SZQSN v Minister for Immigration - [2014] FCCA 1486

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQSN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1486

Catchwords:
MIGRATION – Application seeking review of recommendation of Independent Protection Assessment Reviewer – whether Reviewer failed to consider claim and integer of claim – whether Departmental Officer failed to consider claim made by the applicant in relation to complementary protection – whether wrong test applied – declarations made.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 91R , 91X, 195A

Minister for Immigration and Citizenship v SZQHH & Anor (2012) 200 FCR 223
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Citizenship v SZQRB [2013] HCA Trans 323
Plaintiff M61/2010E v Commonwealth of Australia & Ors (2010) 243 CLR 319
Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor (2012) 246 CLR 636
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
SZQSN v Minister for Immigration & Anor [2012] FMCA 578

Applicant:

SZQSN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REBECCA CHOW IN HER CAPACITY AS MANAGER, PROTECTION OBLIGATIONS EVALUATION WA

File Number:

SYG 80 of 2013

Judgment of:

Judge Lloyd-Jones

Hearing date:

31 July 2013

Delivered at:

Sydney

Delivered on:

14 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr P. Bodisco

Solicitor for the Applicant:

Ms M. Byers

Counsel for the First Respondent:

Mr B. O'Donnell

Solicitor for the First Respondent:

Ms S. Given of Minter Ellison

The Second Respondent:

The Second Respondent filed a submitting notice of appearance.

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
An injunction restraining the First Respondent, by himself or by is Department, officers, delegates or agents, from relying upon the assessment of Rebecca Chow, Protection Obligations WA, Department of Immigration and Citizenship dated 25 May 2012.
The First Respondent pay the Applicant’s costs as agreed or assessed.

DECLARATIONS

The First Respondent cannot act according to law on the assessment of the Second Respondent because acting on that assessment, the First Respondent would fail to take into account relevant consideration for the First Respondent, namely the Applicant’s claims pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth) (the “Migration Act”).
The purported assessment of the Applicant by the Second Respondents dated 15 May 2012 was not an assessment for purposes of s46A of the Migration Act.
Any consideration of the power under s.46A of the Migration Act by the First Respondent must have regards to the terms of the Migration Act any the time any such consideration occurs; in particular any consideration by the First Respondent of the scope of s.36(2) after 24 March 2012 must include s.36(2)(aa).
The Applicant has been denied procedural fairness.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZQSN.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 80 of 2013

SZQSN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REBECCA CHOW IN HER CAPACITY AS MANAGER, PROTECTION OBLIGATIONS EVALUATION WA

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of a delegate of the First Respondent (the “Assessor”), being Review Case Number JAM023, a decision of Protection Obligations WA, Manager, Ms R. Chow, dated 25 May 2012, affirming the decision of an Independent Merits Reviewer, Ms P. Hall, dated 25 July 2011 to not recognise the applicant as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1976 Protocol relating to the Status of Refugees (the “Convention”).
The solicitors for the first respondent, the Minister of Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”), filed a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
By orders made by the Court on 27 March 2013, the applicant was granted leave to file and serve any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing. The applicant filed an amended application (the “Amended Application”) on 23 May 2013. The applicant’s representatives sought leave, with consent, to file a further amended application (the “Further Amended Application”).

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
This is an application seeking to restrain the Minister from relying upon a report and recommendation of a delegate of the Department of Immigration and Citizenship (as it was then) (the “Department”) in relation to an offshore entry person.
The applicant is a citizen of Afghanistan (CB 173) of Hazara ethnicity (CB 61). He arrived in Australia on Christmas Island as an irregular maritime arrival on 2 July 2010 (CB 60.6, CB 136 at [2]). The applicant was born in 1983 in Oshto subvillage, Mir Amur district of Daikundi Province in Afghanistan (CB 137 at [11]). He had worked as a construction worker until 2004 when he left for Iran (CB 137 at [11]).
The applicant claimed protection on the basis that he would be persecuted by the Taliban, Pashtun militants and other extremist groups in Afghanistan because of his race, meaning he is of Hazara ethnicity, his membership of a particular social group, being Hazara, his imputed political opinion, opposing the Pashtun military and/or his religion as a Shia (CB 139 at [19]). He also claimed that he fled Afghanistan following land disputes with the Kuchis (CB 138 at [16]).
As an “offshore entry person” in Australia without a visa, the applicant was barred from applying for a visa by s.46A(1) of the Migration Act. However, s.46A(2) of the Migration Act empowers the Minister to lift this bar if he considers that it is in the public interests to do so. By the time the applicant arrived the Minister had instituted a process to have officers and contractors consider the refugee claims of offshore entry persons and to recommend to the Minister whether he should use his power in s.46A(2) to lift the bar to such persons and allow them to apply for a Protection visa (or use any of his other personal non-compellable dispensing powers with respect to the person). That process consisted of a Refugee Status Assessment (“RSA”) by a Departmental officer and an Independent Merits Review (“IMR”) by an outside contractor.

The RSA Decision

The applicant made refugee claims shortly after arrival and was the subject of a negative RSA (Refugee Status Assessment) by an officer of the Department on 9 December 2010 (CB 58-75).

The IMR request and decision

On 29 December 2010 the applicant’s then legal representatives applied on his behalf for an IMR (Independent Merits Review of the RSA, supported by detailed written submissions (CB 83-123). After the applicant appeared at a hearing before the IMR Reviewer on 9 May 2011 the applicant’s lawyers delivered a second round of detailed written submissions on 18 May 2011 (CB 126-132). On 25 July 2011 the IMR Reviewer concluded that the applicant did not meet the criterion for a Protection visa set out in s.36(2) of the Migration Act and recommended that he not be recognised as a person to whom Australia has protection obligations under the 1951 Refugees Convention and Protocol (CB 133-160).
The applicant was informed of the negative IMR decision in a letter to from an officer of the Department dated 2 August 2011 (CB 133-134). The letter included the following invitation (CB 134):
Whether or not you decide to seek judicial review [of the IMR decision], the department will be making an assessment of any humanitarian concerns or international human obligations that may affect your return to Afghanistan as part of a pre-removal clearance. You may wish to submit further information to be considered in this assessment. You have 35 days from the date of this letter to provide further information which you would like to have taken into consideration. This information should be emailed to the department’s International Obligations mailbox ([email protected]). If you do not provide further information for this assessment, the department will make this assessment using the information you have already provided.
(CB 134)

The Post Review Protection Claims Assessment

On 5 September 2011, in parallel with an application for judicial review discussed below, the applicant’s lawyers wrote to the Department requesting that “the Minister intervene in this matter on humanitarian grounds and permit our client to lodge an application for a protection visa” (CB 163-164).
On 15 May 2012 a case officer within the Department; Mr G. Hansen, drafted what is commonly known as a Post Review Protection Claims assessment (the “PRPC assessment”) with respect to the applicant (CB 173-179). On 25 May 2012 a more senior officer of the Department, Ms Chow, the second respondent, agreed with the assessment (CB 179.7) (Ms Chow has been identified as the “delegate” in these proceedings). The PRPC assessment:
a)Reviewed and largely adopted the findings of the IMR (CB 175-176, CB177-179);
b)Considered the arguments and claims put in the applicant’s intervention submissions (CB 176-177, CB 177-178);
c)Considered new country information regarding the situation in Afghanistan against the applicant’s refugee convention claims; and
d)Considered the whole claims and information previously considered against the Refugees Convention against Australia’s complementary protection obligations as well (CB 178.7).
The applicant was informed by letter from another officer of the Department, Ms T. Cavanagh on 25 May 2012 (CB 171-2) that his case would not be referred to the Minister for his consideration.

