GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 9

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9

File number(s): PEG 272 of 2020

Judgment of: JUDGE KENDALL

Date of judgment: 18 January 2022

Catchwords: MIGRATION – decision of the Immigration Assessment Authority – whether the IAA erred in its assessment of country information – whether the IAA failed to consider evidence – whether the IAA erred in the manner described in AUS17 and whether that error was material – whether the decision in EGZ17 in relation to the current situation in Afghanistan is “plainly wrong” – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 46A, 48B, 57, 91W, 195A, 417, 473CB, 473DA, 473DD &
Division 3 of Part 7AA

Cases cited:
AAL19 v Minister for Home Affairs (2020) 277 FCR 393

Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 217 CLR 397

AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446

BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81

Chandra v Webber (2010) 270 ALR 393

Changshu Longte Grinding Ball Co Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 1) [2017] FCA 1114

CMO17 v Minister for Immigration and Border Protection [2018] FCAFC 227

Craig v State of South Australia (1995) 184 CLR 163

CRG16 v Minister for Home Affairs [2019] FCA 374

DAK16 v Minister for Immigration and Border Protection [2019] FCA 68

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

DQA17 v Minister for Immigration & Anor [2018] FCCA 2418

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135

EAT17 v Minister for Immigration & Anor [2018] FCCA 3036

Egan v Minister for Home Affairs [2021] FCAFC 85

EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

Mentink v Minister for Justice [2016] FCA 432

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li [2013] HCA 18

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10

Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500

Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118

Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Ruddock v Taylor (2005) 222 CLR 612

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Valentine v Eid (1992) 27 NSWLR 615

Division: Division 2 General Federal Law

Number of paragraphs: 151

Date of last submission/s: 17 September 2021

Date of hearing: 6 September 2021

Place: Perth

Applicant: In person

Counsel for the First Respondent: Mr B Kaplan

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore

Table of Corrections

25 January 2022 In paragraph 45, the name referenced in line 6 of the paragraph extracted from the IAA’s decision has been redacted pursuant to s 91X of the Migration Act 1958 (Cth)
ORDERS

PEG 272 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GLX18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

18 JANUARY 2022

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(AS CORRECTED)
JUDGE KENDALL:
BACKGROUND

The applicant is a Shia Hazara (Court Book (“CB”) 5). He claims to be a citizen of Afghanistan (CB 3). He arrived in Australia as an unauthorised maritime arrival in April 2013 (CB 275).
On 18 April 2016, the first respondent (the “Minister”) lifted the bar under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 21-22).
On 15 May 2017, the applicant applied for the visa (CB 29-74). In the statement provided with his visa application, the applicant set out his claims for protection and migration history as follows (CB 69-74):
(a)the applicant was born in Josa, in the Jaghori District, Ghazni Province in Afghanistan (at [1]);
(b)his father and family fled Afghanistan for Quetta, Pakistan when he was eight or nine years of age (noting that the applicant indicated some confusion about his year of birth on the basis of information from his father about the Afghani Presidency at the time of the family’s departure) (at [2]);
(c)his father’s reason for fleeing Afghanistan related to conflict with the local “Mullahs” with whom his father was “labelled an unbeliever” and for which he could have been killed (at [3]);
(d)his family started a “new life in Pakistan” where his father became a property agent but his family had little money and not enough to allow him to go to school in Quetta (at [4]);
(e)when he was in Afghanistan, he went school at the Mosque for a few months of the year when he was not working on his father’s land. The head of the village Mosque was the primary teach and he was one of the Mullahs who later turned against his father (at [5]);
(f)he didn’t go to school in Quetta but did receive some informal home schooling from friends and neighbours. This, together with his previous attendance at the Mosque school in Afghanistan, resulted in the applicant having a basic ability to read and write in Dari (at [6]);
(g)he was supported for a number of years by his father in Quetta when he was not working or in school (at [7]). He started work at 17 or 18 years of age as a labourer in construction (from 1987 or 1988 to 1990) (at [8]). He then worked as a “master tailor” making men’s clothes for three to four years (until 1993 or 1994) (at [9]);
(h)he married his wife in 1995 and they had four daughters and one son. He separated from his wife (at her request) in about July 2015 and they are “informally divorced”. He has had no contact with his family since that time (at [10]);
(i)he joined a shoe making shop in Mizzan Chowk (at [11]) working for a man who was Shia but not Hazara. The applicant worked for him for about two years (until 1995 or 1996) and was known as a shoe maker (at [12]);
(j)his father helped him open his own shoe shop, where he made and sold wholesale shoes. He ran the business for five or six years until 2001 but continued to be supported by his father (at [13]);
(k)he and his father opened a retail shoe shop in Tabat (from 2001 to 2007 or 2008) (although the applicant was not sure of those dates) (at [14]). He and his father would take turns running the shop in Tabat and he would visit his family when his father relieved him. His father rented a room in a house in Tabat for them to stay in when running the shop (at [16]);
(l)in about 2007 the violence against Hazaras in Baluchistan and in Turbat increased. There was verbal abuse and threats of violence if they did not leave. They initially ignored the threats but received two separate letters containing death threats (at [19]);
(m)a Hazara who owned a juice shop next to their shoe shop in Turbat was attacked at injured in his shop in about 2007 or 2008. The applicant felt powerless to help and was frightened. His dad closed the shop and they left Tabat for good (at [20]). They also closed their shoe shop in Quetta at that time (at [21]);
(n)he was unemployed for about three years. His father supported him, his wife and his children and they lived with his father during that time (at [22]). His father eventually told him he needed to start earning his own money as he could no longer support him. The applicant took over an existing grocery store and continued that business under the previous owner’s name until he came to Australia in early 2013 (at [23]). The shop was within the Hazara enclave but he had to regularly leave the enclave to obtain goods for sale. He frequented a market at Masjid Road which was a dangerous area where several Hazaras were killed and where those with shops in the market were driven out (at [24]);
(o)when the applicant started the grocery business, he found a nearby house for himself and his family and they moved out of his father’s house. His father sold his house after the applicant left Quetta but before he arrived in Australia in 2013 (at [25]);
(p)he no longer has contact with his wife and children and has not done so since July 2015. The applicant was not able to work and his Centrelink money was only enough to support himself. The applicant’s wife said if he could not support his family he should “let her go”. They are not legally divorced as that is done through the Mullah but they are separated and he has no contact with his family (at [26]). He has also not spoken to his parents or siblings and has “been disowned” (at [27]);
(q)the applicant understands from his migration agent that, as he has no right of residence in Pakistan, his refugee claims arise out of his fear for persecution should he be required to return to Afghanistan (at [28]). He has not returned to Afghanistan since his family fled (when he was a child). He believes his father’s land would have been taken over by his enemies upon his departure and his father had only one brother who was in Iran when his father left. His uncle returned shortly after but died within two months (noting that his father suspected that he had been killed) and there are no other surviving members of his family in Afghanistan (at [29]). The applicant has no family or friends in Kabul or anywhere else in Afghanistan (at [30]);
(r)if the applicant is returned to Afghanistan and stays in Kabul instead of Jaghori, he will be questioned as a stranger arriving from abroad and will be questioned about his father’s name and his family background. The applicant believes that eventually word will get back to his father’s home village and those who stole his father’s land will think he has returned to “recover the land”. The applicant thinks he will be considered a threat to be “eliminated before [he] could make a claim for the land” and will “likely suffer the same fate” as his uncle (at [31]);
(s)he could not live outside of Hazara areas as he is “easily recognisable as a Hazara” and would be at risk of being killed or seriously harmed by the Taliban or other terrorist groups (at [32]); and
(t)Afghanistan is generally a dangerous place for Hazaras and it would be more dangerous for the applicant as a returnee. Moving between Kabul and his place of origin (the District of Jaghori) would be very dangerous as the areas are controlled by the Taliban, ISIS and other terrorist groups who target Hazaras. As a stranger to the area, the people living there would not know him (at [33]).
On 23 May 2017, the then Department of Immigration and Border Protection (the “Department”) invited the applicant to provide documentary evidence of his identity, nationality or citizenship pursuant to s 91W(1) of the Act (CB 77-79).
On 1 December 2017, the Department invited the applicant to attend an interview which was scheduled to take place on 15 December 2017 (CB 80-81).
The applicant attended the interview on 15 December 2017 (CB 277).
On 19 January 2018, the applicant (through his representative), provided the Department with submissions and supporting country information (CB 82-261). Those submissions responded to concerns raised at the interview in relation to whether the applicant was being truthful or whether the applicant was a citizen of Pakistan “masquerading as an Afghan citizen” (CB 85). The submissions also outlined the applicant’s protection claims and referenced various country reports and information relating to the situation in Afghanistan (CB 86-91).
On 1 June 2018, the Department invited the applicant to comment on information in accordance with s 57 of the Act (CB 262-264). The applicant was required to provide a response within 14 days from receipt of the invitation in relation to the following information:
In your Safe Haven Enterprise Visa (SHEV) application and subsequent interview you stated that the last contact with your wife and children, who were living in Quetta, Pakistan, was in July 2015. You claimed that you had informally divorced your wife and no longer had any contact with her or your children. You also stated that you had no family members residing in Australia.
Information before the Department indicates that your wife, five children and son-in-law are all residing in Australia and have previously been residing with you at the same address in Perth. Information before the Department indicates that a 'Death Certificate', purportedly referring to your death in Afghanistan in 2006, has been provided to the Department.
In addition, I note that Afghan taskeras purportedly relating to your wife and siblings, have previously been identified as being 'not registered' by the Afghan authorities. You have claimed that you have lived illegally in Pakistan since approximately 1978/1979 and have not returned to Afghanistan since, however your children have stated that they were born in Afghanistan. You may wish to comment on the aforementioned information that is currently before the Department.
The aforementioned information and inconsistencies may lead me to make adverse findings regarding your credibility and find that you are not a citizen of Afghanistan as claimed. The above information may also persuade me to make a finding that you are a citizen of Pakistan. In the event that this finding is made, you are now invited now to put forward any reasons may have for not being able to return to Pakistan.
You are invited to comment on the above information.
On 18 June 2018, the applicant’s representative provided a response to the natural justice letter explaining that the applicant was never married and that the death certificate they referred to was that of his cousin of the same name (CB 267). Further, the applicant’s representative stated that the woman the Department referred to was the widow of his cousin with whom he had a “long standing secret affair”.
On 22 June 2018, the applicant’s representative provided a statement signed by the applicant which outlined the “affair with the applicant’s cousin’s wife” (CB 270-271).
On 25 September 2018, a delegate of the Minister refused to grant the applicant the visa (CB 275-307). The delegate found that the applicant was not a citizen of Afghanistan. Rather, he was a citizen of Pakistan. As such, Pakistan was the applicant’s receiving country (CB 289). The delegate accepted that the applicant faced a real chance of being killed in his home area of Quetta but was not satisfied that he would face a real chance of serious harm in areas of Pakistan outside of Quetta – such as Lahore, Karachi or Islamabad.
The applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) on 26 September 2018 (CB 308-309).
On 9 October 2018, the applicant’s representative provided the IAA with new information, being a scanned copy of the applicant’s deceased father’s Taskera (CB 310-312).
On 30 November 2018, the IAA affirmed the delegate’s decision (the “IAA’s first decision”) (CB 316-333).
On 10 July 2020, Judge Jarrett of the then Federal Circuit Court of Australia made orders quashing the IAA’s first decision and remitting the matter to the IAA for reconsideration (CB 334).
On 21 July 2020, the IAA confirmed that the applicant’s case would be reconsidered (CB 337-343).
On 4 August 2020, the applicant’s representative provided the IAA with new information comprising of submissions, a table of documents, identity documents and country information and reports (CB 353-1353).
On 18 August 2020, the IAA affirmed the delegate’s decision (the “IAA’s second decision”) (CB 1357-1377).
On 21 September 2020, the applicant applied to this Court for judicial review of the IAA’s second decision.
The applicant’s application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA fell into jurisdictional error.
THE IAA’S SECOND DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appeared before the Court without legal representation and had difficulty articulating his concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.

