FNN17 v Minister for Immigration
[2019] FCCA 1222
•13 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FNN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1222 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – whether failure to consider integer of claim – whether legally unreasonable to fail to exercise discretion to seek further information – whether jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), Pts.7, 7AA, ss.36, 46A, 473DA, 473DC, 473GA, 473GB, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Minister for Immigration & Border Protection v CRY16 & Anor [2017] FCAFC 210; (2017) 253 FCR 475 Minister for Immigration & Border Protection v DZU16 & Anor [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 |
| Applicant: | FNN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 700 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 13 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr RS Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr PJ Hannan |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 7 December 2017.
That a writ of mandamus issue requiring the second respondent to re-determine the referral received by it on 19 May 2017 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 700 of 2017
| FNN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review filed on 15 December 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The IAA Decision dated 7 December 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Safe Haven Enterprise Visa (“Safe Haven Visa”) to the applicant. The IAA Decision appears in the Court Book (“CB”) at CB 161-177.
Pursuant to a Registrar’s orders made on 14 February 2018 the applicant, having obtained legal representation, filed an amended judicial review application on 5 April 2018 (“Judicial Review Application”).
Background
The background to the Judicial Review Application is as follows:
a)the applicant, an Afghan citizen, arrived in Australia on 18 April 2013 as an unauthorised maritime arrival: CB 14;
b)on 30 June 2016 the applicant was advised the Minister had “lifted the bar” pursuant to s.46A of the Migration Act and invited him to apply for a Safe Haven Visa: CB 16-17;
c)on 12 December 2016 the applicant applied for the Safe Haven Visa making the following claims:
i)he is a Shia Muslim, of Hazara ethnicity, and he is afraid to return to Afghanistan: CB 58;
ii)in 2009 the applicant’s father disappeared when returning from Ghazni province and he has never seen him again, and believes he was likely kidnapped and killed by the Taliban: CB 59;
iii)sometime in about 2010, the applicant was travelling towards Ghazni province and when he reached the Nani area, the Afghan National Army (“ANA”) and its western allies had blocked the road as the Taliban had earlier ambushed the road workers working for a Non-Government Organisation, and had killed two of them, and upon passing through the area a heavy exchange of fire between the ANA and Taliban continued: CB 59;
iv)he was about 500 metres away from a roadside bomb when it exploded near Muqur Bazar sometime in 2011: CB 59;
v)a group of armed Pashtuns stopped his vehicle when returning from Ghazni province sometime in 2012, and he was taken to an unknown area, searched and then ordered to go back in the car with two of the armed Pashtuns and another following on his motorbike before leaving them on the main road, and he believes they were members of the Taliban and was shocked that he was freed without being physically harmed: CB 60;
vi)after this incident his mother was furious as this was not the first time he had encountered a life-threatening situation and the security situation in the whole of Afghanistan had deteriorated severely since the withdrawal of allied forces: CB 60;
vii)he fears he will be harmed or mistreated by anti-Hazara and anti-Shia groups such as the Taliban, Islamic State of Iraq and Syria (“ISIS”) and their supporters, whom he believes are largely supported by the Pashtun people of Afghanistan as well as some members of the Hazara ethnic community who work as informants for them: CB 61;
viii)his ethnicity, religion, imputed anti-Taliban pro-western political opinion and being a failed Afghan asylum seeker are the significant reasons he fears he will be persecuted, and the authorities do not have the capacity nor the willingness to protect him: CB 61; and
ix)he cannot relocate as his risk of harm as a Shia Hazara extends throughout the country, including urban areas such as Kabul where security has deteriorated greatly, there is systemic and discriminatory conduct by the government toward Shia Hazara and he will not have access to electricity, clean water, adequate sanitation, employment, accommodation and family: CB 62;
d)the applicant attended an interview with the Delegate on 23 March 2017 (“Delegate’s Interview”), and the applicant’s representative provided extensive and detailed post-Delegate’s Interview submissions on 3 April 2017: CB 105-138;
e)on 16 May 2017 the Delegate’s Decision was to refuse the applicant a Safe Haven Visa: CB 139-157; and
f)the IAA received a referral for a review of the Delegate’s Decision on 19 May 2017 and on 7 December 2017 the IAA Decision was to affirm the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 158-177.
