FRV17 v Minister for Immigration
[2018] FCCA 2327
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2327 |
| Catchwords: MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 65, 473CB, 473DA(1), 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476(1) |
| Cases cited: AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951 |
| Applicant: | FRV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 714 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 7 June 2018 |
| Date of Last Submission: | 7 June 2018 |
| Delivered at: | Perth |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N J Draper |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 74 of 2017
| FRV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
By application filed in this Court on 21 December 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 17 November 2017.
The IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) made on 20 January 2017 to refuse the applicant’s application for a Safe Haven Enterprise Visa (“SHEV”) made on 6 August 2016.
These proceedings are brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court the applicant must show jurisdictional error on the part of the IAA.
In his application to this Court, the applicant relies on a single ground of review. That one ground originally had two separate sub-grounds, each of which were separately particularised as follows:
1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well founded fear of persecution.
Particulars
(a)The Authority misdirected itself in concluding that the Applicant, of Hazara ethnicity and a Shi'a Muslim, does not face a real chance of serious harm for reasons of ethnicity, religion and as a returnee from Australia if he returns to Afghanistan, in particular, to Miramor district in Daikundi province (Miramor), when the Authority found that the Applicant faces a real chance of serious harm on his return to Miramor, which conclusion fails to reasonably address or lead to the reasonable conclusion that the Applicant could reasonably be expected to return to Miramor, where evidence of violence, insecurity due to political instability in Miramor does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of his religion and ethnicity.
Particulars
(i)DFAT assesses that there has been a decline in security across Afghanistan, including Daikundi;
(ii)Daikundi is a volatile province with a high number of security incidents;
(iii)DFAT finds that:
1. no part of Afghanistan can be considered free from conflict related violence;
2. ethnic tensions exist throughout the country and can sporadic violence;
3. the security situation for Hazaras is fluid;
4. in the current environment, people from all ethnic groups are at risk of violence from anti-government forces;
5. there is limited economic and employment opportunity in Hazarajat (of which Daikundi is a part of), the economic infrastructure is severely underdevelop and is heavily dependent of agriculture which is highly vulnerable to droughts and floods and there are difficulties in reclaiming land and property, land ownership being difficult to establish.
(b)The Tribunal, having had regard to the country and personal information before it, unreasonably concluded that Afghanistan is the Applicant's Receiving Country.
Particulars
(i) Section 5(1) of the Migration Act states the Applicants Receiving Country is to be determined solely by the law of the relevant country (receiving country) or a country in which the Applicant had habitual residence.
(ii) There is no evidence before the Authority upon which it can rely in finding the Applicant's place of birth was Afghanistan;
(iii) There is no evidence before the Authority upon which it can rely in finding the Applicant's parents place of birth was Afghanistan;
(iv) The Citizenship Law of Afghanistan Act (1936) does not confer citizenship on the Applicant;
The applicant filed and served submissions in support of his claims on 23 May 2018. In those submissions, relevantly at paragraph 13, the applicant indicated that he no longer presses ground 1(b).
As a result, for the purposes of this judgment, the Court will only examine one ground of review – that which relates to whether or not the conclusion of the IAA was “unreasonable” (as pleaded in Ground 1(a) above).
The Court had before it written submissions from the applicant dated 23 May 2018 and written submissions from the Minister dated 31 May 2018. In support of his now sole ground of review, the applicant’s written submissions annexed two Department of Foreign Affairs and Trade (DFAT) Reports to which the IAA had had regard: A Thematic Report of 8 February 2016, “Hazaras in Afghanistan”, and a DFAT Thematic Report, “Hazaras in Afghanistan”, dated 18 September 2017
The applicant was represented by Mr Draper. The Minister was represented by Ms Graycar.
The Court notes the quality of the written submissions provided and thanks counsel and their instructing solicitors for their considerable assistance in this regard.
Synopsis
The only question for this Court today is whether the IAA fell into jurisdictional error.
