FVJ18 v Minister for Home Affairs
[2020] FCCA 2046
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FVJ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2046 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – where the IAA refused the applicant the visa on the basis that he had failed to comply with s.91W of the Migration Act 1958 (Cth) – whether the IAA is required to consider the substantive claims when assessing the reasonableness of an explanation for non-compliance – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91W, 473CA, 473CB, 476 Migration Regulations 1994 (Cth), reg.4.43 |
| Cases cited: AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | FVJ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 586 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 May 2020 and 24 July 2020 |
| Date of Last Submission: | 24 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr P Knowles |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitor for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 586 of 2018
| FVJ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 21 February 2013 (Court Book (“CB”) 88).
On 20 July 2016, the first respondent (the “Minister”) invited the applicant to apply for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 19-20).
On 24 March 2017, the applicant lodged his application for the visa (CB 21-64). The applicant set out his claims in a “Statement of Claims” which accompanied the visa application, as follows (CB 64):
In summary, I fear harm throughout the whole of Afghanistan including murder, physical assault and abduction at the hands of the Taliban on the basis of my imputed political views from my job as an informant working for he Afghanistan Intelligence and Security office which was a result of my job at the English Language Centre and therefore, the Taliban assumed I was also politically involved with this organisation. I have personally been threatened by my feared persecutors. I cannot rely on the protection of the Afghanistan state and cannot safely relocate anywhere else in Afghanistan.
On 18 April 2017, the Minister’s Department formally requested, pursuant to s.91W of the Migration Act 1958 (Cth) (the “Act”), that the applicant provide documents verifying his identity (CB 73-75).
On 27 April 2017, the applicant responded (CB 76) as follows:
The Humanitarian Group is a non-profit community legal centre, who assisted me to complete my application as I am unable to prepare and complete a-valid visa application on my own and cannot afford to pay for a private migration agent. The Humanitarian Group has extremely limited resources and capacity. Accordingly, parts of my application were incomplete.
I confirm that I will endeavour to provide any missing information at the time of my interview with the Department. I am engaging with the application process to the best of my abilities
The applicant attended a hearing before a Ministerial delegate on 17 November 2017 (CB 77-78).
On 30 January 2018, the delegate refused to grant the applicant the visa. The delegate found that the applicant was prevented from being granted the visa by operation of s.91W of the Act. However, the delegate was not satisfied, in any event, that the applicant had a real chance or real risk of facing serious or significant harm if he were returned to Afghanistan.
Pursuant to s.473CA of the Act, the applicant’s matter was then referred to the Immigration Assessment Authority (the “IAA”) (CB 105-106). The applicant provided no further materials to the IAA.
On 10 October 2018, the IAA affirmed the decision not to grant the applicant the visa (CB 112-121).
On 7 November 2018, the applicant applied to this Court for judicial review of the IAA’s decision.
The IAA’s Decision and the Relevant Legislative Scheme
The IAA’s decision is 10 pages long and spans 26 paragraphs. Four pages extract the relevant legislative provisions.
The IAA confirmed that it had had regard to the materials provided pursuant to s.473CB of the Act and that no further submissions had been provided (at [2]).
The IAA then briefly summarised the applicant’s claims. It noted that it had found it unnecessary to address his substantive claims in detail (at [3]-[4]) and noted that “a preliminary and determinative issue” in the applicant’s case was whether the grant of the visa was prevented by virtue of s.91W of the Act (at [5]).
The IAA then summarised s.91W and stated that if it was found to apply, the visa must be refused (at [6]).
Section 91W provides as follows:
Evidence of identity and bogus documents
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.
(2)The Minister must refuse to grant the protection visa to the applicant if:
(a)the applicant has been given a request under subsection (1); and
(b)the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c)the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d)when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3)Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b)either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4)For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
In effect, a decision-maker must be satisfied of each of the matters in s.91W(2). In circumstances where s.91W(2)(c) is not satisfied, s.91W(3) does not apply. This is because the requirements of s.91W(3) are cumulative (as demonstrated by the use of the word “and”). Hence, if s.91W(2)(c) is not satisfied then s.91W(3)(a) cannot be satisfied.
