GRJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 494
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GRJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 494
File number: MLG 3909 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 5 June 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – consideration of whether Authority failed to consider important information before it – whether Authority failed to assess whether there were exceptional circumstances warranting having regard to new information under section 473DD – Authority not statutorily obliged to provide reasons – operation of s 473EA of the Migration Act 1958 (Cth) – where Authority expressly considered all other new information not before the delegate – repeated and express reliance placed by Authority on new information – materiality conceded – jurisdictional error established – writ of certiorari issued quashing decision of Authority – Authority to redetermine application according to law Legislation: Migration Act 1958 (Cth), ss 473CC, 473DB, 473DC and 473DD Cases cited: BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472
CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 18 March 2024 Date of hearing: 18 March 2024 Place: Melbourne Counsel for the Applicant: Mr J.F Gormly (direct brief) Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 3909 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GRJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 6 December 2018.
2.A writ of mandamus issue requiring the Immigration Assessment Authority to rehear and determine according to law the applicant’s application for review dated 24 August 2018 of the decision of the delegate of the first respondent.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 6 December 2018. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse the applicant a Safe Haven Enterprise visa (subclass 790) (‘SHEV’).
The applicant relies upon an amended application filed on 13 February 2024, and two affidavits affirmed by the applicant on 9 February 2024 and filed on 12 February 2024, annexing the following, respectively:
(a)the DFAT Country Information Report Pakistan dated 1 September 2017 (‘the DFAT 2017 report’);
(b)the FATA Research Centre Annual Security Report 2017 (‘the FATA 2017 report’).
Before the court is also a Court Book filed on 20 January 2021 and each party relies upon written submissions which they have each filed in this matter.
BACKGROUND
The applicant is a citizen of Pakistan and is of Shia Muslim religion.[1] He arrived in Australia as an irregular maritime arrival on 13 July 2013.[2]
[1] Court book at page 68.
[2] Court book at page 75.
Application for a SHEV on 20 December 2016
The applicant applied for a SHEV on 20 December 2016, with the assistance of a migration agent (‘the migrant agent’).[3]
[3] Court book at pages 54 to 91.
The applicant’s claims for protection as they appear in his application for a SHEV relate to his fears of the Taliban following an attack on a shop where two of the applicant’s friends were killed.[4]
[4] Court book at page 86.
After lodgement of the SHEV application, on 12 February 2018, a representative came on the record for the applicant (‘the representative’), noting that all correspondence in relation to the applicant’s matter ought now be directed to them.[5] Further, on 22 February 2018, the migration agent lodged a form indicating the end of their appointment as the applicant’s representative.[6]
[5] Court book at pages 118 to 121.
[6] Court book at pages 125 to 128.
From the time that the applicant’s SHEV application was lodged to the time the applicant was invited to attend an interview with the Department of Home Affairs (‘the Department’), the material indicates the applicant and the representative sent eight separate enquiries regarding the relevant processing times of applicant’s application.[7]
[7] Court book at pages 116 to 117, 122 to 123, 129 to 136, and 139 to 142.
On 29 July 2018, shortly after receiving the invitation from the Department to attend an interview, the applicant, via the representative, lodged a ‘statement of claim’ which set out the applicant’s protection claims.[8]
[8] Court book at pages 161 to 168.
On 8 August 2018, the applicant, with the assistance of the representative, attended an interview by videoconference with an officer of the Department (‘SHEV interview’). It is apparent that more information was requested or required of the applicant at the SHEV interview, as further submissions and supporting documents were filed by the applicant on 23 August 2018.[9]
[9] Court book at pages 206 to 257.
On 24 August 2018, a delegate of the Minister refused the applicant’s application for a SHEV.[10]
[10] Court book at pages 259 to 280.
Referral to the Authority on 29 August 2018
The delegate’s refusal decision was referred to the Authority pursuant to Part 7AA of the Migration Act 1958 (Cth) (‘the Act’) on 29 August 2018.[11]
[11] Court book at page 281.