IAA Decision
In the IAA Decision the IAA:
a)noted the Delegate refused to grant the applicant a Safe Haven Visa as it found that the applicant could reasonably relocate to Kabul where he would not face a real chance of persecution or a real risk of significant harm: CB 162 at [2];
b)was satisfied there were exceptional circumstances for considering updated Department of Foreign Affairs and Trade (“DFAT”) reports (collectively “DFAT 2017 Reports”, individually DFAT Country Information Report Afghanistan, 18 September 2017, CISEDB50AD5680 (“DFAT 2017 Country Report”) and the “DFAT Thematic Report – Hazaras in Afghanistan”, 18 September 2017, CISEDB50AD5681 (“DFAT 2017 Thematic Report”)) given the claims of the applicant that he feared harm due to his profile as a Shia, a Hazara, and because he will be returning to Afghanistan as a person who claimed asylum abroad and specifically that there was information about Shias and Hazaras, and those who return to Afghanistan after seeking asylum abroad in the DFAT 2017 Reports, while also noting no other materials were provided by the applicant: CB 162 at [3]-[4];
c)summarised the claims made by the applicant in his Safe Haven Visa application while also referring to two additional claims raised in the Delegate’s Interview and the post-Delegate’s Interview submissions which raised a further claim: CB 163 at [6]-[7];
d)identified and explained the legislative provisions of the Migration Act the applicant was required to satisfy: CB 163-164 at [8]-[10], CB 171-172 at [41]-[42] and CB 174-177;
e)accepted the applicant's consistent evidence that his father went missing in 2009 and was willing to accept he was killed by the Taliban, or another insurgent group, but found the applicant has not claimed, nor is there any evidence to suggest that he is at risk of harm in Afghanistan for reasons related to his father's disappearance or death in 2009 thus finding the applicant does not face a real chance of harm in Afghanistan on that basis: CB 164 at [11];
f)stated country information was consistent with the applicant’s claims regarding roadside incidents, particularly, there was a significant Taliban and criminal presence on the roads within and around the Gelan District such that it was satisfied his personal effects were stolen by armed criminals during an incident: CB 164-165 at [12]-[13], but did not accept the applicant's claims first raised in the SHEV interview, that he was bound, interrogated, and assaulted during this incident and noted the applicant did not advise the Delegate why this additional information had been omitted from his otherwise detailed written claims: CB 164-165 at [13];
g)listened to the recording of the Delegate’s Interview and disagreed with the applicant's representative's submissions that the applicant provided evidence that he no longer practises Islam, as at no time during the Delegate’s Interview did the applicant indicate that he was no longer practising Islam, and as the claim is inconsistent with the applicant's earlier evidence and the applicant’s representative provided no explanation in the post-Delegate’s Interview submission as to why the applicant had abandoned his faith or why the claim was not put forward at an earlier time, did not accept that the applicant has abandoned his faith and was satisfied he was a practising Shia Muslim: CB 165 at [14]-[16];
h)extensively referred to country information, including 2015 and 2016 DFAT country reports and the DFAT 2017 Reports, and found they did not support a claim that Shia Hazaras were currently being targeted and harmed in ethnic or religious attacks, nor for other reasons, by the Taliban, Islamic State, or other groups, in Jaghori District, and given the lack of evidence of insurgent group penetration into Jaghori, was not satisfied that there is a real chance that the applicant would face harm from insurgent groups or their supporters, in Jaghori for reasons of his ethnicity or his religion, his actual or imputed opposition to insurgent groups, or as a Shia Hazara, or for any other reason: CB 165-167 at [19]-[26];
i)was satisfied that the applicant would return to Kabul initially and accepted that in order for the applicant to return to Jaghori District, he would probably be required to travel by road after arriving at Kabul airport, noting the applicant's representative’s submission that the roads leading to Jaghori are insecure, and that there would be a risk for the applicant if he travelled on the roads between Kabul and Jaghori, and referred to country information detailing attacks but stating these attacks are explained by insurgents looking for persons affiliated to the Afghan authorities and security forces and that ethnicity is rarely the primary motivating factor in these incidents, though one incident on a Hazara coal mine occurred in January 2017 but the motivation for the attack was unclear: CB 167-168 at [27]-[29];
j)accepted that the applicant would be required to transit Kabul airport whether he chose to access Jaghori by road or by first flying to Bamyan and that there have been reports of occasional insurgent attacks near Kabul airport in recent years, however, was satisfied that the applicant's transit in Kabul would be only for a brief period, either if travelling by road or if awaiting an onward flight to his home area via Bamyan airport and the applicant would not now, or in the reasonably foreseeable future, face a real chance of harm during the short period he may need to stay in Kabul for this purpose, and in particular the IAA considered the chance that the applicant will be involved in an incident or attack on the road, or put at additional risk because of his ethnic or religious profile in such an attack, to be remote: CB 168-169 at [31]-[32];
k)accepting that the applicant may be identified as a former asylum seeker from Australia, noted the applicant does not have identifiable affiliations with international organisations or the Afghan government which would raise his profile and lead to him being specifically targeted by insurgents because of a pro-western political opinion, and as there was no country information supporting the applicant's claim that his return to Afghanistan will be televised, was not satisfied that returnees like the applicant who have lived in a western country like Australia for a significant period and have sought asylum, are targeted by insurgents or other groups, or targeted due to being a Shia Hazara or a returnee asylum seeker: CB 169-170 at [34];
l)on the evidence, was not satisfied there were any significant vulnerabilities or barriers that would deny the applicant's capacity to earn a livelihood on return to Jaghori District, or that he will experience significant economic hardship, or will be denied access to basic services that threaten his capacity to subsist, now or in the foreseeable future, further it referred to discrimination or “ostracisation” as being assessed as low in the country information and found he would return and be able to seek employment in his home area, in a Hazara majority area, and that he would have the support of his family who remain living there, hence, there will be no societal discrimination that he may be subjected to that would prevent him from obtaining employment or manifest itself in such a way that it would constitute serious harm: CB 170 at [35];
m)considered the prospect of the applicant suffering harm from religious or ethnically motivated violence from Islamic State, the Taliban or any other insurgent group or person to be remote, and was not satisfied that the applicant will be perceived as anti-Taliban and anti-Islamic State on account of his profile, and accordingly was not satisfied there is a real chance the applicant faces harm in his home area of the Jaghori District, or the surrounding area, on the basis of his religious and ethnic profile, his actual or imputed political opinion, or as a Shia or Hazara: CB 171 at [37];
n)was satisfied that any chance of harm the applicant may face in relation to generalised violence would also not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the Jaghori District and in and around the Hazarajat, and the country overall: CB 171 at [37];
o)held that there is no evidence to indicate that the applicant will be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment intentionally inflicted, and the IAA was therefore not satisfied that there is a real risk that the applicant will face discrimination or mistreatment for any reason in the Jaghori District that would amount to significant harm, and further concluded that the applicant does not face a real chance of harm as a returnee asylum seeker who has resided in a western country or a real risk of suffering significant harm for those reasons if he returned to, and resided in, the Jaghori District: CB 172 at [43]-[44]; and
p)assessed both individually and cumulatively, found there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm: CB 172-173 at [45]-[46].