For the reasons that follow, the applicant has failed to show that the IAA’s decision was affected by jurisdictional error. Accordingly, this application for judicial review fails and is, accordingly, dismissed.
Fast Track Application
On 25 January 2017, the delegate’s decision was referred to the IAA for review under part 7AA of the Act (CB 170). On 15 February 2017, the applicant provided detailed written submissions to the IAA (CB 181). It is noted that in those submissions representatives for the applicant made submissions in relation to what country information should be considered and raised concerns about the reasonableness of any suggested relocation for the applicant within Afghanistan and submissions in relation to the situation faced by Hazara Shias in Afghanistan. On 17 November 2017, the IAA affirmed the delegate’s decision (CB 190).
The IAA’s decision appears at pages 190 to 209 in the Court Book.
It is important to note that the applicant’s application was processed as a “fast track” application. This is relevant because it affects what the IAA can and cannot do and determines, in relation to judicial review proceedings in this Court, what is and what is not jurisdictional error for the purposes of an IAA review.
Pursuant to s.473DB of the Act, the IAA is required to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant.
Section 473DC(1) of the Act permits the IAA to access any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act if the IAA considers that to be relevant. However, the IAA cannot consider this new information unless, there are exceptional circumstances to justify considering the new information: s.473DD of the Act. These provisions provide as follows:
Section 473DC(1)
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Section 473DE, in turn provides:
Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; …
Division 3, Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by the IAA.
In relation to this matter, the IAA had regard to the information referred to by the Secretary in accordance with s.473CB of the Act (CB 181 at [3]). That section reads as follows:
Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
As correctly outlined by the Minister at paragraph 6 and 7 in written submissions, the IAA noted that it had had regard to the submission received from the applicant’s adviser on 15 February 2017 insofar as the submission reiterated claims and referred to case law, policy and country information that was before the delegate, and to the extent that the submission otherwise addressed the delegate’s reasoning and findings.
The IAA also considered it appropriate to obtain updated country information published after the date of the delegate’s decision: [10].
The IAA found that, given the fluidity of the security situation in Afghanistan, it was necessary to give proper consideration to updated information and there were “exceptional circumstances” to justify considering that information (cf s.473DC(1) and s.473DD). That information was not provided to the applicant for comment. Nor, arguably, did it need to be as per s.473DE of the Act.
As outlined by the Minister (at paragraph 7 in his written submissions), the IAA did not, however, have regard to some other new information provided by the applicant and contained in his submission, namely:
·information relating to the inconsistent information provided by the applicant to the effect that the applicant’s brother had insisted that the applicant withhold information about the brother’s status in Australia: [6].
·a submission to the effect that the applicant did not comprehend the gravity of the consequences associated with seeking to protect his brother by providing inaccurate information: [7].
·a claim that the applicant’s statement of claims had not been read back to him by an accredited interpreter prior to his SHEV application being lodged: [8].
·country information pre-dating the delegate’s decision: [9].
In relation to the above, the IAA determined that no “exceptional circumstances” existed which would allow it to take this information into account. This is a correct interpretation of the statute and does not evidence any error on the part of the IAA.
In relation to paragraphs 6, 7, 8 and 9 in the IAA’s decision the Court notes the forensic analysis undertaken by the IAA in relation to what information it would and would not look at.
At paragraph 12 in its decision the IAA outlines the applicant’s claims. The IAA noted that the applicant’s claims were set out in the statutory declaration accompanying his SHEV application: (CB99). Broadly, as outlined by the Minister, these claims are as follows:
a)He was born in Afghanistan and grew up in Barker Village in Miramor district.
b)In 1998, his father (who was the leader of the district) stood against Commander Dawari.
c)In 1999, the Taliban took control of Afghanistan and the family fled to Iran.
d)In 2000, the family learnt that Commander Dawari had taken control of their land.
e)In 2010, his brothers were caught by the Iranian police and were deported from Iran. They returned to Miramor district but had not been heard from since and the family feared they had been killed by the Taliban or been harmed by Commander Dawari.
f)In early 2013, he was caught by the Iranian police, detained and deported back to Afghanistan. He made his way to Kabul and made arrangements to leave for Australia.
g)He feared harm on return to Afghanistan from anti-Shia and anti-Hazara groups, the government at the request of Commander Dawari, Kuchis and as a member of a particular social group of failed asylum seekers.