Here, the IAA noted that the applicant had claimed in his visa application to have had a range of identity documents from Afghanistan, including a taskera (an Afghan national identity document), an Afghan passport, school records, evidence of his English teaching qualifications and employment details (at [7]). However, in his arrival interview, the applicant said that he no longer had any copies of his identification documents as they had been lost during his journey to Australia (at [8]). Further, he indicated that he was unable to include copies of his identity documents as all the original documents were destroyed or lost and that he had no other documents in Afghanistan pertaining to his identity (at [9]).
The IAA referred to the fact that the Minister’s Department had made a formal request under s.91W for identity documents (at [10]) and the fact that the applicant had responded (through a “template form”) on 27 April 2017 that he would endeavour to provide any missing information at the time of his interview with the Department and was engaging with the application process to the best of his abilities (at [11]). Despite this, at the interview the applicant confirmed that he had no identity documents as they had been lost on the journey to Australia (at [12]).
The IAA then referred to the interview with the delegate and the applicant’s evidence regarding his attempts to obtain school records. It noted that it was put to the applicant that if he had, in fact, written to the school (as he had stated) then the school would have provided the documents. The applicant responded that he had finished school “some time ago” and that “things happened in Afghanistan” (at [13]-[14]).
The IAA then referred to the fact that the delegate had advised the applicant that he had been formally requested on 18 April 2017 to provide identity documentation and that the delegate was now providing him a further 7 days to do so (at [15]).
At [16]-[17], the IAA states:
16. The delegate reiterated this request at the end of the visa interview. The applicant responded by explaining that Afghanistan is not developed, and the country does not keep records. He said it would be too difficult to obtain the records. He indicated that he could not write to the schools as the post (mail) only goes to Kabul, not on to Ghazni. He also indicated it may be dangerous for his brother to obtain a copy of his taskera.
17. The delegate asked him to ask his brothers to obtain documentation from his school, such as a letter confirming he attended. The applicant said he had previously had all the records and he did not know he would lose them. The delegate indicated she would consider whether his responses were a reasonable explanation. The applicant said many people provide bogus documents, but he did not wish to do so.
The IAA noted that no further documents were provided to the delegate (at [18]).
The IAA then noted that the delegate had found that the applicant was prevented from being granted the visa by virtue of s.91W (at [19]-[20]).
The IAA confirmed that it had not been provided with any further documents from the applicant (at [21]). It noted that the applicant claimed to have had identity documents and accepted as plausible that the applicant could have lost these documents on the “irregular and at times perilous” journey to Australia (at [22]).
The IAA then stated as follows (at [23]-[25]):
23. I am satisfied the applicant was requested in writing under s.91W(1) to provide evidence of his identity. I am satisfied the invitation was reiterated orally at the visa interview. I am satisfied the applicant was given a warning, both in writing and orally, that the Minister would be unable to grant a visa if the applicant refused or failed to comply with the request, or provided a bogus document in response to the request. The applicant has not provided any identity documentation and I am satisfied he has failed to comply with the written and oral request.
24. I have considered his explanations for why he has been unable to do so. As above, I consider it plausible he lost his original documents. However, given his level of education and the range of different identity documentation he claims to have previously held, I consider it is well within the applicant’s control to obtain some evidence of his identity. In this regard, I give weight to the fact that he has family members in his claimed home area of Ghazni who could assist him in obtaining copies of his identity documentation, other supporting documentation, or provide copies of their own documentation that might corroborate his identity. I found his evidence about the steps he claims to have taken to obtain documentation from his schools was vague and shifting. I was not persuaded by and do not accept his evidence that he had previously written to his schools, called the schools, or tried to obtain these documents through his brothers.
