Federal Court of Australia

ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 6 March 2020 be set aside.

3.    The appellant’s application for judicial review be remitted to the Federal Circuit Court of Australia to be reheard according to law.

4.    The first respondent pay the appellant’s costs of the appeal to be taxed failing agreement.

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

ORDERS

THE COURT ORDERS (IN ADDITION TO ORDERS 1, 2, 3 AND 4 OF 26 MARCH 2021) THAT:

1.    The Order made on 26 March 2021 be varied pursuant to rule 39.05(f) of the Federal Court Rules 2011 (Cth) as follows:

1.1    Orders 2 and 3 be revoked and replaced with the following order:

“The orders of the primary judge made on 6 March 2020 be set aside and in lieu thereof:

1.    An order in the nature of certiorari be issued to the second respondent quashing the decision made on 24 August 2018 (IAA reference number: IAA18/04386).

2.    The matter be remitted to the second respondent for the making of a decision according to law.

3.    The first respondent pay the applicant’s costs of the application filed in the Federal Circuit Court fixed in the amount of $7,467.”

1.2    Order 4 be varied to read “The first respondent pay the appellant’s costs of the appeal fixed in the amount of $12,600.00”.

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 has sought to challenge two aspects of a judgment of the Federal Circuit Court of Australia (ESQ18 v Minister for Immigration & Anor [2020] FCCA 472 (ESQ18)) whereby his application for judicial review of a decision of the Immigration Assessment Authority (the Authority) was dismissed. The Authority, in turn, affirmed a decision of a delegate (the delegate) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) which resulted in the refusal of the appellant’s application for a protection visa.

2    The appellant’s notice of appeal alleges that the primary judge made two process-related errors in his judgment. The first alleges that his Honour failed to find that the Authority’s failure to consider whether to exercise its discretion to seek further information from him pursuant to s 473DC of the Migration Act 1958 (Cth) (the Act) was legally unreasonable. The second alleges that his Honour failed to find error in the Authority’s failure to consider the risk of serious harm that he would face in Afghanistan as a failed asylum seeker returning from a western country.

3    For the reasons that follow, ground of appeal 1 will be dismissed, but ground of appeal 2 will be upheld. Orders will be made accordingly.

FACTUAL BACKGROUND

4    The appellant is a single 25-year-old male born on 19 November 1995 in Parachinar in the North West Frontier Province of Pakistan. He ascribes to the Shia Muslim faith and is of Hazara ethnicity.

5    His parents are Afghani citizens who fled to Parachinar during the Afghan civil war. Before fleeing they lived in the Khoshi District in the Province of Logar in eastern Afghanistan. As the child of Afghani citizens who are refugees, the appellant holds Afghani citizenship. That is despite the fact that, before he came to Australia, he had lived his entire life in Pakistan.

6    In late 2011, or early 2012, he travelled to Afghanistan for the first and only time. During that trip he spent approximately four to five days in Logar Province and was able to obtain Afghan identity papers and an Afghani Passport.

7    In early 2013, while still a teenager, he departed Pakistan and, on 1 May 2013, he arrived at Christmas Island as an unauthorised maritime arrival.

8    On 16 June 2016, the Minister lifted the bar under s 46A of the Act applying to unauthorised maritime arrivals such as the appellant and he was invited to apply for a visa. On 7 May 2017, he lodged an application for a Temporary Protection (subclass 785) visa. He provided a statement in support of that application. In that statement, he described his “Harm Experienced in Afghanistan” as including the following:

…

29.    I have visited Afghanistan once, maybe twice, at the age of fifteen or sixteen. The visit was only for a few days. We temporarily stayed with people in the community in Logar province. I do not have contact with them or know what has happened to them or where they are.

30.    When I visited Afghnistan [sic] I stood out as my language was different. I was easily identifiable as having come from another country.

31.    I remember being told that people were being stopped in cars and having their identities checked and being killed by the Taliban for being Shia Muslim. As a result, I feared for my safety and my life.

32.    My family and I returned to Pakistan as there was no security in Afghanistan and it was not safe for us to remain there.

33.    I do not know anyone in Afghanistan or have any relatives living in Afghanistan. I would have nowhere to go or live and do not know how I would subsist if I lived in Afghanistan.

34.    I am fearful of the terrorism prevalent in Afghanistan. I would feel very unsafe if I was to go to Afghanistan because of the ongoing violence and lack of security. I remember that everyday there was danger and someone was killed or something violent happened. Authorities in Afghanistan would be unable to protect me and I am fearful of them.

35.    I am also fearful of being targeted due to my religion as a Shia Muslim. When my family and I visited Afghanistan, I remember being told that people were being stopped in cars and having their identities checked and being killed by the Taliban for being Shia Muslim. I felt very unsafe and fearful for my life.

36.    Between 2007 and 2012, when I was living in Pakistan, I saw the Taliban targeting, arresting and killing Shia Muslims living in Pakistan. I am fearful of such treatment and violence in Afghanistan.

…

9    In his statement, he also described his “Risk of Future Harm” should he return to Afghanistan in the following terms:

39.    If I returned to Afghanistan, I am fearful that I would be subject to violence from the Taliban, ISIS and other terrorist and violent groups both because of my religion as a Shia Muslim and generally due to ongoing violence in Afghanistan.

40.    I do not know anyone in Afghanistan. I do not know of anywhere that I could live or anyone that would help me. I do not think anyone would give me a job because of my religion as a Shia Muslim. As outlined above what happened when I went to Afghanistan. The same things would happen if I went back again. My language is different. I would be easily identifiable as having come from another country.

10    On the topic of “Relocation” within Afghanistan, he said in his statement that:

41.    I am unable to relocate to any area of Afghanistan because my risk of harm extends throughout the whole country. The Taliban, ISIS, and other terrorist and violent groups operate throughout Afghanistan. I do not know anywhere that I would be safe.

11    He concluded his statement by summarising his claims as follows:

42.    In summary, I fear harm throughout the whole of Afghanistan including murder, torture, bombings and general violence at the hands of the Taliban, ISIS, and other terrorist and violent groups on the basis of my religion as a Shia Muslim and generally due to ongoing violence in Afghanistan. I cannot rely on the protection of the Afghani state and cannot safely relocate anywhere else in Afghanistan.

12    On 14 December 2017, the Department of Immigration and Border Protection requested that the appellant provide some further information with respect to his application. Specifically, it requested that he:

Please provide reasons why you are unable to reside in another area of Afghanistan such as Kabul, Mazar-i-Sharif or Herat to avoid the harm that you fear. And provide any other reasons why you are unable to reside in another area of Afghanistan.