Judicial Review Proceedings

As noted above at [12] above, the applicant sought judicial review of the IMR decision in this Court. On 6 July 2012, Barnes FM (as she was then) dismissed the application: SZQSN v Minister for Immigration and Citizenship [2012] FMCA 578. The applicant did not appeal.
On 17 January 2013 the applicant filed an application in this Court, which named on the Minister as the Respondent, but identified the challenged decision as that of Ms Chow dated 25 May 2012. On 23 May 2013 the applicant filed an Amended Application which added Geoff Hansen, a Departmental officer, as second respondent. The applicant’s submissions, filed on 22 July 2013, were accompanied by a proposed Further Amended Application. Subsequent correspondent between solicitors resulted in an updated “Draft No 2” of the proposed Further Amended Application. On the day of the hearing, the applicant’s representatives sought, with consent of the Minister, leave to file “Draft No 3” of the Further Amended Application.
The Further Amended Application seeks the following orders:
A declaration that the assessment of Rebecca Chow, Protection Obligations Evaluations WA dated 15 May 2012 were not made in accordance with law, by reason of the grounds/s of this application.
An injunction restraining the Minister, by himself or by is Department, officers, delegates or agents, from relying upon the assessment of Rebecca Chow, Protection Obligations WA, Department of Immigration and Citizenship dated 15(sic) May 2012.
1. A declaration that the First Respondent cannot act according to law on the assessment of the Second Respondent because acting on that assessment, the First Respondent would fail to take into account relevant consideration for the First Respondent, namely the Applicant’s claims pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
2. A declaration that the purported assessment of the Applicant by the Third Respondents dated 15 May 2012 was not an assessment for purposes of s46A of the Act.
3. A declaration that any consideration of the power under s46A of the Act by the First Respondent must have regards to the terms of the Act any the time any such consideration occurs; in particular any consideration by the First Respondent of the scope of s36(2) after 24 March 2012 must include s36(2)(aa) (if applicable in its terms).
4. A declaration that the Applicant has been denied procedural fairness.
5. The Respondent pay the Applicant’s costs of this proceeding.
6. Such other orders as the Court deems fit.
7. An injunction retraining any officers within the meaning of s.198 of the Act from removing the Applicant from Australia until his complementary protection claims have been considered according to law.
The Grounds of the Further Amended Application are as follows:
1. The First Respondent cannot lawfully act on the recommendation the Second Respondent because that recommendation failed to take into account a relevant consideration for the First Respondent, namely the Applicant’s claims to complementary protection under s36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
Particulars
a) The First Respondent is obliged to take s36(2)(aa) of the Act and the Applicant’s claims there under into account from 24 March 2012 notwithstanding that the Second Respondent had not been obliged to take into account s36(2)(aa) of the Act and the Applicant’s said claims at the time the Second Respondent made his recommendation.
b) Because the Applicant is a person who has not yet made an application for a protection visa, s35 of Schedule 1 of the Migration Amendment (Complementary Protection)Act (No. 121 of 2011) makes 236(2)(aa)(sic – s.36(2)(aa))(as amended) applicant to the definition of “protection obligations” for the purposes of the Act in considering claims for protection made by the Applicant on and after 24 March 2012.
c) The First Respondent has previously announced that all people who arrive and are offshore entry persons who provide claims or information which prima facie may engage Australia’s protection obligations would be assessed for the purposes of s46A.
d) The Applicant has made claims that prima facie engage Australia’s protection obligations as defined under the Migration Act.
e) Only those protection claims under s36(2)(a) of the Act have been assessed pursuant to the power under s46A of the Act. No assessment has been given to the Applicant’s “protection claims” as defined by s36(2)(aa) of the Act for the purposes of s46A of the Act.
2. That the First Respondent cannot lawfully act on the basis of the “Reconsideration of Protections Claims – Following the Independent Merits Review Finding” conducted by Geoff Hanson on 15 May 2012 and adopted by Ms Rebecca Chow, Manager Protection Obligations WA, Department of Immigration and Citizenship, as contained in the Court Book at page 173 because:
Particulars
a) That assessment applied the wrong standard of proof when assisting whether the respondent could have “substantial grounds for believing” that the applicant would be arbitrarily deprived of his life; and/or
b) it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to be heard on the questions relevant to the assessment of his claims under complementary protection.
3. That the first respondent cannot lawfully act on the basis of the Departmental assessment conducted by Geoff Hansen on 15 May 2012 and adopted by Rebecca Chow, Manager Protection Obligations WA, Department of Immigration and Citizenship, because it was made by a process that applied the incorrect test at law to his claims under complementary protection.

The Relevant Test under the Complementary Protection Provisions

The test in respect of complementary protection is now contained in s.36 of the Migration Act. Complementary protection refers to Australia’s non-refoulement obligations arising from international treaties other than the Refugees Convention, especially the International Covenant on Civil and Political Rights (the “ICCPR”), its associated Second Optional Protocol and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”).
The Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act to include criteria for protection visas that are consistent with Australia’s complementary protection obligations, especially in s.36 of the Migration Act, which now relevantly provides:
(2)    A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)    the non-citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non-citizen; or
(c)     the non-citizen will be subjected to torture; or
(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Migration Amendment (Complementary Protection) Act 2011 (Cth) states at Schedule 1, Item 35:
The amendments made by the Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):
(a) that is made on or after the day on which this item commences; or
(b) that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.
In applying the test contained in the legislation, guidance is provided by the second reading speech of 24 February 2011, where the Minister for Immigration and Citizenship (at that time, Chris Bowen) explained the effect of the s.36(2)(aa) of the Migration Act. This speech indicates that these provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights Treaties and other Refugee Conventions:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)

These complementary protection provisions commenced on 24 March 2012, after the applicant’s RSA and IMR were completed.