The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section relevantly provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
In this matter, the IAA’s second decision is 21 pages long and spans 66 paragraphs. It also includes four pages of relevant legislative provisions.
The IAA began by outlining the relevant procedural history of the matter [1]-[3].
The IAA confirmed that it had had regard to the material referred by the Secretary pursuant to s 473CB of the Act (at [4]). The IAA then noted that it had received submissions and new information in October 2018, comprising:
(a)an email from the applicant’s former representative reiterating the applicant’s claim to be a citizen of Afghanistan (and not of Pakistan) (at [5]);
(b)a copy of the applicant’s late father’s Taskera that the applicant had received from his sister in Quetta; and
(c)a translation of that Taskera (at [6]).
The IAA also noted that it had received written submissions from the applicant’s representative in August 2020 which consisted of argument on issues and which referred to claims and evidence before the delegate which was “part of the review material” (at [7]).
The IAA then outlined new information provided by the applicant’s representative, as follows (at [8]):
(a)a copy of the applicant’s Taskera issued on 23 November 2019 (with English translation);
(b)a copy of the applicant’s late father’s Tasker (with English translation, as provided in October 2018); and
(c)a copy of a “verification form” dated 4 December 2018 (with English translation) relating to the applicant’s Taskera application.
In relation to the new information, the IAA found that:
(a)it would consider the applicant’s Taskeras and that of his late father, together with the verification form relating to the applicant’s application for his Taskera (at [9]);
(b)it would consider the country information “in relation to the security situation for Shia Hazaras in Afghanistan” (at [10]); and
(c)it would not consider the reports “provided to support the applicant’s claim that he is a national of Afghanistan (and not Pakistan)” as the IAA was not satisfied there were “exceptional circumstances” to justify considering the reports (at [11]).
The IAA then summarised the applicant’s protection claims, as follows (at [12]):
•He is a Shia Hazara male originally from Hotquol, in Jaghori District, Ghazni Province;
•At around the age of eight or nine years, he moved with his family moved to Quetta, Pakistan. The family moved due to conflict between the applicant’s father and local Mullahs;
•The applicant never returned to Afghanistan and in 2013 he departed Pakistan illegally and came to Australia;
•         If returned to Afghanistan, he fears he will be harmed or killed due to:
-         past events involving his father
-         his ethnicity
-         his religion
-         his profile as a returnee.
The IAA then outlined the legislative provisions regarding refugee assessment (at [13]) and well-founded fear of persecution (at [14]).
The IAA then discussed a core issue in this matter, as follows:
15.As noted above, a key issue for determination in this case is the applicant’s identity and nationality. Since his arrival in Australia in 2013 he has claimed that, although he purportedly lived most of his life in Pakistan, he is a national of Afghanistan. However, as will emerge, aspects of his evidence are highly problematic which, in my view, casts doubt on his credibility and his claimed background.
The IAA outlined then applicant’s evidence provided to the Department at his entry interviews in May and June 2013 as follows (at [16]):
•He is a Shia Hazara born in Josa village, Hotquol (Jaghori district, Ghazni, Afghanistan) on 25 March 1967;
• He is a citizen of Afghanistan;
•When he was around aged nine, his family moved to Pakistan because a war begun following the revolution. He has not returned to Afghanistan since;
•He married “Z” on 11 May 1990 and they have five children together. Z was to be contacted in the event of an emergency;
• He left Pakistan for Australia because it was unsafe for Hazaras;
•He departed Pakistan using a Pakistan passport issued nearly five years earlier in his name. Because it is difficult to get a passport he obtained it with the assistance of a dealer. He was told the document was an “original” and he “assumed it was genuine”;
•On the advice of a smuggler, he threw his identity documents into the sea during the journey to Australia.
The IAA then discussed a document the applicant had in his possession from the UNHCR which indicated that the applicant had applied for asylum in Indonesia prior to his arrival in Australia. That document stated that the applicant claimed he was born in Hotquol (Jaghori) on [omitted] 1967 (at [17]).
The IAA also noted that the applicant had signed a “Biographic Details Confirmation Form” in May 2013 declaring that he was born on [omitted] 1967 but had originally recorded an alternate date in 1967 which was then changed (at [18]).
The IAA then summarised the information provided by the applicant in the statement which accompanied his application for the visa, as follows (at [19]):
• He is a Shia Hazara born in Josa village;
•His previous evidence that he was born in 1967 was an estimate and he now believes he was born in ‘about 1970’. His father had previously told him that his family fled Afghanistan during the presidency of Nur Muhammad Taraki and his former representative advised him that Taraki was the Afghan president from April 1978 until September 1979. He believes that he was aged around eight or nine years when he went to Pakistan meaning he was born later than originally thought;
•His family left Afghanistan because of his father’s political opinion. His father supported Afghanistan’s central government following the communist party seizing power (in 1978). As a result, he was labelled an ‘unbeliever’ by local Mullahs - a serious allegation in rural conservative Afghanistan that could have led to him being killed;
• The applicant worked in various jobs in Pakistan between 1987 and 2013;
•His relationship with Z began on 11 May 1990. They married in about 1995 and have five children together;
•At Z’s request, they separated and the applicant ‘informally divorced’ her in July 2015. His wife and children continue to live in Pakistan but are no longer dependent on him. He has not spoken to his parents or siblings since the separation from his wife - they have disowned him. He has not had any contact with his parents, his siblings, his wife, or his children since 2015 and does not wish to have further contact with them;
•He departed Pakistan using a false Pakistan passport. He holds no identity documents for Afghanistan or Pakistan;
•He has no family residing in Australia.
The IAA noted that the applicant had been interviewed by a delegate of the Minister on 15 December 2017 and detailed the applicant’s oral evidence to the delegate as follows (at [20]):
•         He is a Shia Hazara born in Josa village on [omitted] 1967;
•His family left Jaghori for Pakistan because his father told people not to fight which led him into conflict with the Mullahs;
•         He is a national of Afghanistan and no other country;
•         He worked in various jobs in Pakistan until his departure in 2013;
•         In Pakistan, he lived with his wife and children in his parents’ house;
•He last had contact with Z, who remained living in Quetta, in July 2015. He and Z have five children together;
•He no longer has contact with any of his family, including his parents and siblings;
•         He has no family or relatives living in Australia;
•All Pakistani documents he and his family previously held, including a National Identity Card and passport, were obtained by paying money and are not recognised in Pakistan as lawful documents.
The IAA outlined concerns raised by the delegate with the applicant at the end of the SHEV interview relating to the applicant’s claim to be an Afghan national. Specifically, the delegate was concerned that, despite purportedly living and working in Pakistan for 35 years, the applicant was not able to provide any documentary evidence of “his life there or to show who he was”. The delegate was also concerned that the evidence provided relating to his lifestyle indicated that the applicant “was a Pakistan citizen, rather than an illegal migrant”. The applicant responded by stating that he would attempt to contact his father to obtain a copy of his Taskera and, following a discussion with his former representative, indicated that he would contact the Afghan Embassy in Canberra to attempt to obtain evidence of his claimed nationality (at [21]).
The IAA then detailed post-SHEV interview submissions provided by the applicant’s representative on 19 January 2018 (which reiterated the applicant’s claim that he was born in Afghanistan and that he was an Afghan national) and summarised those submissions as follows (at [22]):
