FNF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 10
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FNF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 10
File number: MLG 3131 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 12 January 2024 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider whether new information met criteria in s 473DD(b)(ii) of Migration Act 1958 (Cth) – whether Authority failed to consider all claims raised by applicant – Authority decision affected by jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 473DD, 473EA, 476, 477 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) 269 CLR 494; [2020] HCA 37
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2021] FCA 401
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 14 August 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Dr D Gang Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr A Yuile Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3131 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FNF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
12 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 20 September 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Afghanistan of Tajik ethnicity and Shia religion. He applied for a protection visa in Australia and that application was refused by a delegate of the Minister. The delegate’s decision was reviewed by the Immigration Assessment Authority (Authority) and on 20 September 2018 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The application now before the Court is an application for judicial review of the Authority decision and it is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application before the Court raises two grounds alleging that the Authority decision is affected by jurisdictional error on the basis that:
(a)the Authority did not complete the statutory task required under s 473DD of the Migration Act because it did not properly consider the factors in s 473DD(b) in deciding whether there were exceptional circumstances to justify considering new information for the purposes of s 473DD(a) of the Migration Act; and
(b)the Authority failed to consider the applicant’s claim to fear harm on the basis of the generalised risk of violence for Shia Muslims in any setting, public or private, in Afghanistan.
For the reasons explained below, I have found that the Authority did not properly consider the requirements of s 473DD(b)(ii) of the Migration Act and take its findings into account in determining whether there were exceptional circumstances for the purposes of s 473DD(a). The applicant’s first ground is established and it follows that a writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Authority to reconsider the review according to law.
THE APPLICANT’S IMMIGRATION HISTORY AND PROTECTION VISA APPLICATION
The applicant entered Australia in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 15 March 2017 the applicant made an application for a protection visa. The applicant claimed to fear harm on the basis of his imputed political opinion and religious beliefs as a Shia Muslim and due to his Tajik ethnicity.
The applicant attended an interview with an officer of the Minister’s Department on 27 March 2018 to discuss his claims for protection.
On 14 May 2018 a delegate of the Minister decided not to grant the applicant a protection visa. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 20 September 2018 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa. The Authority found that the applicant did not meet the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Migration Act. Those parts of the Authority decision that are relevant to the grounds of application are addressed below.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review of the Authority decision on 19 October 2018, which is within 35 days of the day on which the Authority decision was made, as required by s 477(1) of the Migration Act.
By an amended application filed on 18 July 2023, the applicant advances the following three grounds:
1.The Authority failed to complete the statutory task under s 473DD of the Migration Act 1958 (Cth) by failing to properly consider the s 473DD(b) factors under the s 473DD(a) limb of the statutory test.
2.The Authority failed to consider the Applicant’s claim as the generalised risk of violence for Shia Muslims in any setting, public or private, in Afghanistan.
3.The Authority’s conclusion that it was not “satisfied that there is a real chance of the applicant being seriously harmed in Kabul... due to the general security situation” and thereby that “the applicant will not face a real risk of significant harm for these reasons” within the meaning of s 36(2)(aa) Migration Act 1958 (Cth) was affected by jurisdictional error because it was irrational or illogical.
Although all three grounds were addressed by the parties in their written submissions, Counsel for the applicant advised at the commencement of the hearing that the applicant abandoned ground 3. I therefore do not address ground 3 in this judgment.
The evidence before the Court comprises the court book filed on behalf of the Minister on 3 August 2020 and an affidavit affirmed by Tessa Maybery and filed on behalf of the applicant on 18 July 2023. Ms Maybery’s affidavit annexes some of the country information that was before the Authority.