Following receipt of the SHEV interview recording as requested by the representative,[12] the applicant lodged further submissions and supporting documents with the Authority.[13]
[12] Court book at pages 294 and 297.
[13] Court book at pages 298 to 307.
On 6 December 2018, the Authority affirmed the delegate’s refusal decision.[14]
[14] Court book at page 311.
AUTHORITY’S DECISION
The Authority’s decision of 6 December 2018 is set out at pages 314 to 326 of the court book.
At paragraphs [2] to [7], the Authority identified and considered the information before it, including assessing whether any ‘new information’ satisfied section 473DD of the Act such that it should be considered by the Authority in making its decision. Ultimately, with respect to new information provided by the applicant that was not before the delegate, the Authority did not consider there to be any exceptional circumstances to justify its consideration.
At paragraph [8], the Authority summarised the applicant’s claims for protection.
The Authority accepted that the applicant is a Shia Muslim of Pashtun ethnicity, born in Parachinar in the Federally Administered Tribunal Areas (‘the FATA’) of Pakistan.[15] Having accepted this, the Authority gave comprehensive consideration to the relevant country information and ultimately concluded that although the source of the applicant’s fears, being that he would be killed or targeted by the Taliban or insurgent militia, remained unresolved, no information presented indicated that there had been further deterioration or violence since approximately 2017.[16] This led to the further finding by the Authority that the chance of the applicant being killed or seriously injured by reason of his ethnicity or religion, was remote.[17]
[15] Authority decision record dated 6 December 2018 at paragraph [16].
[16] Authority decision record dated 6 December 2018 at paragraph [34].
[17] Authority decision record dated 6 December 2018 at paragraph [35].
The Authority also considered the position of the applicant’s father as a tribunal elder, the applicant’s wish to engage in tertiary study, and the fact that he has spent time in a Western country, and ultimately concluded that there was not a real chance that the applicant would suffer harm for any of these reasons.[18] For the same reasons, the Authority did not accept that the applicant would face a real risk of significant harm on these grounds.[19] As such, the Authority did not consider the applicant to satisfy section 36(2)(a) or 36(2)(aa) of the Act and therefore affirmed the delegate’s refusal decision.
[18] Authority decision record dated 6 December 2018 at paragraphs [36] to [46].
[19] Authority decision record dated 6 December 2018 at paragraph [51].
PROCEEDINGS IN THIS COURT
The application filed his application for judicial review in this court on 21 December 2018. An amended application was filed by the applicant on 13 February 2018, drafted with the assistance of counsel, although the applicant remained unrepresented.
The amended application raises two grounds of review, which are set out in detail below. The grounds are relatively confined.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant asserts that:
1.The Authority constructively failed to exercise its jurisdiction or discharge its statutory duty under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision by failing to address important evidence before it.
Particulars
a)The important evidence was in the DFAT Country Information Report Pakistan of 1 September 2017 (DFAT report). The DFAT report was before the delegate and part of the review material the Secretary gave to the Authority under s 473CB of the Act.
b)The important evidence was:
i.the assessment paragraph 3.24 of the DFAT report: “DFAT assess Turis in Kurram Agency face a moderate risk of sectarian violence from militant groups because if their Shia faith” (moderate risk assessment); and
ii.at paragraph 3.21 of the DFAT report: “While Turis are not visually distinctive, their concentration in a small geographic area in and around Parachinar makes them vulnerable to attack” (geographic vulnerability assessment).
c)The evidence was important including in light of the applicant’s claim to be at risk of harm in Parachinar for reason of his Shia religion and the finding of the Authority at [22] that “Country information before me confirms that Shia Bangash from the Upper Kurram share the same risk of harm from extremist Sunni militia groups as Shia Turis, on account of their religious sect, tribunal politics, and geographical location.”
d)The Authority failed to address or engage with either the moderate risk assessment or the geographic vulnerability assessment.