13    In his response he said, among other things:

As I already mentioned in my pervious interviews that I belongs to Shia muslims tribe which is minority group and very targeted last years and the taliban and others militants groups kills hundreds and thousands of Shi’a tribe people all around Afghanistan like in mosques, schools , hospitals ,markets like every single place So how I can be reside in such a country or city you mentioned to me which is not safe at all and recently how many bomb blasts occurs in those cities and killeds hundreds of people and as u know all these on news and after all I never lived their so I don’t know the area and people around were is safe and where not and if I go their so my future will be dark or my life can be finshed very easlliy ,and recently people talking that IsIs and tablibns are going to be strong hold in Afghanistan which is the biggest enimies of Shia people and they just want to drink our blood So I am so fear and frighten to go their and live …

(Errors in original)

14    The appellant’s visa application was refused by the delegate on 14 February 2018. His application was subsequently referred to the Authority and it affirmed the delegate’s decision, although on a different basis, on 24 August 2018. He then made an application for judicial review in the Federal Circuit Court which was dismissed on 6 March 2020 (ESQ18). The present appeal relates to that decision.

THE GROUNDS OF APPEAL

15    The appellant’s two grounds of appeal are substantially similar to the two grounds of review he pursued before the primary judge. Together with their supporting particulars, they are as follows:

Grounds of appeal

1.    The Federal Circuit Court erred in failing to find that the [Authority] failure to consider whether to exercise its discretion to seek further information pursuant to s.473DC of the Migration Act 1958 (Cth) (Act) was legally unreasonable.

Particulars

a.    The delegate determined that the [appellant’s] home area was Logar province and when assessing his claims for complementary protection, accepted ‘that there is a real risk the [appellant] will suffer significant harm if he returns to his home area in Logar Province’, but found that it would be reasonable for him to relocate to Mazar-e-Sharif.

b.    When assessing the [appellant’s] complementary protection claims, the [Authority] rejected the delegate’s finding that the [appellant’s] home area was Logar province and instead decided this should be Kabul.

c.    The [Authority] concluded that the [appellant] did not face a real risk of significant harm in Kabul.

d.    The [Authority’s] failure to consider whether to exercise its discretion to seek further information pursuant to s.473DC of the Act was legally unreasonable in circumstances where its basis for refusal was different to the basis relied upon by the delegate, and not able to be anticipated from the delegate’s reasons.

2.    The Federal Circuit Court erred in failing to find that the [Authority] failed to consider the risk of harm the [appellant] would face in Afghanistan as a failed asylum seeker from a western country.

16    Both before the primary judge and in this appeal, the appellant described the first of these grounds as “the home area” ground and the second as “the unarticulated claim” ground. We will consider these two grounds of appeal in that order below.

GROUND OF APPEAL 1 – THE HOME AREA GROUND

17    This ground of appeal relates to the appellant’s claims under Australia’s complementary protection obligations in s 36(2)(aa) of the Act. In respect of those protection obligations, the appellant has, under this ground of appeal, highlighted the different conclusions reached by the delegate and the Authority about the place in Afghanistan where he is likely to live should he return there, or be removed there, and complained about the primary judge’s failure to accept his contentions that the Authority committed jurisdictional error in its decision with respect to his claims about those obligations.

The delegate’s decision

18    In her assessment of the complementary protection obligations under the Act, the delegate proceeded as follows. First, she reiterated her earlier assessment with respect to her consideration of the refugee criteria under s 36(2)(a) of the Act to the effect “there is a real chance that the [appellant] may be subject to serious harm by the Taliban if he returns to Logar province as a Shia. On the basis that real chance involves the same standard as real risk, I am also satisfied there is a real risk the [appellant] will suffer significant harm if he returns to his home area in Logar Province”.

19    Next, noting that s 36(2B) of the Act raises the question whether it is reasonable for the person concerned to relocate within the receiving country, the delegate stated: “I have concluded that the [appellant] does not face a real chance of harm in Mazar-e-Sharif. As real chance involves the same standard as real risk, I am also not satisfied there is a real risk the [appellant] will suffer significant harm in the foreseeable future in Mazar-e-Sharif for the reasons discussed previously”. The previous discussion to which the delegate referred was as follows:

However, s.5J(1)(c) of the Act requires that the real chance of persecution must relate to all areas of a receiving country. I will consider whether the [appellant] will be seriously harmed if he were to relocate to Mazar-e-Sharif.

The [appellant] claims that there is no part of Afghanistan where it would be safe for him to live as a Shia.

Mazar-e-Sharif is one of the safest cities in Afghanistan, although it experiences sporadic violence that affects its civilians. As the third largest city in Afghanistan and the capital of Balkh Province, Mazar-e-Sharif is one of the biggest commercial and financial centres in Afghanistan. The population of Mazar-e-Sharif city is ethnically diverse; comprised mostly of Tajiks and Pashtuns followed by Uzbek, Hazaras, Turkmen, Arab and Baluch. Mazar-e-Sharif is known as a melting pot of diverse cultures and religious influences where liberal attitudes coexist with conservative traditions.

According to the EASO report on Afghanistan’s security situation, Mazar-e Sharif [sic] recorded the lowest number of civilian casualties compared to other cities in Afghanistan. Trends from 2009-2015 show that Mazar-e Sharif [sic] consistently had significantly fewer civilian casualties than other cities. The decline in insurgent activity in Balkh district was attributed to Afghan National Security Forces (ANSF) effectiveness and specifically to the new district police chief in January 2015. Between 2015 and 2016, the majority of security incidents (around 93 per cent) in Balkh province occurred outside Mazar-e-Sharif. An exception to the trend took place in April 2017, when the Taliban carried out a complex attack against the headquarters of the Afghan National Army in Mazar-e-Sharif, which resulted in the death of at least 140 security forces and injured 60 others.

EASO has reported that there has been an increase in insurgent attacks within Mazar-e-Sharif, however such attacks remain almost exclusively directed against the national security forces, with sporadic bombings in Balkh’s major cities extending to civilian targets and posing an indirect threat to the multitude of international and non-governmental agencies which operate from the city. On 3 January 2016, five civilians were caught in the crossfire between Afghan forces and [anti-government elements] who tried, unsuccessfully, to enter the Indian consulate. And on 10/11/2016 the Taliban attacked the German consulate resulting in 135 civilian casualties (four deaths and 131 injured).