•The applicant remembers he left Afghanistan when he was nine meaning he was likely born in around 1970;
•The applicant recalled leaving Afghanistan when Taraki was president, that his father remained loyal to the communist government, and that his family fled in around 1979 when his father was labelled a non-believer;
•In Pakistan, the applicant’s family obtained fake documents that enabled them to masquerade as citizens;
•The applicant has provided consistent and complete details of his country of origin, identity, his family.
The IAA indicated that, following the SHEV interview, the delegate sourced information from Departmental systems which appeared to contradict the applicant’s earlier claim to have lived in Pakistan since 1978/1979, that his wife and children lived in Pakistan, that he had no contact with them since 2015 and that he had no family in Australia (at [23]).
The IAA then summarised that information as follows:
24.Specifically, the information indicated that his eldest daughter was granted a visa to reside in Australia on the basis of her marriage to an Australian citizen in 2009. The applicant’s wife (named “NL”, not “Z”) and his other children were also granted Australian visas as dependent family members. As evidence of his wife’s dependency on his eldest daughter a copy of a death certificate purportedly evidencing the death of her husband ‘[redacted]’ in Ghazni in 2006 was submitted. According to the Afghan passports provided with the offshore application, his five children (born between 1991 and 2003) were all born in Ghazni. The information also indicated that the applicant’s wife and children arrived in Australia in 2014 and stayed with him at his address.
The IAA confirmed that the delegate had written to the applicant on 1 June 2018 inviting him to comment on that information (which would be the reason, or part of the reason, for refusing the applicant the visa) and in accordance with s 57 of the Act (at [25]).
The IAA confirmed that the applicant’s former representative had provided an interim response on 18 June 2018 which advised that “the situation was complicated” and that a statement from the applicant would be provided. The applicant’s former representative stated (at [26]):
•NL is the same person the applicant referred to as Z; however he has never been married to NL;
•         NL is the widow of his cousin, who shares the same name as the applicant;
•         the five children are the legal children of NL and his cousin;
•         the applicant has never lived with NL in Pakistan or in Australia;
•         the applicant and NL have had a long standing secret affair.
The IAA then outlined the details of a written declaration provided by an Australian permanent resident who declared that he had known the applicant in Afghanistan. That person recalled the applicant and his family leaving Afghanistan when he was approximately 10 years of age and also stated that he had visited the applicant in Quetta in 2006 and that the applicant was unmarried and living with his parents (at [27]).
The IAA then confirmed that the applicant had provided his own written response on 22 June 2018 which stated that the information provided by his former representative was correct. The IAA summarised that statement as follows (at [28]):
•when he arrived in Australia in 2013 he declared NL and her children as his family because he planned to bring them to Australia. However, he never discussed this with NL;
•after his arrival in Australia he spoke to NL occasionally but didn’t tell her that he had declared her as his wife. Nor did she tell him that she was coming to Australia;
•it was after NL and her children had arrived that he learned they were in Australia;
•his relationship with NL recommenced a few months after her arrival in Australia. The relationship has been kept secret from the children and the Afghan community in Australia;
•he told the Department (in his SHEV application) that he divorced his wife and left his children as he was unable to explain his earlier evidence;
• as far as he knows NL and her children are Afghani.
The IAA discussed email correspondence between the applicant’s former representative and the delegate regarding non-mandatory DNA testing which the applicant could undergo “to evidence that he [was] not the parent of the children” (at [29]).
The IAA considered aspects of the evidence provided by the applicant to be “highly problematic”, particularly regarding his “background and identity”, noting that whilst his claimed name, ethnicity and country of birth were consistent, “the remainder of his evidence was unconvincing” (at [30]).
The IAA discussed the discrepancies in the applicant’s date of birth and noted that the applicant maintained the same date of birth in parts one and two of his entry interview conducted two weeks apart but later, in his SHEV statement, he stated his earlier date of birth was an estimate and he believed he was born in about 1970. The IAA found it difficult to accept that the date of birth provided twice in his entry interview was an estimate given a precise day, month and year were provided. He also advised the delegate in his SHEV interview that he was born in 1967 and the “verification form” that the applicant completed in 2018 to obtain a copy of his Taskera noted that he was born in 1967 (although the Taskera issued in 2019 indicated that he was born in 1963) (at [31]).
The IAA continued:
32.In respect of his marital/family status, the applicant provided various explanations as to why he purportedly falsely declared NL as his wife and her children as his own. However, I have several concerns. Firstly, I note he initially claimed in his entry interview, without hesitation, that he married on 11 May 1990. He also nominated his wife Z (also known as NL) as the contact in the event of an emergency, which I do not find particularly supportive of his later claim that he never married NL and/or that she knew nothing of his plan to bring her and the children to Australia. Secondly, he later claimed that NL was in fact married to his late cousin who shares, by coincidence, the exact name as him. He claims that the photograph of the deceased on the death certificate is not him. The death certificate does not include a date of birth for the deceased; however, I note that according to the eldest child’s offshore application her father was born in 1967. Thirdly, while the applicant claimed it was only after NL and the children had arrived that he learned they were in Australia I note that the eldest child declared on her incoming passenger card in early 2014 that her intended address in Australia was the same address where the applicant resided since August 2013. Fourthly, even accepting the applicant’s relationship to NL and the children is as later claimed, I find it difficult to accept his evidence that while he occasionally spoke to NL in 2013 she did not mention to him that she was intending to come to Australia. Moreover, I note that on 28 December 2013 the eldest child’s sponsor in Australia notified the Department, via his representative, that he now lived at the same address as the applicant. Given the evidence discussed, it is difficult to accept the applicant’s evidence as credible and it strongly suggests that he personally knew and was living with the eldest child’s husband prior to NL and the children’s arrival in Australia. This also strongly suggests he was aware that NL and the children were coming to Australia.
33.The delegate did not accept the applicant’s later evidence about his family and was of the view that NL was his wife and that the children were his. In coming to this conclusion he gave weight to the applicant’s consistent evidence up until that point that he was married with five children, and that he lived with those people after they arrived in Australia. The delegate considered the applicant’s evidence about the purported cousin having the same name and year of birth as him as not plausible. He also considered that the applicant attempted to change his year of birth in his SHEV statement so he would not be connected to the death certificate. He was also of the view that NL and her children claimed in their offshore application that the applicant was deceased in order to satisfy the visa criteria so that they could join the applicant in Australia. He also considered the applicant’s explanation as to why he initially declared NL and the children as his immediate family to be at odds with his other evidence that they had been discrete because the ‘affair’ was considered a serious sin under religious and cultural norms. The delegate also notes that the applicant referred to the birth of two of the children in his SHEV statement as a reference point for the opening of a business. He also draws attention to the applicant’s problematic evidence about whether he knew that NL and the children were coming to Australia.