The relevant parts of the DFAT 2017 report are as follows:
3.21While Turis are not visually distinctive, their concentration in a small geographic area in and around Parachinar makes them vulnerable to attack. Groups such as … have carried out attacks directed at Turis because of their Shi’a faith over a significant period, particularly from around 2008 up until the beginning of counter-terrorism military operations in 2014. Operation Zarb-e-Azb and associated anti-terrorism activities led to a significant decrease in the number and severity of attacks on Turis in 2015 and 2016. However, three large scale attacks targeting Turis in Parachinar occurred during the first six months of 2017. … These attacks ostensibly targeted Turi Shi’a because of their religious affiliation, and killed more than 120 people.
…
3.24DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.
It is submitted for the applicant that the Authority’s failure to consider these paragraphs, which they describe as ‘important assessments’ made in the DFAT 2017 report, constituted a jurisdictional error. The applicant concedes that ground 1(b)(ii) by itself, if established would not constitute a jurisdictional error but rather that it was an accumulation of the Authority’s jurisdictional error resulting from not considering the moderate risk assessment.[20]
[20] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [34].
The Minister concedes that there is no specific reference to paragraphs 3.21 and 3.24 of the DFAT 2017 report in the Authority’s reasons. However, it is submitted for the Minister that when the Authority’s reasons for decision are read as a whole and fairly, that the court ought not draw an inference that the Authority overlooked or did not consider, in the requisite sense, the information contained in those paragraphs.
There is no dispute between the parties as to the law which applies in relation to ground 1. The dispute between the parties is as to its application to the facts in this case.
It is well settled that the Authority is required to consider each of the applicant’s claims for protection and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (‘NABE’) at [58]. Relevantly, in NABE, the court said, at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
(Citations omitted)
It is also well settled that the decision maker is not required to refer to every piece of evidence in its written reasons although it may fall into error if it fails to consider material before it that is of such significance that the failure to consider that material amounts to a failure by the decision maker to perform its statutory task.[21] In considering this issue, Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 said, at [112]:
… whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. …
[21] See Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (‘MZYTS’) at [31] and [46].
I agree with the Minister’s submission that the issue which arises for determination in considering ground 1 requires this court to consider how paragraphs 3.21 and 3.24 of the DFAT 2017 report arose for consideration and whether the failure by the Authority to make specific and direct reference to those two paragraphs means that the Authority failed to perform its statutory task in that it failed to form the requisite ‘state of satisfaction (one way or the other) required for the purpose of the review in respect of the criterion in s 36(2)(a)’.[22]
[22] MZYTS at [46].
The applicant relies upon the reasoning in BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 (‘BSU20’) and says that a similar failure occurred in this case such that the same conclusion as that reached in BSU20 should be reached in this case. To succeed, the applicant invites the court to infer that the Authority did not consider those two specific paragraphs in the DFAT 2017 report.
For the following reasons, I find that such an inference cannot and should not be drawn in this case.
When read in context, the information which arose from paragraphs 3.21 and 3.24 of the DFAT 2017 report was that Turi Shi’as in Parachinar faced different risks of sectarian violence from militant groups than Turis and Shi’as in other parts of the country because they were in Parachinar where they lived in a small geographic area and where there had been three recent attacks in the beginning of 2017. When read in its entirety, this information was consistent with other statements contained in the DFAT 2017 report, for example at paragraph 3.65 relating to the risks to Shi’as in the FATA region and that the risk of sectarian violence in the Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA.
Moreover, when one considers the Authority’s reasons, it is apparent that:
(a)in considering the security situation in FATA, the Authority had regard, among other things, to the DFAT 2017 report;[23] and
(b)the DFAT 2017 report, among others, assessed that ‘the security situation in the FATA had improved significantly’ after 2014.[24]
[23] Authority decision record dated 6 December 2018 at paragraph [24].
[24] Authority decision record dated 6 December 2018 at paragraph [24].
The Authority also noted, at paragraph [25], that although diminished, Sunni sectarian groups had undertaken sporadic attacks in Pakistan in 2017 and 2018 and that this included a series of high profile and complex attacks in 2017.