Both parties filed written submissions ahead of the hearing and made oral submissions at the hearing. The oral submissions advanced by Counsel for the applicant in relation to ground 1 addressed the alleged jurisdictional error with greater specificity than was apparent in the unparticularised ground as set out in the application. As a result of the manner in which the ground was advanced in oral submissions, I expressed concern that the Minister may not properly be on notice of the case being advanced by the applicant. To address this concern, I made orders at the hearing granting leave to the Minister to file further submissions after the hearing in relation to ground 1 and, if such submissions were filed, granting leave to the applicant to file responsive submissions. Neither party filed any additional submissions after the hearing.
GROUND 1 – DID THE AUTHORITY FAIL TO COMPLETE ITS TASK UNDER S 473DD OF THE MIGRATION ACT?
By ground 1 the applicant asserts that the Authority did not complete its statutory task under s 473DD of the Migration Act because it did not properly consider the factors set out in s 473DD(b) in reaching its conclusion as to whether there existed exceptional circumstances to justify considering new information for the purposes of s 473DD(a) of the Migration Act.
Requirements of s 473DD of the Migration Act
The Authority is only able to consider new information that was not before the delegate if it meets the requirements of s 473DD of the Migration Act. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), the High Court held that in assessing whether new information provided by a referred applicant meets the requirements of s 473DD of the Migration Act, the Authority should first assess whether the new information meets the requirements of both ss 473DD(b)(i) and 473DD(b)(ii) and then, if the requirements of either or both of those subparagraphs are met, consider whether the new information meets the requirements of s 473DD(a), taking into account its assessment in relation to both limbs of s 473DD(b): AUS17 at [11]-[12].
In relation to s 473DD(b)(ii), the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174/2016) identified that there are three requirements of s 473DD(b)(ii). The Court said at [34]:
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
In Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 (BBS16), the Full Court said at [105] that s 473DD(b)(ii) ‘requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally’.
In assessing the Authority’s reasons for the purpose of addressing this ground, the Court acknowledges that:
(a)the Authority is not required to give reasons in relation to procedural issues such as whether the requirements of s 473DD are met: see s 473EA of the Migration Act; BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2021] FCA 401 at [78]; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16]; and
(b)the Authority is not required to engage in any particularly formulistic consideration of the requirements of s 473DD(b) of the Migration Act: see, in particular, APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, where the Federal Court (Markovic J) said at [79]:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). 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 has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
The Authority’s identification and treatment of new information
In the present matter, the Authority identified that information that the applicant would be identified as Shia based on his name was new information. In the submission to the Authority, the applicant’s representative submitted that because the applicant and his father’s names are both distinctly Shia, the applicant will ‘find it very difficult to disguise his Shia religion and risks serious persecution in Afghanistan as a result’.
At [6] of its reasons, the Authority found that the new information did not meet the requirements of s 473DD of the Migration Act and gave the following reasons:
In that submission, the representative also makes an assertion that I consider is information not before the delegate. The assertion is that the applicant’s name is a clearly identifiable Shia name. The representative’s assertion is not accompanied by supporting documentation or evidence. It is an assertion by the representative only. The issue of Shia identification of the applicant was at issue during the SHEV interview. I am not satisfied, and no explanation has been given, that this information could not have been provided to the delegate prior to the decision. I note that the applicant’s current representative was at the SHEV interview and was then representing the applicant. While I accept the assertion, if true, would be credible personal information, I do not accept that there are exceptional circumstances to justify me considering it.
Did the Authority make findings on both limbs of s 473DD(b) and take those findings into account for the purposes of s 473DD(a)?
The applicant’s ground as pleaded simply refers to s 473DD(b), without distinguishing whether the asserted error is in relation to s 473DD(b)(i) or (ii) or both. The applicant’s submissions focus more on s 473DD(b)(ii) and I will focus on that subparagraph in this judgment. However, in circumstances where the applicant’s ground is broad and unparticularised, it is preferable to also express a finding in relation to s 473DD(b)(i).