The IAA also noted that the delegate did not accept that the applicant was an Afghan national and found that he was a national of Pakistan by birth (at [34]).
The IAA disagreed, finding instead as follows:
35.Although I share many of the delegate concerns about the applicant’s credibility, having considered his evidence in its entirety, I cannot conclude with any certainty that he is a national of Pakistan. I give weight to his consistent evidence since his arrival in Indonesia that he was born in Afghanistan. I also give some weight to the evidence to the IAA which suggests that the Afghan authorities also recognise the applicant as a national of that country. While I do not consider it necessary to reach a concluded view on the applicant’s true relationship to NL and the five children, I am satisfied he knows them well and also give some weight to the evidence which suggests they also originate from Afghanistan. On the evidence, I am satisfied the applicant was in born Afghanistan and I find he is a national of that country. There is no credible evidence before me to suggest the applicant is a national of Pakistan, or that the Pakistani government would consider him so. The applicant’s claim that he and his family were able to reside in Pakistan using documents fraudulently obtained is supported by the country information before me and as noted by the representative in the IAA submission the applicant has been consistent about this aspect of his evidence since his entry interview. I find Afghanistan is the receiving country.
The IAA then detailed its’ “significant concerns” about the applicant’s evidence surrounding the circumstances which led to his family leaving Afghanistan for Pakistan, noting that the changes in dates provided for their departure after his former representative informed him that Taraki was in power from April 1978 to September 1979. The IAA also noted that the applicant, in his entry interview, had stated that his family had left Afghanistan due to the revolution and war but did not mention his father’s purported difficulties resulting from his political views. The IAA also noted discrepancies regarding the claimed death of his uncle. The applicant had indicated that he suspected he was “killed” but, in his SHEV interview, he had said that “all of his uncles died of natural causes” (at [36]).
The IAA noted that the applicant’s evidence about his age when he left Afghanistan had remained consistent – “between eight and nine years old” (at [37]).
The IAA considered the declaration provided by the applicant’s friend (who claimed to have been 10 years old when the applicant left Afghanistan) but did not find it particularly helpful. The IAA gave that aspect of his evidence little weight on the basis that, though the applicant’s friend estimated he was born in 1972, he might be wrong about how old he is (at [38]).
The IAA also discussed the applicant’s date of birth and noted that the applicant had remained broadly consistent about being born in 1967. The IAA pointed out that the only anomaly was evident in the applicant’s SHEV statement in which he had referred to an alternate year of birth (ie, 1970). The IAA considered that the change of year was likely an attempt to support his claim that his family left Afghanistan when he was approximately nine and in connection with political events in the country at that time (at [39]).
The IAA then found as follows:
40.Having regard to the above, I prefer the applicant’s broadly consistent evidence that he was born in 1967, likely on [omitted] 1967 as initially and repeatedly claimed when he arrived in Australia, and that he left Afghanistan by the age of nine years. It follows that I am not satisfied the applicant’s father came to the adverse attention of local Mullahs due to his support for Taraki who, according to country information before me, was in power from April 1978 until September 1979. I am not satisfied the applicant and his family left Afghanistan in late 1978 or beyond. Even if I am wrong about that and the applicant and his family did not leave Afghanistan until after Taraki came into power, I would not be satisfied that the father came to the adverse attention of Mullahs or that the family land was taken. Firstly, as noted above, the applicant made no mention in the entry interview of his father’s purported difficulties with local Mullahs due to his political views despite later claiming that his father told him of these issues as a teenager. Secondly, he claimed in his SHEV statement that he believed his father’s land, which he said was abandoned when they left the country, would have been taken by ‘his enemies’. In the SHEV interview, he said his father had an argument with the religious clergy, and that their land was abandoned but he did not know what happened to it. However, according to his declaration, MHZ indicated that as recently as 2006 it ‘was well known’ that the applicant’s family continued to own a house and land in Josa. Overall, I do not consider the applicant a credible witness and in particular found his evidence about events in Afghanistan unconvincing. I am not satisfied his father’s/family’s land was abandoned or that it is being occupied by ‘enemies’. Nor am I satisfied his uncle was killed in Afghanistan.
41.For the purposes of this application I find the applicant’s home area is Hotquol in the district of Jaghori, where he lived prior to moving to Pakistan as a child. He has not lived in any other part of Afghanistan and has consistently claimed to not have any family in any other part of the country. He has also consistently expressed his fear in terms of what would happen to him if he returned to Hotquol/Jaghori. In submissions to the IAA (and consistent with the former representative’s post-SHEV interview submission) the applicant’s representative referred to Jaghori as the applicant’s ‘home region’ and referred to country information about the security situation in that part of Afghanistan. Having regard to the evidence, I am satisfied that if returned to Afghanistan this is the area to which the applicant would return.
In relation to the applicant’s protection claims, the IAA found as follows:
42.In his SHEV statement, the applicant stated that if returned to Afghanistan he would face harm from those who now occupy his father’s land. In the SHEV interview, he said he feared harm from those who were in conflict with his father and that he would be accused of being a communist or an infidel. However, as above, I have not accepted the applicant’s claims about his father or that his family’s land is being occupied. I am not satisfied the applicant faces a real chance of harm in Afghanistan in connection with a land dispute or past events in his home region now, or in the foreseeable future.
43.The applicant also claimed in his SHEV statement that he feared harm as a Hazara. He would be at constant risk of being harmed or killed by the Taliban, other terrorist groups, or their supporters. He may be viewed as a spy. He also stated that travel between Jaghori and Kabul is dangerous for Hazaras. In the post-SHEV interview submission, the applicant’s former representative referred to attacks on Shias, particularly in Kabul, and stated that the applicant faced harm on account of his Shia faith. I accept the applicant’s consistent evidence that he is a Shia Hazara.
The IAA considered country information relating to Hazaras and Shia Muslims in and around Jaghori and other parts of the country (at [44]-[49]) and ultimately concluded as follows:
50.Although the applicant is a Shia Hazara, when having regard to his lack of other profile or proximity connected to those in government, international community or other high profile group or groups, and the nature and extent of the attacks perpetrated in Jaghori and neighbouring districts in the recent past, the country information relating to the presence and reach of insurgent groups in Jaghori, the increased security presence in the district, that Hazaras form a significant majority in Jaghori, and given that I do not accept that the applicant is a person of adverse interest to insurgent or terrorist groups, I am not satisfied that there is a real chance he will suffer harm in Jaghori from such a group (or their supporters) for reason of his religion, his ethnicity, or as a Shia Hazara. I find the applicant does not face a real chance of any harm in Jaghori for these reasons now, or in the reasonably foreseeable future. Nor am I satisfied he faces a real chance of being imputed as a spy or a person associated with the government or international community due to his ethnicity, or any other reason.
The IAA then considered the applicant’s claim that it “was particularly dangerous for him in Afghanistan as a ‘returnee’” and noted that the delegate had considered whether the applicant faced a real chance of harm as a “failed asylum seeker from a western country” (at [51]). The IAA also outlined the country information regarding returnees from western countries and found that there was no information before it to suggest that persons with profiles like the applicant would face harm on return on the basis of having resided in Australia (at [52]).
The IAA found as follows:
53.On the evidence before me, I am not satisfied that returnees like the applicant, who have lived in a western country like Australia for several years and have sought asylum, are targeted by the Taliban or other insurgent groups due to time spent in Australia, due to a pro-western opinion, or as returnee asylum seekers, or any combination of these factors. I am not satisfied the applicant faces a real chance of harm arising from his time spent in a western country or his asylum application now, or in the foreseeable future.
The IAA then discussed the applicant’s claim in his SHEV statement regarding travel between Jaghori and Kabul being dangerous for Hazaras. The IAA accepted that the applicant would be returned to Kabul initially in transit to Jaghori and that he may be required to travel by road to Jaghori after arriving at the airport in Kabul (at [54]).
The IAA discussed country information regarding travel by road in Afghanistan and (at [55]) and considered that the prospects of the applicant being targeted on roads during the short transit through Wardak to Ghazni were remote. The IAA determined that there was no credible information before it to indicate that Hazaras were being targeted on the roads between Kabul and the district of Jaghori (at [56]).
The IAA accepted that the applicant might “be required to transit Kabul airport” on his return to Afghanistan and took into account information relating to Kabul and other parts of Afghanistan. The IAA was not satisfied that they were indicative of a threat of harm to the applicant reaching Jaghori as the transit time would be brief and government and security forces maintained effective control in Kabul. Further, the applicant would only be required to make the journey by road once and the chance the applicant would be involved in an incident because of his ethnic or religious profile or as a failed asylum seeker (or any combination of those factors) was remote. On that basis, the IAA was not satisfied that the applicant would face a real chance of harm accessing his home area (at [57]).
In relation to generalised violence, the IAA stated:
58.The delegate considered whether the applicant faced harm from generalised violence. Country information before me indicates that the population in Afghanistan is exposed to generalised and indiscriminate violence relating to conflict in the country. While I have accepted there have been security incidents in late 2018 in and around the applicant’s home area, which included civilian casualties, I place weight on country information that at the end of November 2018 the Taliban were pushed out of those areas, the implementation of improved security measures that followed, the DFAT assessment that security situation in Hazarajat has been considerably better than in most other part of Afghanistan in recent years, and UNAMA statistics which indicate that in 2019 there had been a decrease in overall civilian casualties as compared to 2018, and is the lowest since 2013.24 Overall, I find the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote. I am also satisfied that any harm the applicant may possibly face in relation to generalised violence would also not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the country overall. Accordingly, s.5J(1)(a) and 5J(4)(a) of the Act would also not be satisfied.
The IAA concluded that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act (at [59]), did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet s 36(2)(a) of the Act (at [60]).
The IAA then outlined the complementary protection assessment criteria (at [61]), the legislative provisions set out in s 36(2A) of the Act relating to real risk of “significant harm” (at [62]) and the related definitions outlined in s 5(1) of the Act (at [63]).
The IAA found that the applicant would not face a real chance of any harm or a real risk of significant harm in Afghanistan (at [64]-[65]).
The IAA was not satisfied that the applicant met s 36(2)(aa) of the Act (at [66]).
The IAA affirmed the decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 21 September 2020 contains two grounds of review as follows:
1.The IAA did not place sufficient weight on the continuing persecution of Hazara in Afghanistan.
2.The IAA did not consider all the evidence of persecution of Hazara in Afghanistan.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were provided.
The materials before the Court thus include the application for judicial review and supporting affidavit filed on 21 September 2020, a Court Book numbering 1377 pages (marked as Exhibit 1), written submissions filed by the Minister on 23 August 2021 and further written submissions filed by the Minister on 17 September 2021.
At the hearing of this matter on 6 September 2021, the applicant appeared before this Court without legal representation. He was assisted by a Hazaragi interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the written submissions (filed by the Minister on 23 August 2021).
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain the matters that are said to give rise to an appeal (or application for review), the Court gave the applicant an opportunity to explain what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that it needed to determine whether the IAA had fallen into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that 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 (2005) 228 CLR 294 at [207]-[208];
(e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); 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] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he seeks. Rather, the Court can only undertake an analysis of whether the IAA made any material error in coming to the conclusion that it did.
Against this background, the applicant stated that he thought there were two “issues” which ultimately resulted in his visa refusal. The first issue, in the applicant’s view, was that he could not produce a copy of his Taskera and, by the time he was able to obtain a copy, it was “too late”. The second issue the applicant raised related to his inability to provide accurate details about his family members and their locations.
Unfortunately, both of these “issues” relate to the factual background of the matter and do not identify any jurisdictional error on the part of the IAA. At best, they seek merits review of the IAA’s decision.
In the circumstances, the Court is left to assess the applicant’s grounds of review as presented (without particulars or further assistance from the applicant). However, in its duty to assist self-represented applicants whenever possible, the Court has addressed the applicant’s grounds as articulated as broadly as possible to ensure that, to the extent that possible legal error is identified, it can be scrutinised. The Court has also considered for itself whether any error arises in the IAA’s decision: MZAIB.
CONSIDERATION
Both grounds of review raised by the applicant relate to evidence regarding the persecution of Hazaras in Afghanistan.
Ground 1
Ground 1 provides:
1.The IAA did not place sufficient weight on the continuing persecution of Hazara in Afghanistan.
The Court cannot identify any error of the sort the applicant seeks to identify in ground 1.
The IAA outlined the applicant’s fear of harm as a Hazara (at [43]) and went on to consider relevant country information relating to the risk of harm to Hazaras in Afghanistan generally (and, specifically, in Jaghori) (at [44]-[49]).
Having reviewed the relevant country information, the IAA found as follows:
50.Although the applicant is a Shia Hazara, when having regard to his lack of other profile or proximity connected to those in government, international community or other high profile group or groups, and the nature and extent of the attacks perpetrated in Jaghori and neighbouring districts in the recent past, the country information relating to the presence and reach of insurgent groups in Jaghori, the increased security presence in the district, that Hazaras form a significant majority in Jaghori, and given that I do not accept that the applicant is a person of adverse interest to insurgent or terrorist groups, I am not satisfied that there is a real chance he will suffer harm in Jaghori from such a group (or their supporters) for reason of his religion, his ethnicity, or as a Shia Hazara. I find the applicant does not face a real chance of any harm in Jaghori for these reasons now, or in the reasonably foreseeable future. Nor am I satisfied he faces a real chance of being imputed as a spy or a person associated with the government or international community due to his ethnicity, or any other reason.