Applicant’s Submissions

Grounds One, Two and Three

The applicant’s Counsel, Mr Bodisco, submits that it is logical that all three grounds be dealt with together.
The three grounds of the Further Amended Application concern the correct test in law under the complementary provisions as enacted by Schedule 1 of the Migration Amendment (Complementary Protection) Act 2011 (Cth) (No. 121 of 2001), making s.36(2)(aa) (as amended) applicable to the definition of “protection obligations” for the purposes of the Migration Act in considering claims for protection made by the applicant on and after 24 March 2012.
Mr Bodisco submits that in Plaintiff M61/2010E v Commonwealth of Australia & Ors (2010) 243 CLR 319 the High Court held that the decision to establish and implement the RSA and IMR procedures was a decision by the Minister to consider whether to exercise s.46A or s.195 of the Migration Act in respect of any offshore person who made a claim that Australia owed that person protection obligations at [66]. As one of the powers being considered was that pursuant to s.46A to lift the bar to allow offshore entrants to make an application for a Protection visa, the exercise of power would be pointless unless the RSA and IMR processes were according to the criteria and principles of the Migration Act, as construed and applied by the courts of Australia at [88].
In Plaintiff M61 (supra) the High Court found the RSA assessment and subsequent IMR review were subject to procedural fairness as these processes extended the claimants’ periods of detention. Hence, the Court found the assessment and review must be procedurally fair and must address the relevant legal questions at [77].
The applicant adopts the characterisation of the process made by the High Court in Plaintiff M61 (supra) at [38]-[52] and [73]. The applicant submits that these very processes of the RSA assessment and subsequent IMR review were undertaken by the Department as a consequence of the Minister’s decision to exercise his powers under ss.46A and 195A of the Migration Act.
The applicant further adopts the reasoning of the Full Federal Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 as follows at [8]-[10] where their Honours Keane CJ, Rares and Perram JJ held:
INDEPENDENT MERITS REVIEW
8. A provision of crucial importance to the resolution of these questions, but not mentioned in them, is s 46A of the Act. Subsections 46A(1)-(3) and (7) of the Act provide:
46A Visa applications by offshore entry persons

(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and

(b) is an unlawful non citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3) The power under subsection (2) may only be exercised by the Minister personally.

...

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

The Minister has similar powers in respect of detainees under s 195A of the Act.
9. The reviews conducted by the Independent Merits Reviewers were part of a process conducted under administrative arrangements established by the Minister’s Department. In Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M61) at 342-345 [38]-[52] and 351-352 [73] the High Court described the process. The inquiries undertaken in that process were made under the Act in consequence of the Minister’s decision to consider exercising his powers under ss 46A and 195A. The purpose of the process was to inform the Minister of matters that were relevant to the decision whether to exercise his statutory powers in favour of an offshore entry person or detainee.
10. Under that process an officer of the Department interviewed each applicant. If the officer considered that the applicant was a person owed protection obligations under the Convention, a submission to that effect was made to the Minister for his consideration as to whether to exercise the power reposed in him by s 46A(2) of the Act by lifting the s 46A(1) bar to allow an application for a visa to be made. If the officer was of the opinion that an applicant was not a person to whom protection obligations were owed under the Convention, the applicant might then seek a review by an Independent Merits Reviewer. These reviewers were appointed by the Minister. Their function was to report their assessment and recommendation to the Minister. Under the administrative arrangements which were in place, the reviewer’s assessment and recommendation were made available to the Minister for his consideration. This occurred as a matter of administrative practice. By virtue of s 46A(7) of the Act, the Minister was not obliged to take the reviewer’s assessment or recommendation into account in deciding whether or not to lift the s 46A(1) bar.

The applicant referred the Court to [29] and [44] of SZQDZ where the Full Court stated:
29. As is apparent from the reasons of the plurality in Bodruddaza at 659-660 [4]-[9], the point was that the plaintiff’s application for mandamus sought to replace a decision to refuse a visa with a decision to grant it. Notwithstanding that the application was in form an application for mandamus, it was in substance an application for a remedy in relation to the earlier, allegedly invalid, decision because it was sought to replace the latter with the former. In the present case, the Minister has not yet made a decision of any kind. Each reviewer’s recommendation was not a decision upon an application for a visa. Indeed, it is not even a step required by the Act in the Minister’s decision making process under s 46A. If the Minister makes that decision, that will be the only decision which has any legal effect under the Act. Importantly, so far as the Minister’s reliance on Bodruddaza is concerned, each reviewer’s recommendation is not a decision apt to be replaced by the Minister’s decision. No relief is sought in any of the applications to the Federal Magistrates Court for the Minister to make a decision in lieu of the recommendation. Rather, the applicants seek an order that the Minister refrain from making a decision which takes the recommendation into account.
…
44. The Minister can ignore entirely a reviewer’s assessment and recommendation. However, as in Plaintiff M61 at 358-360 [99]-[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that an assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted. As the High Court explained in Plaintiff M61 at 353-356 [76]-[78]:
76. Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.
77. Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.
78. The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.
(Footnotes omitted) (Emphasis added)
The applicant adopts the reasoning of the majority of the Full Federal Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [200]. At [230]-[231] Lander and Gordon JJ stated:
230. If on judicial review a Court determines that in the assessment of a non-citizen’s claims the assessor or reviewer did not accord the person procedural fairness, or proceeded on an error of law, the Court will grant a declaration to that effect. That declaration will warn the Minister that the Minister should not take the person into detention (if not already in detention) for the purpose of removing that person from Australia, or attempting to remove the person from Australia, until a lawful assessment is made.
231. If the Minister proceeded to remove the unlawful non-citizen without obtaining a further RSA or IMR, the Minister would be liable to be restrained by the Court granting an injunction, not because the Minister will not exercise his powers under s 46A, s 91L, or s 195A, but because the Minister would be removing that non-citizen in breach of Australia’s international obligations to accord protection to those who are entitled to protection under the Refugees Convention, the CAT or the ICCPR. Whether SZQRB is entitled to any injunctive relief will depend upon SZQRB making out his claim that the ITOA is infected with jurisdictional error.
In the circumstances the applicant submits that the correct contemporaneous test under s.36(2)(aa) of the Migration Act has not been applied to the applicant’s claim in the findings as made by Ms Chow at CB 179.
Further, the applicant submits that the following passage then stands as relevant as to whether the applicant is entitled to injunctive relief. The applicant notes that the passage stands as identical to a passage contained in the International Treaties Obligation Assessment dealt with by the Full Federal Court in Minister for Immigration and Citizenship v SZQRB (supra). This passage is contained at CB 178 where the applicant submits the Assessor states:
The threshold for establishing a real risk if significant harm, as required by the Complementary Protection provisions of the Migration Act, is a higher threshold that the real chance test of the Refugees Convention. As [the applicant] was found not to be a refugee under the Refugees Convention, in absence of any new evidence or information to indicate that he is of adverse interest to non-state actors or authorities in Iran, I find that there is not a real risk he would be subjected to significant harm, as a necessary and foreseeable consequence of his return to Iran.
I believe the applicant’s representatives have misquoted the above passage as it is not located at the reference noted above, being CB 178. Moreover, I believe the passage the applicant’s representatives intended to reproduce is as follows:
I note that under the complementary protection framework, the threshold for a real risk of significant harm is higher than the test posed for determining a real chance of persecution. Therefore there is no real risk of any harm that Mr [SZQSN] fears as a result of returning to Afghanistan.
Therefore I find these claims do not enhance Mr [SZQSN]’s chance of making successful claim for protection under the complementary protection framework.
(CB 178)
The reasoning of Lander and Gordon JJ of the Full Federal Court in Minister and Immigration Citizenship v SZQRB (supra) is adopted at [246]-[248] where their Honours stated:
246. In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.
247. That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was “more likely than not” that SZQRB would suffer significant harm, which was not the appropriate standard. The “Departmental policy”, if the ITOA was right to describe it that way, was not in accordance with Australian law.
248. SZQRB’s contention that the ITOA was not carried out according to law must be accepted on that ground alone.
The applicant submits that further, and in consideration of the above reasoning in SZQRB (supra), that:
a)The applicant has not had an opportunity to put his claims under the complementary protection provisions;
b)The IMR recommendation relates to only s.36(2) of the Migration Act as it was, and there was no consideration of s.36(2)(aa) of the Migration Act as it now stands;
c)The RSA and IMR process was created by the Minister to determine whether an offshore entry person meets the criteria under s.36(2) of the Migration Act in exercising his powers under s.46A of the Migration Act to lift the bar if it is “in the public interest to do so”;
d)The Minister would now be acting under erroneous advice if he acted on the recommendation of the IMR as made on 25 July 2011 because it is based on a now superseded version of s.36(2) of the Migration Act;
e)The applicant’s submissions on these grounds are not by way of criticism of the Assessor, but rather under the structure of the Migration Act the said review only reaches the status of being a recommendation. In the circumstances of the amendments made to the Migration Act it so happens that the recommendation is out of date as per the reasoning of the Full Federal Court in SZQRB (supra);
f)Whilst the Minister’s powers to lift the bar under s.46A of the Migration Act remain extant, the Plaintiff M61 (supra) decision of the High Court means that the assessment and review must be procedurally fair and must address the relevant legal questions (at [77]);
g)Adopting the reasoning of the Full Federal Court in SZQRB (supra), the correct legal questions have not been applied in the current matter; and
h)Relevant findings made in the Findings and Reasons contained at [68] (CB 148) are bound up in Convention related reasons and admit the possibility that, should the correct test be applied under s.36(2)(aa) of the Migration Act, the application may have been disposed of in the applicant’s favour, noting that the Reviewer accepted at [89] (CB 151) that the applicant’s claims “sound more terrorist than nomad behaviour”. By characterising the applicant’s claims in this manner, the Reviewer appears to be rejecting them on the basis of insufficient Refugee Convention-related nexus.
The applicant notes that neither the applicant nor his advisers were informed of the process of assessment of his claims under complementary protection until after they had occurred. Further, the applicant notes that an important opportunity to lead further evidence on complementary protection, or to make submissions on the test and how it may apply to the applicant’s claims, was denied to the applicant. The importance of this opportunity to make representations was noted in the decision of his Honour Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37]-[38] as an example of practical procedural fairness.
In the circumstances, the applicant submits that this process embarked upon by the Minister for determining his decision on whether to lift the bar under s.46A of the Migration Act is not at an end, because the Minister has not yet turned his mind to rejecting/making a ruling under s.46A. However, this administrative process remains relevant to the Minister’s exercise of powers under s.46A, that is whether the person would meet the criteria under s.36(2) of the Migration Act.
The IMR recommendation in this instance is affected by error because it does not address s.36(2) because s.36(2) has changed. The assessment further involved a failure to exercise the correct test at law, failing to address the correct test – being the “real chance” test under s.36(2)(aa) of the Migration Act as opposed to a hypothesised “higher threshold” as required by the complementary protection provisions (CB 178).
The applicant submits that in line with the binding authority of the Full Federal Court in SZQRB (supra), the applicant has made out his claim for relief.