I find that the Authority clearly considered and made a finding in relation to s 473DD(b)(i). That finding was that the Authority was not satisfied that the information could not have been provided to the delegate prior to the delegate’s decision and the applicant offered no explanation in relation to this. There is no reason apparent from the Authority reasons to infer that the Authority did not take this into account in reaching its conclusion in relation to s 473DD(a) of the Migration Act.
In relation to s 473DD(b)(ii), the crux of the applicant’s ground is that the Authority did not in substance consider the significance of the new information in assessing whether the requirements of s 473DD(b)(ii) were met and therefore did not complete its statutory task. Counsel for the applicant also submitted that the use of the phrase ‘if true’ by the Authority in considering whether the information was credible creates uncertainty because the phrase ‘if true’ has capacity to misdirect and this adds to the submission that the Authority did not carry out its statutory task. The applicant submitted that because the Authority failed to discharge the whole of its statutory task under s 473DD(b)(ii), its finding in relation to s 473DD(a) is compromised and therein lies the jurisdictional error.
The Minister submitted that, even if the Authority did not use the precise language of s 473DD(b)(ii), the final sentence of [6] amounts to a finding that the whole of s 473DD(b)(ii) was met. The Minister submitted that the applicant’s case was really about the level of detail that the Authority was required to go into, when considering exceptional circumstances for the purposes of s 473DD(a), about the matters it was thinking about in relation to s 473DD(b)(i) and (ii). Counsel for the Minister submitted that the authorities relied on by the applicant all addressed the requirements of s 473DD(b)(ii) and were not of any significant assistance in the present case given that the Authority accepted that s 473DD(b)(ii) was met. Counsel for the Minister submitted that there is no particular level of detail required in making an evaluative judgment of whether there are exceptional circumstances and the Court should be slow to require a particular explicit consideration of any matter in finding that the Authority failed to carry out its statutory task. The lack of specific discussion about s 473DD(b)(ii) and the brief nature of the reasons do not reflect a lack of consideration but rather reflect the task the Authority was required to carry out, which involves making an evaluative judgment without needing to give reasons.
I do not accept that the Authority’s final sentence of [6], namely, its acceptance that the new information, if true, would be credible personal information, amounts to proper consideration of the requirements of s 473DD(b)(ii), or an acceptance that all the requirements of that subparagraph were met. As explained by the High Court in Plaintiff M174/2016, s 473DD(b)(ii) has three requirements. Each of these needs to be satisfied for the Authority to find that the requirements of s 473DD(b)(ii) have been met.
I make the following observations about the Authority’s consideration, or lack of consideration, of those three requirements in the present case:
(a)I accept that the final sentence of the Authority’s reasons at [6] indicates its acceptance (or qualified acceptance) that the information is ‘credible personal information’, albeit the Authority misstated the relevant test by suggesting that the information needed to be ‘true’ to be credible personal information, when it only needed to be capable of being believed: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75].
(b)I do not accept that the Authority considered the other two requirements of s 473DD(b)(ii), namely, whether the information was previously known by the applicant or the delegate, and whether, had the information been known, it may have affected consideration of the applicant’s claims for protection. The Authority did not expressly address these two requirements in its reasons. I acknowledge that the Authority was not required to give reasons for its findings in relation to s 473DD(b)(ii), and that there is no particular formulaic consideration required. However, in circumstances where the Authority gave reasons in which it expressed its acceptance of only one of the three requirements of s 473DD(b)(ii), and did not refer to the other two requirements, I cannot infer that the Authority made a positive finding that the whole of the requirements of s 473DD(b)(ii) were satisfied. This remains the case even in circumstances where the Authority purported to consider whether the requirements of s 473DD(a) of the Migration Act were met, when it did not need to do so unless either or both of the limbs of s 473DD(b) were met. I do not accept the Minister’s submission that the Authority’s acceptance in the final sentence of [6] that the new information may be credible personal information amounts to a shorthand expression of a finding that the Authority was satisfied of all the requirements of s 473DD(b)(ii).
