Fui18 v Minister for Home Affairs

[2019] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

FUI18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1682

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Mali – applicant’s claims of past harm not believed and fear of future harm found not to be well-founded – whether the Authority erred in considering reports of terrorist activity considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5H, 46A, 473DD

Cases cited:

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Hossain v Minister for Immigration (2018) 92 ALJR 780

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Minister for Immigration v SZRKT [2013] HCATrans 251

Minister for Immigration v SZRKT (2013) 212 FCR 99

Minister for Immigration v SZSRS (2014) 309 ALR 67

Applicant: FUI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3099 of 2018

Judgment of: Judge Driver

Hearing date: 18 June 2019

Delivered at: Sydney

Delivered on: 15 August 2019

REPRESENTATION

Counsel for the Applicant: Mr J King

Solicitors for the Applicant: Varess

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

ORDERS

1. A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 25 June 2018 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3099 of 2018

FUI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 June 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is a 38 year old male and a citizen of Mali who arrived in Australia at Christmas Island on 24 May 2013 as an unauthorised maritime arrival.[1] 

   [1] Court Book (CB) 3, 9, 45, 52

4. The applicant was born in Timbuktu in 1981 and lived in the capital of Mali, Bamako, from 2008 to 2013 before fleeing to Australia.[2]

   [2] CB 58

5. In June 2016, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to make a valid application for the protection visa.[3]

   [3] CB 18

6. On 13 July 2017, the applicant lodged the application for the protection visa[4] and claimed to fear harm in Mali because of:[5]

   a)his religion - he is a moderate Sunni Muslim who does not subscribe to fundamentalist religious beliefs of the Islamist militias fighting in Mali;

   b)his membership of a particular social group - being a member of the majority Bambara tribe and having fallen out with a member of the Mali armed forces whom the civil authorities cannot control; and

   c)an imputed political opinion - being imputed to be politically hostile to the armed forces of the ruling government because of his having fled Mali and made claims in Australia.

   [4] CB 23 – 120

   [5] CB 23 – 27, 70 – 71

7. On 22 March 2018, the applicant attended a protection visa interview with the delegate.[6]  On 27 April 2018, after interviewing the applicant, the delegate found the applicant not to be credible and refused to grant him the protection visa.[7]  The case was referred to the Authority for review.  On or about 4 June 2018, the applicant lodged a written submission with the Authority,[8] together with a further personal statement.[9]

   [6] CB 154, 162

   [7] CB 157 – 173

   [8] CB 192

   [9] CB 196

Authority decision

1. The Authority rejected the applicant’s account for why he left Mali in 2013.  In particular, while the Authority accepted that the applicant had been self-employed selling clothes in a market and that he demonstrated some fear of returning, it did not accept that he fled Mali in 2013 because a business venture he entered into with a member of the Malian army had failed.[10]  As a result, the Authority did not accept that the applicant would be imputed to have a political opinion hostile to the armed forces of the ruling government or that he risks arrest, detention and death at their hands should he return to Mali.[11]

   [10] at [24]

   [11] at [24]

2. The Authority considered country information relating to the ongoing civil war and terrorist incidents in Mali.  While it acknowledged the applicant’s fears about returning, and that there was evidence of terrorist incidents and generalised violence and crime in the country, it found that the country information indicated that there was little presence of Islamic militants in southern Mali and that they did not pose a real or substantial threat to the civilian population now or in the reasonably foreseeable future.[12]  Ultimately, the Authority was not satisfied that the applicant would face a real chance of harm in his home region of Bamako as a result of the civil war, from any Islamist militant group or any other person or group for any reason.[13]

   [12] at [34] and [35]

   [13] at [37]

3. The Authority also found that the applicant did not face a real chance of harm for any reason associated with having spent time in Australia or sought asylum.[14]

   [14] at [39]

4. For these reasons, the Authority found that the applicant did not meet the requirements of the definition of a refugee in s.5H(1) of the Migration Act.[15] For the same reasons the Authority found that the applicant did not satisfy the requirements of the complementary protection criterion in s.36(2)(aa) of the Migration Act.[16]

   [15] at [40]

   [16] at [43]–[44]

The current proceedings

1. These proceedings began with a show cause application lodged on 6 November 2018.  The applicant continues to rely upon that application.  There is one particularised ground in the application:

   1.The Authority erred in law and constructively failed to exercise its jurisdiction insofar as the Authority failed to consider reports of terrorist and other violent attacks in and around Bamako after 2015.