At paragraphs 13−23 the IAA considered the applicant’s claims. An accurate summary of the IAA’s findings was provided by the Minister at paragraphs 8−11 in written submissions as follows:
8. The IAA accepted that the applicant lived in Iran from 1999 until 2013 and, given the applicant’s consistent claims, was prepared to accept that he was an Afghan national: [13].
9. The IAA referred to the applicant’s inconsistent evidence in relation to his brother, and the applicant’s admission that he had misrepresented the facts and found that the applicant had previously misled the department in relation to his family composition in particular, his claim that his brother (AF) had gone missing in 2010: [14]-[15].
10. The Authority then referred to the applicant’s inconsistent evidence in relation to his brother and the applicant’s admission that he had misrepresented the facts and found that the applicant had not responded to the inconsistency when he was notified that they raised credibility concerns, other than by claiming that he had been asked not to jeopardise his brother’s claim. The Authority did not accept that the applicant’s father was politically active in any capacity in Afghanistan, that he suffered problems with Commander Dawari or that the family’s land had been confiscated. In that regard, the Court notes paragraphs 16 to 22 in the Authority’s decision.
11. While the Authority was prepared to accept that the applicant’s brother, Musa, had disappeared after returning to Afghanistan in 2010, it did not accept that he had been harmed by Commander Dawari, nor did it accept that his disappearance and presumed death was “indicative of the applicant being targeted in the reasonably foreseeable future upon return”: [23].
At paragraphs 24 and 25 the IAA then outlined the law relevant to this issue – highlighting s.5H(1) and s.5J of the Act. This is an accurate overview.
At paragraph 26 the IAA summarised its findings in relation to the applicant’s father and found that his brother’s disappearance was not evidence of any targeting of the applicant on the basis of family connection. Nor, according to the IAA, was it indicative of future risk to him.
At paragraph 27 the IAA found as follows:
27.I accept the applicant the applicant's home region is in Miramar district in Daikundi province and that he fears harm from the Taliban and other insurgents on the basis of his Hazara Shi'a race and religion. I also accept he fears Pashtun Kuchis from Ajristan district. I accept he would be the oldest adult male in his family in Afghanistan and I am prepared to accept if he was returned to Afghanistan he may seek to return to his family's land in Miramar.
The IAA then considered country information. Based on that information, the IAA did not accept that the applicant faced a real chance of harm from the Taliban, or from Islamic State, insurgents or armed Pashtuns in Miramor, in Daikundi province or in the broader Hazarajat region, on the basis of his racial and/or religious profile: [28]-[30].
Further, while the IAA accepted that Hazaras outside of Hazarajat faced societal discrimination, it did not accept that the applicant would be denied employment or the necessities of life on the basis of his Hazara Shia profile in Hazarajat or that he would otherwise suffer discrimination from the authorities or at the societal level in his home area: [31].
The IAA also relied on country information to find that there was no more than a remote chance that the applicant would be targeted for harm by Kuchis if he were to return to live and work in Miramor, whether on his family’s old land or in similar work elsewhere in the district: [32].
The IAA found that there was no more than a remote chance that the applicant would be harmed in returning and recovering his family land and that any chance of harm would not meet the requirements of s 5J(1)(a) and s 5J(4)(a) of the Act [33].
At paragraph 34 the IAA indicated that it had considered that the applicant would be returning to Miramor as someone who has spent significant periods of his life outside Afghanistan including in a western country where he had sought asylum.