Minister’s Submissions

Mr O’Donnell, counsel for the Minister, contends the Department uses the Post Review Protection Claims “PRPC assessment” process for:
a)Dealing with further protection claims made by applicants after their original claims have been considered through the RSA/IMR process; and
b)For those applicants whose claims were considered by an IMR before the commencement of the complementary protection provisions, but did not have them considered as part of an International Treaties Obligations Assessment, the consideration of their past and any new claims against those provisions: see the reference to the “Minister’s guidelines on Considering Post-review Protection Claims” at CB 174.4. This process is directed to deciding whether to recommend to the Minister that he use one of his dispensing powers in favour of an applicant.

The Minister argues that in Plaintiff M61(supra) the High Court held that the principles of procedural fairness, and in particular the hearing rule, apply to the RSA and IMR processes that were established for the purpose of recommending whether the Minister should use his dispensing powers. The considerations identified and discussed by the Court at [62]-[66] show that the distinctive legal features of the processes at issue in Plaintiff M61(supra) process were:
a)The Minister had publically and explicitly stated that he would consider using his dispensing power in s.46A(2) of the Migration Act with respect to offshore entry persons who were otherwise barred from applying for a visa by s.46A(1) of the Migration Act;
b)To this end, and under the Minister’s direction, the Department established the relatively elaborate RSA/IMR administrative process, which roughly mirrored the statutory visa application and merits review process available under the Migration Act; and
c)That process had the clear tendency to substantially increase the amount of time a relevant applicant might be held in immigration detention, meaning that for the detention to be legal under ss.189 and 198 of the Migration Act, the process had to have some statutory basis or support.
However, in Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor (2012) 246 CLR 636 the High Court identified ss.48B, 195A, 351 and 417 of the Migration Act as the “dispensing powers”. As French CJ and Kiefel J noted at [30]:
The dispensing provisions and other like provisions in the Act have a distinctive function in its legislative scheme. The Act creates a range of official powers, duties and discretions, particularly in relation to the grant of visas, which are tightly controlled by the Act itself and, under the Migration Regulations, by conditions and criteria to be satisfied before those powers and discretions can be exercised. The dispensing provisions stand apart from the scheme of tightly controlled powers and discretions. They confer upon the Minister a degree of flexibility allowing him or her to grant visas which might not otherwise be able to be granted because of non-satisfaction of substantive or procedural requirements.
(footnotes omitted)
The Court noted that the dispensing powers may only be exercised by the Minister personally and that the Minister does not have a duty to consider whether to exercise the powers, whether he or she is requested to do so by the applicant or by any other person or in any other circumstances: see at [28] (French CJ and Kiefel J) and [99] (Gummow, Hayne, Crennan and Bell JJ).
The Court concluded that the dispensing powers were “not conditioned on the observance of the principles of procedural fairness” and, in particular, “there was no requirement to provide the plaintiffs the opportunities to be heard which they assert”: Plaintiff S10/2011 (supra) at [100] (Gummow, Hayne, Crennan and Bell JJ) (see also at [50]-[53] per (French CJ and Kiefel J) and [118] per (Heydon J)). As French CJ and Kiefel J noted at [50] therein:
The purpose and nature of the powers conferred by each of the dispensing provisions in these proceedings appears from their respective texts. It is clear from their terms that the Minister is under no duty to respond to a request for his or her consideration of the exercise of those powers. Nor is the Minister under a duty, independent of any such request, to consider any class of case for the exercise of those powers. With no statutory duty to consider the exercise of the Minister's powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness.