25. It is not implausible that there might be risks or barriers to obtaining some forms of documentation – particularly if it required his family members to travel to less secure areas. However, I do not accept this would preclude the possibility of the applicant providing any form of identification from Afghanistan, or evidence of his and his family’s attempts to obtain such documentation. The applicant has been provided with a number of opportunities to provide identity documentation, or evidence that he has made efforts to obtain documentation, yet he has failed to do so. I consider this particularly concerning given the emphasis of the delegate during the visa interview, and his failure to provide any documentation or other evidence following that interview, or any further explanation for why he has been unable to do so. I am not satisfied the applicant has a reasonable explanation for refusing or failing to comply with the request made under s.91W.
The IAA found that the grant of the visa was prevented by s.91W and affirmed the delegate’s decision not to grant the applicant the visa (at [26]).
Proceedings in this Court
This application is brought pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must demonstrate that the IAA has fallen into jurisdictional error.
In his judicial review application dated 7 November 2018, the applicant (who has never had the benefit of legal representation) raises two grounds of review:
1. I believe there has been jurisdictional error with the assessment of my claim.
2. I do not agree with the immigration assessment authorities decision that it was possible for me to obtain identity documents
The applicant was given an opportunity to file an amended application, any further affidavits and an outline of submissions. No further materials were provided. The Minister filed written submissions dated 21 April 2020.
This matter was heard over two days in this Court: 12 May 2020 and 24 July 2020. The applicant appeared without legal representation. A Dari interpreter was available to assist the applicant on both occasions. In light of current health protocols now in place across the federal courts, the matter proceeded by videoconference and telephone.
The Court confirmed with the applicant that he had received a copy of the Court Book (which was marked as Exhibit 1) and a copy of the Minister’s written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“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 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the applicant to explain what “mistakes” he thought the IAA had made in assessing his protection claims.
At the hearing on 12 May 2020, the applicant stated that he “did not have any problem with what the IAA stated or how they treated him”. At the second hearing (on 24 July 2020) the applicant simply provided an explanation to the Court as to why he could not obtain the relevant identity documents.
Unfortunately, the applicant’s oral submissions were of no further assistance to the Court. In effect, he seeks merits review of the IAA’s decision. The Court cannot assist him in this regard.
During the course of the hearing on 12 May 2020, an issue arose in relation to the scope of s.91W(2)(c) of the Act. The Court asked the Minister to provide written submissions on this issue. The Minister filed those submissions on 9 June 2020.
The applicant was also given leave to file any written submissions in response.
On 7 July 2020, the Court received a letter from the applicant that stated:
As I have mentioned in my past interviews, my taskeera and other educational documents from my school as well as my English learning institute in Ghazni which I had brought with myself got drowned alongside my other belongings during my journey to Australia via boat. Since the documents I had brought with myself were all original copies, I could not retrieve any copy of them from back home. Furthermore, the Department of Immigration of Australia also requested that I provide my taskeera or any other educational documents to identify myself. I tried a lot to retrieve my taskeera or any other documents that could be used to identify myself, though I was not successful. I had my brother go to get my taskeera from the place where people usually get their taskeera from in Ghazni (This place is called Willayat) , however he was unsuccessful. This is because, I have to be there in person and identify myself to get my taskeera and so, the authorities there did not provide my taskeera to my brother on my behalf.
In Afghanistan, and in particular in the province of Ghazni, schools do not have electronic means of keeping student records. Their system is solely paper based, and this is a problem because the records pile up and eventually get to be too much, prompting the schools to put the records in a storage unit, where it easily gets lost or misplaced. Additionally, the person requesting their documents also must be there in person to identify themselves to be the owner of the documents being requested. I tried for the last time to get my documents from Ghazni, however the only thing I was able to get was a letter that confirms my graduation from my Ghazni school.
(Without alteration)
The applicant also provided a copy of a letter from the Afghanistan Department of Education dated 29 June 2020 confirming that he had graduated.
Unfortunately, these materials do not identify jurisdictional error. Rather, they plea to the merits of the IAA’s decision. The applicant has repeated his explanation for being unable to provide the relevant identity documents. These were matters that were considered by the IAA. As for the letter from the Department of Education, this evidence was not before the IAA (or the delegate) and, as such, is not admissible here. Nor did this evidence have any bearing on the issue of jurisdictional error in the IAA’s decision.