At paragraph 35 the IAA noted that, although the applicant had spent a considerable period of time living in Iran, he had spent his formative years in Afghanistan. As a consequence, the IAA was satisfied that the applicant would be returning to Afghanistan with knowledge and personal experience of Afghan culture and some memories of the Miramor area.
The IAA further noted that the country information did not support the claim that the applicant would be targeted on the basis of his status as a returnee given that he was one of a very large number of returnees [35].
At paragraph 36 the IAA found as follows:
As for being a returnee and having associations with the west, I note Hazaras are widely perceived to be affiliated with both the government and international community and some individuals perceived as having adopted values and/or appearances associated with western countries have been targeted due to their imputed support for the Government and the international community. 23 DFAT acknowledges that people who have been identified as having international associations face a high risk of being targeted by anti-government elements (AGEs) and that this may possibly include returnees from western countries. DFAT notes there are occasional reports of Hazara returnees from western countries (including two from Australia in 2014)24 allegedly being targeted for having spent time in a western country.
At paragraph 37 the IAA also found that any foreign or western mannerisms the applicant may have acquired would be minimal and would not put him at risk of harm.
At paragraph 38, the IAA found, importantly, as follows:
I am satisfied the applicant is not personally of interest to any insurgent groups. Apart from being a Hazara returnee, I am satisfied the applicant does not hold any other such profile affiliated with the government or international community, nor any proximity to persons who are so affiliated and there is no information to indicate he would upon return. Country information does not indicate there is systematic targeting of returnees, or Hazara returnees in Afghanistan, including those who return from Iran or Pakistan, those with western clothing or mannerisms or who are failed asylum seekers. There have been no reports of people being targeted for returning from a foreign or western country or for being a returnee asylum seeker on that basis in Miramor or its surrounds. I am not satisfied that the applicant faces a real chance of harm on account being a returnee who has lived many years outside Afghanistan including in a western country and is identifiably Hazara.
The IAA found that that applicant would be able to travel freely around the Hazarajat region, that he would be able to find work in Miramor, Daikundi or other parts of the Hazarajat and that there was no information before the IAA to indicate that the applicant would be required to travel outside Miramor, Daikundi or that Hazarajat for medical treatment. Accordingly, the IAA did not accept that the applicant would face a threat to his capacity to subsist for any reason in the reasonably foreseeable future upon return [39].
At paragraph 40, the IAA indicated that it had considered the applicant’s claims overall and was not satisfied that the applicant faces a real chance of harm in his home region of Miramor and its surrounds on account of his race, religion, because he has spent a significant amount of time in overseas countries and would be returning having sought asylum in the west – nor for any cumulative profile.
The IAA then found (at paragraph 41) that the applicant would be able to access the Hazarajat by air (from Kabul) and once in Bamiyan there was no information about attacks on the roads between Bamiyan/Daikundi into Miramor – nor in the vicinity.
In relation to the above, the IAA also found at paragraph 41 and 43 as follows:
41.Country information indicates that most returnees are returned to Kabul airport. In terms of making the onward journey to Daikundi, I have considered the reports before me regarding incidents of kidnapping/abduction and other attacks against road travellers, in particular, on the roads linking Kabul and the Hazarajat. However the country information indicates that the applicant can return to Daikundi by air to Bamiyan and then traveling by road through the Hazarajat. Country information indicates there are regular flights from Kabul to Bamiyan and estimated flight cost is approximately USD 100. The applicant has not claimed and there is no other evidence before me to indicate that he would not be able to finance this air travel. Once in Bamiyan (and therefore within the Hazarajat), DFAT has assessed that overall, Hazara populations in the majority of areas within Daikundi Province (and Bamiya ) are generally able to move within these areas without facing undue security risks. There is no information before me which makes mention of attacks occurring in Bamiyan or in the Hazarajat region of Daikundi, nor on the roads between Bamiyan/Daikundi into Miramar, nor of any such attacks on Nawur should the applicant briefly travel from Bamiyan through the north west edge of Ghazni before entering Miramor.