I accept the applicant’s submission, based on BBS16, that the Authority was required to, but failed to, consider the significance of the new information in assessing whether it met the requirements of s 473DD(b)(ii) of the Migration Act. The Authority did not refer to the applicant’s submission about the significance of the new information, namely, that it would make it very difficult for the applicant to hide his Shia religion and there is no indication that it evaluated that submission. This reinforces my view, expressed above, that the Authority did not consider the third requirement of s 473DD(b)(ii).
Given that the Authority did not properly consider whether the requirements of s 473DD(b)(ii) were met, it follows that the Authority’s consideration of s 473DD(a) is affected by jurisdictional error. The Authority did not complete its consideration of the statutory requirements of s 473DD(b)(ii) and therefore could not have taken the outcome of its assessment in relation to the s 473DD(b)(ii) requirements into account in its assessment of the criterion specified in s 473DD(a).
Materiality
The applicant submitted that the error is material because it was relevant to his status as a religious minority and could have deprived the applicant of a realistic possibility of a different outcome. The Minister has not challenged the applicant’s submission on materiality or otherwise submitted that the Authority’s error is not material.
I accept that the Authority’s error is material and therefore amounts to jurisdictional error. The Authority’s failure to consider all the requirements of s 473DD(b)(ii) and take the outcome of its assessment into account in considering whether the criterion in s 473DD(a) was met clearly deprived the applicant of the possibility of a different assessment in relation to whether the requirements of s 473DD were met.
It also deprived the applicant of the possibility of a different outcome in relation to the Authority’s substantive consideration of his claims for protection. This is particularly so in circumstances where the new information related to whether the applicant would be identified as Shia based on his name, and part of the Authority’s reasoning for finding that the applicant would not be at risk of harm based on his religion was because he would not be identified as Shia.
Conclusion in relation to ground 1
The applicant has established by ground 1 that the Authority decision is affected by jurisdictional error.
GROUND 2 – DID THE AUTHORITY FAIL TO CONSIDER THE APPLICANT’S CLAIM BASED ON THE GENERALISED RISK OF HARM TO SHIA MUSLIMS?
By ground 2 the applicant asserts that the Authority failed to consider his claim relating to the generalised risk of violence for Shia Muslims in any setting, public or private, in Afghanistan.
What is meant by ‘generalised risk of violence for Shia Muslims in any setting, public or private’?
An issue arose in the parties’ submissions as to what is meant by the phrase ‘generalised risk of violence for Shia Muslims in any setting, public or private, in Afghanistan’, as used in the applicant’s ground. The Minister submitted that this was a contradiction in terms: a risk is usually either described as ‘generalised’, meaning a risk that is faced by the public or large portions of the public regardless of who they are, or a risk is specific and targeted, based on a person’s characteristics. Based on the applicant’s submissions, the Minister understood the applicant to be asserting that the Authority failed to consider a risk arising in any setting, not by reference to the applicant’s activities and the places frequented, and that the Authority failed to assess whether the applicant faced a risk of violence just because he was Shia and went about his daily life as a Shia man.
In my view, the Minister has accurately understood the applicant’s ground as articulated in his written submissions.
In oral submissions, Counsel for the applicant submitted that whether the claim is characterised as ‘generalised’ or ‘specific’ is a term of art and clarified that the applicant’s claim was that ‘by reason of him being a Shia man he would be resettled into a Shia neighbourhood and by going about his business as a person in that neighbourhood who also happens to be Shia he is at risk of persecution’.
Applicant’s claims based on the risk of harm from generalised violence as a Shia
In advancing this ground, the applicant relies on the following submission made to the delegate on 24 April 2018 (footnotes omitted, emphasis added):
25.The UN eligibility guidelines for Afghanistan state that members of minority religious groups may be in need of international refugee protection on the ground of religion, especially where these minority religions contravene prominent [anti-government agents] interpretation of Islamic beliefs and values.