At paragraph [26], the Authority in referring to the attacks in 2017, noted:
… The scale and nature of the three attacks in the first half of 2017 highlighted the vulnerability in the security arrangements that were in place in Kurram Agency at that time, particularly for Shias.
At paragraph [27], the Authority further went on to say, referring to information from DFAT, that the government’s capacity to protect Shia communities in Pakistan is somewhat limited because Shia communities are large and widely dispersed. It went on to say:
… the situation in Parachinar is somewhat different to the rest of the FATA; the Shia population is much more concentrated and are the overwhelming majority.
At paragraph [28], the Authority noted that ‘DFAT’s assessment at that time was that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, was higher than in other parts of the FATA’.
After discussing various country information, including the DFAT 2017 report about the speculation of the ongoing security situation in the FATA area, at paragraph [31], the Authority went on to say:
While I note DFAT and FRC expressed some caution about the prospects for durable security arrangements in Kurram Agency in their 2017 reports, both agencies noted the significant drop in sectarian and other violent incidents and casualties in Kurram in the second half of 2017. Further to this I consider that it is a strong indication of the effectiveness of counter-terrorism operations conducted by NATO and Afghan forces and the Pakistani military in the FATA in diminishing the capabilities of these groups that the April 2018 SATP report showed there did not appear to have been any further sectarian attacks on Shias in Parachinar, or the FATA more widely, since June 2017. No other evidence has been provided to indicate that there had been any subsequent deterioration in the security landscape in Kurram Agency or the FATA more broadly.
(Emphasis added)
In this context, at paragraph [34], the Authority referred to the applicant’s statements in the SHEV interview and submissions made on his behalf by his representative both to the delegate and to the Authority that the applicant was not safe in his home region. The Authority said:
… I note that the applicant has had the benefit of being represented by an experienced legal practitioner and that none of the information presented by the applicant or his representative indicates that there has been any further violence against Shias in Kurram or Parachinar since the attacks in the first half of 2017, and has not provided any persuasive information that the security situation in Parachinar (or Kurram Agency more broadly) has deteriorated in 2018.
At paragraph [35], the Authority acknowledged that:
… despite improvements, there remains a degree of fragility to the current security arrangements in Kurram. … it is also clear that the scale of the violent unrest and the frequency and severity of sectarian attacks in the FATA has been reduced significantly, over a number of years, and that the absence of further militant actions after the three attacks in Parachinar in the first half of 2017 suggests those events do not appear to represent the commencement of a new pattern of violence or unrest. I do not regard the three 2017 attacks in Parachinar amount to a reversal of the longer term security trend showing a steady decline in sectarian and other forms of violence in the FATA, which is evidence of the significant diminishment of the capacity of the Taliban and other sectarian militant groups to undertake attacks in Kurram Agency. Rather, in the context of the more recent history of the area, the absence of any ongoing attacks for what may now be regarded as a sustained period indicates a significant reduction in the risk of harm, I find that the chance of the applicant being killed or seriously injured for the reason of being a Pashtun Bangash Shia Muslim in Parachinar is remote.
(Emphasis added)
It is submitted for the applicant that in coming to this view, the Authority was required to consider the moderate risk assessment and the geographical risk assessment in the DFAT 2017 report. The applicant asserts that the Authority in this case, made the same error as that identified by Greenwood J in BSU20 at paragraphs [47] to [48].[25]
[25] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [29].
In BSU20, the Authority had before it a DFAT report concerning Pakistan dated 20 February 2019 (‘DFAT 2019 report’). It was in similar, but not identical, terms to the DFAT 2017 report relevant to the present proceedings. Relevantly, paragraph 3.26 of the DFAT 2019 report stated:
3.26DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurrum Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shia groups.
At paragraphs [47] to [48] of his reasons for decision in BSU20, Greenwood J said:
47.Whilst it is true that the IAA had regard to aspects of the document of 20 November 2019 and country information, it did not specifically take into account in its reasoning an important assessment made as at 20 February 2019 that ‘Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith’ … It is difficult to see how the IAA could reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing two things. First, the express submissions put to the contrary by the appellant as described in these submissions. Second, the assessment as at 20 February 2019 recited in bold above.