Consideration
In effect, both of the applicant’s grounds relate to the IAA’s disposition of the matter on the basis that he had not provided identity documents. It is unclear whether ground 1 refers to the applicant’s substantive claims for protection or his explanation for not providing the relevant identity documents. In light of ground 2, the Court proceeds on the basis of the latter. That is, the Court proceeds on the basis that the applicant believes there was “jurisdictional error” evident in the IAA’s assessment of his explanation as to why he could not obtain the relevant identity documents.
In its duty to the self-represented litigant (as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”)), the Court adopts a broad approach and assumes that the grounds of review allege that the IAA erred in determining that s.91W of the Act applied to the applicant’s circumstances.
The Minister submits that the IAA was entitled to consider the application of s.91W for itself: BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49 at [72].
The Court agrees. In this regard, the Court notes that reg.4.43(4) of the Migration Regulations 1994 (Cth) (the “Regulations”) states that it is a “permissible direction” for the IAA to remit a matter to the Minister with a direction that s.91W does not apply. This makes it clear that the IAA is entitled to consider the application of s.91W as a stand-alone provision.
There are, in effect, four elements within s.91W that must be met:
a)a request must have been made for the applicant to produce the requisite identity documentation (the “First Element”);
b)the applicant must have failed to comply or refused to provide the requested documents (the “Second Element”);
c)the applicant must not have a reasonable explanation for failing to produce the requested documents (the “Third Element”); and
d)the applicant must have been on notice that he cannot be granted the visa if he fails to comply with the request to produce documents (the “Fourth Element”).
The Court will address these elements below.
The First Element
Here, a request for the applicant to produce the requisite identity documentation was made on two occasions:
1)in writing by way of a letter sent to the applicant on 18 April 2017 requesting the production for inspection of documentary evidence relating to his identity, nationality or citizenship (CB 73-75). This letter specifically indicated that this was a request under s.91W(1) of the Act; and
2)orally at the interview with the delegate when the applicant was reminded of the request and the delegate asked him to provide the requisite documents, or evidence of his seeking to obtain those documents, within seven days.
The IAA found that s.91W(2)(a) of the Act was satisfied on the basis of the letter dated 18 April 2017 alone (at [23]). It was open to do so.
The Second Element
The applicant did not provide any identity documents. This is not in dispute. There is nothing in the Court Book in the nature of documentary evidence verifying the applicant’s identity.
On this basis, s.91W(2)(b) is satisfied. The IAA was correct to note this at [23] in its written decision.
The Third Element
Section 91W(2)(c) of the Act requires that the applicant not have a “reasonable explanation” for not having provided the documents. Here, the IAA accepted that it was plausible that the applicant lost his documentation during his voyage to Australia. However, the IAA did not accept that the applicant was unable to obtain other identity documentation and, critically, rejected his explanation for being unable to do so. This is the focus of s.91W(2)(c) – the reason “why” documents cannot be provided.
The Court raised with Counsel for the Minister the fact that the case law relevant to s.91W appears to relate only to circumstances where the applicant has provided bogus documents – as opposed to situations where an applicant has failed to provide documents. Mr Knowles, for the Minister, accepted that this was the case. On one view, there is some disparity between the provision of false documents and the mere failure to provide documents. One would be inclined to think that the former is perhaps more severe.
Nonetheless, the Court accepts Mr Knowles’ submission that the plain text of s.91W is clear: it extends to both the provision of bogus documents and a failure to provide documents. It applies in the same way to either circumstance. On that basis, while the case law as it stands concerns the application of s.91W in circumstances where an applicant has provided a bogus document, there is no reason these principles cannot be extended to apply to the facts of this case (wherein documents are simply not provided).