43.While the applicant may firstly need to transit through Kabul airport on return or wait briefly in Kabul for his onward flight to Bamiyan, I am satisfied that any amount of time the applicant would need to spend in Kabul city would be brief, as would any period of time he- would need to spend in and around Kabul airport or on the road linking the airport to Kabul city. Having regard to the country information about Kabul which was before the delegate, I am satisfied that there is a strong military presence in Kabul and there is likely to be so in the reasonably foreseeable future. I am satisfied that the government and security forces maintain effective control over the city and airport and I am satisfied that this will not change in the reasonably foreseeable future.27 I find that the chance of the applicant being harmed through a targeted attack or generalised violence while briefly in Kabul before travelling to Miramor is remote and therefore not real.
Again referencing the country information before it, the IAA accepted that the security situation in Afghanistan remains fluid, but was satisfied that while in other regions there were credible security concerns, this was not the case in Miramor or more broadly in the Hazarajat, which remains relatively secure. Consequently, having considered the country information and the applicant’s circumstances, the IAA found that the applicant would not face a real chance of harm from generalised violence or criminality in his home region: [44]-[45].
The IAA’s conclusion in relation to whether the applicant meets the requirements of the definition of refugees in s.5H(1) of the Act is found at paragraphs 46, 47 and 48 in the IAA’s decision, as follows:
46.I have not accepted the applicant's claims relating to his father's political profile and Commander Dawari, nor that he fears harm or other prosecution from the Afghan authorities. Considering all the information before me, I find there is not a real chance of the applicant being harmed in relation to these matters, nor on the basis of his profile as a landowning Hazara Shi'a returnee from the west who has lived much of his life in Iran and sought asylum in Australia. I also find there is no real chance of the applicant facing discrimination or a threatened capacity to subsist in his home area and that he can safely return there.
47.I have considered the applicant's claims individually and cumulatively and I am not satisfied the applicant's fear of persecution is well founded.
48.The applicant does not meet the requirements of the definition of refugee in s.SH(1). The applicant does not meet s.36(2)(a).
Then, as noted correctly by the Minister, in assessing the applicant’s claims under the complementary protection visa provisions, the IAA relied on its previous findings to find that the applicant would not face a real risk of significant harm on return.
Further, in relation to the risk of harm from generalised violence or criminality, the IAA found that the risks were faced by the population generally and not the applicant personally.
What amounts to jurisdictional error
The applicant seeks orders in this Court for the issue of constitutional writs. In order for these writs to be issued the applicant needs to demonstrate that the IAA fell into jurisdictional error.
The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, these commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198].
b)Where the decision maker ignores relevant material: Craig at [198].
c)Where the decision maker relies on irrelevant material: Craig at [198].
d)Where the decision maker fails to follow mandatory procedures: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
Did the IAA fall into jurisdictional error?
In relation to whether the IAA fell into jurisdictional error, as noted above the applicant relies on a single ground of review. The only ground of review relates to whether or not the conclusion of the IAA was “unreasonable”. In support, the applicant’s written submissions annex two DFAT reports which are referenced throughout the applicant’s written submissions. As noted correctly by counsel for the Minister, the applicant’s submissions draw attention to various findings of the IAA and compare and contrast those with the content of the DFAT reports attached to those written submissions. The Court notes, in particular, the applicant’s submissions at paragraphs 1 to 6.
On one level it appears that what the applicant seeks to do is question what the IAA has done with the country information before it. Two things need to be said about that approach.
