FEDERAL COURT OF AUSTRALIA

DLB17 v Minister for Home Affairs [2018] FCAFC 230

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellant appeals from the decision of the Federal Circuit Court of Australia by which it dismissed an application for judicial review of the decision of the second respondent, the Immigration Assessment Authority. The Authority had affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs to refuse the appellant a Safe Haven Enterprise Visa (SHEV). The issue on appeal is whether the Authority misconstrued or misapplied the test in s 473DD of the Migration Act 1958 (Cth) in making a decision not to have regard to certain “new information” advanced by the appellant in support of his claims.

BACKGROUND

2    The appellant, a citizen of Afghanistan, arrived in Australia as an unauthorised maritime arrival. He was informed on 17 March 2016 that the Minister had exercised the discretion in s 46A of the Act to permit the appellant to make a valid visa application. The appellant made an application for a SHEV on 24 June 2016. In the Statement of Protection Claims attached to his visa application, he made the following claims for protection:

(a)    the appellant claimed to be persecuted in Afghanistan on account of his Hazara ethnicity, his Shia Muslim religion, and his previous military service with the former communist regime in Afghanistan;

(b)    the appellant claimed he suffered mental trauma because he witnessed the execution of Hazara people by the Taliban in Afghanistan;

(c)    the appellant claimed to be a well-known person in his village as he was in charge of managing the village’s finances. He had also worked for a number of Non-Governmental Organisations in Afghanistan;

(d)    the appellant claimed he had been repeatedly threatened, assaulted and detained by the Taliban, who had forcibly removed him from his home and threatened to kill him. The abuse intensified in the two months leading up to the appellant’s departure from Afghanistan; and

(e)    the appellant claimed that since his departure the Taliban had threatened those members of the appellant’s family who remained in Afghanistan. During those incidents, the Taliban asked after the appellant and demanded to know his whereabouts.

3    The delegate refused the appellant’s application for a SHEV. The matter was referred to the Authority for review on 8 December 2016.

THE DECISION OF THE AUTHORITY

4    By a decision dated 4 July 2017, the Authority affirmed the delegate’s decision. Before coming to the substantive review, the Authority was required to decide whether it should take into account “new information” provided in a written statement provided by the appellant. Of particular relevance to the assessment of whether the circumstances were such to warrant the consideration of “new information”, as the Authority recorded (at [7]-[9]), were these new claims by the appellant:

7.    The applicant also claims for the first time in his submission that he was arrested at three different checkpoints while he was travelling for work. He claims on the fourth and last occasion he was detained at the first checkpoint in the Khimchik area. He claims he was released on the first three occasions due to the intervention of village elders. He claims he as [sic] released on the condition that he would no longer work for NGOs, but he returned to this work due to financial reasons.

8.    In his written statement the applicant stated that he was forcibly removed from his home by the Taliban on frequent occasions. The applicant did indicate that he would be harassed on his way to work, and they would be taken off the roads. He made no mention of checkpoints or the intervention of village elders, but claimed he was detained at a Taliban base. The applicant has previously claimed that he was a volunteer worker for the NGOs, and as such the suggestion in the submission that he would return to this work due to financial reasons contradicts his earlier evidence.

9.    This new information related to his past claims, but did not form part of his original claims, whether at the arrival, application or visa interview stages. I am not satisfied this information was not, and could not have been, provided to the Minister before the delegate made their decision. I am also not satisfied it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. I have considered whether its omission was due to the applicant’s claims of trauma, but I am not satisfied that this is the case. The applicant had multiple opportunities to raise those claims if they were genuine, and he did not indicate any concerns in giving evidence at those stages. Moreover, those claims are inconsistent with his earlier evidence. In all the circumstances, I am also not satisfied there are exceptional circumstances to justify consideration of the new information, and I have not considered the information pursuant to s.473DD of the Act.

(Emphasis added.)