The Court, in its duty to the self-represented litigant (again, noting MZAIB) asked Mr Knowles for the Minister whether it was necessary for the IAA to consider the applicant’s substantive claims (i.e., where the applicant claims that an area is “unsafe” due to ongoing violence) when determining the “reasonableness” of an explanation as to why documents had not been provided (i.e., that the area was so unsafe such that retrieving documents would be unreasonable). The Court queried whether, to some extent, the applicant’s claims to fear harm may be tied to the reasonableness of his explanation as to why he could not get the requested document. For example, here the applicant stated that it would be dangerous for his brother to obtain documents and the Court queried whether this required the IAA to assess the security situation or violence of a particular area and, more so, whether an applicant’s claims for protection (i.e., whether they were of adverse interest) may well have affected his ability to provide identity documents.
In written submissions filed on 9 June 2020, the Minister argued as follows:
10… it would defeat the purpose of s 91W if a decision-maker was required to consider substantive protection claims in circumstances where s 91W is satisfied. This is because questions of identity, nationality and citizenship are so fundamental to the assessment of substantive protection claims that a refusal or failure to provide the requested documents, or the provision of bogus documents, affects the assessment of the substantive protection claims. In at least some cases, conduct engaging s 91W would make assessment of the claims impossible.
11. There may be some cases where a visa applicant’s explanation for his or her failure or refusal to produce documents overlaps with the substantive protection claims. In such a case, there is no need for the decision-maker to consider the substantive protection claims per se. However, it may be accepted that the decision-maker must consider any explanation proffered for the failure or refusal to provide information. To the extent the underlying factual basis for the explanation overlaps with the underlying facts giving rise to the substantive protection claims, that factual basis must be considered as part of the assessment of the explanation.
It appears that the Minister agrees that on some occasions the factual basis of an applicant’s explanation will overlap with their substantive claims and, as such, an assessment of the claims may be required as part of the assessment of the explanation.
The Minister argues, however, that this is not the case here because there was no overlap between the applicant’s substantive claims and his explanation as to why he could not get the relevant identity documents. Relevantly, it is said that there was no need for the IAA to consider the factual basis of the applicant’s claims as these did not form a part of the applicant’s explanation for not providing the documents. The Minister submits that the applicant’s explanation did not indicate that the security situation in Afghanistan was one of the reasons why he could not produce any identity documents.
What is required then is a consideration of the explanation actually given by the applicant here.
The only apparent explanation offered by the applicant was provided during the interview with the delegate. This was recorded as follows (without alteration) (CB 89):
The applicnat was asked what he had done to get a copy of his lost documents particularly his school reports/employment and that he should be able to obtain. He advised he had called his brothers to get them. He advised he has not written to the school for coplies of his qualifications. He has to be in Afghanistan himself, his brothrers are unable to get them for him. There have been a lot of changes in Afghanistan. When requested to ask his mother whether she has his fathers taskera he advised the documents are held by the men in the family. When asked whether his eldest brother had it he advised he didn’t know.
The applicnat was advised that he needed to provide documentary evidence that he has attempted to obtain documents otherwise his visa would be refused. He was provided with the Department’s address and an email address to provide copies of the letters he sends when making these requests. At the end of the interview it was again stressed to the applicant that he needed to do this within seven days however at the time of making this decision there had been no further contact with the applicmat. Therefore the grant of the protection visa is prevented by s.91W of the Act until the applicant complies with the request.
The IAA (having listened to the audio) referred to the applicant’s explanation as follows:
14. The delegate asked him what efforts he had made to get further copies of his identity documentation, especially his school records. The applicant initially indicated he had written to the school. He later said he had tried the school by telephone and through his brothers, but had been unable to obtain any documents. He said his brothers cannot help, and he would need to be there personally to get copies of the documents. The delegate put to him that if he wrote to the school and asked them to send him a copy of his records then they would forward them to him. The applicant said it was six or seven years ago when he finished school, and many things had happened in Afghanistan.
…
16. The delegate reiterated this request at the end of the visa interview. The applicant responded by explaining that Afghanistan is not developed, and the country does not keep records. He said it would be too difficult to obtain the records. He indicated that he could not write to the schools as the post (mail) only goes to Kabul, not on to Ghazni. He also indicated it may be dangerous for his brother to obtain a copy of his taskera.
