 is an authority for the proposition that, prior to considering whether or not there are exceptional circumstances pursuant to s 473DD(a) of the Act, a decision-maker is required to assess the new information against the criteria specified, in both s 473DD(b)(i) and s 473DD(b)(ii) of the Act.
In this case, in relation to the two media reports referred to at paragraphs 8 and 10 of the decision record, it is clear from paragraph 10 that the Authority did not assess this new information against the criterion set out in s 473DD(b)(i) of the Act. It was submitted that an assessment against the criterion in s 473DD(a) of the Act, as to whether or not there are exceptional circumstances, cannot occur unless there has been an assessment first against both the criterion in s 473DD(b) of the Act.
It was submitted that the material, the subject to challenge in this matter, may have made a difference had it been considered by the Authority. Some of the Authority’s findings which were covered by this material, included the Authority’s findings as to whether the motives for insurgent attacks in Ghazni and Jaghori were ethnic or religiously based.
Furthermore, it was important for the Authority to consider the media report dated 25 March 2017, referring to the Taliban takeover of a town in the Helmand province, as this was material to the applicant’s claims relating to the roadside attack on two fellow truck drivers in the Helmand province in 2013, which resulted in their deaths.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent submitted that grounds one and two are related and can be addressed together. Addressing ground two, first, the applicant contends that the Authority misconstrued s 473DD(a) of the Act in adopting an inappropriately narrow understanding of the term “exceptional circumstances”. The applicant does not identify by reference to the Authority’s decision any particular paragraph of the decision in which the error is said to arise. There is no statutory obligation on the Authority to give reasons for its determinations under
s 473DD of the Act: see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]. It was a matter for the applicant to satisfy the Authority of the existence of exceptional circumstances. The applicant failed to do so.
If the Court is satisfied that there was no error by the Authority in applying s 473DD of the Act to the documents it identified as having not met those requirements at paragraphs 9, 10, 11, 14 and 15 of its decision, then the first ground must fail as well. That is because, unless some error can be identified in the Authority’s approach to s 473DD of the Act, the statute prohibited the Authority from considering the documents. This matter can be distinguished from the situation in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 which did not concern documents excluded under s 473DD of the Act.
In any event, the documents sought to be relied upon by the applicant were outdated. The Authority identified updated information, including DFAT information, information from the EASO and the UNAMO. Even leaving aside the prohibition under s 473DD of the Act, it cannot be said that the Authority fell into error in preferring more recent information, compared with less recent information of the same nature. It was entirely appropriate for the Authority to consider the more recent information it had obtained, and it properly applied itself to
s 473DD of the Act in relation to that information.
In relation to ground two, it was submitted that the assertion that the Authority failed to provide the applicant with procedural fairness is misguided. The Authority’s duty to afford procedural fairness is strictly limited under Part 7AA of the Act. The Authority was not required to put the applicant on notice that it might decide a factual issue differently from the delegate: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. The Authority did turn its mind to the power under s 473DC of the Act, to obtain new information, however, it gave reasons at paragraph 16 of its decision, as to why it decided not to exercise that power. No procedural unfairness arises.
In relation to ground 4, the applicant submitted that the Authority had regard to the first decision made by a differently constituted Authority that was set aside by this Court, and thus fell into jurisdictional error. At paragraph 16 of its decision, the Authority did no more than note that the first Authority also came to a different view from the delegate, concerning the issue of the applicant suffering harm in Jaghori, such that the issue with the applicant was ‘squarely raised’. That observation was not rendered incorrect, or a jurisdictional error, by the setting aside of the first decision. An administrative decision that is set aside does not cease to exist for all purposes: see Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at [42]. The observation that the Authority made at paragraph 16 of its decision, was in the context of considering whether it needed to get new information from the applicant concerning its views about his safe return to Jaghori. Having expressly considered the exercise of its discretion, the Authority decided not to invite further information from the applicant. There is no challenge in this case to the Authority’s decision not to exercise its power under s 473DC of the Act. Accordingly, no error is established in connection with the Authority’s reference to its earlier decision.
In ground 5, the applicant submitted that it was unreasonable for the Authority not to have regard to the Tribunal decision dated 10 May 2016, which the applicant sought to provide as new information. It was submitted that it cannot have been legally unreasonable for the Authority not to have regard to a document that it (lawfully) determined did not meet the requirements of s 473DD of the Act. Accordingly, no error arises.