Judicial Review Application
A Registrar of this Court made orders on 14 February 2018 granting the applicant leave to file an amended Judicial Review Application. In the applicant’s amended Judicial Review Application filed on 5 April 2018 he raised two grounds which are set out below: ground 1 at [9] below and ground 2 at [24] below.
In support of the grounds of the amended Judicial Review Application the applicant filed the affidavit of Kenyon Forrest Lee affirmed 5 April 2018 (“Mr Lee’s Affidavit”) annexing a transcript of the Delegate’s Interview (“Delegate’s Transcript”).
Consideration
Requirement for jurisdictional error
The IAA Decision may be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA may constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given to the IAA under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The IAA Decision may also be tainted by jurisdictional error where there is a denial of procedural fairness as expressly required by ss.473DA(1), 473GA and 473GB of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300. The Court notes that the IAA exercises a more limited function and review power than that bestowed upon the Administrative Appeals Tribunal under Pt.7 of the Migration Act: BMB16 v Minister for Immigration & Border Protection & Anor [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 at [36]-[37] per Besanko J and [82]-[95] per Charlesworth J. Unreasonableness may also give rise to jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [28] per French CJ, [66] and [76] per Kiefel, Hayne and Bell JJ, and [105] per Gageler J; Minister for Immigration & Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) at [44]-[45] per Allsop CJ, Robertson and Mortimer JJ.
Ground 1 – Failure to consider a claim
Ground 1 is as follows:
1. The Immigration Assessment Authority (IAA) failed to consider a component integer of the Applicant’s claims for protection.
Particulars
a. The Applicant claimed to ‘face a real risk of significant harm on the roads in and around the Jaghori district’ (CB 114-122) and that there were only two land routes of travel from Kabul to Jaghori district (CB 114 [23]), as follows:
i. Kabul to Ghazni, then west by road to Jaghori district (Route 1); and
ii. Kabul to Bamiyan, then south by road to Jaghori district (Route 2).
b. The IAA found that the Applicant could travel by air from Kabul to Bamiyan, then ‘would be able to travel [by road] through the districts of Behsud, Nawur, and onto Jaghori’ using Route 2 (CB 168 [30]).
c. However, the Applicant squarely raised a claim that:
i. the conditions of the roads on Route 2 (between Bamiyan and Jaghori) were ‘extremely poor’, ‘no better than tracks in sections’ and totally inaccessible between November and May annually due to snowfall (CB 117 [29]-[30]); and
ii. the inaccessibility issues associated with this road meant that he would be forced to travel along the only other land route available to him, Route 1 (CB 117 [30]).
d. The IAA failed to consider:
i. whether the poor road conditions and inaccessibility on Route 2 would result in the Applicant being forced to access Jaghori via Route 1; and
ii. whether travel along Route 1 would subject the Applicant to a real risk of significant harm.
In the remainder of these Reasons for Judgment the Court has adopted the applicant’s descriptions of “Route 1” and “Route 2” in ground 1, particular (a) above.
Applicant’s Submissions
The applicant submitted that:
a)the IAA was required to consider whether, in accessing his home area of Jaghori District, the applicant would face a well-founded fear of persecution for a Convention-related reason: SZQXE v Minister for Immigration & Anor [2012] FMCA 643; (2012) 129 ALD 562 at [81] per Barnes FM, upheld on appeal in SZQXE v Minister for Immigration & Citizenship [2012] FCA 1292; (2012) 134 ALD 495;
b)in assessing the applicant’s claims under the complementary protection criteria under s.36(2)(aa) of the Migration Act, the IAA was also required to consider whether, in accessing his home area of Jaghori District, the applicant would face a real risk of significant harm; and
c)the applicant provided country information which demonstrated there were only two routes to access his home area: Route 1 was extremely dangerous and the IAA Decision did not discuss or consider Route 1, instead it found that the applicant could travel by air from Kabul to Bamyan and “would be able to travel [by road] through the districts of Behsud, Nawur, and onto Jaghori” using Route 2, but in doing so failed to consider the clearly articulated fear that the inaccessibility issues associated with the roads on Route 2 meant he would be forced to travel along the only other land route available to him, Route 1.