20    And further:

The previously cited country information suggests that the situation in Mazar-e Sharif [sic] is safer than other areas of Afghanistan and that the [appellant] would not be a target for insurgent attacks based on his profile as a Shia. I found no credible reporting to indicate or suggest that Shias are presently systematic and discriminately targeted in Mazar-e Sharif [sic]. I therefore find there is not a real chance that the [appellant] will face harm of sufficient gravity as to amount to persecution on the basis of his religion in the event he were to return to Mazar-e Sharif [sic] in the reasonably foreseeable future.

While I accept there are credible security concerns in small sections of the Balkh Province and there continue to be sporadic security incidents in Mazar-e-Sharif, I find the low incidence of security incidents and insurgent activity in Mazar-e Sharif [sic] is significant, in terms of the [appellant’s] claims that Shias are targeted for harm.

The major security issues in the country continue to relate to the insurgency. Beyond a series of recent attacks against Hazara Shias claimed by ISKP in Kabul, there is little indication in the country information of any escalation in other persecutory conduct towards Shias whether by Islamic State, the Taliban or any other insurgent group in the city of Mazar-e Sharif [sic]. While DFAT notes commentary from international observers about a deterioration in the security situation in the country overall, there is no indication in the country information that the situation in Mazar-e Sharif [sic] is likely to deteriorate, or that persons with the [appellant’s] low profile, will face a real chance of being targeted or seriously harmed in the reasonably foreseeable future. Weighing all the information before me, including the comparatively stable security situation in Mazar-e Sharif [sic], and his lack of any adverse risk profile, I find the chance of him being seriously harmed for reasons of his religion, any imputed profile or (real or imputed) political opinion (even arising from his religious or ethnic background), or in terms of generalised violence within Mazar-e Sharif [sic], by the Taliban or any other insurgent groups is remote.

21    This discussion led to the delegate reaching the following conclusions about the prospect that the appellant would “return to and live in” Mazar-e-Sharif:

Weighing all the information before me, I consider Mazar-e Sharif [sic] comparatively secure and am satisfied that if the [appellant] was to return to and live in this city, there is only a very remote chance that he would be harmed for reasons of his religion, or any related profile, or by generalised violence, involving the Taliban, Islamic State, ISKP, or any other groups active in Afghanistan.

There is an international airport in Mazar-e Sharif accepting flights from Kabul and international locations. I find that the [appellant] will be able to safely access Kabul via the international airport in that city and I am satisfied that he can transit by air to Mazar-e-Sharif.

22    To return to the delegate’s assessment of the complementary protection obligations in the Act, the delegate next considered whether there would be a real risk of significant harm to the appellant “due to generalised violence in Mazar-e-Sharif”. In doing so, the delegate made the following observations:

I acknowledge that people associated with the government or the international community are at a significantly higher risk than ordinary Afghans, although civilians who attend demonstrations, mosque, schools and hospitals are also vulnerable. However, I have found the [appellant] would not face a real risk of harm in Mazar-e-Sharif. I am not satisfied that the [appellant] would be at risk of harm on the basis of the general security situation in Mazar-e-Sharif and that the risk of harm is sufficiently real and personal as to engage Australia’s non-refoulement obligations.

Mazar-e-Sharif is Afghanistan’s third largest city with an estimated population of about 590,000 people. Although civilian deaths and injuries due to security issues are tragic, considering the number of reports of casualties and the size of the population, I consider the risk of being killed or harmed in such an incident for a normal civilian in Mazar-e-Sharif (someone without a particular political profile), would be remote. Whilst security incidents may continue to occur in Mazar-e-Sharif, meaning it is not possible to give an absolute guarantee or safety in the city, I do not consider the level of security incidents in Mazar-e Sharif [sic] would mean that the [appellant] would face a real risk of being harmed or killed while travelling around the city as part of his day to day life.

23    With respect to that risk, she then concluded that:

I do not accept that the [appellant] will face treatment in Mazar-e-Sharif that would amount to significant harm for the purposes of s36(2A).

24    Thereafter, the delegate considered the “reasonableness” of the appellant relocating to Mazar-e-Sharif. After a lengthy discussion on that subject, she concluded that:

I am satisfied that it is reasonable for the [appellant] to relocate to Mazar-e-Sharif, an area of the country where there is not a real risk that he will suffer significant harm.

In making this finding, I have I considered the [appellant’s] claims, circumstances and available country information and relevant information individually and cumulatively.

25    Ultimately, the delegate made the following finding with respect to the complementary protection obligations in s 36(2)(aa) of the Act:

I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Afghanistan, there is a real risk [the appellant] will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, [the appellant] is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

The Authority’s decision

26    As already mentioned, the Authority came to a different conclusion to the delegate on the place where it considered the appellant would live if he were to return, or be removed, to Afghanistan. In its assessment of the appellant’s refugee claims, the Authority’s remarks on that issue included the following:

27.    Logar Province is located to the south of Kabul. The province is divided into seven districts: including Khoshi. The province is estimated to have 392,045 inhabitants. The province is 70 % Pashtun and 30 % Tajik. In 2002, the UNHCR reported that approximately 1% of the population of Logar was Hazara (about 92 families) and that some Hazaras in the province lived in Bala Deh of Khoshi District ([appellant’s] home village). The 2002 report indicated that some 500 families (mostly of Hazara and Tajik ethnicity) had fled to Pakistan during the years of Taliban rule.

…

29.    While not all Hazara are Shia, and not all Shia are Hazara in Afghanistan, there is a strong correlation. The [appellant] was able to provide information about his Shia faith when asked. Whilst some of the [appellant’s] answers at interview were vague, country information cited above is generally supportive of the [appellant’s] claims about his family history. I am willing to accept that his family was originally from Logar Province and that they fled during the civil war period, when Logar was ruled by the Taliban. I am willing to accept that he is a Hazara and a Shia and that he is an Afghan citizen as he claims. He has established his identity to my satisfaction. I find that Afghanistan is his receiving country.

…

35.    Despite his family history, on the [appellant’s] own evidence he no longer has any connection with Logar Province and has never actually lived there. If returned to Afghanistan, I conclude that the [appellant] would not choose to reside there. Country information indicates that the vast majority of returnees return to Kabul where there is a large Hazara Shia population. The [appellant’s] legal submission argues that he would not choose to live in an urban area in Afghanistan, but I observe this statement is offered in the context of the delegate finding the [appellant] could relocate to another city in Afghanistan. In any case, given the absence of any compelling reason for him to return to Logar I conclude that if returned to Afghanistan, the [appellant] would choose to reside in Kabul in preference to Logar Province.