The plaintiffs in the Plaintiff S10/2011 were not offshore entry persons. Regarding Plaintiff M61 (supra) French CJ and Kiefel J noted in Plaintiff S10/2011 at [41]:
The plaintiffs invoked the decision of this Court in [Plaintiff M61] in support of their submissions. However that case, which concerned the application of procedural fairness in connection with the exercise of ministerial powers under ss 46A and 195A of the Act arose in circumstances quite different from the cases presently before the Court. The Court in that case was concerned with inquiries made after the Minister had decided to consider exercising his powers under those sections. On the other hand, in each of the cases currently before the Court, the Minister had declined to consider exercising the relevant power.
(footnotes omitted) (Emphasis added)
(See also their Honour’s further comments at [42]-[46] and the comments of Gummow, Hayne, Crennan and Bell JJ at [59], [79]-[80] and [82]. But see the somewhat different basis for distinguishing the Plaintiff M61 in the decision of Heydon J at [121].)
None of the distinguishing features identified at [42 above are present in the case of a PRPC assessment conducted after an RSA/IMR or equivalent process has been conducted, noting:
a)First, the Minister has not announced that he will actively consider exercising his dispensing powers with respect to offshore entry persons who have been through an RSA/IMR process that predated the commencement of the complementary protection provisions of s.36 and thus did not consider Australia’s complementary protection obligations. The consideration to be given to the possible exercise of a dispensing power, which the Minister was held to have decided to undertake in the Plaintiff M61, consists of an analysis of each offshore entry person’s claims against the protection visa criteria reflected in the Act at the time of the consideration. With that consideration (undertaken by means of the RSA and IMR processes) having been completed, the obligation to remove an offshore entry person “as soon as reasonably practicable” arises under s.198(2) of the Migration Act. The announcement by the Minister that was analysed in the Plaintiff M61is not to be construed as putting in place an open-ended process, with decisions to be revisited whenever further claims are raised;
b)Secondly, the Minister has not established any elaborate quasi-curial process for determining complementary protection claims where they have not been considered as part of the RSA/IMR process (or its current successor). The PRPC process is simply a bureaucratic procedure; and
c)Thirdly, the PRPC process is part of the Department’s normal process and is unlikely to significantly prolong applicants’ detention.
Thus, leaving SZQRB aside for the moment, the PRPC process is simply part of the Department’s practices for assisting the Minister in the use of his dispensing powers of the sort that were analysed by the High Court in Plaintiff S10/2011 and, as such, is not subject to the requirements of procedural fairness and is not reviewable in the way in which RSA or IMR decisions are reviewable.
However, the above analysis is to a large extent rendered moot by the recent decision of Lander, Besanko, Gordon, Flick and Jagot JJ in Minister for Immigration and Citizenship v SZQRB (supra). In that case the Full Court held that it was not legal for a non-citizen to be removed from Australia under s.198 of the Migration Act until his or her claims to be entitled to Australia’s protection, including claims to complementary protection, had been assessed “according to law”: see at [228]-[231] (Gordon and Lander JJ), [342] (Flick J) and [313] (Besanko and Jagot JJ). Assessment “according to law” included the application of what the Court saw as the correct test for complementary protection and the provision to the applicant of procedural fairness (both discussed in further detail below).
The Minister argued that if SZQRB is determined to be good law, it renders moot the analysis at [43]-[48 above regarding the reconciliation of Plaintiff S10/2011 with Plaintiff M61. Even if a Departmental decision not to put an applicant’s matter before the Minister for him to consider using his dispensing power is covered by the principles in Plaintiff S10/2011, if that decision was the only stage at which the applicant’s complementary protection claims were considered and it were held that they were not considered “according to law”, then the relevant officials could be restrained from removing the applicant until his or her complementary protection claims were considered “according to law”.
At the time of the hearing the Minister had applied to the High Court for special leave to appeal from the decision in SZQRB. The Minister formally submits that SZQRB was wrongly decided and should not be followed.
Nevertheless, the remainder of these submissions proceed on the assumption that, contrary to the above submissions, this Court accepts the conclusion in SZQRB that after the complementary protection provisions commenced on 24 March 2012, the Department cannot legally remove a non-citizen whose complementary protection claims have not been considered “according to law”.
There are two procedural difficulties with both the current Amended Application and the proposed Further Amended Application, being.
a)First, the pleadings do not squarely engage the principles in SZQRB because they do not, in terms, seek remedies restraining removal of the Applicant from Australia. The applications do seek orders preventing the Minister from relying upon the PRPC assessment, but it is officers of the Department and not the Minister who remove persons under s.198 of the Migration Act. It might be arguable that the principles in SZQRB are engaged by the declaration sought that the PRPC assessment was “not made in accordance with law, by reason of the ground/s in this application”, though such a declaration would only be appropriate in the case of an impending removal.
b)Secondly, while the original Application named only one Respondent, the current Amended Application and proposed Further Amended Applications name a Second Respondent. Under rule 11.02(2) of the Federal Circuit Court Rules 2001 the Applicant requires leave to add a further Respondent after the first Court date (which was listed for 2 April 2013, with procedural orders made in chambers on 27 March 2013). The Minister considers that leave is required and such leave does not appear to have been given; and
c)Thirdly, the current and proposed pleadings identify the wrong officer as the Second Respondent. Ms Chow was the senior officer who, in the normal course, should take responsibility for the decision not to put this matter before the Minister for consideration of whether to exercise one of his dispensing powers. It is notable that the original Application, but not the subsequently filed or foreshadowed ones, identifies Ms Chow as the relevant decision maker, though it neglected to name her as a party. Before the hearing took place the named second respondent was a relatively junior delegate, Mr Geoff Hansen who prepared the PRPC report for Ms Chow’s approval. As such, the Minister argued that the delegate was not an appropriately named respondent in this Court. Consent between the parties on this issue occurred and Ms Chow was subsequently identified as the second respondent.