On one level it is at least arguable that what the applicant seeks is for the Court to engage in merits review. He would, it seems, like this Court to review the material that was before the IAA and come to a different conclusion. This Court cannot do that. It cannot review the merits of the IAA’s decision or determine the applicant’s claims for a protection visa. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 136 ALR 481 at 491 (Liang):
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
a) The duty and jurisdiction of the court to review administrative
action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In relation to what this Court can and cannot do in relation to the type of country information that is accessed and used before a body such as the IAA, the Court refers specifically to the decision of Judge Wilson in DV117 v Minister for Immigration & Anor (2018) FCCA 241 in which his Honour makes final observations on the use to which country information may be put in a proceeding such as this. This Court adopts that summary, which provides:
a)The accuracy of country information is a matter for the tribunal, not a Court, because a Court would be engaging in an impermissible merits review if it made its own assessment own assessment country information, the proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, and see also Judge Wilson’s observations in AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951.
b)The choice and interpretation of country information is a factual matter for the tribunal alone. That is quite important to the facts of this case and has been emphasised repeatedly, but in particular, in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) and in NBKT v Minister for Immigration and Multicultural Affairs (2006).
c)The Court cannot review the merits of the tribunal’s decision in that regard as was held again in Liang.
d)And finally, there is no error of law in the tribunal making a wrong finding of fact as was held in Habib v Commonwealth of Australia Habib v Commonwealth of Australia [2010] FCAFC 12 and SZIJG v Ministerfor Immigration and Citizenship [2007] FCA 1652.
In relation to a fast track application such as this, the IAA was entitled to refer to new country information and was not required to put that country information to the applicant. Within the context of this case the country information was not specific to the applicant (per s.473DE of the Act).
In relation to whether the IAA’s approach and conclusions are “unreasonable”, at paragraph 7 in his written submissions the applicant states:
And again, in the DFAT Country Information Report, DFAT comments that there has been a gradual withdrawal of the international community (at paragraph 2.32), and the withdrawal of the international community coupled with the DFAT's findings above that the security situation in Afghanistan is fluid and unpredictable, deteriorated throughout 2015 and 2016 and that the Afghan governments capability and effectiveness in ensuring stability and security across Afghanistan is concerning, together with the evidence of increasing insurgent violence, it is unreasonable for the Authority to conclude that the government is and will necessarily remain stable in the future.
As correctly noted by Counsel for the Minister (at paragraph 24 in their written submissions) the applicant does not indicate where any such finding was made by the IAA. A careful reading of the IAA’s decision shows that the IAA did in fact acknowledged the fluidity of the security situation in its decision at paragraph 44.
The IAA also identified the fluidity of the security situation as the basis for the finding that there were exceptional circumstances that warranted having regard to new information (cf s.473DC and s.473DD); specifically, more up-to-date country information than had been before the delegate: (CB193 at [10]) and the Reports referred to in footnote 4 at Court Book 193, one of which is the DFAT Report of September 2017.
The Court also notes the applicant’s submissions at paragraph 8 and 9 in their written submissions as follows:
8. Regarding the Applicant's profile, the Authority 's conclusion at [CB197-198, 29, 200, 38] that as the attacks are targeted at government officials rather than groups he faces less exposure to risk of significant harm. The unreasonableness of this conclusion is founded in the fact that, firstly, given the attacks are increasing and the governments stability is being eroded, all civilians are at equal risk of harm irrespective of whether the attacks are being carried out against those profiled targets (government institutions etc) or not. Secondly, the chances of anyone facing a real risk of harm cannot simply be reduced to a 'numbers game' involving the drawing of a conclusion that because the attacks are sporadic and profile specific, then there is less risk of being harmed. The question as to whether the Applicant faces a real chance of the harm is evidenced by the fact that the Hazara Shia's are being attacked by antiShia/Hazara insurgent groups. The attached DFAT Report dated 18 September 2015 concludes4 that:
“Although attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties” (and refer to the examples listed in the remainder of paragraph 2.35).
In these circumstances the profile of the applicant other than a Hazara Shia against whom the attacks are conducted is an irrelevant consideration in assessing his risk of serious harm.