26.There is significant evidence suggesting that Daesh, [Islamic State in Khorasan Province (ISKP)] and the Taliban deliberately target Shias for this reason.
27.The UN Assistance Mission to Afghanistan (UNAMA) recently announced a drastic increase in attacks directed against civilians at places of worship over the last two years. The vast majority of these attacks were directed against Shia Muslims. In total, UNAMA documented 689 Shia casualties since 1 January 2016, involving 230 deaths and 459 injuries. The number of civilian casualties since the beginning of 2016 is nearly double the cumulative total of the previous 6 years.
28.DFAT has also recognised the update in deliberate sectarian attacks against Shia targets in 2016 and 2017. They have acknowledged that Shias are now vulnerable to being targeted based on their religious identity, stating that ‘the number and scale of the attacks demonstrate that Shias, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation.
29.These attacks take place in all regions of Afghanistan, especially the nation’s capital. Prominent attacks against Shias in Kabul in the last 12 months include:
•21 March 2018 – At least 31 people were killed and over 60 wounded, many of them Shia in an attack during Afghan new year celebrations.
•9 March 2018 – A suicide bomber killed 7 and wounded several others when trying to enter a Shia gathering in a Shia neighbourhood in Kabul.
•28 December 2017 – At least 41 people have been killed and more than 80 wounded in a suicide bomb attack of a Shia cultural and religious centre, Kabul.
•22 November 2017 – Daesh claims a suicide attack inside Baqir-ul-uloom mosque in Kabul that killed at least 32.
•21 October 2017 – A suicide bombing at a Shia mosque in Kabul killed at least 39 and injured 45 more.
•29 September 2017 – Daesh claimed responsibility for an explosion at a Shia mosque in Kabul that killed five and injured another 20. The New York Times reported that security forces were stretched thin and cannot ensure the safety of worshippers at mosques.
•26 August 2017 – Another attack by Daesh on a Shia mosque in Kabul killed over 28 people and injured 50.
•16 June 2017 – A suicide bomber killed four people at a Shia mosque in Kabul during Ramadan.
30.The Applicant’s Shia religion places him at a considerable risk of persecution if he were forced to relocate to Kabul. This risk affects the Applicant not only were he to attend places of worship, but also if he attended Shia gatherings, celebrations or lived in Shia neighbourhoods.
Authority’s reasons in relation to the risk of harm to the applicant on account of his Shia religion
The Authority said at [27]-[32] of its reasons (footnotes omitted):
27.Turning to whether he would face a real chance of harm from the Taliban or Islamic State/Daesh because of his claimed ethnic or religious profile, recent analysis indicates that the Taliban does not have a sectarian or ethnic agenda in terms of its current insurgent activities. [The European Asylum Support Office (EASO)] does not assess the Taliban as the main perpetrator of attacks against the Shia population. While I accept the Taliban is clearly active as an insurgent and armed group, including within Kabul, I am not satisfied the Taliban is systematically targeting Shias for harm within the country or specifically in Kabul, whether for reasons of their ethnic, religious or related profiles. I find there is no real chance of the applicant facing harm from the Taliban for these reasons.
28.The assessment in relation to Islamic State is less straightforward. In 2016 and 2017 there were a series of deliberate sectarian attacks perpetrated by Islamic State in Khorasan Province (ISKP) against Shia targets in Afghanistan. According to DFAT, UNAMA reported five separate attacks against Shia Muslim gatherings and mosques in the second half of 2016 and five more up until August 2017. These were religiously motivated, using derogatory language against Shias and calling for further attacks on them. DFAT assesses that the number and scale of the attacks demonstrate that Shias, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation. DFAT assess that Shias are particularly vulnerable when assembling in large and identifiable groups, such as attending mosques or major religious festivals.