It is a matter for the IAA as to the weight placed on country information. In this regard, the Court notes the decision in Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10 (“Nahi”) where the Full Court stated (at [11]):
…There can be no objection in principle to the tribunal, in that context, relying on country information. The weight that it gives to such information is a matter for the tribunal itself, as part of its fact-finding function. Such information as the tribunal obtains for itself is not restricted to guidance. It may be used to assess the credibility of a claim of a well-founded fear of persecution. The question of the accuracy of the information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review, and the court does not have the power to do that.
The Court cannot identify any jurisdictional error in relation to the way that the IAA assessed the country information before it. While this Court might have determined otherwise, that is not the test on review. The IAA’s approach in relation to the country information was orthodox and, on the evidence, entirely sound.
Ground 1, accordingly, fails.
Ground 2
Ground 2 provides:
2.The IAA did not consider all the evidence of persecution of Hazara in Afghanistan.
The “evidence” that the applicant seems to refer to in Ground 2 again appears to be contained in country information. Unfortunately, the applicant has not indicated any specific information which was not considered by the IAA.
In any event, it is well established that the choice of country information, weight afforded to country information and any consideration regarding the accuracy of country information is a matter for the decision-maker: Nahi at [11]-[13]; DAK16 v Minister for Immigration and Border Protection [2019] FCA 68 at [27]; CRG16 v Minister for Home Affairs [2019] FCA 374 at [56].
Without more, it is not for this Court to forensically review the IAA’s consideration or use of the country information before it. To do so would require the Court to engage in an impermissible merits review: DQA17 v Minister for Immigration & Anor [2018] FCCA 2418; EAT17 v Minister for Immigration & Anor [2018] FCCA 3036.
No error arises in relation to ground 2.
Otherwise
The IAA's treatment of new information
The Minister’s written submissions (filed on 23 August 2021) query whether the IAA’s treatment of “new information” is affected by the findings of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 (“AUS17”).
AUS17 confirmed the approach the IAA must follow when assessing “new information” against the requirements of s 473DD of the Act.
It is helpful to again outline the provisions of 473DD of the Act. That section provides:
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.
This Court discussed the effect and scope of AUS17 in its recent decision in BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81. Relevantly, the Court noted (at [93] to [97]) as follows.
The requirements of s 473DD are cumulative. That is, an applicant must meet s 473DD(a) and one of the sub criteria in s 473DD(b) before the IAA can consider any “new information”. If the applicant does not meet either one of (a) or (b), the IAA cannot consider the information. This is uncontroversial: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 (“Plaintiff M174/2016”).
In AUS17, the High Court was concerned with the construction of s 473DD and the approach the IAA must take in applying s 473DD – that is, what the IAA must do when assessing new information. Relevantly, the majority of the High Court in AUS17 explained:
10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Having so determined, the High Court found that the IAA in that matter had indeed erred.
In AUS17, the IAA stated as follows in relation to the “new information” the appellant had provided:
I accept the letter of support from [omitted] could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information.
The IAA had considered ss 473DD(b)(i) and 473DD(a) of the Act. However, the IAA had not considered s 473DD(b)(ii) of the Act. Its failure to consider this sub criterion and, if it was found that s 473DD(b)(ii) of the Act was met, to then take that positive assessment into account when considering if there were “exceptional circumstances”, amounted to jurisdictional error.
The question that arises in this matter is whether the IAA’s approach involves any error of the sort addressed by the High Court in AUS17.
Here, the applicant provided a number of pieces of new information. That information is considered by the IAA at [9]-[11] of its decision, as follows:
9.A key issue for determination in this case is the applicant’s identity and nationality and the above documents are provided to the IAA to corroborate his claim that he was born in Afghanistan and is a national of that country. Documents ‘a’ and ‘c’ did not exist at the time of the delegate’s decision and for this reason I accept they could not have been provided earlier. Document ‘b’ did exist but the applicant indicates that it only came into his possession in the days after the delegate made his decision. I note the applicant’s evidence before the delegate was that his family had ‘disowned’ him in around 2015 and on this basis I am prepared to accept he could not have provided a copy of his late father’s Taskera earlier. The new information is material to the issues under consideration and I am satisfied that exceptional circumstances exist to justify considering it.
10.The applicant’s representative also provides to the IAA country information not before the Minister that both pre-dates and post-dates the delegate’s decision. It is new information. A number of the reports are provided in relation to the security situation for Shia Hazaras in Afghanistan. The majority of the reports were published after the delegate made his decision and for this reason I am satisfied the information could not have been provided to the Minister. However, it is not immediately clear whether the information from the Long War Journal (LWJ) could have been provided to the Minister prior to the delegate’s decision. It is provided as evidence of a deterioration of the security situation surrounding the applicant’s home area. The information is an interactive map of Afghanistan evidencing Taliban activity in the district of Jaghori, which the representative states was published on 31 July 2020 but there is no indication on the information provided as to when the map was last updated. However, I note other recent sources before me refer to the same map and updates made to it in early 2019. In all the circumstances, I am satisfied the information could not have been provided to the Minister. The new information is from recent and credible sources and is material to the issues under consideration. I am satisfied that there are exceptional circumstances to justify considering it.
11.The remaining reports referred to not before the delegate are provided to support the applicant’s claim that he is a national of Afghanistan (and not Pakistan) and that it would be unreasonable for him to relocate in Afghanistan. However, as will emerge, I have found that the applicant is a national of Afghanistan and that the issue of relocation does not arise for consideration. I am not satisfied that exceptional circumstances exist to justify considering these reports.
The IAA found that the new information referred to in [9] and [10] of its decision met the criteria outlined in s 473DD of the Act. As such, the Court does not need to consider those findings against the decision in AUS17. However, the country information at [11] was not found to meet the criteria under s 473DD of the Act. As such, the IAA’s conduct in this regard does need to be assessed.
The Minister submits (in written submissions filed on 23 August 2021) that “the findings made at [10] of the [IAA’s] reasons are relevant to understanding how it treated the remaining items of country information and further submits that, reading [10] and [11] fairly and as a whole”, the IAA “implicitly accepted that the reports listed in items 8, 10 and 17-21” (as considered by the IAA at [11] of its reasons) met the condition specified in s 473DD(b)(i) of the Act.
Specifically, the Minister submits:
19.At [10], the Authority found that the applicant’s representative provided “country information not before the Minister that both pre-date[d] and post-date[d] the delegate’s decision”. That was a reference to the totality of the country information listed in the table. In the fourth sentence in [10], the Authority found that “[t]he majority of the reports were published after the delegate made his decision and for this reason I am satisfied the information could not have been provided to the Minister”. That finding pertained not just to the country reports discussed at [10] but also the reports post-dating the delegate’s reasons that were the subject of consideration at [11] (namely, items 10 and 17-21).
20.As to item 8 (the Naturalisation Act 1926 (Pakistan)), which pre-dated the delegate’s decision, it is apparent from the Authority’s finding in the third-last sentence in [10] that it accepted that material pre-dating the delegate’s decision could not have been given to the delegate before a decision was made on the visa application. There is nothing in the Authority’s reasons at [11] to suggest that a different view was formed in relation to item 8. The Authority was not required to give reasons, let alone comprehensive reasons, for the performance of its procedural duty in s 473DD; and so a court on judicial review should be slow to infer from what has not been said that the decision-maker has made an error of law. The onus, of course, is on the applicant to show that a particular factor was not considered (and not on the Minister to show that it was). The better inference to draw from [11] is that the Authority did not consider it necessary to make the same finding in circumstances where what counted against the applicant was that he was a national of Afghanistan and relocation did not arise for consideration.
21.If the Court concludes that the applicant cannot show that the factor in s 473DD(b)(i) was overlooked, it is then but a short step to take to find that it was taken into account in the Authority’s assessment of exceptional circumstances at [11]. Although the final sentence in [11] does not commence with words such as “therefore” or “in all of the circumstances”, that finding cannot be read in isolation. The two sentences that precede that finding plainly shaped the Authority’s assessment of exceptional circumstances. Further, the first sentence in [11] cannot be divorced from the finding in the first sentence in [10]. It is also relevant to note that the finding in relation to the criterion specified in s 473DD(a) was placed at the end of the Authority’s reasons in relation to the performance of its procedural duty in s 473DD. Accordingly, having regard to the context in which the finding was made, and the structure of the Authority’s reasons, the Court should find that its assessment of the new information against the criterion specified in s 473DD(b)(i) was taken into account in its assessment of the criterion specified in s 473DD(a).
This Court respectfully disagrees with the Minister in this regard and specifically with the Minister’s construction of the IAA’s decision. Whilst the Court agrees that the IAA acknowledged that some of the country information which was not before the Minister pre-dated and post-dated the delegate’s decision, and that it may have referred to the information discussed at [10] and [11], this Court does not agree that the third last sentence in [10] would necessarily relate to item 8 or that there is anything in the IAA’s reasons to suggest that this was the IAA’s intention.
Instead, this Court considers that the third last sentence in [10] relates specifically to the Long War Journal (the “LWJ”) discussed in the sentences immediately preceding the third last sentence. There, the IAA considers whether the LWJ could have been provided to the delegate. This is so because, notwithstanding the fact that the applicant’s representative stated that the LWJ was published on 31 July 2020 (which clearly post-dates the delegate’s decision), the IAA noted “other recent sources … refer to the same map and updates made to it in early 2019” (which would have pre-dated the delegate’s decision). The IAA then states: “in all the circumstances, I am satisfied the information could not have been provided to the Minister”. The Court reads this sentence as a reference to the LWJ. Upon consideration of whether or not the LWJ could have been provided to the Minister, the IAA was satisfied that it could not have been so provided. The IAA then goes on to make findings relating to the new information referred to at [10] as a whole (in the final two sentences).
The Court does not accept that there was an implicit finding that items 8, 10 and 17-21 met the condition specified in s 473DD(b)(i) of the Act and finds that the IAA erred in the manner described in AUS17. However, for the reasons outlined below, the Court does not consider this error to be material.
Materiality
An error will only be jurisdictional where it is material or, more simply put, where the error would have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC further confirmed that, as outlined in SZMTA, the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact” and the applicant in a judicial review application “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court in the particular circumstances of this case is whether, if the IAA had correctly performed its duty (as per the principles in AUS17) and ultimately considered the country information outlined above, was there a “realistic possibility” that the IAA’s decision would have been different.
The country information reports referred to at [11] were provided by the applicant’s representative in support of the applicant’s claim to be an Afghan national (not a Pakistani national) and his claim that it would be unreasonable for him to relocate within Afghanistan.
Here, the IAA ultimately determined that the applicant was born in Afghanistan and is an Afghani national and found further that Afghanistan is the applicant’s receiving country (at [35]).
The IAA also found that the applicant would not suffer harm in Jaghori District (being the place he lived before moving to Pakistan). As such, it was unnecessary for the IAA to consider relocation issues.
Accordingly, even if the IAA had considered the country information, that information could not have had a material impact on the IAA’s decision because the country information of concern addressed and was relied on in relation to issues the IAA no longer needed to assess once the IAA had determined (as it did here) that:
(a)the applicant was an Afghani national; and
(b)issues of re-location did not arise.
When an error is not material, it does not have the character of jurisdictional error.
Other Issues Arising – the decision in EGZ17 in relation to the current situation in Afghanistan
On the morning of the hearing of this matter (being 6 September 2021), the Minister’s representative provided the Court with a copy the decision of Judge Street in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (“EGZ17”) (delivered on 2 September 2021). The Minister’s representative foreshadowed that the Minister would “seek to rely on that judgment” at the hearing of this matter.
Counsel for the Minister made brief oral submissions in relation to EGZ17 at the hearing. Counsel submitted that the decision of EGZ17 was “decided wrongly” and sought leave to file further written submissions outlining the Minister’s submissions in that regard.

