FSG18 v Minister for Home Affairs

[2020] FCCA 2421

FEDERAL CIRCUIT COURT OF AUSTRALIA

FSG18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2421

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 424AA, 473CB, 473DC, 473DD

Applicant: FSG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 565 of 2018

Judgment of: Judge Vasta

Hearing date: 20 August 2020

Date of Last Submission: 20 August 2020

Delivered at: Brisbane

Delivered on: 20 August 2020

REPRESENTATION

Counsel for the Applicant: Ms K. Grenfell

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the Applications filed 21 October 2018 and amended on 20 April 2020 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 565 of 2018

FSG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 4 October 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, FSG18, a protection visa.  On 27 October 2018, the Applicant asked this Court to review that decision. 

2. The background to the matter is that the Applicant is a citizen of Afghanistan.  He was born in the village of T, in the Jaghori district in Ghazni province.  His father, he said, was the headmaster of the local school, and he owned a house and land in which the family lived.  He also owned a shop and some land which was rented out.  The Applicant said that he studied in the local school and then at secondary school, and he has never worked in Afghanistan. 

3. He said that his father bought land in a nearby town, SM, and in early 2012 his father went there to begin building a house.  A person named AM, who was a powerful Pashtun businessman with strong affiliations to the Taliban, wanted that land and threatened the father of the Applicant.  The father of the Applicant left without further incident. 

4. The Applicant claims that his father then returned to SM in December of 2012 and he began to build on the land there. He claimed that his father had two labourers with him.  The Applicant said that there was a fight then between the Applicant’s father and people affiliated with AM.  He said that his father was injured and his father also injured one of AM’s henchmen, but the Applicant says that the father’s actions were in self-defence.  He said that the father then returned to the village T after the incident and was hiding at a friend’s house. 

5. He said that AM and some other people came to the village and went to the Applicant’s house looking for the father.  The Applicant said that his father then realised that his father’s life was in danger, that is, his own life was in danger, and he fled to Pakistan.  The Applicant said the people, again, came to the Applicant’s house looking for the father and said that if they can’t find the father, they will kill the family.  The Applicant said that the rest of the family left the house and went to stay at the Applicant’s maternal uncle, who also lived in the same village, T. 

6. The Applicant said that his father had to return to the district in early 2013 because of his school responsibilities.  He said that his father had to go to Ghazni and get the school records to bring back to the village.  He said that his father travelled in a taxi with four other people.  The Applicant said that, on the way back, the taxi was stopped by the Taliban.  He said that the Taliban found the school documents and beat the father in front of the other passengers. 

7. The Taliban, he said, claimed to the father that the father was teaching wrong things and that he and his family should be killed.  The father was taken away by the Taliban and the other passengers were released.  He said that the father has not returned and the family doesn't know what has happened to him.  He said that the other passengers were the people who gave this information to the Applicant. 

8. The Applicant said that his mother then became scared for the Applicant’s safety and told him to leave Afghanistan.  The Applicant said he went to Kabul briefly and then he came to Australia.  He said that the rest of his family went to Malistan, another province in Afghanistan, and they have since fled to Pakistan.  He said that the father’s property in the other village of SM was taken over by AM.  The Applicant believes that AM informed on his father to the Taliban so that AM could take this property, and he believes that AM will target and kill him, that is the Applicant, if he returns. 

9. The Applicant said that he has been stressed and placed on a mental health care plan whilst in Australia and he has been prescribed medication for anxiety. 

10. The Applicant said that if he returns to Afghanistan, he will be targeted because he is a Shia and a Hazara, and because of his association with his father who was an educator which is considered to be an anti-Taliban activity.  The Applicant also claims that he would be targeted as a spy or an infidel because he has been in the West. He also claimed that there was the data breach which made him a person of special interest to the Taliban. The Applicant also claimed that he will be targeted by AM, if he returns, because of the land dispute. 

11. The Applicant later claimed, in the interview with the delegate that the Taliban know about him because his father was carrying the Applicant’s taskera when he was kidnapped. He also made the claim that AM has also taken over the family house and land in the village T. 

12. The Applicant also claimed, in that interview, that his travel was paid with money received from the sale of the family's shop.  After the interview was completed, the Applicant gave more information, and the delegate also made an invitation to the Applicant to comment further. 