36.    On his own evidence the [appellant], has never faced harm in Afghanistan. He only spent approximately five days in Afghanistan throughout his entire life. He admits that his fears are based on stories he has heard. He says that he has witnessed the Taliban treating Shia badly in Pakistan, and that this has shaped his views.

37.    In November 2016, Kabul Province was estimated to have 4,372,977 inhabitants, of which 3,678,034 live in Kabul City. DFAT reports that common estimates put the Hazaras at between 40-50 per cent of Kabul’s population, making them the largest ethnic group in the capital. These figures suggest that more than a million Hazaras live in Kabul city. As people tend to move to areas where they already have family or into particular districts as part of a larger group with the same ethnicity, different neighbourhoods have become associated with different ethnic groups. Most Hazaras in Kabul live in the west of the city.

27    After recording various reports and information about religiously motivated attacks on Shia Muslims in Afghanistan, the Authority concluded:

41.    Despite the information cited above, the most common targets for insurgent attacks are government institutions, political figures, the [Afghan National Defense and Security Forces] and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations. The [appellant] has never worked for the Government of Afghanistan, the international community or as a member of the Afghan security forces. Given his former employment consisted of working in a family owned restaurant, it seems highly unlikely he would ever seek employment in these sectors. The evidence before me indicates that in Kabul, the [appellant] and the other million or more Hazara Shia who live in the city would likely face risks commiserate [sic – commensurate] with Afghan citizens of other religious and ethnicities which I do not consider rises to a real chance. The one short period of time he has spent in Afghanistan passed without incident. He has no personal political or religious profile which might draw interest from insurgent groups. While he has claimed to fear harm from the Taliban based upon events in Pakistan he has not outlined these events, or described what he saw, or explained how or why he fears harm based on these events over five years later. Having considered all the circumstances, I am not satisfied the [appellant] would face a real chance of harm arising from his religion, or his ethnicity if returned to Afghanistan.

28    The Authority returned to this issue briefly in its assessment of the complementary protection obligations in the Act where it observed:

50.    I have found that the [appellant] would return and live in Kabul. Country information indicates that that Afghanistan is a violent society. Anti-Government insurgent groups continue to fight against the Government and random attacks are frequent. There has been an increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 and civilian deaths are common. These factors suggest to me that there [is] some possibility that the [appellant] might be arbitrarily deprived of his life if returned [to] Afghanistan. However, even if these can be said to rise to a real risk, they affect the population of Afghanistan generally, not the [appellant] personally.

(Footnotes omitted)

29    In respect of those obligations, it ultimately concluded that:

52.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the [appellant] will suffer significant harm. The [appellant] does not meet s.36(2)(aa).

The primary judge’s decision

30    The primary judge began his consideration of the equivalent ground of review before him by noting the provisions of s 473DC of the Act and discussing various authorities concerning the operation of that section (see ESQ18 at [43]-[53]). His Honour then made the important observation that “[h]ere, there is no issue of relocation. Rather, this matter relates to a finding about where the [appellant] will return to” (ESQ18 at [54]). After referring to the delegate’s decision at [35] (set out above at [26]) and citing various paragraphs from the Full Court decision in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134; [2018] FCAFC 14 (CSO15), his Honour noted that, in this matter, the Authority took a different view to the delegate. He then explained why he considered it was entitled to do that (ESQ18 at [57]):

a)    the [appellant’s] evidence was that he had only been to Logar Province once (for a few days), that he stayed with people there that he does not know and that he does not have contact with those people anymore (CB 73 at [29]);

b)    he did not know anyone in Afghanistan and if he returned to Afghanistan he would have nowhere to live in Afghanistan;

c)    the country information indicated that most returnees settled in Kabul on return.

31    His Honour then went on to observe that:

58.    The issue in this case is not whether the [Authority] erred in finding that the [appellant] would likely return to Kabul. Rather, the issue is whether the [Authority] should have asked the [appellant] to comment on whether Kabul was his “home area” and the risk of harm he faces in Kabul (given that this had not been the subject of any findings or exploration by the delegate).

59.    The Court is satisfied that it was reasonable (in the circumstances of this case) for the [Authority] to not exercise, or consider exercising, the discretion in s.473DC(3) and seek the information the [appellant] says should have been sought.

32    Next, his Honour noted that the appellant’s claims to fear harm related to Afghanistan “generally” (emphasis in original) and observed that this was important (ESQ18 at [60]). He then distinguished that situation from that of two authorities relied upon by the appellant (Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 (DZU16) and Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16)) and made a number of further observations as follows:

61.    The circumstances here differ from what is seen in DZU16 and CRY16. The decision does not lack an intelligible justification as it cannot be said that there was information that the [Authority] knew that it did not have, but the [appellant] was likely to have. This is so because, here, the delegate had specifically asked the [appellant] to address why he could not reside in Kabul. While this was not the subject of any finding by the delegate, it was a matter that was explored by the delegate during the course of the delegate’s decision-making process.

62.    Here, the [appellant] was specifically asked to provide information about why he could not reside in Kabul or Mazar-e-Sharif or another area in Afghanistan (CB 114). That is, the [appellant] was asked to make geographically specific claims. The [appellant’s] response was as follows (CB 120):

…So how I can be reside in such a country or city you mentioned to me which is not safe at all and recently how many bomb blasts occurs in those cities and killeds hundreds of people and as u know all these on news and after all I never lived their so I don’t know the area and people around were is safe and where not and if I go their so my future will be dark or my life can be finshed very easlliy…

(Without alteration)

63.    The [appellant’s] claims in relation to specific regions as identified by the delegate were not differentiated. The [appellant] indicated that he held the same fears of harm in all of the “cities”.

33    Finally, his Honour returned to the issue of relocation and observed that:

64.    Further, in submissions to the [Authority], the [appellant’s] agent made express reference to the situation in Kabul. In particular, the agent highlighted a number of attacks against Shia in Kabul and also made reference to the “reasonability of relocation” in Kabul. Although referencing “relocation”, this nonetheless addressed the [appellant’s] concerns as to why he was unable to return to Kabul.

65.    As was the case in CLL16 and AHN16, the [appellant] was on notice that he should address why he could not return to Kabul. The [appellant’s] submissions about Kabul were, like his claims in general, based upon his religion and violence generally.

(Emphasis in original)

34    Ultimately, his Honour came to the following conclusion in dismissing this ground of review before him:

66.    When considered as a whole, it was not unreasonable for the [Authority] to not have exercised, or considered exercising, the discretion under s.473DC(3) of the Act. There was no additional information required by the [Authority] in order to complete the review. Alternatively, it was not unreasonable for the [Authority] to consider that it already had the information necessary to complete the review in light of the delegate’s request for information and the migration agent’s submissions in response.