The Court granted leave as requested in relation this issue. On 17 September 2021, the Minister filed further written submissions addressing EGZ17.
The applicant was granted leave to file any reply submissions by 1 October 2021. No written submissions were filed by the applicant in relation to the substantive application or in relation to the issues raised in EGZ17.
In EGZ17, the applicant raised one ground of review, as follows:
The decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness give the military coup by the Taliban in Afghanistan so that the applicant's receiving country is now the Islamic Emirate of Afghanistan.
Having heard the matter, Judge Street “agreed” and determined that the decision under review was “legally unreasonable and must be quashed”. In his written reasons for judgment, His Honour relevantly stated:
37Further, as a matter of construction of the Act, the power vested in the review tribunal under Part 7AA of the Act, in the review of the application for a protection visa is conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national. Whilst the finding of whether the applicant is a national of a particular country is a matter of fact within the review decision of the IAA under Part 7AA of the Act, the existence of the country is as a matter of construction, taking into account the reference to country and receiving country and the definitions referred to above a jurisdictional fact. Afghanistan the country, the subject of the findings as to whether the applicant met the protection visa criteria in the present case by the IAA no longer exists. The non-existence of the country and/or receiving country, the subject of the purported exercise of review power by the IAA, is as a matter of construction of the protection visa provisions, a jurisdictional fact.
38Further, because the issue of whether the applicant is a national, must be determined by reference to the law of that country. The cessation of the country and its laws must be a jurisdictional fact, taking into account s 36(6) of the Act and the definition of the receiving country in s 5 of the Act which also refers to the determination of whether a person is a national by reference to “the law of the relevant country”. The text of the definition of effective protections measures in s 5LA of the Act further supports this conclusion. In terms of that provision, the relevant State for the application of the criteria is not Afghanistan and the receiving country as defined in s 5 of the Act is not Afghanistan. That country, Afghanistan, on the evidence no longer exists and the Islamic Emirate of Afghanistan is a different country, a different relevant State and a different receiving country. This text and the clear humanitarian purpose of the protection visa provision criteria in the Act support the construction that the existence of the country or receiving country is a jurisdictional fact. What Australia as a sovereign nation may or may not recognise as a foreign state is not relevant to or determinative of the application in these proceedings.
39It is for these reasons that the Court has accepted that further evidence may be adduced as to the cessation of the existence of the country Afghanistan, the subject of the application of the purported application of the statutory refugee criteria under Part 7AA by the IAA in its review of the application by the applicant for a protection visa. The new existence of a country being the Islamic Emirate of Afghanistan, which on the evidence, the Court finds is as a result of the takeover by the Taliban, is a new and different country to Afghanistan and is a new and different receiving country to Afghanistan which were, as a matter of focus on the reasoning of the IAA, fundamental and central in determining the review under Part 7AA in the present case.
40Given the finding that the country Afghanistan, the subject of the findings by the IAA, no longer exists and focusing upon the reasoning of the IAA and the outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist. The outcome, given the cessation of the country and reviewing country of Afghanistan, the subject of the reasoning of the IAA, is accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA.
41Given the fact that the Taliban has now taken over Afghanistan and that the country of Afghanistan as applied by the IAA to the applicant in considering the protection visa obligations no longer exists, the IAA has exceeded its statutory powers under Part 7AA of the Act, and the outcome is legally unreasonable. The applicant feared harm from the Taliban prior to the cessation of Afghanistan, that country that no longer exists. There can be no issue as to the materiality of the new country and new receiving country being the Islamic Emirate of Afghanistan to the correct application in the review under Part 7AA of the protection criteria under s 36(2)(a) or s 36(2)(aa) of the Act. A fresh review must be conducted according to law under Part 7AA of the Act that addresses the country and receiving country that now exists, being the Islamic Emirate of Afghanistan.
42Accordingly, the Court finds that the decision is legally unreasonable and must be quashed.
In further written submissions dated 17 September 2021, the Minister submits that the decision in EGZ17 is “plainly wrong”.
The Minister’s submissions can, relevantly, be summarised as follows:
(a)While the judgment in EGZ17 does not bind this Court, the principle of comity may require that this Court not depart from a judgment of another judge of the Court unless persuaded that it is plainly wrong (compare, in relation to the position as between judgments of the District Court and the Local Court of New South Wales, Valentine v Eid (1992) 27 NSWLR 615 at 622 per Grove J. See, recently, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 (“FAK19”) at [1]-[32] per Allsop CJ). This Court should hold that EGZ17 is “plainly wrong”.
(b)First, judicial review of administrative action “concerns the legality of an exercise of power or the performance of a duty” such that “[e]vents which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made” (Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118 (“Plaintiff B65/2020”) at 544-550 per Steward J, referring to Ruddock v Taylor (2005) 222 CLR 612 and Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 (“Parker”) at [77] per Mortimer J). It follows, therefore, that if a decision is valid at the time that it was made, it does not become invalid (i.e. affected by jurisdictional error) because of a change in circumstances after the decision is made.
(c)Secondly, on judicial review of a decision by a decision-maker such as the IAA to affirm the refusal of a protection visa, the only relevant jurisdictional fact is the decision-maker’s state of satisfaction (or non-satisfaction) about the refugee and complementary protection criteria in ss 36(2)(a) and (aa) at the time of decision (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [37]-[38] per Gummow and Hayne JJ; CMO17 v Minister for Immigration and Border Protection [2018] FCAFC 227 at [18] per Logan J (Davies J and Steward J agreeing); AAL19 v Minister for Home Affairs (2020) 277 FCR 393 at [57] per Logan, Markovic and Anastassiou JJ).
(d)Judge Street was thus wrong to hold that the identity of EGZ17’s “receiving country” was itself a jurisdictional fact which could be the subject of judicial review, let alone one which could be the subject of evidence post-dating the IAA’s decision.
(e)In the context of an application for a protection visa to which the criteria in s 36 of the Act apply, a decision-maker will have to consider, and determine, the applicant’s “receiving country” (as defined in s 5(1) of the Act) for the purposes of applying:
(i)the definition of “well-founded fear of persecution” in s 5J(1)(b) of the Act, which is a critical element of the definition of “refugee” in s 5H(1) of the Act, which in turn feeds into the refugee criterion in s 36(2)(a) of the Act; and/or
(ii)the complementary protection criterion in s 36(2)(aa) of the Act, which refers to the non-citizen’s “receiving country”.
(f)The identification of a protection visa applicant’s receiving country is a part of the decision-maker’s fact-finding function. But the potential significance of such a factual finding to the determination of an applicant’s claims for protection does not convert the subject-matter of that finding into a jurisdictional fact. It may be that the decision to refuse the grant of a protection visa or, on review, to affirm such a decision which turns on the decision-maker’s state of non-satisfaction of the s 36(2) criteria is dependent in whole or in part on her or his factual finding as to the identity of the “receiving country”. However, it is the ultimate decision (the non-satisfaction of the criteria for the grant of a protection visa) that is amenable to judicial review on limited grounds (such as legal unreasonableness) (see, for example, Egan v Minister for Home Affairs [2021] FCAFC 85 at [97]-[99] per Nicholas, Stewart and Abraham JJ (and the cases there cited)). There is nothing in the statutory provisions referred to at [5]-[16] or the “humanitarian purpose of the protection visa provision criteria” that suggests otherwise.
(g)Further, the statement at [37] in Judge Street’s judgment that the IAA’s power of review “is conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national” is inconsistent with the High Court’s judgment in Plaintiff M174/2016 at [52] per Gageler, Keane and Nettle JJ. There it was held that the IAA’s jurisdiction to conduct a review of a “fast track reviewable decision” is engaged by the making of a decision in fact by the Minister, whether or not that decision is valid.
(h)Thirdly, Judge Street was wrong to receive evidence that post-dated the IAA’s decision. Generally speaking, evidence which was not before the primary decision-maker is not admissible in judicial review proceedings (Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J; Mentink v Minister for Justice [2016] FCA 432 at [68] per Rangiah J; Changshu LongteGrinding Ball Co Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 1) [2017] FCA 1114 at [6] per Griffiths J). In some limited circumstances, a court on judicial review may receive evidence that was not before the decision-maker, but such circumstances are rare and usually involve allegations of a denial of natural justice, an absence of a jurisdictional fact, legal unreasonableness in the exercise of a discretionary power or a failure to make inquiries (see Chandra v Webber (2010) 270 ALR 393 at [40]-[42] per Bromberg J (and the cases there cited)). None of those grounds were agitated in EGZ17.
(i)There is also no principled basis for the distinction (drawn by Judge Street at [35]-[36]) between “a change of an elected government under an existing governance regime within existing law” and “a change in the security situation of the receiving country”, for each refers to events that post-date the decision being reviewed. It may be accepted that events that occur in a visa applicant’s receiving country after the determination of her or his visa application by the Minister or a merits review body have the potential to affect her or his risk of harm if returned to that country. However, quashing a decision that is valid when it was made is not the solution. In the circumstances just described, the non-citizen may make a further application for a protection visa (subject to the bars in ss 46A(1) and/or 48B(1) of the Act being lifted) or seek to have the Minister grant to her or him a visa in the exercise of the non-compellable power in s 195A(2) of the Act or exercise the remedial power in s 417 of the Act (where the Administrative Appeals Tribunal made an adverse decision under s 415 of the Act).
(j)Judge Street’s reasoning is directed towards post-decision events that will operate presumptively to increase a visa applicant’s risk of harm in the country of origin. However, if the “receiving country” is a jurisdictional fact amenable to review on the basis of changed circumstances going to its nature or identity, then, applying that reasoning, there would be no logical basis for a court on judicial review not to quash a decision to grant a visa where post-decision events potentially ameliorate the visa applicant’s risk of harm (such as a change in government or the resolution of conflict). But there is authority contrary to that proposition. In Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 217 CLR 397, Gleeson CJ, Gummow and Kirby JJ said the following about a positive change in circumstances in the appellant’s receiving country (also Afghanistan) at [52]:
It should be added that this appeal is disposed of at a time when there have been many changes to the situation which obtained in Afghanistan when the matter was last before the Tribunal. The significance is to be attached to any further evidence to be placed before the Tribunal upon these matters will be for the Tribunal when it makes its fresh determination.
(k)Whether an administrative decision is legally unreasonable is determined by reference to the facts and circumstances as they existed at the time that the decision was made (Parker at [58]-[61] per Perry J and [74] and [77] per Mortimer J). If, as was the case in EGZ17, the IAA’s decision was valid, then that ought to have been the end of the matter (Plaintiff B65/2020 at 572-573 per Steward J). By holding that the IAA’s decision was legally unreasonable based on events that took place after its decision was made, Judge Street erred.
(l)If, as the Minister submits, Judge Street was wrong to receive in evidence country information post-dating the IAA’s decision, this Court would similarly err if it did so in the event that the applicant in the matter currently before it sought to adduce the same or similar evidence.
As the Minister correctly submits, this Court is not bound by the decision in EGZ17. However, the principles of comity make it clear that the Court will usually only depart from the judgment of another judge of the Court in circumstances where the Court determines that the judgment of his or her colleague is “plainly wrong”. Those principles are set out in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]-[76] (and endorsed by the Full Court of the Federal Court in FAK19) as follows:
75It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong - Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:
“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while ‘deserving of the closest and respectful consideration’, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that ‘a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong’: Halsbury, 4th ed, vol 26, para 580. The word ‘usually’ indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle … ”
76The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. …
On 13 October 2021, Judge Egan published written reasons for judgment in DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135 (“DVF18”). In that decision, Judge Egan determined that he would not follow the decision of Judge Street in EGZ17 because the decision was “plainly wrong”: DVF18 at [22].
In a Court where collegiality is paramount, it is never easy for a judge to state publicly that an assessment made by his colleague is “plainly wrong”. This is particularly difficult where, as here, the judge holds that colleague in high esteem, where that colleague is a friend and where that colleague has offered guidance and support to that judge when he began his judicial career.
Having said that, and having now assessed the decision of Judge Street in EGZ17 in detail, for the reasons that follow, this Court is of the view that the decision of Judge Street in EGZ17 is “plainly wrong”.
The Court notes that the factual background and circumstances of the present matter differ to those in EGZ17 and DVF18. In those matters, the applicants sought to amend their applications to include grounds which specifically related to events occurring in Afghanistan in August 2021 and the takeover of Afghanistan by Taliban forces. Further, in EGZ17, additional evidence was considered by the Court in the form of the “Hill Article” (evidence that post-dated the IAA’s decision and which, Judge Street determined, was evidence that proved, in effect, that the situation in Afghanistan had radically changed).
That is not the case in the present matter. In the present matter, counsel for the Minister raised the decision of EGZ17 in his capacity as a model litigant. As outlined above, the applicant did not seek to amend his application for review and, although he was given an opportunity to do so, he did not provide any submissions or any additional material to the Court with respect to the decision of EGZ17 and the now altered/emerging situation in Afghanistan.
The Court does not consider it is necessary, on the facts of the present matter, to consider whether the Hill Article (being evidence that post-dated the IAA’s decision) should have been accepted into evidence as that issue does not arise in this present matter. For the reasons that follow, however, even if the Court were to accept that the Hill Article stood for what Judge Street claimed it stood for, this Court cannot assess it in determining whether the IAA fell into error. That is so because that article (and indeed all of the evidence that now shows, unequivocally, that the situation in Afghanistan has changed and borders on diabolical), is evidence that post-dates the IAA’s decision the subject of review in this Court.