13. In that post-interview information given to the delegate, the Applicant also said that the family owned a house, a small piece of land, and a shop in the village T.  The shop was rented out and the land was agricultural land, and after the disappearance of the father, the Applicant’s uncle sold the shop.  The Applicant said that he was a minor at the time and he was not involved in this sale. 

14. He said that the family’s house and land in T have since been taken over by AM who also took the land in the village of SM.  The Applicant said that his family went to live with his uncle but were only there for a few days before they went to Malistan and from there to Pakistan. 

15. The IAA looked at all of these claims in quite some detail.  The Applicant provided a copy of his father’s taskera in support of his claims, but claimed that his own taskera was in the possession of the Taliban and that he departed Afghanistan on a false passport, that passport being taken by people smugglers in Indonesia. 

16. The Applicant provided new information to the IAA which was a letter purporting to be from the mullah of the mosque in the village T.  That letter is, apparently, countersigned by village elders.  That letter was to the effect that AM has taken over the family land. 

17. The IAA, in looking at the Applicant’s claim, looked at some country information to set out the geographic and demographic factors that were relevant.  The IAA looked at the composition of Jaghori district which is part of Ghazni province, as well as Malistan district, noting that both Jaghori district and Malistan district fall within part of Afghanistan known as the Hazarajat.  Ghazni is a majority Pashtun area, but there is a large population of Hazaras there as well.  The population of the province is approximately 49 per cent Pashtun and 46 per cent Hazaras. 

18. The IAA noted that both Jaghori and Malistan were Hazara majority districts and that the village T is near the main road between Jaghori and Malistan.  The village of SM is near this same road, but it is some kilometres south of T in the opposite direction to Malistan.  Ghazni city and Quarabagh are some distance to the east and north-east of T, and it’s necessary to travel south from T before turning off the Malistan road and joining the road to Ghazni city and Quarabagh.  And the IAA noted that T was a small village of about 400 households and it is a Hazara village. 

19. The IAA looked at the country information as to the local ethnic troubles and came to the conclusion that it was plausible that Pashtuns in the village of SM, including the person AM, may have provided assistance or support to the Taliban in such areas.  The IAA noted that the delegate had asked the Applicant why his father would go to back to the land after being threatened in early 2012.  The Applicant replied that time had passed.  For that reason, the IAA accepted the Applicant's claims that the father did return to the land in late 2012 and that AM’s people came there and that there was a fight in which the Applicant’s father injured a person. 

20. The IAA accepted that the father did return to the village T after the incident and that AM and some people came to T to look for the father.  However, the IAA did not consider that it was plausible that AM, who was a member of a Pashtun minority in a Hazara area would come a Hazara-only village to find and harm a Hazara.  The IAA also considered that the father’s status as the headmaster of the local school would have given him some importance in the village, and that was another reason why the IAA did not accept that AM would have come to the village T and risked the confrontation. 

21. Whilst there may have been an incident on the land in SM, the IAA did not accept that AM came looking for the Applicant’s father then, or in the days after the father went to Pakistan, nor did the IAA accept that AM or any other person came to the village T and threatened the village or his family because of the land dispute. 

22. The Applicant claimed that AM informed on his father to the Taliban, and this is why the father was abducted.  The IAA noted that the Applicant’s belief that the AM informed on his father to the Taliban was totally speculative.  He had never claimed that he had been told by any person or that he otherwise else knew that AM had, in fact, done this. 

23. The incident, of which the Applicant speaks, was noted by the IAA to be more akin to a random stop and search incident which led to the discovery of school documents.  The IAA noted that the Applicant’s father was not asked for by name and even when his identity was established, apparently from his documents, there was no mention of AM or of the land dispute.  The IAA noted that the father was not singled out until the education documents were found and, according to what the witnesses have said to the Applicant, he was not accused of anything other than being an educator and acting against the Taliban’s doctrine. 

24. Taking those factors into account, the IAA did not accept the Applicant’s claim that AM had informed on the father or that the father was personally targeted for any reason arising from the land dispute.  The IAA accepted that there was country information that indicated that, in the past, teachers have been targeted, abducted and even killed by the Taliban, and so it was plausible that the Applicant’s father was carrying documents that identified him as a teacher and that the Taliban did have a high presence in activity in the Quarabagh area where it is alleged that the father’s taxi was stopped. 

25. The IAA accepted that the Applicant’s father was abducted because he is a teacher, and the IAA accepted that the father remains missing.  The IAA accepted that this incident was perpetrated by the Taliban. 