   Particulars

   a.The Authority found (at [34]): “There have been no reports of terrorism in Bamako since the events of 2015”, and that finding was a part of the reason for the Authority’s conclusion that the applicant does not face a real risk of significant harm in Bamako.

   b.The material before the Authority included the Bertelsmann Stiftung 2018 Country Report on Mali, which:

   i.      stated that “[i]n recent years, … [t]errorist attacks and violence progressively spread from the north into several southern regions and Bamako, Mali’s capital city” (at p12); and

   ii.     reported a terrorist attack on the headquarters of the EU Training Mission in Bamako in March 2016 (at p5).

   c.The material before the Authority included the Report of the Secretary-General on the situation in Mali dated 29 March 2018, which reported (at [36]) that, between 1 January 2018 and 29 March 2018, terrorist groups had carried out three attacks in the Koulikoro region of Mali, where Bamako is located.

   d.The material before the Authority included country information downloaded from the US Council on Foreign Relations website on the ‘Destabilization of Mali’ dated 1 June 2018, which reported a terrorist attack on a tourist resort on the outskirts of Bamako in June 2017. The Authority referred to the information at [8]. If the Authority found that the report of the June 2017 attack was before the Delegate, the Authority erred in failing to consider the report at [34]. If the Authority found that the report of the June 2017 attack was “new information”, the Authority erred in finding that the material did not “relate to events in Bamako” and that there were not exceptional circumstances to justify considering it, having regard to the Authority's reasoning at [34].

   e.The above material was significant and important to the review and the Authority erroneously failed to consider it.

2. In addition to the court book filed on 31 January 2019 I have before me as evidence the affidavit of Farid Varess made on 26 March 2019 and the annexures to it.

3. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 18 June 2019.  I have been assisted by those submissions.

Consideration

1. The applicant was born in Timbuktu in the north of Mali but in recent years, prior to coming to Australia, he lived in the capital, Bamako.  It is apparent from the map of Mali reproduced at CB 206 that Bamako is a capital district separate from and surrounded by the district of Koulikoro whose regional capital, in common with all the other Mali regions, bears the same name.  While the regional capital is some 60 kilometres from Bamako, the Koulikoro region is quite extensive both to the north and south of the capital.  It was apparent from the country information available to both the Minister’s delegate and the Authority that Mali is a country which has been troubled significantly in recent years by a terrorist insurgency, tribal conflict and generalised violence.  Both the delegate and the Authority reasoned that the applicant could find safety in Bamako.  This was contested by the applicant.  The question in this case is whether the Authority erred in law and constructively failed to exercise its jurisdiction insofar as it failed to consider important material before it containing reports of terrorist and other violent attacks in and around Bamako after 2015.

Applicable legal principles

1. It is now well-established that a decision maker commits jurisdictional error and constructively fails to exercise jurisdiction required by the Migration Act where the decision maker fails to consider material that is important to a review. In Minister for Immigration v SZRKT, [17] Robertson J held, “The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of the error”.

   [17] (2013) 212 FCR 99 at [111]; special leave to appeal was refused: Minister for Immigration v SZRKT [2013] HCATrans 251 (Bell and Keane JJ). See also Minister for Immigration v MZYTS (2013 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ) and Minister for Immigration v SZSRS (2014) 309 ALR 67 at [47]-[54] (Katzmann, Griffiths and Wigney JJ)

2. A majority of the High Court has recently cited the same passage from SZRKT for the proposition that: [18]

   the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case, including any such evidence contained in a document or report provided to it by the Secretary.