The applicant stated that:
a)it is a well-established principle that administrative decision-makers (such as the IAA) must consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ;
b)it is well recognised that where an administrative decision-maker (such as the IAA) is required to consider a claim, the decision-maker must engage in an active intellectual process directly addressing that claim or criteria: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [47]-[54] per Lindgren, Rares and Foster JJ; Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 (“Khadgi”) at [57] per Stone, Foster and Nicholas JJ; and
c)in making its decision, the IAA failed to engage in any active intellectual process to consider:
i)whether the poor road conditions and inaccessibility on Route 2 would result in the applicant being forced to access Jaghori via Route 1; and
ii)whether travel along Route 1 would subject the applicant to a real risk of significant harm.
Minister’s Submissions
The Minister submitted that:
a)on the Delegate’s approach to the case, it was not necessary to consider the issues of road use between Kabul and Jaghori District because the Delegate found that it was reasonable for the applicant to relocate to Kabul where he would be able to live and work, however the IAA resolved the case on a different basis and was obviously mindful of the difference of approach because the IAA went on to consider “road travel issues”;
b)the IAA considered the oral submissions from the applicant’s representative, including the “road travel issues”, and considered the written submissions from the applicant’s representative, and when one notes the sources referred to, the IAA referenced more recent DFAT reports than those mentioned in the written submissions from the applicant’s representative; and
c)the IAA did properly consider the applicant’s case as:
i)there is a distinction between a “component integer”, the “road travel issues” and “evidence” in support of that claim: DEL16 v Minister for Immigration & Border Protection & Anor [2017] FCA 1401; (2017) 73 AAR 258 at [56]-[57] per Derrington J; and
ii)it was not necessary for the IAA to specifically mention Routes 1 and 2 referred to in the written submissions from the applicant’s representative.
Consideration – ground 1
A failure to consider a relevant consideration may demonstrate jurisdictional error, and will demonstrate jurisdictional error where that failure “is so fundamental that it goes to jurisdiction”: WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ. An applicant’s claims to meet the criteria for a Safe Haven Visa are mandatory considerations under the Migration Act: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [63] per Black CJ, French and Selway JJ; Htun at [42] per Allsop J, and the IAA must engage in an active intellectual process directed at that claim or criteria: Lafu at [47]-[54] per Lindgren, Rares and Foster JJ.
The applicant submits that the IAA failed to consider whether the applicant would face a real risk of harm, pursuant to s.36(2)(aa) of the Migration Act, in accessing his home were he to be returned to Afghanistan. The applicant submitted evidence that there were only two routes into his home town, and as such clearly articulated the fear that the inaccessibility issues associated with the roads on Route 2 meant he would be forced to travel along the only other land route available to him, Route 1, which, on the material provided, was extremely dangerous.
A jurisdictional error does not always arise in ignoring relevant material including corroborative evidence. Rather, it will depend on the circumstances of the case and the nature of the evidence and material: ARG15 & Ors v Minister for Immigration & Border Protection & Anor [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [62] per Griffiths, Perry and Bromwich JJ. The IAA Decision, under the “Refugee assessment” heading, dealt with this as follows at CB 167-168 at [27]-[31]:
27. …I accept that in order for the applicant to return to Jaghori District, he would probably be required to travel by road after arriving at Kabul airport. In the SHEV interview, the applicant's representative provided an oral submission where he stated that the roads leading [to] Jaghori are insecure, and that there would be a risk for the applicant if he travelled on the roads between Kabul and Jaghori.
28. Country information before me indicates there are risks to persons who seek to travel on the roads in parts of Afghanistan. In February 2016, DFAT reported that the roads linking the Hazara dominated areas in Ghazni suffered from a high level of insecurity. Criminals and insurgents on roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom. Persons of all ethnic groups are vulnerable to these attacks and it can be difficult to ascertain the motivation for attacks. DFAT also reported that there had been incidents where Hazaras may have been targeted on the roads, in part due to their religious or ethnic background, citing serious incidents involving Shia Hazaras travelling in Ghazni Province and neighbouring Zabul Province in 2014 and 2015. DFAT also assessed that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups although it is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route. In April 2016, the United Nations High Commissioner for Refugees (UNHCR) cited a number of sources that reported incidents of harassment, intimidation, kidnappings and killings of Hazaras, especially while travelling, at the hands of the Taliban and other antigovernment elements (AGEs) in 2014 and 2015.
29. In the post-SHEV interview submission, the applicant's representative cited other sources of country information that indicated there was insecurity on the roads leading into Jaghori. However, I am not satisfied that the more recent reporting before me indicates that Hazaras or Shias are being targeted or are otherwise at risk travelling on the roads linking Kabul to Jaghori District. In October 2016, Landinfo assessed that a large number of incidents on the road network are explained by insurgents looking for persons affiliated to the Afghan authorities and security forces. Consistent with its 2016 report, in 2017 DFAT stated that people from all ethnic groups are vulnerable to attacks on the roads and it concurs with the assessment of UNAMA and other international sources that the primary motivations for these abductions include taking hostages for ransom or prisoner exchange, or to target those with connections to the government or international community. DFAT reiterate that ethnicity is rarely the primary motivating factor in these incidents, however it assesses that ethnic targeting can play a role in the selection of victims once an abduction is in progress. DFAT noted a January 2017 incident reported by UNAMA where unidentified anti-government elements (AGEs) stopped a bus carrying mainly Hazara coal mine workers in Baghlan Province (northern Afghanistan). Several of the miners were killed but the motivation for the attack was unclear.