26. The Applicant claimed that he would be identified and associated with his father because his father was carrying the Applicant’s taskera which was found by the Taliban. 

27. The Applicant told the delegate that as soon as the family found out about this incident from these other passengers that they left the family home and stayed with the maternal uncle in the same village for about a week.  After that, the Applicant’s mothers and siblings went to Malistan, but that the mother was fearful for the Applicant because he was the eldest son, so the Applicant went to Kabul to arrange his escape from Afghanistan. 

28. The IAA was prepared to accept that the family was fearful after the incident with the father had been reported to them and did decide to leave the village T.  But the IAA noted that, despite the claim that the Taliban had the taskera and would, therefore, be able to identify him, the Applicant chose not to go to Malistan, noting that Malistan was another Hazara-majority area further away from Quarabagh and less likely to be subjected to Taliban incursion. 

29. Instead of this, the IAA noted that the Applicant travelled to Kabul, which would have taken him directly through the Taliban controlled area and along the same route where the father had been abducted.  The IAA did not accept that the Applicant would have taken this risk if the Taliban had his taskera and had threatened to kill the father’s family. 

30. The IAA also noted that the Applicant did not claim that anyone came looking for him or his family in the village during the week that they remained at the maternal uncle’s house, nor did the Applicant claim to have heard of the Taliban or any other person looking for or asking about the family since they all left the village T. 

31. The IAA found that the Applicant had concocted the claim and was not satisfied that he faced a real chance of being identified and associated with his father or with teachers generally by the Taliban and, therefore, the IAA was not satisfied that the Applicant faced a real chance of harm from the Taliban or for any reason associated with his father or his father’s role as a teacher. 

32. The IAA went through the claim about AM.  The IAA was prepared to accept that AM had taken over the land in the village SM.  The IAA looked at the new information from the mullah and, after examining it, said that, while it was plausible, and that the IAA was prepared to accept this, that the family house and land in T may have been taken over by other persons after the family left, the IAA did not accept that AM has taken this property. 

33. The Applicant’s claim to fear harm personally from AM was looked at.  The IAA looked at this aspect, noting that the Applicant's uncle still lives in the area of the village T, and the Applicant had not claimed that AM, or any other persons, had asked his uncle about the Applicant.  There was no evidence that any person had shown any interest in the Applicant's whereabouts, nor has AM made any threats to any person that the Applicant would be harmed if the Applicant returned.  For that reason, the IAA was not satisfied the Applicant faced a real chance of harm for any reason arising out of the land dispute. 

34. The Applicant claimed to fear harm because he would be imputed with an anti-Taliban opinion because of his association with his father, but the IAA did not find that the Applicant had been identified by the Taliban and, therefore, there was no reason to believe that he would be so associated.  For that reason, the IAA did not find that the Applicant would be harmed for any impugned anti-Taliban opinion. 

35. The Applicant claimed that the Taliban and other insurgents were targeting him because he is a Shia and a Hazara.  The IAA looked at the country information for the areas within the Hazarajat and noted that the United Nations had referred to the Jaghori province as a comparatively safe area, noting that it had remained relatively free of conflict and that it has attracted families fleeing violence in other parts of Afghanistan. 

36. The information, that the IAA had, did not report the sorts of abductions occurring in Jaghori in recent years or even in Ghazni province in 2016 or 2017.  The information did not support any claim that the Taliban or other anti-Shia or anti-Hazara groups were active in Jaghori, and for that reason the IAA did not accept that the Applicant faced a real chance of harm from the Taliban, Islamic State or any other insurgent group in his home village, in the broader Jaghori district or elsewhere in the Hazarajat, on the basis of his ethnicity or religion. 

37. The IAA accepted that the Applicant may not have family land to return to, but the information before the IAA did not indicate the returnees are unable to find accommodation in the Hazarajat, and so the IAA was not satisfied that the Applicant would be unable to obtain accommodation or he would be displaced or homeless or suffer any harm if he returned to Jaghori.  The IAA noted that there was no claim that the uncle would be unwilling or unable to provide temporary accommodation. 

38. The IAA looked at the Applicant having a mental health plan and that he has suffered from anxiety, but did not find that those matters would cause any harm to him upon a return to Afghanistan. 