The correct test for complementary protection

In SZQRB the Full Court held that the risk threshold for complementary protection under s.36(2)(aa) of the Migration Act is equivalent to the “real chance” test that applies with respect to the Refugees Convention obligations enshrined in s.36(2)(a) of the Migration Act – that is, that there is a “real chance” that the person will suffer “significant harm”: see at [246] (Lander and Gordon JJ); [297] (Besanko and Jagot JJ) and [342] (Flick J). A purported consideration of Australia’s complementary protection obligations will not have been made “according to law” if it applied the wrong risk threshold. This is one of the holdings in SZQRB that the Minister is challenging in his pending special leave application. The Minister submits that the Full Court was wrong on this issue, but acknowledges that this Court is bound by that decision and will assume its correctness for the purpose of these submissions.
Towards the end of the PRPC Assessment the drafting officer writes (CB 178.8):
I note that under the complementary protection framework, the threshold for a real risk of significant harm is higher than the test posed for determining a real chance of persecution.
This statement appears to be inconsistent with the holding in SZQRB. If SZQRB is determined to be good law, then the above-quoted statement might be indicative of legal error – but only if that error affected the conclusions of the PRPC assessment.
The PRPC assessment statement quoted above was made in the context of reviewing protection claims made and rejected during the RSA and IMR processes, all in the context of the Refugees Convention risk threshold: see the claims discussed under the second heading at CB 178. Since these claims failed what the PRPC assessment considered to be the lower Refugees Convention standard, it concluded that they would also fail what it considered to be the higher standard with respect to complementary protection. Thus the PRPC assessment’s error regarding the correct risk threshold (if it be such) did not affect the PRPC assessment on these issues.
The PRPC assessment also relies on earlier factual findings by the IMR to reject complementary protections claims that had not been addressed before the IMR: see CB 178, below the first heading. Thus, for the same reasons, the PRPC assessment’s error regarding the correct risk threshold (if it be such) did not affect the PRPC assessment on these issues.
By contrast, the PRPC assessment’s conclusion regarding the “children in Afghanistan” claim at CB 177-178 does not rely on IMR findings or conclusions. However, given that the applicant is over thirty years old, the claim is so clearly misconceived – indeed, one suspects its presence in the applicant’s submission was due to a cut-and-paste error by his migration agent – that it is clear that the claim would have been bound to fail against any conceivable risk threshold.
This leaves the first issue analysed at CB 177 under the heading “Assessment of case against the Minister’s Guidelines”. Having analysed new country information regarding a recent bomb attack in Afghanistan that appeared to target Shias, the PRPC assessment concludes that the chances of a Hazara Shia (such as the applicant) being a victim of an attack were still remote. The PRPC assessment on this issue uses the language of “real chance”. It is clear that the assessment is considering the applicant’s refugee claims, on the basis of new information, against the Refugees Convention standard. Thus again, since the PRPC assessment considered that the complementary protection standard was a higher one, the threshold risk error (if it be such) did not affect the decision.
Therefore, with respect to each issue, the erroneous identification of the risk threshold (if it be such) did not affect the decision and thus the assessment was made “according to law”.
To the extent that the applicant's written submissions make broad assertions that the applicant was denied procedural fairness in relation to the PRPC assessment, the Minister submits that no denial of procedural fairness can be established.
Upon receiving notification of the negative IMR decision, the applicant was invited to make further submissions relating to any humanitarian concerns or international human rights obligations (see paragraph above, CB 133-4). The applicant's representatives did in fact provide further written submissions on behalf of the applicant on 5 September 2011, asserting that to refoule the applicant would be in contravention of Australia's obligations under the ICCPR (CB 163-4).
With one exception, all of the country information used in the PRPC assessment had been used as part of the RSA or IMR process and thus been effectively disclosed to the applicant. The exception is a new piece of country information that post-dated the IMR (CB 177), but which was not adverse to the Applicant and thus did not need to be disclosed to him: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [2].
For the reasons given above, even if SZQRB is good law, which the Minister denies, and even if the applicant were allowed to amend his pleading to engage the principles in that case, its principles do not avail the Applicant in this proceeding because the PRPC assessment was unaffected by any error of law and was thus made “according to law”.

Consideration

This is an application seeking to restrain the Minister from and/or his departmental officers from relying upon the report recommendation of the delegate of the Department of Immigration and Citizenship (as it was then) in an assessment in relation to an off-shore entry person.
The application to the Court also seeks injunctive relief (that is, that the Minister not rely, or act, on the recommendation from the reviewer or the assessment by the departmental officers), and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E (supra).
At the commencement of the proceedings, counsel for the applicant sought leave to file a Further Amended Application in the proceedings which amended both the Minister’s title to read “Minister for Immigration and Citizenship and Multicultural Affairs” and the second respondent as “Rebecca Chow in her capacity as Manager, Protective Obligation Evaluation WA”. As there was no objection to the contents of this document, leave was granted.
Mr Bodisco informed the Court that the parties had discussed the issues in respect of procedural difficulties raised by Mr O’Donnell in his written submissions (see [52] above). These included the recent changes to the title of the Minister, the identity of the relevant second respondent and the proposed prayer of relief in respect to the final order sought by the applicant. These have been resolved and do not require further attention. Mr Bodisco advances his argument on the basis that the issue before the Court is on all fours with the relief sought in respect to the matter of SZQRB of the Full Federal Court.
At the time that the parties prepared written and oral submissions for this matter a special leave application was outstanding in respect of the Full Federal Court decision in Minister for Immigration and Citizenship v SZQRB (supra). Subsequent to the hearing and before the decision could be finalised in this matter the High Court refused special leave: Minister for Immigration and Citizenship v SZQRB [2013] HCA Trans 323 (13 December 2013) with the consequence that after the complementary protection provisions commenced on 24 March 2012, the Department cannot legally remove a non-citizen whose complementary protection has not been considered “according to law”. Mr Bodisco, in his written submissions, has provided the Court with details of that new provision (see [19]-[23] above).
Mr Bodisco indicated that he intended to address the three pleaded grounds as one. As there was no objection to this course by the respondents the oral submissions of both parties proceeded on that basis as all three grounds concern the correct test in law under the complementary protection provisions of the Migration Act which came into operation on 24 March 2012.
Mr O’Donnell informed the Court that the Minister formally submits that the decision in SZQRB was wrongly decided. The Minister had a pending application for special leave to appeal to the High Court on that decision, which had, at the time of the hearing, had not been heard. Nevertheless the Minister concedes that it is a decision that is binding on this Court.