The appellant’s submissions

35    In his written submissions, the appellant claimed that the primary judge erred in failing to identify a lack of “intelligible justification” and therefore legal unreasonableness in the Authority’s determination with respect to the place in Afghanistan in which he was likely to live. In advancing this error, the appellant focused on the Authority’s rejection of the place he was likely to return to, namely Logar Province, and its conclusion that, instead, he would choose to reside in Kabul. While the appellant accepted it was open to the Authority to come to a different conclusion to the delegate on this issue, he contended that, in the circumstances of his matter, it was incumbent on the Authority to exercise its discretion under s 473DC of the Act and invite him to comment on this change in location. In failing to do so, he claimed that the Authority failed to act within the bounds of legal reasonableness. He identified two particular aspects where he claimed the primary judge had erred in this respect. First, he claimed his Honour erred when he stated that “the delegate had specifically asked the [appellant] to address why he could not reside in Kabul” (ESQ18 at [61] set out at [32] above). This statement was erroneous, so he contended, because the delegate’s question invited him to provide information on “why relocation to another city in Afghanistan (outside the Logar Province) would be unreasonable”. By that question, he claimed, he was not being put on notice that the Authority “was considering that a city he had never been to (i.e. Kabul) may be his place of likely return”.

36    Secondly, he claimed that his Honour erred in observing that his “claims were (largely) not geographically specific to the Logar Province” and related to Afghanistan generally (ESQ18 at [60]). In this respect, he contended that, even if he “did only raise claims against Afghanistan ‘generally’”, this did not relieve the Authority from its task of determining where he would be likely to return to relying upon the Full Court decision in CSO15 at [45]:

The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return.

(Emphasis added)

The Minister’s submissions

37    In his submissions, the Minister contended that the Authority did not, in the particular circumstances of this matter, act unreasonably by failing to consider exercising its power under s 473DC of the Act to obtain new information from the appellant. He contended that was so because, first, there was information before the Authority that supported the proposition that the appellant would return to Kabul, namely the Country Information that indicated the vast majority of returnees returned to Kabul where there was a large Hazara population. Secondly, he contended the appellant had not claimed that he would go to any particular place in Afghanistan and, in particular, he had not claimed he would go to Logar Province. Thirdly, he contended the appellant had himself addressed the possibility of him returning to Kabul. Fourthly, he contended this was not a case like CRY16 where the possibility of the appellant’s return to Kabul was raised for the first time by the Authority in its reasons.

Consideration

38    We do not consider the primary judge made any error in his review of the Authority’s decision concerning the corresponding “home area” ground of review before him. This conclusion essentially stems from the fact that there are two peculiar circumstances of this matter that place it in a very different category to the authorities upon which the appellant has relied in support of this ground of appeal. The primary judge highlighted these circumstances, albeit in slightly different terms, in his decision at [57]-[59] (see at [30]-[31] above) and [60]-[63] (see at [32] above), respectively.

39    The first is that, apart from a short period as a young child, the appellant has never lived in Afghanistan. Indeed, he has only ever visited that country for a few days in his entire life. Instead, before coming to Australia, he had spent his whole life in Pakistan, albeit in a region bordering Afghanistan. It is therefore not apt to talk of him “returning” to Afghanistan. It is more accurate to describe that process, if it occurs, as involving his “removal” to that country.

40    The second is that the appellant did not nominate Logar Province as his home area or make any claims to have any continuing connections with that area. Moreover, he repeatedly made it quite clear throughout all his statements concerning his complementary protection claims that his fear of harm from religious persecution in Afghanistan applied to the whole of that country.

41    A number of things follow from these peculiar circumstances. First, the so-called “home area” factor, or test, discussed in decisions relied upon by the appellant such as CSO15 (at [33]-[48]) and APE16 v Minister for Home Affairs [2020] FCAFC 93 (at [45]-[55]) does not apply in this matter. Secondly, and relatedly, as the primary judge correctly observed (ESQ18 at [54]), relocation within Afghanistan is not an issue in this matter. Hence the question whether it was “reasonable, in the sense of practicable” (see DZU16 at [20]) for the appellant to relocate from Logar Province to Mazar-e-Sharif, or Kabul, did not arise for consideration in this matter. Instead, the true question posed by the circumstances of this matter was whether there was any place in Afghanistan where the appellant would not be likely to fear relevant harm from persecution because of his Shia Muslim religion.

42    It follows from these conclusions that the delegate’s application of the “home area” test to the appellant’s application, or her consideration of “relocation” as an issue, was, with respect, misconceived. The appellant’s reliance on that consideration in respect of his first particular error in the primary judge’s decision (see at [36] above) is therefore similarly misconceived. Nonetheless, the delegate’s incidental determination, that Mazar-e-Sharif was a place in Afghanistan that was relevantly free of the religious persecution the appellant feared, was not. That is so because that determination answered the true question set out above.

43    For its part, the Authority came to a different conclusion on that question. It determined that Kabul was such a place. The appellant has not sought to challenge the reasonableness of these conclusions, as such. That is wise because both properly grapple with his central claim that there was nowhere in Afghanistan where that state of affairs existed. Instead, the appellant has sought to characterise as legally unreasonable the Authority’s failure to exercise its discretion under s 473DC of the Act and seek his comment on its intention to differ from the delegate and consider Kabul as the place in Afghanistan to which he may be safely removed.

44    We do not consider the opportunity to consider exercising that discretion arose in this matter, or, put differently, that the Authority’s failure to do so constituted legal unreasonableness, as claimed by the appellant. That is so because the Authority did not have regard to any “new” information in making the determination it did about Kabul (cf CRY16 at [81] and DZU16 at [81]). Instead, the information it relied upon was a part of the “review material” that was already before it. The Authority simply reached a different conclusion on the same material about another place in Afghanistan where the appellant could live and where he would not be likely to fear relevant harm from persecution because of his Shia Muslim religion. As the appellant himself acknowledged, unreasonableness aside, the Authority was free to make that different determination.

45    Moreover, for the reasons already mentioned, neither the “home area” test, nor the principles related to relocation, arose for consideration in this matter. Accordingly, neither the delegate nor the Authority was required to advert to matters such as the reasonableness and practicality of the appellant living in Logar Province vis-à-vis Mazar-e-Sharif or Kabul. It follows that the Authority was not required to seek comment from the appellant on these matters.