29.While the risk to Shias practicing their faith in Kabul may be elevated, I find that the applicant is not a practicing Shia for the reasons I set out below. He told the delegate that his life in Parachinar had been marked by sectarian violence. He said he and his brothers avoided harm by “staying inside”. He said he occasionally attended religious festivals growing up.
30.With respect to practicing his faith, he told the delegate that he had gone to the mosque for a few months growing up in order to learn the Koran. After that, he didn’t go much or pray much. He provided the delegate with some basic information about Shia beliefs and practice, but added that he was not “very educated about Shia.” The applicant’s evidence in this regard caused the delegate to question whether the applicant was in fact, Shia. I agree with the delegate’s concerns about the paucity of the applicant’s knowledge as to Shia beliefs and practices, but I conclude from this, and his other evidence, that he is simply a non-practicing Shia.
31.The delegate asked the applicant about his fears of harm because of his Shia faith, specifically inquiring how people would be able to identify him. His response in the SHEV interview was that he would be identified by his beliefs and how he prays. He acknowledged however that he does not go to mosque and does not pray, but suggested that he would do so in the future because his mother (who lives in Parachinar) would pressure him to do so. He further explained that at checkpoints, the Taliban test people by asking them to say Sunni prayers and if someone is unable to do so, they will be killed. He told the delegate that the man who drove him in and out of Afghanistan, a Shia man, learned certain Sunni prayers just for this eventuality.
32.I accept that the applicant is Shia. I do not accept that he is very religious or that he practices his religion by going to the mosque or regularly attending religious occasions. Based on the level to which he practices his faith, I consider that he is unlikely to come to the attention of the Taliban, ISKP or other insurgents. I am not satisfied that the applicant would be of interest on return to Kabul for this reason. I consider that if he were returned to Afghanistan, he would continue his minimal practice of his religion and like other Shias, find ways to adapt and avoid detection at checkpoints.
Did the Authority fail to consider the applicant’s claim?
The applicant submitted that his claim to fear harm directly addressed the risk of generalised violence merely by his Shia faith and not by reference to his activities and places frequented. The applicant submitted that the approach taken by the Authority amounted to a failure to fully consider the claim as the applicant put it, namely, that he faced violence just because he was Shia and went about his daily life as a Shia man. The applicant submitted that the Authority did not globally address a risk of harm arising from the likelihood that the applicant would live in a Shia neighbourhood, would not stay inside 24 hours of the day, and would occasionally attend religious services or festivals. The applicant further submitted that the Authority did not specifically address his claim that he faced harm from Daesh and that the number of civilian casualties had escalated significantly in the two years preceding his submissions to the delegate.
The oral submissions advanced by Counsel for the applicant at the hearing were clearly based on a premise that the applicant would live in a Shia neighbourhood. There were many examples of this throughout Counsel’s submissions, but I extract just one to highlight the nature of the submission advanced:
These mosques and gatherings, your Honour, they are in the Shia neighbourhoods where this Shia applicant would resettle and he said that he would resettle in the Shia neighbourhoods. The mosques and the gatherings, they do not happen far out in the desert where only Shia practising Muslims go. They are in the neighbourhoods. The authority did not apprehend the applicant’s claim as he put it which is that I being this person who walks through these neighbourhoods, not staying inside 24/7, Who would go out for groceries, who would maybe go out for a chat, go out to find work for the day, he thereby faced a risk of harm whether he went to mosques or gatherings or not.
The Minister submitted that the applicant’s submission failed to appreciate the way in which the Authority addressed the issue and failed to grapple with the whole of the Authority’s reasons. In particular, the Minister submitted that:
(a)the Authority’s finding that there was no real chance the applicant would face harm from the Taliban was a general finding, not limited to any specific place or activity;
(b)the Authority found, based on country information that Shias were particularly vulnerable where they were assembling in large and identifiable groups, such as at mosques, but did not find that Shias were at risk only at those places;
(c)the Authority’s finding that the applicant was not a practising Shia was critical and underpinned the assessment of risk;
(d)the Authority noted the applicant’s evidence that he did not go to mosques or pray much and his evidence that he would be identified by his beliefs and how he prays and found that he was unlikely to come to the attention of insurgents based on the level to which he practices his faith.