In relation to the ground 6, this relates to two media reports considered by the Authority at paragraph 10 of its decision. These reports were dated 8 March 2017 on 25 March 2017. The delegate’s decision was made on 9 March 2017. The latter report was therefore incapable of being provided to the delegate. The other media report (referring to an attack on a military hospital in Kabul) was dated a day prior to the delegate’s decision and could potentially have been provided.
Although the Authority did not at paragraph 10 of its decision, expressly engage with
s 473DD(b)(i) of the Act, it was submitted in relation to the 8 March 2007 article, it was unnecessary for it to do so, as the article by reference to its date, could have been provided to the delegate. Further, no explanation was offered by the applicant as to why the article could not have been provided. Thus an assessment under s 473DD(b)(i) of the Act, would have not impacted on the consideration of the existence of exceptional circumstances.
It was submitted that in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79], Marcovic J held that it was unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b) of the Act. Rather, it will be sufficient, if in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment occurred. The question is whether the substance of the criteria prescribed in s 473DD(b) of the Act has been considered prior to a consideration as to whether there are “exceptional circumstances” for the purposes of
s 473DD(a) of the Act.
Counsel for the first respondent accepted that in relation to the 25 March 2017 article, the Authority did not expressly engage with s 473DD(b)(i) of the Act however, even if the breach is established, it is not material to the outcome of the case. The applicant has not, except in the broadest terms, explained by reference to the content of the new information how its consideration could possibly have resulted in a different decision. The 25 March 2017 article did not relate to the applicant’s home area, but concerned a security incident in the Helmand province. Further, the Authority expressed that the media report was, by the time of its decision, two and one half years out of date.
Counsel for the first respondent submitted, additionally, that any jurisdictional error found in relation to the 25 March 2017 report would not be of sufficient gravity to warrant the granting of the relief that the applicant seeks. The Court should refuse relief, in the exercise of its discretion: see Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1 (“WZARH”) at [56] citing Stead v State Insurance Commission [1986] HCA 54.
Further, the first respondent accepts that the Authority at paragraph 11 of its decision, did not expressly deal with s 473DD(b)(i) of the Act. The Tribunal decision, which was dated 10 May 2016, predated the delegate’s decision, and no explanation was given by the applicant to the Authority as to why it could not have been provided to the delegate before the delegate’s decision. An assessment under s 473DD(b)(i) of the Act was therefore not capable in this matter, in the circumstances, of impacting on the determination of the existence of exceptional circumstances under s 473DD(a) of the Act.
CONSIDERATION
Ground one asserts that the Authority fell into jurisdictional error by failing to consider various reports and information provided to it. Reviews by the Authority are strictly governed by the provisions of Part 7AA of the Act. Section 473DB of the Act states that reviews are to be conducted upon the review material provided to the Authority by the Secretary, pursuant to
s 473CB of the Act, without accepting or requesting new information; (see s 473DB(1)(a)of the Act) and without interviewing the referred applicant; (see s 473DB(1)(b) of the Act).
The Authority may obtain new information itself, but does not have any duty to get, request or obtain any new information; (see s 473DC of the Act). New information must not be considered unless it satisfies the requirements set out in s 473DD of the Act which reads as follows:
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.
Further, the Court accepts the submission by the first respondent that there is no obligation on the Authority to give reasons for its determinations under s 473DD of the Act. Unless there is an error in the way the Authority considered the new information through the lens of s 473DD of the Act, which is specifically pleaded in other grounds, then there is no jurisdictional error on the part of the Authority.
Ground one is at best a broad based general complaint only. Each item of new information was appropriately considered and rejected by the Authority for the reasons set out in the decision. This included that the information had been superseded by more recent reports or was otherwise outdated or not relevant to the applicant’s circumstances. This is entirely unremarkable given that the Authority was undertaking merits review and was required to make a fresh decision. To not have availed itself to more recent country information could constitute an error on the part of the Authority. Ground one fails.
Ground two is a complaint that the Authority misconstrued or misapplied the term ‘exceptional circumstances’ contained within s 473DD(a) of the Act in its consideration of the new information provided to it. It overlaps ground one and fails for similar reasons. What constitutes ‘exceptional circumstances’ is inherently incapable of exhaustive statement: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [30]. It requires a contextual evaluation by reference to all the available circumstances of the case; see BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at [23]-[30].