46    For these reasons, we do not consider this “home area” ground of appeal has any merit.

GROUND OF APPEAL 2 – THE UNARTICULATED CLAIM

47    By the second ground of appeal, the appellant contended that the Authority erred in deciding not to consider whether the appellant would face a real chance of serious harm as a failed asylum seeker from a western country. This was referred to as “the unarticulated claim” as it had not been expressly raised by the appellant, but had been identified as a relevant issue by the delegate. In substance, the appellant submitted that the Authority failed to discharge its statutory function because it decided not to consider the unarticulated claim.

48    We consider that the second ground of appeal should be allowed having regard to: (i) the circumstances in which the unarticulated claim was identified by the delegate, (ii) the manner in which it was dealt with by the Authority and (iii) the reasons why the primary judge found there had been no error of law.

The delegate’s decision

49    The genesis of the unarticulated claim is identified on page seven of the delegate’s reasons:

The [appellant] fears he will be killed by the Taliban and ISIS because he is a Shia Muslim and due to the ongoing violence and insecurity in Afghanistan. While the [appellant] has not expressly stated that he fears harm after residing in a western country for an extended period of time, I have assessed this below.

50    The delegate then proceeded, at pages 10-11 of her reasons, to consider the appellant’s claim for protection as a failed asylum seeker:

While the [appellant] has not expressly stated that he fears harm after residing in a western country for an extended period of time, I have assessed whether the [appellant] as a Shia who has lived outside of Afghanistan combined with the fact that he has sought asylum in Australia may lead to him being perceived to be a supporter of the Afghan government or International community by the Taliban or other insurgent groups.

As outlined above, country information indicates that people with particular profiles like those associated with the government or the international community are at a significantly higher risk of being targeted in Kabul. The primary targets for insurgent attacks are government institutions, political figures, the ANDSF) [sic] and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations, with civilian targets such as mosques, schools and hospitals also at risk.

The [appellant] does not have any family members in Afghanistan who have a political profile or are involvement [sic] with any international organisation. The [appellant] has also never been involved with any political group or organisation. I find that the chance of the Taliban or any other insurgent group having any knowledge or interest in the [appellant] to be remote.

I have considered that the [appellant] as a Shia may be perceived as a supporter of the Afghan government or international community or viewed as ‘westernised’ due to the years he has spent outside Afghanistan and the fact that he has sought asylum in Australia.

DFAT has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum, but face a similar level of risk to others who are associated with support for the government or international community. DFAT assesses that people of all ethnicities who are openly affiliated with the government or the international community by way of employment, public statements or other associations, face a high risk of being targeted by AGEs.

I acknowledge that people who [are] identified as having international associations face a high risk of being targeted by AGEs and this may possibly include returnees from western countries. However, DFAT understands that most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return. There is no evidence to support that failed asylum seekers or involuntary returnees from Australia are identified and targeted in Mazar-e-Sharif following their return.

DFAT has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum, but face a similar level of risk to others who are associated with support for the government or international community. DFAT also assessed that persons returning to Afghanistan (either voluntarily or involuntarily) who have departed illegally are rarely punished unless they are suspected to have committed other crimes.

While I accept that there is evidence that some returnees have been targeted for robbery or extortion on the basis of their wealth the incidents appear to be random and do not occur regularly considering the large volume of returnees to the country. There is no evidence before me that the [appellant] is wealthy. Nor is there evidence to suggest that failed asylum seekers or involuntary returnees from Australia are identified and targeted in Mazar-e-Sharif.

I note that returnees from western countries are almost exclusively returned to (the International airport) in Kabul. DFAT assesses that persons returning to Afghanistan (either voluntarily or involuntarily) who have departed illegally are rarely punished unless they are suspected to have committed other crimes. There is no evidence currently before me that the [appellant] has a criminal history. I am satisfied that the [appellant] can safely access Kabul. There is no evidence before me to suggest the [appellant] would face a real chance of serious harm at the airport on arrival. I am satisfied that the [appellant] will be able to safely access Kabul via the international airport in that city and I am satisfied that he can transit by air to Mazar-e-Sharif.

I am not satisfied that the [appellant] faces a real chance of serious harm in Mazar-e-Sharif as a Shia and failed asylum seeker returning from a western country. I have considered all of the claims of the [appellant], both individually and cumulatively. I find that if the [appellant] were to return to Afghanistan, they would not face a real chance of persecution now or in the foreseeable future.

51    It was common ground on this appeal that the unarticulated claim was raised (and considered) by the delegate, not the appellant.

The Authority’s decision

52    Further, it was not in dispute that the Authority noted the unarticulated claim but expressly decided not to consider it. In this respect, the Authority stated:

Shia asylum seeker from a Western Country

42.    I observe that in the s.65 decision, the delegate considered whether the [appellant] would face harm as a failed asylum seeker from a western country and ultimately concluded that he would not. The [appellant] has not put forward this claim, or any suggestion along these lines. I note the [appellant] has had multiple opportunities to put forward his full claims including in his 2016 SHEV application, his 2017 protection visa interview and his 2018 legal submission to the [Authority]. He has not made this claim at any time. He was assisted to prepare his written claims by a not-for-profit, migration assistance service which aims to support asylum seekers and is now represented by a migration agent in his dealings with the [Authority] who prepared his legal submission.

43.    I have carefully considered the [appellant’s] case. I do not consider such a claim arises on the material, either squarely or otherwise. I observe that ‘fast-track’ statutory context is intended to encourage applicants to put forward all their claims and supporting information upfront and does not permit the [Authority] to consider new claims other than in exceptional circumstances. There appears to be nothing in this context to suggest any obligation on the part of the [Authority] to consider a claim that has not been made, and is not apparent on the material. I have concluded that this claim does not arise, notwithstanding the decision by the delegate to consider this issue.

(Emphasis added; footnote omitted)

The primary judge’s reasons

53    Before the primary judge, the appellant submitted that the Authority erred in deciding not to consider the appellant’s unarticulated claim that he would face harm as a failed asylum seeker from a western country. The primary judge concluded that, while it was “at least arguable” that a claim arose on the review material, the appellant had withdrawn or abandoned that claim before the Authority. The reasoning of the primary judge is outlined in full below:

74.    It is well accepted that a decision-maker is required to consider a claim that is expressly made or clearly arises from the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] and [68].

75.    Section 473CB(1)(a) of the Act requires the Secretary to provide the [Authority] with the delegate’s decision. The delegate’s decision forms part of the “review material”. Section 473DB provides as follows:

Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB[.]