48.I am satisfied that in failing to address these two matters, the IAA fell into jurisdictional error …
(Emphasis in original)
The applicant submits that in failing to specifically address the moderate risk assessment in this case, (together with the geographical risk assessment) the same error as that found in BSU20 arises.[26]
[26] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [30].
For the following reasons, I do not agree.
BSU20 in large part turned on the fact that the applicant in that case has submitted that notwithstanding the relative peace following the incidents in 2017, that there was a level of volatility in the security situation in Kurram Agency.
It is important to remember that BSU20 concluded that the Authority had failed to give consideration to material before it relevant to a claim for protection made. It does not stand for the proposition that had the Authority given consideration to the moderate risk assessment it would necessarily have concluded that the applicant was a refugee. That assessment was for another decision maker to make.
In this case, the question is what the Authority was required to consider. Unlike BSU20, the applicant did not expressly submit that there was a level of volatility in the security situation in the Kurram Agency and that there was a risk of that situation deteriorating in the reasonably foreseeable future thereby exposing the applicant to a risk of harm. The Court found that in considering this claim, the Authority was required to engage with an assessment of the volatility of the security situation and that in failing to expressly refer to the relevant passages of the 2019 DFAT report, it had failed in this statutory task.
No similar claim was made by the applicant in this case.
Moreover, and in any event, in this case, although the Authority did not expressly refer to paragraphs 3.21 and 3.24 of the DFAT 2017 report, the Authority did refer expressly to the ‘prospects of durable security arrangements in the Kurram Agency’ and the fact that there was no other evidence to indicate that there had been any deterioration of the security situation in Kurram agency or the FATA more broadly,[27] to consider the risk to the applicant of a possible deterioration of the security situation in the Kurram Agency on the grounds of his Shia faith.
[27] Authority decision record dated 6 December 2018 at paragraph [31].
I accept that in CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472 (‘CEO19’), Judge Driver concluded that the Authority in fact did overlook the ‘moderate risk’ assessment in the DFAT 2019 report before it. Before turning to the decision in this case, it is relevant to note that the applicant in CEO19 expressly referred to paragraph 3.26 of the DFAT 2019 report in his written submissions to the Authority.[28] Paragraph 3.26 has been reproduced in these reasons at paragraph [42] above.
[28] CEO19 at [18].
This paragraph is to be contrasted to paragraph 3.24, the corresponding paragraph in the DFAT 2017 report. In addition, the DFAT 2019 report contained a definition of ‘moderate risk’, unlike the DFAT 2017 report which did not. The applicant in CEO19 submitted that paragraph 3.26 of the DFAT 2019 report had to be considered in the context of the report as a whole which included (again, unlike the DFAT 2017 report) a definition of ‘moderate risk’ and ‘low risk’. Moderate risk was defined in the DFAT 2019 report as meaning that DFAT ‘was aware of sufficient incidents to suggest a pattern of behaviour’.[29] The Authority in CEO19 considered the definition of ‘low risk’ but did not consider the definition of ‘moderate risk’.
[29] CEO19 at [23].
In this context, Judge Driver said, at [54] to [55]:
… The determination of the degree of risk confronting the applicant on return to Pakistan was critical to the outcome of the review. The assessment of ‘moderate risk’ in the 2019 Report was thus of fundamental importance. That needed to be discussed in the Authority’s reasons and it was not. The assessment of ‘moderate risk’ as defined, gave to the risk of harm a systematic or targeted quality. Having accepted from the 2019 Report that the applicant faced a higher level of risk in his home region than other Shias in the former FATA the Authority could not, in my view, arrive at a conclusion that the risk he confronted was ‘remote’ without explaining how and why the Authority departed from the assessment of ‘moderate risk’ in the 2019 Report.
… Highly relevant material which could have been determinative was overlooked by the Authority which sounds in jurisdictional error.