17. The delegate asked him to ask his brothers to obtain documentation from his school, such as a letter confirming he attended. The applicant said he had previously had all the records and he did not know he would lose them. The delegate indicated she would consider whether his responses were a reasonable explanation. The applicant said many people provide bogus documents, but he did not wish to do so.
On the basis of the above (which is all that the Court has to rely upon), the applicant’s explanation for why he could not obtain identity documents was that:
a)he determined (after speaking to his brothers and to others via the telephone) that he could only obtain the school records himself (i.e., he had to be in Afghanistan to collect them) and he could not get his brothers to collect them;
b)the applicant could not write a letter to the school (although he indicated that he had) as the post only goes to Kabul and he would need the letter to be sent to Ghazni;
c)Afghanistan is a developing country that does not keep records. He attended school six or seven years ago and there had been a lot of changes in Afghanistan; and
d)it may be dangerous for his brother to obtain a copy of one particular document.
The IAA ultimately found as follows:
24. I have considered his explanations for why he has been unable to do so. As above, I consider it plausible he lost his original documents. However, given his level of education and the range of different identity documentation he claims to have previously held, I consider it is well within the applicant’s control to obtain some evidence of his identity. In this regard, I give weight to the fact that he has family members in his claimed home area of Ghazni who could assist him in obtaining copies of his identity documentation, other supporting documentation, or provide copies of their own documentation that might corroborate his identity. I found his evidence about the steps he claims to have taken to obtain documentation from his schools was vague and shifting. I was not persuaded by and do not accept his evidence that he had previously written to his schools, called the schools, or tried to obtain these documents through his brothers.
25. It is not implausible that there might be risks or barriers to obtaining some forms of documentation – particularly if it required his family members to travel to less secure areas. However, I do not accept this would preclude the possibility of the applicant providing any form of identification from Afghanistan, or evidence of his and his family’s attempts to obtain such documentation. The applicant has been provided with a number of opportunities to provide identity documentation, or evidence that he has made efforts to obtain documentation, yet he has failed to do so. I consider this particularly concerning given the emphasis of the delegate during the visa interview, and his failure to provide any documentation or other evidence following that interview, or any further explanation for why he has been unable to do so. I am not satisfied the applicant has a reasonable explanation for refusing or failing to comply with the request made under s.91W.
In light of the applicant’s passing reference to the “danger” that his brother “may” face in obtaining the taskera, the Court finds that the IAA’s reasons at [25] sufficiently address the applicant’s concern. The IAA was not required to go into further detail (and properly assess the security situation) because:
a)the applicant made no more than a passing reference to there being danger for his brother to obtain a “taskera”. The IAA (and the delegate) was not specifically seeking a taskera. Rather, some form of identity documentation (belonging to either the applicant or a member of his family) was sufficient; and
b)at no time in the applicant’s claims for protection did he expressly raise a claim based on the general security situation in Afghanistan. All of his claims were centred upon his being harmed by the Taliban because of his imputed political views.
Hence, without any specific detail as to why “danger” arose, it was unnecessary for the IAA to go any further than it did in this case. It was also unnecessary for the IAA to consider the security situation in Afghanistan and how it could impact on the ability to obtain documents because the overall factual basis advanced (i.e., that the applicant had actually attempted to obtain the documents) was rejected.
The Court’s findings in this regard are fact specific. Other cases might be determined differently. For example, an applicant might claim that it would be dangerous to obtain documents because there would be a requirement to travel to a dangerous location or because the government authorities may persecute the person seeking the document. In those circumstances, more would be required from the IAA and, in some circumstances, engagement with the substantive claims will be necessary. However, that is not the case here. The applicant’s reference to it being “dangerous” was, in the materials before the Court, a generalised assertion which the IAA addressed in a generalised manner. No error arises in this regard.
Having addressed this first issue (of whether the IAA was required to consider the applicant’s substantive claims in the context of whether the explanation for nor providing identity documents was reasonable) what remains is an analysis of whether the IAA’s finding that the explanation provided was not “reasonable” was “soundly based”.