Mr O’Donnell confirmed that the matter before the Court was not about the IMR or the RSA and IMR processes. The applicant had previously sought judicial review of those processes in this Court, was unsuccessful and elected not to appeal: see SZQSN v Minister for Immigration & Anor [2012] FMCA 578 per Barnes FM (as she was then), where the case now before the Court is whether in the terms of Minister for Immigration and Citizenship v SZQRB (supra), the applicant’s complementary protection claim has been considered according to law such that it would be possible for the applicant to be removed by officers of the Department or other persons falling within the definition under s.198 of the Migration Act. The Minister’s position is that the PRPC assessment constitutes a consideration of the complementary protection obligations to the applicant and that consideration was done according to law.
Mr Bodisco advanced the applicant’s argument on the basis that the IMR was not acting in accordance with s.36(2) as it was amended and the provisions of the complementary criteria in circumstances where this assessment has taken place without the applicant knowing and without the applicant having drawn to his attention any information that may have been adverse. The applicant has been denied an important opportunity to make submissions in respect of the correct test. In a nutshell that is the argument put by the applicant in respect of procedural fairness. Given that the test changed due to the amendments in s.36 of the Migration Act it would have significance in that the incorrect test was applied. If the Minister acted upon the recommendations made by the Independent Merits Reviewer that the applicant did not meet the test under s.36(2) then clearly the IMR was applying the test under s.36(2)(a), not under the provisions of s.36(2)(aa).
The Minister for Immigration and Citizenship (at that time, Chris Bowen) stated in his Second Reading Speech that an applicant would have the assessment engaged under s.36(2)(aa), however, in the matter before this Court, the test had changed, but not the process mandated by the procedural fairness obligations as effectively dealt with in the authority of Minister for Immigration and Citizenship v SZQHH & Anor (2012) 200 FCR 223 which considered whether the Independent Merits Reviewer in that case had failed to disclose material relevant to the applicant’s claim such that it constituted a breach of procedural fairness. That meant that there was an obligation in respect of the Independent Merits Reviewer to draw to the applicant’s attention any information which was then used to ground the said findings in respect of the assessment.
To assist in the understanding of the sequence of the events that have occurred in this matter I refer to the brief chronology:
a)Irregular Maritime Arrival – 2 July 2010 (CB 136 at [2]);
b)Entry Interview – 25 July 2010 (CB 1-10);
c)RSA decision (negative) – 9 December 2010 (CB 58);
d)Application for IMR of RSA – 29 December 2010 (CB 83);
e)IMR hearing – 9 May 2011;
f)Further written submissions – 18 May 2011 (CB 142 at [36]);
g)IMR Decision – Ms P Hall – 25 July 2011 (CB 135-160);
h)IMR Notification letter – 2 August 2011 (CB 133);
i)Humanitarian Submissions provided by the applicant’s representatives – 5 September 2011 (CB 163-164);
j)Request for Ministerial Intervention (s.417 application) – 5 September 2011 (CB 163);
k)Operation of the Complementary Amendment (Complementary Protection) Act commenced on 24 March 2012;
l)Case officer, Geoff Hansen – further assessment of the applicant in respect of complementary protection provisions - Minute– 15 May 2012 (CB 173-179);
m)IMR Assessor’s reconsideration decision – Ms R Chow – 25 May 2012 (CB 173-184);
i)Notification (CB 171);
ii)Decision Record (CB 173-184);
n)Federal Circuit Court Application – 17 January 2013; and
o)Federal Circuit Court hearing - 31 July 2013.
Turning to the Department’s Minute (CB 173-179) prepared by the case officer Geoff Hanson, under the subheading “Change in country information” (CB 177) it states:
I note that since the IMR recommendation, there were explosions in Afghanistan in December 2011 which appeared to specifically target Shias attending the Ashura Day pilgrimage in Kabul and Mazar-e-Sharif. The total casualties appear to be approximately 58 dead (54 in Kabul) and 150 injured. The Taliban has denied responsibility for these attacks.
The IMR found there was no systematic targeting of Hazara or Shia people and that the harm faced by Mr [SZQSN] is generalised violence. With estimates putting the number if Hazaras in Kabul at 1.5 to 2 million, of whom an overwhelming majority are Shias, it will be apparent that unless these attacks are repeated the chances of a Hazara Shia being a victim are still remote.
(footnote omitted) (CB 177)
The applicant’s argument is that this is a conflation of the test under ss.36(2)(a) and 36(2)(aa) by conflating the findings as made by the IMR Reviewer under s.36(2)(a) with the new country information which is before the IMR Reviewer. It is acknowledged that it may be relevant for an assessment under the Refugees Convention that the situation of generalised violence now accepted in Afghanistan would not meet the precursory elements as anticipated by s.91R of the Migration Act and would not be systemic nor discriminatory.
However, in respect of the test under the complementary protection criterion there is a very different statutory formula which is simply not taken into account under the formulation used by the delegate. It may be that under s.36(2)(a) an individual may face a real risk of significant harm in circumstances that arise as a necessary and foreseeable consequence of the non-citizen being removed from Australia which is for purposes that are not bound up in the Refugees Convention. That is a situation of generalised violence and the applicant is being denied the opportunity to make submissions or lead evidence and thereby being denied procedural fairness in respect of his claim under the complementary protection criterion.
The conclusion drawn by the delegate, under the heading “Change in country information” was:
I do not believe that this information enhances Mr [SZQSN]’s chance of making a protection visa application. The information does not indicate that there is now more of a real chance that Mr [SZQSN] will be persecuted owing to his profile as a Hazara Shia.
(CB 177)
The above passage demonstrates the conflation of the test under complementary protection with the test under the Refugees Convention. The idea of enhancing chances of making a Protection visa application reflects the misunderstanding of the two tests under the Refugees Convention and complementary protection.
Under the hearing “Non-Refugees Convention claim unaddressed by the IMR” it states:
I note that the IMR found that the Mr [SZQSN]’s fear of persecution from the Rabini family did not have a nexus with the Refugee Convention and it was instead found to be a land dispute. However, I also noted that the IMR made substantial findings in respect of this claim, even though he was not related to the Refugees Convention assessment.
(CB 178)
This section then contains the following conclusion:
Therefore I find this claim does not enhance Mr [SZQSN]’s chance of making a successful claim for protection under the complementary protection framework.
(CB 178)
It is argued on behalf of the applicant that the IMR Reviewer is dealing with an enhanced claim; it is assumed that because the applicant did not satisfy the test under the Refugees Convention, therefore, could not satisfy the test under the complementary protection criteria. In the case officer’s minute, under the subheading “Protection claims advanced during the RSA and IMR processes” it states:
Mr [SZQSN]’s previous claims were not considered under the complementary provisions in the Migration Act which commenced on 24 March 2012.
Mr [SZQSN] has previously claimed in relation to his protection claims that he faces being seriously harmed or killed. The IMR assessor found that there was no real chance he will face serious harm upon return to Afghanistan.
I note that under the complementary protection framework, the threshold for a real risk of significant harm is higher than the test proposed for determining a real chance of persecution. Therefore there is no real risk of any harm that the applicant fears as a result of returning to Afghanistan.
(CB 178)
It is argued on behalf of the applicant that on contextual or conceptual analysis it is clear that the use of the word “therefore” implies that if you do not meet Test “A” (refugee status) you cannot meet Test “B” (complementary protection). Further, as the applicant did not meet Test “A” there is no need to apply Test “B”. The applicant’s claim is that the procedural fairness requirements meant that as a test has changed the applicant should have been provided with an opportunity to make submissions, lead evidence and to meet the case that was against him.
The argument is that the material that was held which was adverse to the applicant’s claim in respect of the change in country information, whether the contents indicated no change in country information or that there had been no change that would alter the assessment, then that material should have been brought to the applicant’s attention under the procedural fairness obligations. The applicant’s position is that the test applied by the delegate was erroneous which is in line with Minister for Immigration and Citizenship v SZQRB (supra) and that procedural fairness was not accorded to the applicant. Although the country information that was held by the IMR Reviewer had not changed substantially to the extent that it would have effect the IMR’s outcome it still should have been brought to the attention of the applicant.
The applicant further claims that there was procedural unfairness that relates to the fact that this assessment occurred without the applicant’s knowledge and without any opportunity to make representations in respect of how the evidence and/or the findings would be applicable or inapplicable to the test under the complementary protection criterion. The decision in Minister for Immigration and Citizenship v SZQRB (supra) is authority for the proposition that proceedings designed to inform the Minister in the public interest, or the criteria for the Minister to exercise his power under s.46A to lift the bar and allow for a Protection visa application to be made by an offshore entry person is binding authority, and that those powers should be exercised in accordance with procedural fairness.
Significantly it is acknowledged that on behalf of the Minister that there is no doubt that the case officer’s statement citing his understanding of the risk threshold for complementary protection is the wrong test contrary to the finding in Minister for Immigration and Citizenship v SZQRB. However, the argument advanced on behalf of the Minister is that the error is not stating the wrong test, rather, the error is applying the wrong test. The Minister’s argument is that there is only an error if the decision was not made according to law if any error arises in stating the test affected that decision. Further the onus is for the applicant to establish that.
In respect of country information the Minister’s contention is that in order for a decision-maker to be obliged to disclose country information it must be credible, relevant and significant, but it must also be adverse. The Minister’s submission is that it is revealed in the PRPC assessment that the country information in this matter was not adverse.
The Minister maintains that this matter is not about the IMR because the IMR has already been found, by this Court, to have not been effected by legal error (see SZQSN v Minister for Immigration & Anor [2012] FMCA 578. However, in this matter there is frequent reference back to the IMR and adoption of the IMR’s conclusions. In the Minute the case officer, Geoff Hansen, records in point form this summary of what the IMR had decided. What is significant about that reasoning is that although there are places at which it is on an alternative basis found by the IMR that even if the applicant was to be targeted he would not be targeted for a Convention reason. Consequently the primary findings are that the applicant would not be targeted. The Minster contends that the IMR’s findings were that there might be a real chance of significant harm, but it is not going to be for a Convention reason.
The new country information is addressed in the case officer’s reasoning under the “Change in county information” (CB 177) where it states:
I note that since the IMR recommendation, there were explosions in Afghanistan…
(CB 177)
The Minister advances the argument that this finding was an assessment as to whether those two bombings in Afghanistan were an anomaly or a harbinger of things to come. It was argued that inherent in the finding, particularly in the words “unless these attacks are repeated” was the finding that these attacks as rare. As a result the case officer made an assessment that these attacks do not affect the question of whether there is a real chance of harm coming to the applicant. They are not an assessment as to whether the applicant would be caught in a bomb blast because of his ethnicity, rather, it is an assessment as to whether these two attacks indicate the applicant is more likely to be caught in a bomb blast. In Minister for Immigration and Citizenship v SZQRB (supra) the Court said that the risk threshold, real chance, is the same as that in the Refugee Convention, the probability assessment that a decision-maker has to make with respect to the complementary protection, established by SZQRB which says it is the same probability assessment. It is a probability assessment of a slightly different event, but it is the same probability assessment as would be applied for the Refugees Convention.
The Minister submits the probability assessment that the case officer made in respect of these two attacks are not an indication of greater risk of attacks like this occurring in the Kabul area. As they are rare, risk to the applicant is not affected by this recent piece of country information. Consequently, the country information is not adverse and the practical test applied is the test that SZQRB (supra) requires is that the probability threshold applied is the same probability that would apply under the Refugees Convention.
However, Mr O’Donnell acknowledges that the process that the case officer applied was not quite the approach that SZQRB required. The approach adopted was to accept that the probability is not going to pass the Refugees Convention probability and because the complementary protection is a higher threshold, the issue ought not to be pursued further. The probability of this assessment is not affected on a Refugees Convention basis because it is the event that is being evaluated not the motivation. Consequently that would be the same test that would be applied for complementary protection. The risk threshold of the events, not the motivation, was the issue being the same risk threshold that SZQRB would say should be applied.
The argument advanced on behalf of the applicant was also focused on the issue of “Change in country confirmation”.It is argued that the finding that there has been no change in country information as it stood when the IMR made its finding that the relevant elements under s.91R of the Migration Act and as directly related to the Refugees Convention under s.36(2) as it stood, has not been made out in respect of the generalised violence that was accepted as a day-to-day reality in Afghanistan, yet would not contain the necessary systematic targeting of Hazara or Shia people in respect of the harm faced by the applicant.
The IMR found that there is no systematic targeting of Hazara or Shia people and that the harm faced by the applicant is generalised violence. In respect of this finding, the crucial issue in SZQHH (supra) is in the reasons of their Honours Rares and Jagot JJ (Flick J dissenting) at [30]:
30. However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
(emphasis added)
In this matter the decision maker did not disclose this information (contained at CB 177) noting that the explosions that were occurring which appeared to specifically target Shias and potentially using the information adversely to the interest of the applicant because it is used to ground the proposition that there is not systematic targeting of Hazara or Shia people, and that the harm faced by the applicant is generalised violence. It is used adversely by the case officer in the sense that it forms the basis for the proposition:
I do not believe that this information enhances Mr [SZQSN]’s chance of making a Protection visa application. The information does not indicate that there is now more of a real chance that Mr [SZSQN] will be persecuted owing to his profile as a Hazara Shia.
(CB 177)
Consequently, there is information not disclosed with potentially adverse consequences. There is no change in circumstances since the IMR dealt with the applicant’s matter and found he had no claim. This invites the inference that as there is no claim under Test “A” there will be no claim under Test “B” and therefore no enhanced chance of making a Protection visa application based on complementary protection. Information used to impugn the applicant’s original protection claim is now available for consideration of whether there is a real chance that the applicant will be persecuted owing to his profile as a Hazara Shia.
Although the Minister maintains that the information and question was not adverse, the applicant considers that the material could have been adverse and that procedural fairness obligations would require the Case Officer to draw the attention of the applicant that information so it could be dealt with in respect to the potentially adverse consequences, but this did not occur. The applicant submits that the procedure followed by the case officer was flawed and runs against the findings in SZQRB as to the requirement of the case officer to draw to the applicant’s attention credible material which was used to ground the proposition that the applicant could make a successful claim for protection under the complementary protection criteria.
The applicant contends that if the Minister were to apply the findings in respect of the assessment of the reconsideration of the protection claims, then the Minister would have allowed for an outcome that was embedded in the flawed understanding of the test, because the procedural fairness requirement dictates that a process would have to be put in place to provide a fair opportunity for the applicant to put evidence, make submissions and lead evidence that may have bearing on the test and/ or findings. The applicant contends that this is the highest the applicant takes their position.