(Emphasis added)
In considering the Authority’s conclusions at paragraph [35] that there is only a remote chance that the applicant would be killed or seriously injured as a Shia Muslim in the Parachinar region, it is clear that the Authority had regard to the risk assessment noted in the DFAT 2017 report and in particular the caution noted in that report about the prospects of durable security arrangements in the Kurram Agency.[30] By reference to the other matters discussed at the balance of paragraph [31] and at paragraphs [32] to [34], the Authority noted that the applicant, who was legally represented at the time, has not provided any evidence that the security situation in Parachinar or the Kurram Agency more broadly had deteriorated in 2018.
[30] Authority decision record dated 6 December 2018 at paragraph [31].
It is apparent from a fair reading of the Authority’s reasons that it was seeking to balance the concerns raised in the DFAT 2017 report with the actual evidence before it of the relevant security situation in 2018.
Unlike the circumstances in CEO19, this is not a case where the Authority’s reasons support a finding that it did not consider the relevant aspects of the DFAT 2017 report. This decision turns on the facts in this case, as did the conclusion reached in CEO19.
The need to focus on the particular facts in each case, was highlighted by Judge Driver’s reasoning in CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354 (‘CJV19’) in which his Honour concluded on the facts before him in that case, that that the Tribunal had appropriately engaged with the DFAT risk assessment.
Relevantly, at paragraphs [51] to [52] of his reasons in CJV19, Judge Driver said:
51.… The Tribunal is bound to take into account relevant DFAT country reports by force of a ministerial direction. If DFAT assesses a particular risk as moderate, and more particularly having a systematic quality, the Tribunal must engage with that assessment in order to reach a finding on the level of risk faced by an applicant.
52.It does not follow, however, that a simple assessment in a DFAT country report forecloses the enquiry which the Tribunal must undertake. That, in my view, was the point of the judgment of the Full Federal Court in BJO18. It always remains open to the Tribunal to make its own assessment of risk regardless of what it finds in a DFAT country report. It is the Tribunal which is the decision maker, not DFAT. …
When the Authority’s reasons are read in their entirety and fairly, it is apparent that the Authority engaged with the information contained in the DFAT 2017 report. The use of the word ‘moderate’ is not reflected, but the assessment of the risk to Shi’a Muslims is apparent. It is clear that the Authority had regard to the risk identified by the DFAT 2017 report and the concerns about the ongoing stability of the security situation, but concluded for the reasons stated, that the risk of harm in the reasonably foreseeable future was remote.
No jurisdictional error arises from this reasoning.
For these reasons, ground 1 is therefore not made out.
Ground 2
By ground 2, the applicant asserts that:
2.A statutory precondition for the exercise of the Authority’s review obligations under ss 473CC(1) and 473DB(1) Migration Act 1958 (the Act) had not been met:
Particulars
a)It was a statutory precondition to the lawful exercise of the Authority’s powers and obligations of review under ss 473CC and 473DB(1) of the Act that the Authority not consider ‘new information’ as defined by ss 473BB and 473DC(1) unless it was satisfied there were exceptional circumstances to do so pursuant to s 473DD(a).
b)The Authority breached s 473DD(a) by considering the FATA Research Centre’s FATA Annual Security Report 2017 (FRC 2017 Report) without inquiring whether there were exceptional circumstances to do so.
c)The FRC 2017 Report was ‘new information’ as it was not before the delegate when the delegate made his decision and the Authority considered it to be relevant.
By ground 2, the applicant asserts that the Authority committed a jurisdictional error by considering ‘new information’, being the FATA 2017 report, without being satisfied whether there were exceptional circumstances to do so pursuant to section 473DD of the Act.
The Minister accepts that the FATA 2017 report, not having been before the delegate, was ‘new information’ as defined by section 473DC(1) of the Act. It is also common ground that the Authority considered the FATA 2017 report to be relevant given the extensive references made to it in its reasons for decision.
It is also not in dispute that the Authority’s reasons are silent on any analysis regarding whether the requirements of section 473DD were satisfied in this case.