30. Even if it could be said that the applicant faced a real chance of harm on the roads for the reasons claimed, I also note that there is a regular commercial flight connection between Kabul and the Hazara majority province of Bamyan, meaning that the applicant is not restricted to road travel when accessing the Hazarajat. Once he reached Bamyan by air, the applicant would be able to travel by road through the districts of Behsud, Nawur, and onto Jaghori. Like Jaghori, the districts of Behsud and Nawur are majority Hazara and there is little insurgent activity reported in this part of Afghanistan. In the past, the main security issue within Behsud District related to spring Kuchi migrations resulting in violent clashes with Hazara land owners and there is no indication that this issue affects Shia Hazaras transiting the district by road.
31. I accept that the applicant would be required to transit Kabul airport whether he chose to access Jaghori by road or by first flying to Bamyan. I am aware that there have been reports of occasional insurgent attacks near Kabul airport in recent years. However, I am satisfied that the applicant's transit in Kabul would be only for a brief period, either if travelling by road or if awaiting an onward flight to his home area via Bamyan airport. I am not satisfied that the applicant would now, or in the reasonably foreseeable future, face a real chance of harm during the short period he may need to stay in Kabul for this purpose.
32. I accept there have been attacks on the roads and the security situation on the roads in Afghanistan remains an issue; however, there have been no reports of the abduction of Shia Hazaras in the Hazarajat since 2015. Outside of the Hazarajat there has been a reported decline in the number of Hazara civilians abducted in 2016, and in the first six months of 2017 only one incident was reported which involved a Hazara and the motivation for that incident remains unclear. On the evidence before me, I am not satisfied that the applicant faces a real chance of harm on the basis of being a Hazara on the roads between Kabul and Jaghori District, between Bamyan and Jaghori, within Jaghori District, or in and around the Hazarajat. While the absence of recent attacks against the Shia Hazara population in Ghazni Province, or on the roads between Kabul/Bamyan and Jaghori District, does not preclude the possibility of future attacks, I consider the chance that the applicant will be involved in an incident or attack on the road, or put at additional risk because of his ethnic or religious profile in such an attack, to be remote. I am satisfied the applicant is able to safely access his home area.
The discussion of country information in the IAA Decision: CB 167-169 at [28]-[32] clearly demonstrates the IAA had an active intellectual engagement with the issues the applicant may face when travelling to his home town. As the Minister submitted, the IAA had regard to the information in the written submissions provided by the applicant’s representative on the subject, and the IAA referenced the same materials as the applicant, and other more recent materials when making its finding. The applicant claimed to fear harm on the basis of his ethnicity, religion, imputed political opinion and profile as a failed asylum seeker, however the IAA was not satisfied the applicant had a real chance of harm on the roads between Kabul and Jaghori on account of his ethnicity or religion and addressed the concerns put by the applicant’s representative before the Delegate and in post-interview submissions that as a Shia Hazara the applicant was at an increased risk.
Section 36(2)(aa) of the Migration Act provides:
A non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
The applicant suggests the IAA failed to actively consider if the applicant travelling to his hometown presented a “real risk”. The Full Court of the Federal Court confirmed the test to be applied when finding that the “real risk” referred to in s.36(2)(aa) of the Migration Act was the same as that of the “real chance” test applied in s.36(2)(a) of the Migration Act: Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [232]-[246] per Lander and Gordon JJ and at [297] per Besanko and Jagot JJ (Flick J agreeing at [342]).
At CB 172 at [43]-[44] the IAA does seemingly turn its mind to the issues the applicant may face in accessing or travelling to and from his home town, however, it reiterated it was not satisfied the applicant was at risk of harm, as follows:
43. …The evidence does not support that persons with the applicant's profile are targeted in Jaghori District, including in transit from Kabul or Bamyan airports to Jaghori, and I am not satisfied that the applicant faces a real risk of being harmed on this basis. The evidence before me does not support that Afghan government are losing control of Jaghori District… Given the security situation in and around Jaghori, I find the risk the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote and I am not satisfied that he faces a real risk of suffering significant harm through generalised violence in Jaghori...
44. …I have also concluded that the applicant does not face a real chance of harm in the process of returning to his home area of Jaghori… As the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear', for the same reasons set out above, I find that the applicant does not have a real risk of suffering significant harm for those reasons if he returned to, and resided in, Jaghori District.
The extent to which the IAA dealt with the applicant’s evidence and claims with respect to the complementary protection criterion was brief, however, where the essential claims and facts an applicant relies upon are the same for s.36(2)(a) and (aa) of the Migration Act, the IAA is entitled to rely upon the findings made when assessing whether there is a “real chance of harm” under s.36(2)(a) of the Migration Act for the purpose of s.36(2)(aa) of the Migration Act: MZYXS v Minister for Immigration & Citizenship [2013] FCA 614 at [31] per Marshall J. The IAA was entitled to adopt the findings it made at CB 167-169 at [28]-[32], and in particular the Court notes:
a)that at CB 168 at [29] the IAA concluded that it was “ … not satisfied that the more recent reporting before me indicates that Hazaras or Shias are being targeted or are otherwise at risk of travelling on the roads linking Kabul to Jaghori District”, citing, amongst other reports, the 2017 DFAT Thematic Report;
b)that at CB 169 at [32] the IAA was “ … not satisfied that the applicant faces a real chance of harm on the basis of being a Hazara on the roads between Kabul and Jaghori District, between Bamyan and Jaghori, within Jaghori District, or in and around the Hazarajat”; and
c)the final phrase at CB 169 at [32]:
I am satisfied the applicant is able to safely access his home area.