In DVF18, Judge Egan outlined the scope of the Court’s function in a judicial review application as follows (emphasis added):
25Second, as to the Court’s function on judicial review, it has been held that the Court has to look at the legality of the exercise of a power, or the performance of a duty, rather than events which have occurred subsequent to the exercise of such power, or the performance of such duty, when determining the issue before it. In Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118, Steward J said as follows:
“In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made. Ruddock v Taylor is an example of this principle. In that case, a visa had been twice cancelled pursuant to s 501(2) of the Migration Act on the basis that the defendant visa holder had failed the character test in s 501(6). Mr Taylor was detained pursuant to s 189 following each decision to cancel his visa. Section 189 relevantly empowers an officer to detain a person where the officer knows or reasonably suspects that the person is an “unlawful non-citizen”. Both decisions to cancel these visas were quashed by orders of this Court. Mr Taylor made a claim for damages for false imprisonment. This was based on the proposition that the quashing of each cancellation decision demonstrated that each decision was “legally infirm”. That proposition was rejected by this Court. Gleeson CJ, Gummow, Hayne and Heydon JJ said:
“The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. ... what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in [the earlier quashing decision] or upon the Court later publishing its reasons in that case.”
Here, the plaintiff candidly conceded that when the Minister decided to cancel his visa, that decision was, at that time, entirely valid. He did not dispute that, at that time, each of the matters upon which a lawful exercise of the power conferred by s 501(3A) of the Migration Act depended were then in existence. That being so, that is the end of the matter. The legal efficacy of a decision cannot be undone by events which did not exist when the decision was made.”
(footnotes omitted)
While this issue was not specifically raised by the applicant in his application or at the hearing of this matter, in the event that there is any suggestion that the applicant’s receiving country of Afghanistan has ceased to exist (as was alleged by the applicants in EGZ17 and DVF18) upon the resurgence of the Taliban in Afghanistan and the subsequent takeover of the country, the Court notes that those events took place in or around August 2021. The IAA’s decision in this matter was made on 13 August 2020. The relevant events thus occurred one year after the IAA had already finalised its decision.
As outlined by Judge Egan (in DVF18) and Justice Steward (in Plaintiff B65/2020), events which take place after the IAA exercised its power can play no part in assessing whether the IAA’s decision contained any instance of jurisdictional error.
Turning to the issue of jurisdictional facts, the Minister submitted that the only jurisdictional fact that the Court should consider is the “decision maker’s state of satisfaction (or non-satisfaction) about the refugee and complementary protection criteria … at the time of decision”.
The Court agrees.
In this regard, the Court again notes the reasoning of Judge Egan in DVF18, wherein His Honour states:
28The Court agrees with the submissions made on behalf of the first respondent to the effect that the only relevant jurisdictional fact for the Court’s consideration was the decision maker’s state of satisfaction, or non-satisfaction, as to whether the applicant fell within either the refugee or complimentary protection criteria, respectively, under either s. 36(2)(a) or s. 36(2)(aa) of the Act.
29On the question as to what relevantly constituted a jurisdictional fact, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, at [36] – [37] it was said per Gummow and Hayne JJ as follows:
“[36]For the purposes of this case, only the criteria set out in s 36(2)(a) are relevant as there was no suggestion that the respondent was eligible for a protection visa on the basis that he came within s 36(2)(b).
[37]Further, s 65 of the Act provides that the Minister is to grant a visa sought by valid application "if satisfied" of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a "jurisdictional fact" or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).”
(underlining added)
Here, the IAA found that the applicant did not meet the requirements of ss 36(2)(a) of 36(2)(aa) of the Act (at [60] & [66]). That is the only jurisdictional fact that this Court can consider in the context of this proceeding. For the reasons outlined above, whether or not Afghanistan ceased to exist after those findings were made or whether or not the current situation in Afghanistan is radically different is irrelevant to the Court’s task on review. Evidence to this effect, which arguably exists, was not before the IAA at the relevant time. It cannot be said that the IAA erred by failing to consider evidence that exists at a future date. To suggest otherwise would, in effect, require a type of psychic referencing from the IAA that would undermine and destabilise the IAA’s strict statutory obligations.
For the reasons outlined above, the Court respectfully finds that the decision in the matter of EGZ17 was plainly wrong and is of no assistance to the applicant in this matter.
No error arises in this regard.
MINISTERIAL DISCRETION
There would be few in this country who would dispute that the current situation in Afghanistan constitutes a humanitarian crisis and, further, that there are real concerns that anyone who returns in the current political climate risks a most uncertain and unsafe future.
The Court’s jurisdiction in matters of this sort is limited and, in circumstances where there is no evidence of jurisdictional error on the part of the IAA, the Court is unable to assist the applicant.
However, the Court notes that the Minister does have discretionary powers which can be exercised in cases (such as this) where there has been a significant change in a country’s circumstances (as is the case in Afghanistan).
The Court cannot compel or request that the Minister exercise his discretionary powers. However, the Court notes that the Minister does indeed have broad powers in this regard and can elect to exercise them should he decide (on the current evidence) that it would appropriate to do so.
CONCLUSION
The application for review filed by the applicant on 21 September 2020 does not identify any error on the part of the IAA of a sort that this Court can, on the evidence, address. Nor has the Court identified any error.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 25 January 2022