39. The IAA looked at the data breach and concluded that the data breach would not be something that would cause the Applicant to have any objective fear. 

40. The IAA considered whether the Applicant would have a chance of harm if he is stopped or otherwise comes to the attention of the Taliban, and concluded that the Applicant may face a higher risk, but that did not amount to a real chance, or real risk, of relevant harm, and especially looked at the profile of the area as a whole and the Taliban activity. 

41. The IAA looked, as well, at whether the Applicant would be perceived as a spy, or somehow westernised, and found that there was no real chance of harm. 

42. The IAA then looked at all of the claims as a whole, and at paragraph 57 came to the conclusion that the Applicant was not going to face a real chance of harm for any reason when his claims are considered cumulatively.  Therefore, the Applicant did not meet the refugee criteria. 

43. The IAA looked at the complementary protection criteria and after looking at those matters came to the conclusion that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Afghanistan that there was a real risk that he would suffer significant harm.  Therefore, he did not meet the complementary protection criteria. 

44. Having not met either the refugee or the complementary protection criteria, the IAA affirmed the decision of the delegate not to grant the Applicant the visa. 

45. The application today proceeds on an amended originating application that was filed on 20 April 2020.  There are two grounds of application.  The first is,

    The IAA committed jurisdictional error in rejecting the report of Professor William Maley dated 4 April 2018 (“Maley Report”) as failing to satisfy the requirements of s.473DD of the Migration Act 1958 (“the Act”).

46. The background to this complaint is found in the initial paragraphs of the reasons of the IAA. The IAA detailed the material that was before it that had been given to it by the Secretary pursuant to s.473CB of the Act.

47. The IAA noted that, on 1 June, the Applicant, through his migration agent, provided submissions and new information.  Parts of the submission dealt with information and issues that were already before the delegate, but there was some new material.  The new material was divided into two categories: 

    a)documents which predated the delegate’s decision; and

    b)documents which post-dated the delegate’s decision. 

1. The documents which predated the delegate’s decision were: a report from LAND INFO, a report from a Mr Graeme Swincer, a Wikipedia list of terrorist incidents in July 2017, and a report by Professor William Maley dated 4 April 2018. 

2. The delegate gave his decision on 30 April 2018, which meant that all of those documents predated the decision.  The documents which post-dated the delegate’s decision were: a letter that I have referred to from the mullah of the mosque in the village T, and a report from the FDD Long War Journal that was dated 1 May 2018. 

3. For the Immigration Assessment Authority to consider new information that the information must comply with the provisions of s.473DD of the Act, that section relevantly provides,

   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.

1. Section 473DD has been the subject of quite a number of judicial pronouncements and both parties referred me to a number of Full Court authorities in which these provisions have been discussed.

2. The legislative provisions are such that the IAA cannot accept any new information unless there are exceptional circumstances to do so.  That applies to all information, including information that the authority itself wishes to utilise.  There must be exceptional circumstances for it to do so. 

3. A very good example of this is at paragraph 14, to which I may refer later, where the IAA has sought out up-to-date country information, and the IAA has said that they consider that considering such information was necessary to give proper consideration to current and authoritative information. For that reason, the IAA was satisfied that there were exceptional circumstances to justify considering the new information. 

4. If, however, the information is coming from the referred Applicant, then it must also meet the provisions of s.473DD(b), and that, relevantly in this case, is to show that the information was not, and could not have been, provided to the Minister before the Minister made the decision.

5. The report of Professor Maley is dated 4 April 2018.  It was a report that was in existence before the delegate made their decision.  There was no evidence before the IAA to say why it was not or could not have been provided to the Minister before the Minister made the decision. 

6. The Applicant submits that one has to look at the chronology of this matter in that the Applicant made his application to the Minister in May of 2017.  He provided his written statement of claims at that time.  He was interviewed on 13 November 2017.  A post-interview submission was given to the Minister, or the delegate, on 18 November 2017.  On 8 March 2018, the delegate wrote to the Applicant inviting him to comment on information regarding the family's land and location of his family and, on 2 April 2018, the Applicant provided additional information.  The Minister made his decision, through the delegate, on 30 April 2018. 

7. This report came into existence two days after the Applicant had given his reply to the Minister's invitation.  The Applicant has asked me to infer that the report was only just out and that the Applicant, or his legal representatives, had not become aware of it before 30 April 2018, and so, therefore, that would be a reason why it wasn’t before the delegate before the decision was made. 