In the Court’s view, the IAA has actively engaged with the applicant’s concerns and claims pertaining to his ability to travel safely on the road networks in Afghanistan, and in particular from Kabul to his home town. The applicant has failed to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw the inference that the IAA had failed to actively consider the applicant’s fear of travelling on the road networks, and the danger of a particular route the applicant stated he would be required to take: Khadgi at [71] per Stone, Foster and Nicholas JJ. The IAA did not need to refer to the evidence and material the applicant provided concerning Route 2 as it had made a finding which subsumed the applicant’s evidence on Route 2, that is that the applicant could travel safely (including on Route 1) to his home town based upon the country information before it, and, furthermore, the risk of generalised violence on the road networks was remote: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
The Court is satisfied that no jurisdictional error in the Tribunal Decision is established by ground 1.
Ground 2 - Failure to exercise a discretion
Ground 2 is as follows:
2. The IAA’s failure to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) was legally unreasonable.
Particulars
a. The IAA decided the matter by rejecting that the Applicant faced a real risk of significant harm in his home area of Jaghori, which was a different basis than what was relied upon by the delegate (who accepted that the Applicant would face a real risk of significant harm in Jaghori).
Applicant’s submissions
The applicant submitted that:
a)when assessing the applicant’s claims under the complementary protection provisions, the Delegate accepted “that there is a real risk the applicant will suffer significant harm should he return to his home district of Ghazni in Afghanistan”: CB 150, but found that it would be reasonable for him to relocate to Kabul: CB 152-153;
b)the IAA, on the other hand, explicitly rejected the Delegate’s finding and found that “the applicant does not have a real risk of suffering significant harm… if he returned to, and resided in, Jaghori District”: CB 172 at [44], and to support its decision, the IAA obtained and considered the DFAT 2017 Reports under s.473DC of the Migration Act having considered there were “exceptional circumstances” for considering those reports;
c)there is no evidence to suggest that the IAA exercised, or even considered exercising, its power under s.473DC of the Migration Act to obtain further information from the applicant in relation to the risk of significant harm he faced in his home area;
d)this case is an example of the error identified in Minister for Immigration & Border Protection v CRY16 & Anor [2017] FCAFC 210; (2017) 253 FCR 475 (“CRY16”) and also Minister for Immigration & Border Protection v DZU16 & Anor [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 (“DZU16”), where the Full Court of the Federal Court found that it was legally unreasonable for the IAA to fail to consider whether to invite the appellants to comment on what became the basis for the decision to affirm, and in which the conclusion about unreasonableness was because the IAA’s basis for refusal was different to the basis relied upon by the Delegate, and not able to be anticipated from the Delegate’s Decision;
e)both CRY16 and DZU16 explain that the discretion in s.473DC of the Migration Act is to be exercised reasonably, and any failure to consider its exercise needs to be accompanied by an intelligible justification in relevant circumstances, and in the present matter there is no evident justification, let alone an intelligible one, for the IAA’s failure to consider whether to exercise this discretion;
f)the unreasonableness in the present matter is compounded by the fact that an explicit representation was made by the applicant to the Delegate during the Delegate’s Interview over whether the risk of significant harm faced by the applicant in his home area was a live issue, and the Delegate stated that she did not “have a problem” with the applicant’s claim that he would face a real risk of significant harm in Jaghori District and the applicant’s representative confirmed the Delegate’s view: Delegate’s Transcript, page 15; and
g)at the very least, the IAA needed to turn its mind to whether to extend an invitation to comment: there is no relevant distinction between the present case on the one hand, and CRY16 and DZU16 on the other.
Minister’s submissions
The Minister submitted that:
a)contrary to the applicant’s submissions CRY16 is distinguishable, when regard is had to the following passage in CRY16 at [82] per Robertson, Murphy and Kerr JJ:
The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the [IAA] knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The [IAA] did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The [IAA’s] failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation.
b)the explanatory memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) clarified the responsibility of asylum seekers to specify the particulars of their claim and the passage of the interview with the Delegate does not effect a change in the framework of Pt.7AA of the Migration Act;
c)contrary to CRY16 at [76] and [82] per Robertson, Murphy and Kerr JJ, the relevant difference in approach between the Delegate and the IAA related to the applicant’s safety in Jaghori, and the claims regarding a fear of harm in Jaghori were issues advanced by the applicant of which he was well aware; and
d)this case was not the type of case where (on the facts) the IAA was, as a matter of legal reasonableness, required to consider whether to exercise its powers to seek further information from the applicant on the question of harm feared in Jaghori.
Consideration – ground 2
The applicant’s contention is that the IAA failed to consider exercising the discretionary power under s.473DC of the Migration Act to obtain further information from the applicant in relation to the risk of significant harm he faced in his home area. It was submitted that the failure to do so was unreasonable as the IAA explicitly rejected the Delegate’s finding that the applicant faced a real risk of harm if he returned to his home district. The applicant refers to CRY16 and DZU16 in support of the claim the IAA acted unreasonably.