The issue raised by this ground is essentially whether the Authority’s failure to set out its consideration of section 473DD in relation to the FATA 2017 report amounts to a jurisdictional error. The Minister concedes that if an error is found in this regard, materiality is established.
The Minister essentially submits that no error can be established in circumstances where the Authority’s decision to have regard to new information is a procedural one and one in respect of which written reasons are not required. Moreover, it is submitted for the Minister that the fact that the Authority provided reasons for its refusal to admit new information upon which the applicant sought to rely but remained silent on the reasons for admitting the FATA 2017 report, does not of itself evidence jurisdictional error.
I accept that the state of authority, binding upon me, is as outlined by the Minister at paragraph [44] of the Minister’s written submissions filed 4 March 2024. That is, there is no obligation on the Authority to give reasons for decisions made under section 473DD.
Section 473EA relevantly provides:
(1)If the Immigration Assessment Authority makes a decision on a review under this Part, the authority must make a written statement that:
(a)sets out the decision of the Authority on the review; and
(b)sets out the reasons for the decision; and
(c)records the day and time the statement is made.
In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, the majority said, at [16]:
… Section 473EA … requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both ‘the decision of the Authority on the review’ and ‘the reasons for the decision’. …The analysis in … of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such direction or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).
(Citation omitted)
Whilst this case did not expressly address the issue of the nature of a decision under section 473DD, that issue was determined in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [46], where the Full Court of the Federal Court said:
… the absence of any reference in the IAA’s written reasons given under s 473EA to the hyperlinked news reports does not of itself give rise to an inference that the IAA failed to consider whether they met the criteria in s 473DD. This flows from the fact that there is no obligation upon the IAA under s 473EA to set out its ‘decision’ on whether new information meets the criteria in s 473DD.
The onus is on the applicant to establish the factual foundation upon which it can be inferred that the Authority failed to consider whether the FATA 2017 report satisfied the criteria in section 473DD of the Act. For the following reasons, I am satisfied that he has discharged that onus and therefore ground 2 is made out.
It is common ground that the applicant sought to put before the Authority material not before the delegate. At paragraphs [2] to [3] under the heading ‘Information before the IAA’, the Authority stated that it had regard to the material given to it under section 473CB. It then sets out its consideration of the further material submitted by the applicant and the extent to which it constitutes ‘new information’ and where it does, the extent to which it satisfied section 473DD.
The reasons however, are entirely silent on the question of the Authority’s consideration of the FATA 2017 report and whether it is satisfied that the requirements of section 473DD(a) are met. It is submitted for the Minister that in circumstances where there is no obligation to provide reasons of procedural matters that this is not determinative. It is also submitted for the Minister that the difference in which the Authority dealt with the new information upon which the applicant sought to rely and the FATA 2017 Report is explicable by reference to the need to provide some explanation to the applicant as to why information upon which he sought to rely was accepted or not. It is submitted that this does not apply to information such as the FATA 2017 report, which the Authority sought to rely upon. Moreover, it is submitted that the absence of any consideration of whether there were exceptional circumstances which warranted the Authority having regard to the FATA 2017 report, does not, by implication, mean that the Authority did not satisfy itself that such circumstances existed.
I am bound by the authorities referred to earlier which stand for the proposition that there is no obligation on the Authority to provide reasons for procedural decisions made on the way to its final decision to affirm or not the delegate’s decision. However, in circumstances where reasons are provided, it is open to this court to infer that the Authority did not give consideration to section 473DD in appropriate circumstances.
At paragraph [2], the Authority states that it has considered the information provided by the Secretary. It makes no reference to the FATA 2017 report at all. In those circumstances, and having regard to its discussion about the further information that the applicant sought to rely upon, it is open to infer that the Authority did not consider whether the FATA 2017 report met the requirements of section 473DD.
As stated, the Minister conceded that if error is established, then materiality is made out.
For these reasons, I find ground 2 is made out. Having succeeded on one ground of review, the applicant is entitled to an order for costs.
I therefore make the orders set out at the commencement of these written reasons for judgement.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 5 June 2024
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