File number(s):	PEG 272 of 2020
Judgment of:	JUDGE KENDALL
Date of judgment:	18 January 2022
Catchwords:	MIGRATION – decision of the Immigration Assessment Authority – whether the IAA erred in its assessment of country information – whether the IAA failed to consider evidence – whether the IAA erred in the manner described in AUS17 and whether that error was material – whether the decision in EGZ17 in relation to the current situation in Afghanistan is “plainly wrong” – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 46A, 48B, 57, 91W, 195A, 417, 473CB, 473DA, 473DD & Division 3 of Part 7AA
Cases cited:	AAL19 v Minister for Home Affairs (2020) 277 FCR 393 Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 217 CLR 397 AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81 Chandra v Webber (2010) 270 ALR 393 Changshu Longte Grinding Ball Co Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 1) [2017] FCA 1114 CMO17 v Minister for Immigration and Border Protection [2018] FCAFC 227 Craig v State of South Australia (1995) 184 CLR 163 CRG16 v Minister for Home Affairs [2019] FCA 374 DAK16 v Minister for Immigration and Border Protection [2019] FCA 68 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 DQA17 v Minister for Immigration & Anor [2018] FCCA 2418 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135 EAT17 v Minister for Immigration & Anor [2018] FCCA 3036 Egan v Minister for Home Affairs [2021] FCAFC 85 EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Mentink v Minister for Justice [2016] FCA 432 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration & Citizenship v Li [2013] HCA 18 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10 Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118 Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Ruddock v Taylor (2005) 222 CLR 612 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 Valentine v Eid (1992) 27 NSWLR 615
Division:	Division 2 General Federal Law
Number of paragraphs:	151
Date of last submission/s:	17 September 2021
Date of hearing:	6 September 2021
Place:	Perth
Applicant:	In person
Counsel for the First Respondent:	Mr B Kaplan
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

Table of Corrections
25 January 2022	In paragraph 45, the name referenced in line 6 of the paragraph extracted from the IAA’s decision has been redacted pursuant to s 91X of the Migration Act 1958 (Cth)

PEG 272 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GLX18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	18 JANUARY 2022