Section 473DC of the Migration Act relevantly provides as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
In CRY16 the IAA affirmed the Delegate’s Decision, albeit on a different basis. The Delegate rejected the claims for protection made by CRY16, and found he would not face a real chance of persecution or a real risk of harm on return to his home in Tripoli: CRY16 at [4] per Robertson, Murphy and Kerr JJ. The IAA found to the contrary, that being, that CRY16 did face a real chance of persecution and a real risk of harm in Tripoli, however that risk did not extend to the entire country and he could reasonably relocate to Beirut: CRY16 at [6] per Robertson, Murphy and Kerr JJ. The Full Court of the Federal Court found it was unreasonable for the IAA to not exercise, or consider the exercise, of the discretion in s.473DC of the Migration Act in circumstances where CRY16 was likely to have information on the impact relocation to Beirut would have upon him and the IAA did not have that information on the material before it because the question of relocation never arose and was not the subject of findings by the Delegate: CRY16 at [82] per Robertson, Murphy and Kerr JJ.
The Full Court of the Federal Court in DZU16, which was decided some months after CRY16, affirmed many of the principles first stated in CRY16. In DZU16 at [79]-[80] per Robertson, Murphy and Kerr JJ the Full Court of the Federal Court observed as follows:
79 A second alternative analysis is that if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). In that way the Authority's mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister's submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence. It is common ground that the Authority did not consider acting under s 473DC and this was because it wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments.
80 CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. That is so notwithstanding that s 473DA(1) provides that the provisions of Div 3 of Pt 7AA of the Migration Act“ are to be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority”.
In DZU16 it was emphasised that the particular circumstances of an individual applicant must be considered in deciding if the IAA had acted unreasonably: DZU16 at [81] per Robertson, Murphy and Kerr JJ. Those particular circumstances must of course relate to the particular issue in relation to which the exercise of the discretion under s.473DC of the Migration Act arises for consideration.
The Court notes that in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174”) at [48]-[49] per Gageler, Keane and Nettle JJ the High Court said that:
48 Two broad scenarios can be imagined in which relevant information within the meaning of s 57(1), in respect of which there has been non-compliance with s 57(2), might end up being included in review material given to the Authority so as to be capable of bearing on the Authority's consideration of whether or not the referred applicant meets the criteria for the grant of a protection visa. One scenario is where the relevant information, although in the possession or control of the Secretary and considered by the Secretary to be relevant to the review, was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. Were the Authority in that scenario to consider that the information may be relevant to its review, the relevant information would become new information – triggering the need for the Authority, in order for the information to be considered by the Authority, to be satisfied in accordance with s 473DD(a) that exceptional circumstances existed justifying that consideration and, if the information would be the reason or a part of the reason for affirming the decision under review, to give notice to the applicant under s 473DE(1).
49 The other scenario, which the plaintiff argues exists in the present case, is where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The relevant information in that scenario would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.
In Plaintiff M174 at [86] per Gordon J it was observed in the High Court that the standard of reasonableness established in Li was appropriate to assess if the IAA had failed to exercise its discretion under ss.473DC of the Migration Act reasonably.
The relevant principles in relation to legal unreasonableness as explained by the High Court in Li, and subsequently by the Full Court of the Federal Court in Singh, were summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) …
(h) …
(i) …
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
At the hearing before this Court the applicant referred to a portion of the Delegate’s Interview where the Delegate and applicant’s representative had the following exchange (Delegate’s Transcript, pages 14-15):
REPRESENTATIVE: … You haven't raised any country information in relation to Jaghori, obviously that's his home area, there's, the DFAT reports are quite clear that the roads around Jaghori are dangerous we would argue that he would face a real risk of significant harm there's only two routes from Kabul to Jaghori and one of them is ranked the world's, one of the world's most dangerous highways, not just Afghanistan's but the worlds um, its completely infiltrated by Taliban. DFAT, DFAT says that it's a shorter road but its completely insecure. The second road is up via Bamian down through Nawur, very unstable, very long very winding roads that are closed for about three months of the year due to snow fall and subject to attack as well. Both of those two roads only get you to Ghazni city you've still gotta get from Ghazni city to Jaghori which is another journey again there's only three routes there, all of them are dangerous at the moment. Jaghori, half of these roads are cut off at different points of the year due to insurgent attacks so we would say in and around the roads he would face a real risk of significant harm. You've not raised anything specific in relation to Jaghori so, if you've got anything or if you're inclined at all to find he doesn't face a real risk of significant harm in Jaghori we would ask that you put it to him now. This does get extremely difficult at the IAA stage when, a surprise finding I suppose comes out in a decision and he hasn't had the opportunity to provide further submissions and-
DELEGATE: Okay, you understand that we don't have to put all of the country information under section fifty seven if it's a generalised information that would apply to everybody
REPRESENTATIVE: [inaudible]
DELEGATE: Okay I've not said anything about Jaghori, his claim that he can't go back there. I don't have a problem with that okay
REPRESENTATIVE: That's what we're looking for, I'm, because as I said if it does get to the IAA he's not allowed to say anything this is his only hearing ever
DELEGATE: Yeah I know that
REPRESENTATIVE: This is the only time he's allowed to talk and it gets to the IAA if there's a surprise in the decision and the IAA says we can't, we can't listen to anything further on this, that's a little left field and it's really against the whole purpose of this moment here which we've got where it's supposed to be your concerns versus him trying to clarify and provide further information, so as long as, I just want to clear up, if Jaghori is not on the table as an issue on this stage, happy to focus more on relocation...