9. Given DFAT's finding that the Afghanistan conflict is complex, and allegiances between groups can change quickly and belie generalisation or ideological coherence (see 4(iii) above), it is unreasonable for the Authority to rely on the generalisation that because the 'security situation is better in Daikundi than the rest of Afghanistan , that the Hazara Pashtun conflict is localised (at [CB197, 29]) and despite the southern area of Daikundi having the presence of Taliban insurgents that because the Taliban condemn ISIS their presence is less harmful and to conclude, as it has done, that the Applicant does not face a real risk of harm.
Here, in relation to what is unreasonable, the applicant relies on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and numerous other authorities. With respect, it is not clear from the submissions how Li and the other authorities cited assist the applicant in relation to this matter and the particular context within which it sits.
The Court is guided in this regard by Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton), wherein Allsop CJ explained (at [11]):
… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
The Full Court also explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 the process of review of legal unreasonableness “will inevitably be fact dependent” (at [48]). The Court continued (at [48]):
… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.
As correctly outlined by counsel for the Minister, the applicant today refers to the case of SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (SZOOR) and to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). That is referenced in the paragraph 8 in the applicant’s written submissions to which I referred above. In that regard the Court notes that in SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality and in that regard I note paragraph 135 in that decision. Again, as correctly highlighted and summarised by the Minister, SZMDS does indeed set a very high threshold for findings of irrationality or illogicality.
In concluding, counsel for the Minister contended that it cannot be said that only one conclusion was open to the IAA, namely, to accept the applicant’s claims (or, more specifically, the applicant’s view of the preferred conclusion to be drawn from the country information). Nor can it be contended that the impugned finding was not open to the decision-maker (albeit, the applicant may not agree with it). As Griffiths J has said in Stretton, “to describe reasoning as unreasonable or irrational may merely be an emphatic way of disagreeing with it”: referring to Applicant S20 at [5] per Gleeson CJ and Minister for Immigration and Citizenship v SZJSS [201] HCA 48; (2010 243 CLR 164 at [34].
The Court agrees with this analysis. On the evidence before it, all of it obtained and relied on as per the specific statutory context relevant to this applicant, the IAA’s decision was entirely open to it. It was not arbitrary or irrational. Minds might differ as to what can be concluded on the evidence (in particular, the interpretation of the country information relied on by the IAA) but it cannot be said that the conclusions drawn were illogical or irrational or arbitrary. The IAA canvassed the situation that the applicant would face if returned between paragraphs 29 and 46 and referred extensively to what country information it relied on and why it came to the conclusions it reached. It then drew conclusions on the basis of that evidence. The reasoning demonstrates an evident, transparent and intelligible justification for that IAA’s decision. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45].
In those circumstances, according to the relevant authorities referred to above, it cannot be said that the IAA’s conclusions about the applicant facing a real risk of harm if returned to the Jaghori District in Afghanistan were illogical, irrational or unreasonable. Such a conclusion were, as I have indicated, open on the evidence.
The above addresses the applicant’s submissions in relation to unreasonableness. In relation to other possible grounds of review, the Court does not find that the IAA incorrectly identified the issues before it or indeed asked itself the wrong questions. The IAA clearly identified the applicant’s claims, was guided by the relevant law to determinations of this sort, and forensically addressed the evidence before it within the context of the applicant’s claims, the relevant country information and the relevant sections of the Act as they pertain to a fast track applicant.
Nor can it be said that incorrect procedures were used. This was a fast track application and the way in which evidence was and was not used in relation to the applicant was, on the evidence, in accordance with the statutory provisions relevant to an application of this sort. There is no evidence before this Court that the IAA failed to look at all the evidence it had before it. Rather, it did so exhaustively. A complete analysis was provided. The IAA carefully considered the facts of the case, the legislation it was required to examine, and the country information as determined by the IAA.
Nor can it be said that bias was evidenced here. A claim of bias must be distinctly and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127]. The applicant has adduced no evidence that the Tribunal’s decision was affected by actual bias.
Overall, the applicant has failed to show that the IAA fell into jurisdictional error.
For the reasons outlined above, the application is dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 27 August 2018
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