   [18] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [13] (Bell, Gageler and Keane JJ)

3. The applicant claimed to fear harm in his home area of Bamako.[19]

   [19] CB 23-31

4. The applicant’s submission dated 10 July 2017 to the delegate included the following: [20]

   The Australian DFAT Travel Advisory updated on June 15 last noted that the civilian government’s State of Emergency is still in force and reported a ‘sharp increase in terrorist attacks in Mali since early 2015, particularly in southern and central Mali.’ … Numerous attacks have taken place in the capital Bamako.

   [20] CB 25

5. The applicant also relied on a UNHCR Mali Operational Update dated May 2017, which referred to a series of terrorist attacks in 2016 and 2017 by a group referred to as JNIM and concluded: “JNIM’s significant mobilization capabilities present a menace to the capital of Bamako which remains under the threat of potential terrorist attacks.”[21]

   [21] CB 110.6

6. The delegate sought and obtained additional important material, which supported the applicant’s claims relating to the terrorist threat in Bamako in recent years after 2015.

Bertelsmann Stiftung 2018 Country Report on Mali

1. The 2018 Country Report on Mali published by Bertelsmann Stiftung (2018 Country Report) was relevantly important in two respects:

   a)the report stated that “[i]n recent years, … [t]errorist attacks and violence progressively spread from the north into several southern regions and Bamako, Mali’s capital city”;[22] and

   b)it also reported a terrorist attack on the headquarters of the EU Training Mission in Bamako in March 2016, which together with other attacks in Bamako was expressly said to have “brought the terrorist threat to Mali’s capital”.[23]

   [22] affidavit of Mr Varess, annexure A at 13.3

   [23] affidavit of Mr Varess, annexure A at 6.8

Report of the Secretary-General on the situation in Mali dated 29 March 2018

1. The United Nations Secretary-General reported that, between 1 January 2018 and 29 March 2018, terrorist groups had carried out three attacks in the Koulikoro region of Mali, where Bamako is located (Secretary-General’s report).[24]

   [24] affidavit of Mr Varess, annexure B at 46 [36]

The delegate’s decision

1. The delegate noted the Secretary-General’s report that three attacks had occurred in the Koulikoro region of Mali,[25] but did not specifically refer to the “reporting period” for those attacks (which was 1 January 2018 to 29 March 2018) or otherwise refer to whether those attacks had occurred in recent years after 2015.

   [25] CB 165-166

2. The delegate referred to the 2018 Country Report and noted that “insecurity and human rights violations have spread from the north into several southern regions, including Bamako”.[26]  The delegate quoted the part of that report that described terrorist attacks as having “worsened in recent years” in “Bamako, Mali’s capital city”.

   [26] CB 166.2

3. The delegate did not refer to the attack on the headquarters of the EU Training Mission in March 2016 reported in the 2018 Country Report.  The delegate concluded that Bamako remains more secure than other parts of the country.[27]

   [27] CB 166

Submissions and material provided to the Authority

1. The applicant expressly complained in his written submission to the Authority that the delegate “properly identified the reports of violence in the districts of Segou and Sikasso, but failed to recognise their relationship to the capital district of Bamako”, and submitted that the delegate was wrong to find that the applicant was part of a civilian population for whom the perpetrators of such attacks did not pose a real threat.[28]

   [28] CB 193.5

2. The applicant further submitted: “In any case, as the days-old Reuters news report enclosed, shows, political violence has now wracked Bamako and more is foreshadowed, threatening the outcome of presidential elections set for July 29.”[29]  The report was dated 3 June 2018.[30]  The risk of harm to the applicant in Bamako remained a live issue in the review before the Authority.