What constitutes a “reasonable explanation” has been thoroughly canvassed by the Full Court in AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163 at [91]-[92] (“AIB16”), wherein the Full Court states:
91. …the delegate must be satisfied the explanation is “reasonable”. The word reasonable connotes an explanation that is not fanciful, that is believable in the circumstances and which has sufficient rational connection to how and why the bogus document was provided. Reasonable minds between delegates may differ on this…
92. It is also obvious that for an explanation to be reasonable, it must first be accepted as genuine. Not all genuine explanations will be reasonable, but all reasonable explanations will be genuine
Here, the IAA found the explanation the applicant had provided about the attempts he made to obtain the relevant documents to be “vague and shifting”. The critical part of the IAA’s consideration is its finding that it did not accept the applicant’s evidence that he had previously written to the schools, called the schools, or tried to obtain the documents from his brother.
While this Court might have assessed that evidence differently, that is not the test on judicial review. Here, it was open for the IAA to find that the applicant did not attempt or make an effort to obtain any identity documents. The IAA specifically referred to the “vague and shifting” evidence of the applicant, the lack of corroborative evidence as to his attempts to obtain the identity documents and the number of opportunities the applicant had been provided to do so. These findings provided a logical and intelligible basis for the IAA’s finding that the applicant had not made attempts as he had claimed.
Overall, the reason (i.e., the explanation) the applicant provided for being unable to provide the identity documents was not accepted. In effect, the IAA found that the applicant had not attempted to have the identity documents provided. Therefore, any barriers his family may have faced (which the IAA accepted may be plausible) did not need to be considered as the basis on which they were put (i.e., that the applicant had actually asked for his brothers or his family to obtain the documents) was rejected.
Put simply, the applicant’s explanation was not found to be genuine and, therefore, was not reasonable: AIB16 at [92].
Section 91W(2)(c), accordingly, has been satisfied here and the IAA did not err in finding that there was no reasonable explanation provided by the applicant.
The Fourth Element
The final element concerns whether the applicant, in effect, was on notice that his visa could not be granted if he failed to comply with the request to produce the documents.
Here:
a)the letter sent to the applicant by the Minister’s Department on 18 April 2017 explains the operation of s.91W and states that the applicant will be prevented by s.91W of the Act to obtain the visa if he does not comply (CB 73-74);
b)at the interview with the delegate, the applicant was again warned that he needed to provide the documents or provide evidence that he had made attempts to obtain the documents – otherwise, the visa would be refused (CB 89 and CB 115 at [19]); and
c)the delegate’s decision itself expressly stated that the applicant could not be granted the visa as he had not provided the identity documents as requested under s.91W. At a minimum, this is a “warning” that a failure to provide the documents may result in the refusal of the visa.
The IAA was satisfied that s.91W(2)(d) had been met on the basis of the above. That finding was open to it and entirely reasonable in the circumstances of this case.
There was no error in the IAA’s finding that the visa could not be granted because of the operation of s.91W. The IAA satisfied itself of each of the requisite elements and did so in a logical and reasonable manner based on a correct understanding of the relevant legal principles.
While the applicant (and, indeed, the Court) might disagree with the IAA’s findings, the IAA’s decision does not contain any jurisdictional error.
The Court wishes to note that the issue that arose during this hearing regarding the scope of s.91W(2)(c) of the Act is one that has some significant implications should a decision-maker dispose of an application using this avenue. The decision-maker is perfectly entitled to do so. However, s.91W does not exist in isolation from an applicant’s claims for protection. An applicant’s claims for protection may very well inform, and give context, to the explanation and, for that reason, decision-makers should tread carefully before exercising their powers under s.91W.
In this case, however, the applicant’s explanation did not require the IAA to engage with the applicant’s substantive claims in support of the visa. There was no error in the IAA’s approach.
The judicial review application is, accordingly, dismissed.
Conclusion
The applicant’s application for judicial review has failed to identify any jurisdictional error. The Court is otherwise satisfied that the IAA’s decision contains no jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 28 July 2020
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