8. Of course, such an inference is not easily drawn.  There is nothing that would indicate that such an inference can be drawn.  There was certainly no information given to the IAA, at the time that this report was given to the IAA, as to why it was that this report had not been put before the delegate, and so the IAA was left with no explanation whatsoever and simply, prima facie, was looking at the dates of the material. 

9. As I have said, the IAA sorted the material given to the material into two categories.  There is nothing on the evidence, before the IAA, that would justify the IAA coming to a conclusion that the provision of the Professor Maley report satisfied s.473(b)(i). 

10. But notwithstanding that, the IAA said this about that report, and the other three pieces of information that also predated the delegate’s decision, at paragraph 7:

    The reports which predate the delegate’s decision are, largely, general information.  There are some references to other individuals in some of the reports that these references are to third parties.  The Applicant has not claimed that they are related or linked in any way to him or his particular circumstances beyond being sheer Hazaras in Afghanistan.  I also take into account that the Applicant provided comprehensive submissions which referenced a large amount of information in his post interview submission as well as in his response to the invitation to comment.  I also take into account that there is a large amount of other general information before me, most of which postdates these reports.  I am not satisfied that there are exceptional circumstances to justify considering these reports.

11. At paragraph 13 the IAA noted that there was another report from Professor Maley that was dated 24 July 2016.  The IAA said this at paragraph 13: 

    The new country information reports are two reports by Professor William Maley, dated 24 July 2016 and 4 April 2018. I have referred to the 4 April 2018 report above and found that I am unable to consider it. The 2016 report is an earlier version of the 2018 report and for the same reasons as given in relation to the 2018 report, I am not satisfied that there are exceptional circumstances to justify considering the 2016 report.

12. The report, or the aspects of the report that the Applicant, have submitted are relevant, are that the report, to use their words, “address the extraordinarily fluid security situation in Afghanistan, including whether roads to Jaghori were safe and the risk of persecution to Hazara Shias”. 

13. The Applicant submits that the IAA categorised the Maley report with the other information as being largely general information. The IAA indicated that the IAA had not formally considered whether the Maley reported constituted information under s.473DD(b)(i). The Applicant submitted that by failing to address whether the new information fell within that subcategory, that the IAA adopted a narrow reading of s.473DD, and fell into error by failing to find that there were exceptional circumstances to consider it.

14. The IAA, however, had made it clear as to why it was there were no exceptional circumstances, and that is that the information did not amount to anything further than being general information, but that there was a large amount of other general information which post-dated the report.  In paragraph 14, the IAA talked about the new information that it had already gathered, and I will read all of paragraph 14: 

    I have obtained new information relating to the current situation in Afghanistan, and persons who have returned after seeking asylum in Western countries. These reports are more current than the information that was before the delegate and derive from sources that I consider to be reliable and authoritative. They contain updated analyses on risks which were not available to the delegate. I have also obtained updated information on whether there are currently flights from Kabul to Bamyam province. Given the fluidity of the security situation in Afghanistan (and noting the applicant’s submission above), I consider it is necessary to give proper consideration to current and authoritative information. I am satisfied that there are exceptional circumstances to justify considering this new information.

15. There is nothing in what the Applicant has put before me that would show that there were exceptional circumstances that would justify considering this new information (of the Maley report). It may well be that the IAA did not actually, and formally, address whether subsection s.473DD(b)(i) had been satisfied, but there was no information before the IAA for it to have been satisfied.

16. Nevertheless, the IAA still considered whether there were exceptional circumstances.  It seems to me that the reasons given by the IAA in paragraph 7 were definitely open to it.  As that conclusion was open to it, it cannot be said that there has been a jurisdictional error.  For these reasons, ground 1 fails. 

17. Ground 2 is

    The IAA committed jurisdictional error in failing to exercise its power to get new information under s.473DC(3) concerning the Applicant's claim that his father was in possession of the Applicant's taskera at the time he was abducted by the Taliban. 

18. To understand this ground, regard must be had to the reasons of the delegate.  The delegate found that the Applicant’s father was stopped by the Taliban and that the documents relating to the school were seen by the Taliban. 

19. The delegate said that the Applicant’s father may have been carrying the Applicant’s taskera.  That is as far as the finding of the delegate went.  The Applicant’s claim was not only was his father carrying the Applicant’s taskera, but that this taskera is now in the possession of the Taliban.  It is this claim that the IAA looked at in at paragraph 32. 