Each item of new information was considered by the Authority and rejected for the reasons it gave. There is nothing to support the contention that the information was not properly considered within the circumstances of the case or that the consideration improperly focused on a particular aspect of the case to the exclusion of other matters. The Court is not satisfied that the Authority misapplied s 473DD of the Act in its consideration of what constituted exceptional circumstances. Ground two fails.
Ground three asserts that the Authority fell into jurisdictional error by not advising the applicant that it had formed a different view to the delegate as to the applicant’s ability to return to Jaghori. Further, the Authority noted at paragraph 16 of its decision, that the first Authority considered the issue of harm upon return to Jaghori and this issue was squarely raised and remained an issue that the applicant was aware of. As set out above reviews conducted under Part 7AA of the Act are circumscribed and procedural fairness is limited: see s 473DA of the Act. The Court agrees with the submission of the first respondent that there was no requirement to put the applicant on notice that it might decide a factual issue differently from the delegate: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. Further, the Authority did turn its mind to exercising its power under s 473DC(3) of the Act.
In declining to obtain new information, the Authority noted at paragraph 16 of its decision, that the issues in relation to harm in Jaghori in particular, were dealt with by Professor Maley in his reports as well as him commenting on information in the new DFAT and EASO reports. Given the limits on procedural fairness, contained in Part 7AA of the Act. The Court is not satisfied that there was any breach by the Authority of any procedural requirement. Ground three reveals no jurisdictional error.
Ground four asserts jurisdictional error as the Authority makes reference to a previous Authority decision which had been quashed. The Court agrees with the first respondent’s submissions that the Authority was merely making an observation about a finding made by the first Authority. The first Authority’s finding concerning the applicant’s risk of harm in Jaghori was not impugned on judicial review. This was in the context of whether or not the applicant was aware that the issue of harm was squarely an issue. It was in no way adopting or accepting the findings of the first Authority, rather it was a step in considering whether or not there was a need by the Authority to obtain further information.
The first respondent notes that there is no challenge to the Authority’s decision not to exercise its power under s 473DC of the Act in this regard. In these circumstances, ground four reveals no jurisdictional error.
Ground five is an assertion that the decision of the Authority lacked evident and intelligible justification such that it exhibited legal unreasonableness. It is asserted that the Authority should have received into its consideration a Tribunal decision that related to another Afghan citizen which was handed down in May 2016. It was submitted that it was not reasonable for the Authority to decide to have no regard to it.
The test for legal unreasonableness is “stringent’ and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgement made by the decision-maker: see Minster for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113].
At paragraph 11 of its decision, the Authority considered the Tribunal decision and found that it did not relate to a person of Hazara ethnicity and was decided on the basis of information current as at 2016. The Authority noted that it had more recent information before it, as well as information relating specifically to the applicant. The Authority accordingly, found that there were not exceptional circumstances to consider such information.
The applicant asserts that there is a requirement on the Authority, as part of government administration, to seek to decide similar cases consistently: see Drake, cited above. Whilst this, as a general principle, is true, the Authority for the reasons it set out, determined that it did not meet the requirement of exceptional circumstances under s 473DD of the Act. Were an Authority to simply reject a Tribunal decision without giving reasons, then this may, in appropriate circumstances, constitute jurisdictional error. It needs to be remembered however that there are two streams in relation to protection visa applications, ones that go before the Authority and others that go before the Tribunal. The procedural requirements in relation to each stream of decision are different. This may necessarily give rise to differences, although generalised outcomes so far as practicable, should be as similar as possible.
The Court is satisfied that the Authority in this case, properly turned its mind as to whether or not there are exceptional circumstances to consider the new information contained within the Tribunal decision. Having considered that information, there is nothing unremarkable in the Authority’s decision to reject the information for the reasons that it gave. Ground five reveals no jurisdictional error.
Ground six asserts jurisdictional error on the basis that the Authority fell into error by failing to follow the requirements of s 473DD of the Act in accordance with AUS17 cited above. That decision requires the Authority to look at the new information through the lens of s 473DD(b)(i) and (ii) of the Act prior to its consideration as to whether or not there are exceptional circumstances under s 473DD(a) of the Act.