5    On the substantive review, which is not the direct focus of the appeal, the Authority considered country information regarding the security situation in Parwan Province. On the basis of this information, the Authority did not accept that the appellant had been targeted, abducted or otherwise harmed by the Taliban or any other insurgent group or that the appellant had witnessed the abduction or execution of Hazara Shias, or that his family had been contacted by the Taliban since he came to Australia. It also rejected the appellant’s claim to have worked for an NGO, finding these claims were contrived. The Authority noted that the appellant did not mention this in his earlier entry interview and preferred his earlier evidence that he had worked as a car painter for between 15 and 20 years.

6    Not being satisfied that the appellant met the refugee criterion in s 36(2)(a) of the Act or the complementary protection criterion in s 36(2)(aa) of the Act, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV.

IN THE FEDERAL CIRCUIT COURT

7    The Federal Circuit Court refused the appellant leave to rely on five grounds set out in a proposed amended application on the basis that those grounds lacked merit. The primary judge’s findings in relation to the proposed amended application are not challenged in the appeal.

8    The primary judge raised an additional matter in relation to the Authority’s treatment of the “new information”, but again that is not the direct focus of the appeal. The appellant accepts the primary judge dealt with that issue correctly.

IN THIS COURT

9    The appellant appeals on the following slightly amended ground:

The decision of the [Authority] was affected by jurisdictional error, in that the [Authority] incorrectly applied the test in s473DD[(a)] for the consideration of new information.

The appellant’s arguments

10    The appellant refers to the following extract from appellant’s written statement before the Authority:

The [appellant] was warned to discontinue his work with the NGOs. The [appellant] did that for a while but had to again continue the same for financial reasons.

(Emphasis added.)

The appellant refers to the Authority’s finding (at [8] and extracted above) that this submission “contradicted” the appellant’s previous claims that he was a “volunteer worker for the NGOs”. That finding was premised, the appellant infers, on the assumption that the “financial reasons” were understood as being solely the appellant’s personal self-interested financial reasons. But the appellant had claimed that he “was in charge of managing the village finances”. There was evidence of significant NGO investment in the locality. The appellant’s “voluntary work” invited exploration of the possibility that the appellant was actuated by altruistic reasons in securing NGO local investment.

11    The s 473CB “review materials” included the appellant’s Statement of Protection Claims lodged alongside his visa application. The appellant there stated:

21.    … After finishing school, I worked in the farm with my father, in a car painting business and with a number of NGOs assisting with agriculture and construction in our area. I did this up until I left Afghanistan.

…

25.    I was a well-known person in my village. I was a senior member of my village and was in charge managing of the village finances. Prior to leaving Afghanistan, I was working for a number of NGOs … which helped train farmers in horticulture and assisted with construction and infrastructure work. As a result of these activities, I was well known to the Taliban.

(Emphasis added.)

12    The appellant argues that although he made no specific mention of his work with NGOs in the entry interview conducted by telephone between Darwin and Canberra on 25 May 2013, on the other hand, during the entry interview he described “construction” as the nature his most recent employment, albeit between 1993 and 2013, and the employment details as “car painting”. In answer to the question “[w]hy was your life in danger?”, the appellant said: “Because on the road that we were going to work all the way was Taliban”.

13    At the interview with the delegate on 17 October 2016, the appellant provided a self-completed table in which he provided “employment history” information, a fragment of which is extracted below:

14    The appellant argues that this reveals a distinction between “horticultural training” performed in a “volunteer” capacity with “Darkar” and “Jeris”, and the activity described as “assist[ing] with construction and infrastructure work”.

15    The appellant’s 25 December 2016 written statement to the Authority, after the Minister’s referral under s 473CA, contained the new information (by his migration agent) that:

The [appellant] worked as a painter and used to travel for work from Daray Gharban to Siyagird. He used to travel in a shared taxi and pass through Khimchak, Dare khiski [sic] and Wasghar to reach Siyagird bazar. It took approximately one hour to reach the bazar. There were several checkpoints on the way which were monitored by Taliban. The [appellant] wishes to point out that he was detained at different check points on the first three occasions. The last time he was detained was at the same check point as the first time which is in the Khimchik area. The other two times he was detained at Dar-e-khishki and Wasghar. …

… The [appellant] was known for his work with the NGOs. He was released on the first three occasions only after the intervention of village elders … The [appellant] was warned to discontinue his work with the NGOs. The [appellant] did that for a while but had to again continue the same for financial reasons.