20. I will read all of paragraph 32 into the record again. 

    I am prepared to accept that the family was fearful following the incident and decided to leave T. I note however that despite his claim that the Taliban had his taskera and would therefore be able to identify him, the applicant chose not to go to Malestan (another Hazara majority area, further away from Quarabagh and less likely to be subjected to Taliban incursion) but instead travelled to Kabul, which would have taken him directly through the Taliban controlled area and along the same route where his father had recently been abducted. I do not accept that he would have taken this risk if the Taliban had his taskera and had threatened to kill his father’s family. I also note that he has not claimed that anyone came looking for him or his family in T during the week that they remained at the maternal uncle’s house, nor has he claimed to have heard of the Taliban or any other person looking for, or asking about, the family since they all left T. I find that he has concocted the claim that the Taliban has his taskera and threatened to harm him as a member of his father’s family. I am not satisfied that he faces a real chance of being identified and associated with his father or with teachers generally by the Taliban, and for that reason I am not satisfied that he faces a real chance of harm from the Taliban for any reason associated with his father or his father’s role as a teacher.

21. The Applicant claims that the IAA was not permitted to make such a finding unless they had considered using their discretion under s.473DC(3). That subsection relevantly reads that the IAA “may invite a person, orally or in writing, to give new information”. The Applicant says that the IAA in making the finding that the claim had been concocted was going against the finding that was made by delegate in relation to what the Taliban had.

22. However, as became quite evident during the course of the hearing, this was not the finding of the delegate.  The delegate did not find that the Taliban were in possession of the Applicant’s taskera.  Therefore, this is in a totally different category to those matters where the delegate has made a finding and the IAA has made a totally different finding on the same facts.  The Applicant submits that it can be inferred that the delegate had found that the Taliban were in possession of the Applicant’s taskera. 

23. The Applicant says this because if it is that the delegate found that the Applicant’s father may have been carrying the taskera, then if the documents were looked over by the Taliban, then they must have looked at the taskera and, therefore, they must have kept it in their possession. 

24. But these inferences are not logical steps that follow at all.  Considering that the Applicant’s claim was that the Taliban did have his taskera, if it were that the delegate meant to make that finding, it is inexplicable that the delegate didn’t make that finding, especially since it was an actual claim made by the Applicant.  Instead, the delegate was only prepared to find that the father may have had the taskera on him. 

25. The Applicant submits that the IAA’s remarks that it is inexplicable that the Applicant would have chosen not to go to a Hazara stronghold, but instead travel through a Taliban-controlled area and along the same route where his father had actually been abducted, was a matter which the Applicant should have been asked about because he could have given some information as to why he had done that. It does seem to me, as was urged upon me by the counsel for the Minister, that this submission is straying into the territory that part 5 and part 7 reviews may have in that s.359AA and the analogous s.424AA require that a Tribunal put to the Applicant any information that would tend to lead to the affirming of the decision on review.

26. The Minister submits that Part 7AA reviews are a totally different beast.  In that respect he is correct.  However, in reply, Counsel for the Applicant made the submission that the Applicant was not looking at the procedural fairness as regards those matters, but looking at whether in coming to a conclusion based on facts before it that the Applicant had not had a chance to explain, constitutes an unfairness if there has not been, at the very least, a consideration as to whether the IAA should invite the Applicant to answer why it is that the Applicant would do what he did which seemingly is inconsistent with the fear that he had. 

27. To my mind, though, the discretion to get new information under s.473DC(3) is a discretion that really should only be exercised when it is that there is a finding that could or couldn’t be made because there was insufficient evidence for such a finding to be definitively determined. In this case, there was no such deficiency. There were cogent reasons that were logical and sensible as to why it was that the IAA found that a claim had been concocted; a claim which had not been determined at all by the delegate.

28. It is for the IAA to make whatever findings it wishes to make as long as those findings are open to it on the evidence. The finding that this claim was concocted was clearly open on the evidence. There was no need to look for any other evidence, and so the circumstances in which s.473DC(3) would be considered did not even arise in this matter. For those reasons, ground 2 fails.

29. I am not satisfied that any jurisdictional error has been illustrated in the reasons of the IAA.  I, therefore, dismiss the application with costs fixed in the sum of $7,467.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 September 2020