The Minister submitted that the Authority dealt with the applicant’s claims by finding that the Taliban were not targeting Shias and so did not pose a threat to the applicant and that, while Islamic State were targeting Shias, the applicant was unlikely to attend large gatherings of Shias because he was not a practicing Shia and he would not otherwise be identified as a Shia or come to the attention of Islamic State because of his religion.
In oral submissions, Counsel for the Minister submitted that the country information relied on in the applicant’s submission to the delegate painted a clear picture that a risk to Shia Muslims existed, but was connected with a religious aspect, such as mosques and gatherings. That was the claim and the Authority engaged with that claim.
When I invited Counsel for the Minister to expressly address the applicant’s ground insofar as it is based on the Authority’s failure to consider whether simply living in a Shia neighbourhood would give rise to a chance of harm, Counsel for the Minister submitted that the Authority considered that the risk was really from targeting and that in the absence of a reason for the applicant to be targeted, the risk was not present. The finding is one which encompasses a broader proposition than being in the neighbourhood. Regardless of whether one was in the neighbourhood or not, the risk still arose from the targeting of groups, and of mosques, and because the applicant would not be attending those sorts of gatherings he would not be at risk.
I do not accept that the Authority failed to consider the applicant’s claims in relation to his Shia faith as those claims were advanced in the materials before the Authority.
I have some concerns about the way in which Counsel for the applicant, in her oral submissions, characterised the applicant’s claims made to the delegate and the Authority. In particular, I have concerns with the submission made by Counsel for the applicant that the applicant claimed that he would live or resettle in a Shia neighbourhood. The only evidence that Counsel for the applicant referred me to in advancing this submission is the submission made to the delegate, extracted at [38] above. Only [30] of that submission refers to the possibility of the applicant living in a Shia neighbourhood. However, in its terms, that is a submission that the risk of harm faced by the applicant because of his Shia religion would exist if he lived in a Shia neighbourhood, even if he did not attend mosques. I do not accept that a submission in those terms is properly characterised as a submission that the applicant would live or resettle in a Shia neighbourhood and would face a risk of harm as a person who walks through the neighbourhood, who would not stay inside 24/7 and who would potentially go out for groceries, for a chat or to find work. I have looked at all the evidence before the Court showing how the applicant advanced his claims[1] and cannot locate any claim that he would or would be likely to live in a Shia neighbourhood in Kabul.
[1] This includes the applicant’s entry interview, his statutory declarations, submissions to the delegate and the Authority and descriptions in the delegate’s and Authority’s reasons of the evidence that the applicant gave at his protection visa interview. A transcript of the protection visa interview is not in evidence before the Court.
The Authority is only required to consider claims that were expressly articulated by the applicant, or which clearly emerge on the materials before the Authority based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [60]-[61], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]. I do not consider that a submission that, even if the applicant did not attend mosques, he would be at risk of harm from his religion if he lived in a Shia neighbourhood amounts to a clearly articulated claim that he would face harm because of his religion as a person who would live in a Shia neighbourhood. It does not seem to me that a reference to the mere possibility or proposition that a situation may exist (in this case, the applicant living in a Shia neighbourhood) can be the basis of a clearly articulated claim that the applicant would face harm on that basis, without some claim that the relevant situation (again, in this case, the applicant living in a Shia neighbourhood) would eventuate. Further, taking into account the principles summarised in AYY17 and NABE, I do not accept that any such claim clearly emerged from the materials before the Authority based on established facts. There was no established fact before the Authority that the applicant would return to a Shia neighbourhood.