76.    In circumstances where the delegate’s decision is “review material” and the delegate addressed a non-articulated claim, the question arises: did the claim arise from the materials before the [Authority] such that the [Authority] was required to address it?

77.    Here, the [appellant] references AZW16 v Minister for Immigration & Anor [2018] FCCA 2229 (“AZW16”) at [27]-[31] in support of his argument.

78.    AZW16 is not entirely applicable to the circumstances of this case. In AZW16, the applicant did actually make a claim in their statement (which was before the delegate) and the substance of that claim was also recorded in the delegate’s decision. Here, the [appellant] did not, at any time, claim to fear harm as a result of being a failed asylum seeker from the West. This was not disputed before this Court. Rather, Mr Saul Jahnke stated that in AZW16 at [30], it appeared that the Court indicated that the claim arose from the statement and the delegate’s decision. Hence, just one of those would suffice. Here, the delegate’s decision was enough.

79.    While it is true that the [appellant] did not advance any claim of the sort evident here and that the delegate had no obligation to assist the [appellant] in advancing a claim (s.5AAA of the Act), the fact that the delegate did so meant that the [Authority] was required to address it.

80.    The delegate’s decision is “review material”. The [Authority] must consider the “review material”. It is more than arguable that, here, a claim “arose on the materials” before the [Authority] (i.e., from the delegate’s decision itself). The delegate went into some detail when addressing whether the [appellant] would face any harm as a result of being a failed asylum seeker.

81.    In these circumstances, it is at least arguable that a “claim” arose from the review material.

82.    Despite that finding, the Court is not required to determine this point conclusively. That is so because, here, on the specific facts of this matter, it is evident that the claim was withdrawn or not pressed by the [appellant].

83.    In the context of a review before the [Authority], the Minister referred to BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 at [51]:

However, whilst the delegate’s decision provides a starting point, the Authority is not confined to the issues that the delegate considered and nor is the Authority necessarily bound to consider all issues considered by the delegate. As the task of the Authority is to consider the application for a protection visa afresh, the Authority is not bound to consider matters determined by the delegate but which are no longer in issue. Just as new claims may be made, claims made before the delegate may be withdrawn or abandoned. The Authority’s task is to conduct a review in relation to those claims that are extant. It is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa. The Authority need not conduct a review in relation to a case not advanced by a visa applicant: see NABE at [60] and [62] (Black CJ, French and Selway JJ) and SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [16]- [17] (Bromberg J).

84.    Both parties referred to the [Authority’s] Practice Direction in arguing that the claim was not or was abandoned. Relevantly, [20] of the Practice Direction states:

For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked

85.    Here:

a)    the [appellant] did not himself expressly state that he feared returning to Afghanistan because of his political opinion at any time. In effect, the claim was not ever pressed by the [appellant]. On that basis, the [appellant’s] silence was, in the Court’s view, significant;

b)    the [appellant’s] agent did not put forward any submissions about the risk or chance of harm arising from the [appellant] being a failed asylum seeker. The [appellant] was on notice that the delegate had raised this unarticulated claim and, despite having assistance with his application before the [Authority], the [appellant’s] submissions did not address this in any way; and

c)    critically, no submission was made about why the delegate was incorrect to find that no risk or chance of harm would emerge as a result of the [appellant] being a failed asylum seeker or why the [appellant] disagreed with the finding. Here, the fact that the [appellant] did not disagree with the delegate’s finding that he would not face harm because of the unarticulated claim can be seen to strongly indicate that he had withdrawn or abandoned the claim and had simply accepted the delegate’s finding.

86.    Each case is fact specific. Here, once it was clear on the evidence that the [appellant] had withdrawn (or did not press) a claim to fear harm, the [Authority] was under no obligation to assess that claim, even though it formed part of the review material before the [Authority].

87.    In light of the above, it cannot be said that any jurisdictional error arises in relation to ground 2.

(Italics in original and emphasis added)

The appellant’s submissions

54    The appellant submitted that the Authority was under a statutory duty to consider and determine the unarticulated claim because:

(1)    it was raised clearly and squarely on the material before the Authority: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) at [79]; and

(2)    it had not been abandoned or withdrawn by the appellant, nor was it necessary that the matter be expressly “pressed” before the Authority, contrary to the reasoning of the primary judge at [85]-[86].

55    The appellant advanced the following propositions in support of the second ground of appeal. First, s 473DB(1) of the Act provides that the Authority must review a fast track reviewable decision under Part 7AA by considering the “review material” provided to the Authority. The term “review material” is defined in s 473CB(1) of the Act and includes, importantly for present purposes, the decision record of the delegate: see s 473CB(1)(a)(iii). Accordingly, the Authority’s statutory task under s 473CC of the Act was to review the delegate’s decision by reference to the “review material”, which included the delegate’s reasons, and to deal with each material aspect of the delegate’s decision and make its own findings: BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324 at [38] and [50].

56    Secondly, the appellant submitted that the Authority failed to “consider” the aspect of the delegate’s decision that related to the appellant’s claim for protection due to the risk of harm as a failed asylum seeker. The appellant submitted that in an analogous context it has been held that “when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45]. Transposed to the present context, the obligation to consider review material under Part 7AA of the Act required the Authority to bring its mind to bear upon the facts stated in the delegate’s reasons as well as the arguments or submissions put forward. Plainly, in the appellant’s view, this did not occur.

57    Thirdly, and relatedly, the appellant submitted that the primary judge erred in reasoning that the unarticulated claim had been abandoned or withdrawn by the appellant, simply because it had not been explicitly addressed by him. The appellant submitted that his omission to advert expressly to the subject matter ought not to have been interpreted as an indication that the appellant had abandoned, or failed to press, the unarticulated claim. Indeed, the appellant expressly noted in submissions to the Authority dated 12 March 2018:

We submit that delegate’s assessment is flawed, prejudicial and constitutes a breach of procedural fairness. Given we are limited in our response to 5 pages; we have not addressed all aspects of the delegates reasoning and invite the [Authority] to put additional concerns to our office prior to determination.

(Errors in original)

58    Fourthly, the appellant submitted that this approach was “entirely orthodox” and consistent with the well-established principle that where an issue arises squarely from the material before the decision-maker, it must be considered. The appellant relied in particular on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

59    The appellant also relied on the general proposition in MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 (MZYQZ) at [58] that the failure to raise a claim in submissions before the Authority does not mean the claim has been abandoned or not pressed. The core statutory function of the Authority was to review the delegate’s decision and, in circumstances where an aspect of central relevance to the delegate’s decision had not been withdrawn or abandoned, the primary judge erred in concluding that the Authority was not under an obligation to consider the claim.