At [12] of the judgement in AUS17 the following was said:
[12] The result, as has been recognised by the Federal Court in numerous other cases , is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)
The applicant complains that in paragraphs 8 and 10 of its decision, the Authority did not follow the mandated procedural path in relation to the two media reports and at paragraph 11, in respect of the Tribunal decision.
The Court accepts that the Authority is not required to adopt a formulaic approach if it is clear from the language of the decision that the requisite pathway has been followed. Further, it is not necessary to consider both s 474DDb)(i) or (ii) of the Act if the information is inherently incapable of satisfying one of the two criteria, for example, the information is not personal credible information.
Counsel for the first respondent concedes that the Authority did not engage with s 473DD(b)(i) of the Act in relation to the 8 March 2017 media article. Counsel for the first respondent submitted that as the article was dated the day before the delegate handed down their decision, on 9 March 2017, it was ‘capable’ of being provided to the first respondent before they made the decision. The Court does not accept that submission. It is simply not reasonable to expect that a media article published on one day could be capable of becoming known to either the applicant or his representative and ‘could have been’ provided to the first respondent within 24 hours, or perhaps less, depending on when the article was published on 8 March 2017.
With respect to the 27 March 2017 article, Counsel for the first respondent concedes that it could not have been provided to the first respondent before the decision made on 9 March 2017. Further, the Authority did not expressly engage with s 473DD(b)(i) of the Act. Prima facie then this constitutes jurisdictional error under AUS17.
Counsel for the first respondent accepts that the Authority at paragraph 11 of its decision did not expressly deal with s 473DD(b)(i) of the Act, but notes that no explanation was given by the applicant as to why the decision could not have been provided to the delegate before the delegates decision. An assessment under s 473DD(b)(i) of the Act, was therefore not capable in the matter and therefore did not impact on the determination of the existence of exceptional circumstances under s 473DD(a) of the Act. The Court accepts this submission and finds that there was no jurisdictional error by the failure to consider the Tribunal decision.
In relation to the two media articles, Counsel for the first respondent submitted that by reference to materiality, the acceptance of the articles could not have resulted in a different decision by the Authority. They concerned firstly an incident in Kabul (8 March 2017 article), and secondly an incident in the Helmand province (27 March 2017 article) not the applicant’s home area. Further, the error was not sufficient to warrant the relief sought in the exercise of the Court’s discretion; see WZARH, cited above. That case concerned the failure to allow an offshore delegate to be interviewed by a decision maker following the appointment of a new decision maker. In that case the following was said by Gageler and Gordon JJ at [55] and [56].
[55] The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration.
[56] Such a breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.
The Court at [58] reiterated that it is not good law.
[58] …that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
The submission of the applicant was that there was continuing violence across Afghanistan. Professor Maley’s reports indicate high levels of violence including violence committed upon returning asylum seekers. The articles were examples of continuing violence with the suggestion by the applicant that the violence was both ethnically and religiously targeted against Hazara’s and Shia’s. The Tribunal notes at paragraph 36 of its decision, a statement by the Taliban denying that the group was actively targeting civilians based on specific race, ethnicity or sect. This statement came in response to allegations that the Taliban had committed terrorism acts which had been ethnically motivated. At paragraph 40 of its decision, the Authority found that the Taliban statement appears to have been corroborated by the analyses that civilian casualties were due to fighting, rather than targeted assassinations or targeted sectarian/religious attacks.
This Court cannot be certain that the receipt of the two media articles could not have affected the determination of the Authority in relation to the risk of serious harm to the applicant if he were returned. There was clearly competing information as to the risks with Professor Maley on the one hand at paragraph 31of the Authority’s decision, as stating that Afghanistan is the least peaceful country in the world having replaced Syria, as against other reports which indicate that it is safe for asylum seekers to be returned to Afghanistan. The information contained in the media reports should have been taken into account in the mix of whether or not the applicant had a well-founded fear of persecution and was entitled to refugee protection under either s 36(2)(a) of the Act, or complimentary protection under s 36(2)(aa) of the Act.
CONCLUSION
Accordingly, the application is upheld and the Court grants the relief sought in the Initiating Application and remits the matter to the Authority for further consideration.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 10 March 2021
0
11
0