(Emphasis added.)

16    As to “credible personal information”, it is submitted that the Authority tested the new information against the review material obtained from the Minister and identified “omissions”. The Authority also identified an alleged positive contradiction between the review material and the new information: “He claims he [w]as released on the condition that he would no longer work for NGOs, but he returned to this work due to financial reasons”.

17    The heart of the appellant’s argument is that the Authority’s decision was premised on an assumption “based upon the slenderest of evidence”. The assumption was that the words “financial reasons” in the appellant’s written statement meant only the self-interested personal financial reasons of the appellant. It was only on that premise that the Authority could have made a finding that there was any contradiction with the appellant’s volunteer work with the NGOs. There was another premise available on the underlying facts, which would have led to a different conclusion. Those facts were that: NGOs had invested in the local community by training farmers in horticulture and “construction and infrastructure”; the appellant was a senior member of his village; the appellant had demonstrated an altruistic bent in volunteering for dangerous work with NGOs; and the appellant was “in charge of managing village finances”. The alternative premise was that the “financial reasons” were not reasons personal to the appellant but were reasons connected with his local community and the investment being made there.

18    The appellant stresses that the fact-finding by a decision-maker is not immune from judicial review. Decisions must be reasoned decisions. The Authority is not authorised to act in an arbitrary or capricious manner, including in its fact-finding. Even where alternative inferences are available from facts, the Authority cannot arbitrarily select one over the other by the “toss of a coin”. There must be an “intelligible justification”. The appellant was never asked what he meant. If the Authority was unable to discern the meaning, it had the power, albeit not the duty, to request more information under s 473DC.

19    It is contended that the primary judge ought to have found that in this way the Authority had misdirected itself in reaching its state of satisfaction as to “exceptional circumstances”.

CONSIDERATION

20    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, the plurality (Gageler, Keane and Nettle JJ) held (at [30]):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

(Citations omitted.)

21    Consistently with this position, the Full Court has held that each case must be treated on its own merits and the considerations relevant to the existence of exceptional circumstances will vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 per McKerracher, Murphy and Davies JJ (at [14]).

22    In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.

23    More specifically, the appellant argues that in referring to a need to return for financial reasons the Authority had (without intelligible justification, rational explanation, consideration of possible alternatives or inviting the appellant back to expand upon or explain his position) assumed that the financial reasons to which the appellant was referring were his own financial reasons as distinct from the financial benefit to the village whom he was serving as treasurer.

24    Viewing the reasons without an eye keenly attuned for error, it was open to the Authority to conclude that the appellant was referring to his personal finances in the context of the explanation being given as to why he “returned to work for financial reasons”. The other theoretical possibility now advanced may not have occurred to the assessor but, equally, it might be expected that if the appellant was describing the finances of others (such as those of the village) there would be no reason not to make that clear as he had done on an earlier occasion. On this occasion, he did not. With the counsel of perfection, the analysis by the Authority might possibly have conceived of the hypothetical alternative now advanced, but the fact that it did not do so falls well short of being (legally) irrational as contended.

25    Indeed, we consider that the Authority drew the logical and sensible meaning in the circumstances and in the absence of any explanation to the contrary from the appellant through his migration agent who sought to provide the additional information. At no stage was it suggested that the financial reasons warranting his return were for the financial benefit of others, rather than himself. In those circumstances, the Authority was entitled to reach the normal inference that he was referring to his own financial circumstances.

CONCLUSION

26    The Minister also raised a notice of contention which neither he nor the appellant asked us to address.

27    The Court thanks Mr Crowley again for his helpful and generous pro bono service, but on this occasion the appeal must be dismissed with costs.

Associate:

Dated:    18 December 2018