   [29] CB 193.7

   [30] CB 211

3. Additional material provided by the applicant included material downloaded from the US Council on Foreign Relations’ website, namely, a webpage titled “Destabilization of Mali”, which reported a terrorist attack on a tourist resort on the outskirts of Bamako “in June 2017” (USCFR report).[31]

   [31] CB 199.9

The Authority’s reasons

1. The Authority found that, “There have been no reports of terrorism in Bamako since the events of 2015”.[32]  That finding was a clear part of the reason for the Authority’s conclusion that the applicant does not face a real risk of significant harm in Bamako.  In making that finding, the Authority did not refer to the 2018 Country Report, the Secretary-General’s report, or the USCFR report, although it referred to other parts of the first two reports for unrelated findings.[33]

   [32] CB 228 [34]

   [33] at [32], [36]

2. The applicant contends that there is no logical, rational, and reasonable basis upon which the Authority could have found that there had been “no reports of terrorism in Bamako since the events of 2015” in circumstances where the Authority had before it clear and cogent reports of terrorism in Bamako “in recent years”, expressly including the attack on the headquarters of the EU Training Mission in March 2016 said to have “brought the terrorist threat to Mali’s capital”, unless the Authority overlooked or failed to consider that material.

3. The applicant submits that it must be inferred that the Authority overlooked and failed to consider the reports of those attacks in Bamako after 2015.  The Authority’s failure to consider those reports was material to the Authority’s decision because it deprived the applicant of the possibility of a successful outcome.[34]

   [34] Hossain v Minister for Immigration (2018) 92 ALJR 780 at [30] (Kiefel CJ, Gageler and Keane JJ)

4. The applicant submits that that inference may be more comfortably drawn in circumstances where the Authority also had before it the Secretary-General’s report and the USCFR report and failed to refer to the attacks in Bamako post-dating 2015 referred to in those reports.  Had the Authority considered all of the foregoing reports in finding that there had been “no reports of terrorism in Bamako since the events of 2015”, one would expect to see some indication in the Authority’s reasons as to why it disbelieved those apparently credible reports or otherwise gave them no weight.  They were important to the review.  The better inference is that the Authority overlooked them.

5. The Authority found that the USCFR report was “new information” under s.473DD that could not have been provided to the delegate, but was not satisfied that there were exceptional circumstances to justify considering it. The Authority reasoned: [35]

   It also contains new information in the form of alerts about events relating the conflict which date from 25 January 2018-17 May 2018.  None of the alerts relate to events in Bamako where the applicant lives and I consider that the review material contains more relevant information about the conditions in that area.  

   [35] CB 222 [8]

6. The applicant submits that the Authority did not refer to the report of a terrorist attack on a tourist resort on the outskirts of Bamako in June 2017, and by the Authority’s reference to the date range “25 January 2018-17 May 2018” appears to have overlooked reports that were outside that range.

7. The Minister concedes that the Authority overlooked one piece of information, being the terrorist attack on the EU training mission in March 2016.[36]  The Minister makes no other concession and submits that the error was not so significant as to go to jurisdiction.

   [36] See page 6 of the 2018 Country Report on Mali annexed to the affidavit of Mr Varess

8. I disagree.  In circumstances where:

   a)it was apparent that the outcome of the review in relation to at least the refugee criterion for the protection visa turned on the question of whether Bamako was a safe place to which the applicant could return;

   b)the applicant had specifically challenged in a submission to the Authority the findings of the delegate to that effect;

   c)the Authority at [8][37] had declined to consider a report proffered by the applicant on the basis that it did not relate to events in Bamako;[38] and

   d)the issue of the terrorist threat in Bamako was critical to the outcome of the review;

   the Authority needed to give close and careful consideration to the available country information, especially the apparently authoritative 2018 Country Report.  That report established that the terrorist threat in Bamako did not begin and end in 2015 as the Authority reasoned.  The Authority overlooked material information of significance bearing upon its assessment. 

   [37] CB 222

   [38] which is questionable, having regard to the terms of the information reproduced at CB 199

1. I find that the Authority fell into the same error as identified by the Full Federal Court in BUD17 v Minister for Home Affairs[39] at [62] and [66].

   [39] [2018] FCAFC 140

2. The error goes to jurisdiction and the applicant should receive the relief he seeks. 

Conclusion

1. The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error.  I will order that the decision be quashed and the matter remitted to the Authority for further review.

2. I will hear the parties as to costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 August 2019