The Court notes that the Delegate cited a 2016 DFAT Thematic Report on Hazaras in Afghanistan describing the situation in Jaghori: CB 145:
Situation in Jaghori
In February 2016, DFAT reported that Pashtun-majority districts in Ghazni province are 'not safe' due to the presence of the Taliban and other insurgent groups. According to DFAT, insurgent attacks, community violence and kidnappings are 'common' throughout parts of Ghazni province. DFAT states although limited credible information is available, the security situation in Ghazni province has 'deteriorated' since the beginning of 2014.
The IAA exercised the power under s.473DC of the Migration Act to obtain the most recent country information, being the 2017 DFAT Reports: CB 162 at [4]. The IAA assessed the country information and came to a different finding than the Delegate. The IAA did not extend an invitation to the applicant to give any new information to it concerning, or in relation to, the new information considered by the IAA, that is the 2017 DFAT Reports, nor, on the face of the IAA Decision, did it consider extending such an invitation.
In light of the above it is necessary to consider the issue based on the principles of legal reasonableness: CRY16 at [67] per Robertson, Murphy and Kerr JJ, and to ask whether the reliance by the IAA on the most recent country information (that is, the 2017 DFAT Reports) when it did not invite, or consider inviting, the applicant to provide new information under s.473DC(3) of the Migration Act, was reasonable in all of the particular circumstances.
The particular circumstances here included that:
a)before the Delegate the applicant at least partially foreshadowed the issue of safe travel on the roads to his home area;
b)although the Delegate did not express a concluded view, the country information as set out in the Delegate’s Decision, and the indication given in the transcript of the Delegate Interview, indicate that the Delegate did consider travel by road to the applicant’s home area to be dangerous, and went so far as to say that the applicant’s claim that he could not go back to Jaghori was one “I don’t have a problem with …”: Delegate’s Transcript, page 15, and as a consequence of that statement it appears the applicant’s representative took the issue no further;
c)the country information set out by the IAA up to and including 2016 country information (including 2016 country information from DFAT) indicated a greater risk for Hazaras travelling on the roads between Kabul and the Hazarajat, and that Hazara-dominated areas in Ghazni suffered from a high level of insecurity: CB 167 at [28];
d)the IAA relied however on “the more recent reporting”: CB 168 at [29] to find that it was not satisfied that Hazaras or Shias were being targeted or otherwise at risk on the roads linking Kabul to Jaghori District: CB 168 at [29]; and
e)the applicant was not invited to comment upon the “more recent reporting”, and there is no indication that the IAA even considered inviting the applicant to comment upon what was plainly new information which, unlike the previous country information, indicated that the relevant roads (most particularly Routes 1 and 2) may have become safe for the applicant to travel upon.
What emerges from the above analysis is that the critical information in determining that there was not a risk of significant harm to the applicant if he used Route 1, which was the most recent country information contained in the DFAT 2017 Reports, was information which the applicant had no opportunity to comment upon, or deal with, because it was published in September 2017, four months after the Delegate’s Decision in May 2017, and, therefore, was not information in relation to which, without an invitation under s.473DC of the Migration Act to do so, the applicant had an opportunity to comment upon or, in relation to which, to provide other information, if it existed, seeking to contradict the more recent country information considered by the IAA. Further, the issue was one upon which the applicant was not required to explicate before the Delegate, the Delegate having effectively indicated that such explication was not required. In the circumstances, the Court is of the view that these are precisely the type of circumstances to which s.473DC(3) of the Migration Act might be directed so as to allow an applicant a reasonable opportunity to deal with new information arising subsequent to the Delegate’s Decision, and which can then be considered by the IAA having regard to the applicant’s position with respect to the new country information.
In all of the above circumstances, the failure by the IAA to invite the applicant to provide further information under s.473DC(3) of the Migration Act, or to consider doing so, was unreasonable, and constituted jurisdictional error.
The Court is therefore satisfied that ground 2 establishes jurisdictional error in the Tribunal Decision.
Although the Court has found that ground 1 is not affected by jurisdictional error, it may be (and it can be put no higher than that) that had the IAA extended an invitation to the applicant to provide further information concerning the more recent country information relied upon by the IAA, that that further information might have affected the IAA’s consideration under ground 1. Ultimately, however, the consideration of that information from the applicant would then be a matter of fact-finding solely within the jurisdiction of the IAA: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, the Court has considered whether the provision of further information by the applicant would be futile in light of the DFAT 2017 Reports, and therefore obviate any grant of prerogative relief. Given that the Court does not know what further information might have been put to the IAA by the applicant, or which might now be put on remitter, the Court cannot conclude that remitting the matter to the IAA might be futile, and to so conclude would be a conclusion based on nothing more than speculation.
Conclusion and orders
The Court has concluded that the IAA Decision is affected by jurisdictional error, and it follows that the applicant is entitled to prerogative relief by way of writ of certiorari quashing the IAA Decision, and a writ of mandamus requiring the IAA to re-determine the referral according to law.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 13 May 2019