The applicant simple seeks to be accorded his rights to be heard, to make submissions and to lead evidence in respect to the complementary protection provisions as they stand in s.36(2) after the Migration Act’s amendment and as they would stand if the Minister were now to exercise his power under s.46A to make a decision in respect of lifting the bar on the applicant to allow him to make an application for a Protection visa.
I agree with Mr Bodisco’s contention that the test under s.91R is vastly different in respect of the test under s.36(2A) under ‘significant harm’. The sliding scale under s.36(2A) is an exhaustive list from the deprivation of life to cruel and inhuman treatment or degrading conduct. This is different from the test of serious harm under s.91R and to conflate those tests is indicative of error, however, in the matter before this Court there is an explicit error in respect of the understanding of the threshold of real risk. The complementary protection criteria are a higher burden and if an individual does not meet the test under the Refugee Convention they cannot meet the test under the complementary protections framework. Proceeding on that understanding, there is a reason that the applicant should be allowed to make submissions and lead further evidence.
I also agree with Mr Bodisco’s contention that it is clear that an erroneous understanding of the test under the complementary protection criteria has then resulted in a defective process established by the case officer that denied the applicant any opportunity to lead further country information that could have cast light in respect of the changes in circumstances in Afghanistan, but the applicant was denied that opportunity. The case officer comes to the conclusion that circumstances have not changed because the IMR Reviewer conflated the respective tests by adopting the reasoning of the IMR which is bound up in the Refugees Convention. The case officer has therefore not disclosed the country information that would potentially be adverse to the applicant.
If the practical procedural fairness had been afforded to the applicant then there would have been an opportunity to make submissions in respect of the evidence that was before the case officer and how it might relate to the test under s.36(2)(aa). This did not occur and the flawed understanding of the correct test that was engaged in resulted in a flawed process as identified in Minister for Immigration and Citizenship v SZQRB (supra).

Conclusion

The applicant is entitled to the relief he seeks in relation to the assessment and recommendations by the departmental officers. I will make the orders and declarations sought by the applicant in the Further Amended Application accordingly.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate:

Date: 14 July 2014