The Minister’s submissions

60    The Minister acknowledged that the reasons of the delegate form part of the “review material” which the Authority is required to consider under s 473DB(1) of the Act. However, the Minister submitted that the function of the Authority is to review the delegate’s decision, not the delegate’s reasons: see s 473CC of the Act. Accordingly, it does not follow that, merely because a claim is referred to in the delegate’s reasons, it must be reviewed by the Authority: see, for example, BYR17 at [50]-[51]. In this respect, the Minister relied on Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [17]:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority’s determination.

61    The Minister submitted that it would fetter or undermine the Authority’s de novo function if it was required to consider every claim identifiable in the delegate’s reasons. He submitted that the Authority is only obliged to consider a claim if it “clearly emerges” from the material. Whether a claim clearly emerges from the material “involves an issue of judgement”: DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [35]. The relevant principles in this respect were articulated in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]:

…

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 [v Minister for Immigration and Border Protection [2017] FCA 512] by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)     while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)     understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

(Emphasis in original)

62    The Minister’s submission relied on the proposition that only a court can make a determinative judgment as to whether a claim “clearly emerges” from the material, albeit that a decision-maker is required to form such a view in practice and attempt to lawfully discharge his or her statutory function.

63    The Minister also relied upon s 5AAA of the Act, which was inserted by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). Section 5AAA(2) requires a protection visa applicant “to specify all particulars of his or her claim … and to provide suffıcient evidence to establish the claim”. The Minister submitted that the effect of this section is that the appellant had to indicate to the Authority that he was adopting the matter “gratuitously” identified by the delegate. Consistent with s 5AAA(4), it was not the responsibility of the Authority to “specify, or assist in specifying, any particulars” of a claim or to “establish, or assist in establishing, the claim.”

64    Relatedly, the Minister submitted that the claim had not been pressed and was therefore withdrawn or abandoned before the Authority. In this respect, the Minister submitted that:

(a)    the appellant, assisted by a migration agent, made detailed submissions to the Authority which purportedly “directly addressed the delegate’s reasoning” but did not contain any submissions in relation to the unarticulated claim;

(b)    the appellant consistently referred to the protection claim in the singular, not the plural. That conveyed to the Authority that the appellant’s only claim for protection was a fear of harm as a Shia Muslim and there were no other claims for the Authority to consider; and

(c)    the appellant did not otherwise embrace or adopt the unarticulated claim.

65    Further, and in the alternative, the Minister submitted that, if there was a claim which the Authority was required to consider, it discharged that function at [42]-[43] of its reasons. The Minister submitted that the Authority was not required to follow the same path of reasoning as the delegate, and it was sufficient for the purpose of discharging its statutory duty for the Authority to reach a conclusion that the unarticulated claim did not arise on the materials.

Consideration

66    As stated above, it was common ground that the “review material” before the Authority included the delegate’s decision. We accept that was the case and note that this characterisation is consistent with the reasoning in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] in relation to a review under Part 7AA of the Act:

[T]he point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

67    The statutory scheme under Part 7AA of the Act expressly provides for a fast track review process, in which adverse decisions made by the Minister are automatically referred to the Authority for review by operation of s 473CA of the Act. While visa applicants are permitted to provide additional written submissions, Practice Direction 20 strictly limits those submissions to five pages. It is important to observe that those submissions supplement the material before the Authority and must be considered. The submissions do not, however, alter the Authority’s statutory obligation to consider the review material, including the claims that were dealt with by the delegate.

68    Moreover, in our view, the unarticulated claim is one that clearly emerges from the materials. While there is no precise standard for determining whether a claim had been “squarely raised” or “clearly emerges”, it is significant that the delegate considered the unarticulated claim as relevant based on the “established facts” that the appellant was a Shia Muslim who had lived outside Afghanistan for almost his entire life and therefore might be perceived to be a supporter of the Afghan government, or International community, by the Taliban or other insurgent groups.

69    During the hearing, there were various references to the decision in BYR17. The appellant sought to distinguish that decision from the present circumstances on the basis that in BYR17 the claim was neither advanced by the visa applicant nor was it apparent from the material before the Authority, including the delegate’s decision. That is an important, potentially determinative, distinction between BYR17 and the present appeal.

70    The Minister maintained that BYR17 was apposite to the present appeal, in particular having regard to what was said at [51]:

However, whilst the delegate’s decision provides a starting point, the Authority is not confined to the issues that the delegate considered and nor is the Authority necessarily bound to consider all issues considered by the delegate. As the task of the Authority is to consider the application for a protection visa afresh, the Authority is not bound to consider matters determined by the delegate but which are no longer in issue. Just as new claims may be made, claims made before the delegate may be withdrawn or abandoned. The Authority’s task is to conduct a review in relation to those claims that are extant. It is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa. The Authority need not conduct a review in relation to a case not advanced by a visa applicant: see NABE at [60] and [62] (Black CJ, French and Selway JJ) and SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [16]-[17] (Bromberg J).

71    In our view, it was not necessary for the appellant to expressly adopt or embrace the unarticulated claim to give rise to an obligation on the part of the Authority to review that claim. The appellant was entitled to expect that the delegate’s reasons would form part of the review material and that all issues would be appropriately considered by the Authority, given the claim clearly emerged from the circumstances and characteristics of the appellant. Further, the appellant made clear that the submissions were not intended to be an exhaustive critique of the delegate’s reasons and, given the page restrictions, invited the Authority to raise any additional matters it considered relevant. Accordingly, the unarticulated claim remained “extant”.

72    In our view, the delegate properly identified circumstances that might give rise to a claim for protection, though we accept that this conclusion is necessarily an evaluative judgment. It was open to the Authority to reach a view that the appellant was not entitled to protection as a failed asylum seeker returning from a western country. However, the Authority erred in not undertaking that active intellectual process in circumstances where there was nothing to suggest the unarticulated claim had been abandoned or withdrawn by the appellant. For these reasons, we respectfully disagree with the reasoning of the primary judge concerning the unarticulated claim. It follows that appeal ground two should be allowed.

Disposition

73    For the reasons above, the appeal will be allowed on ground 2 of the appeal. Accordingly, the orders will be:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 6 March 2020 be set aside.

3.    The appellant’s application for judicial review be remitted to the Federal Circuit Court of Australia to be reheard according to law.

4.    The first respondent pay the appellant’s costs of the appeal to be taxed failing agreement.

Associate:    

Dated:    26 March 2021