Therefore, to the extent that the applicant’s ground is based on the Authority’s failure to make any finding about whether the applicant would face a risk of harm from violence as a person living in a Shia neighbourhood, the Authority’s reasons do not disclose jurisdictional error.
In considering the applicant’s claims based on his Shia religion, the Authority found that the country information did not suggest that the Taliban was targeting people because of their religion. The applicant does not cavil with this finding.
The Authority recognised that there was a risk from Islamic State, and that Shias were ‘particularly vulnerable’ when assembling in large and identifiable groups, such as at mosques and religious festivals. I accept the Minister’s submission that this was not a finding that only those who attended mosques and religious festivals were at risk. I also accept the Minister’s submission that the Authority’s finding that the applicant was a non-practising Shia was critical to its assessment of the risk that the applicant would face. The Authority did not accept that the applicant practiced his religion by going to mosques or that he would regularly attend religious occasions. The Authority accepted that the applicant occasionally attended religious festivals growing up. The Authority found that the applicant would continue his ‘minimal practice of his religion’ if returned to Afghanistan and, based on the level to which he practices his faith, would not come to the attention of the Taliban, ISKP or other insurgents. To the extent that the applicant’s written submissions suggest that the Authority failed to consider that the applicant would occasionally attend a religious service or festival, I do not accept the submission. The Authority’s finding was that the applicant would not regularly attend religious occasions, not that he never would, and it can be inferred that the Authority took into account its finding that the applicant would not regularly attend religious occasions in assessing the level of risk of harm he would face.
The Authority’s finding that the applicant would not face a real chance of serious harm or real risk of significant harm on account of his Shia faith was not based only on its finding that the applicant would not attend mosques and would not regularly attend religious occasions. The Authority also considered the applicant’s evidence about the reason he claimed he would be identified as a Shia. The Authority considered the applicant’s evidence that he would be identified as Shia by how he prays (while also noting his evidence that he did not pray), and that he might be identified at checkpoints. These considerations were taken into account in the Authority’s findings that the applicant would not come to the attention of insurgents and that he would not face the requisite level of harm on account of his religion.
In his written submissions, the applicant also claimed that the Authority did not consider that he would face harm from Daesh and that the number of civilian casualties had increased in the years prior to the applicant’s submissions to the delegate.
In referring to the risk from Islamic State, the Authority referred to ‘Islamic State/Daesh’ at [27] of its reasons and ‘Islamic State’ and ‘Islamic State in Khorasan Province’ at [28] of its reasons. It appears that the Authority considered ‘Islamic State’, ‘Daesh’ and ‘Islamic State in Khorasan Province’ to be the same or related groups. The applicant has not explained in his written submissions why the Authority’s consideration of the risk of harm from Islamic State and ISKP does not sufficiently address his claims insofar as they refer to Daesh and this part of the applicant’s ground was not addressed in oral submissions. The applicant has not established that the Authority did not address his claim insofar as it referred to a risk of harm from Daesh.
The Authority referred to different country information to that contained in the submission to the delegate, but that country information still referred to the increasing number of attacks on Shias. The Authority acknowledged that the ‘number and scale of the attacks’ indicated that Shias face a risk of being attacked based on their religious affiliation. It is implicit in this finding that the Authority was aware of, and considered the fact that, the number of civilian Shia casualties had increased in recent years. The Authority then, appropriately, considered the specific circumstances of the applicant in finding that he did not face a real chance of serious harm or a real risk of significant harm.
I am satisfied that the Authority considered the applicant’s claims based on his religion as they were advanced in the materials before the Authority. Ground 2 does not establish jurisdictional error.
CONCLUSION
I have found that ground 1 is established because the Authority failed to consider the requirements in s 473DD(b)(ii) of the Migration Act and take those findings into account in considering whether exceptional circumstances existed for the purposes of s 473DD(a). It follows that writs of certiorari and mandamus will issue to quash the Authority decision and require the Authority to reconduct the review of the delegate’s decision according to law.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 January 2024
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