FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Set aside the orders of the primary judge and in lieu thereof:

(a)    the application be dismissed;

(b)    the applicant pay the first respondent’s costs as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal

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 respondent (EGZ17) is a national of Afghanistan, an ethnic Hazara and a Shia Muslim. He applied to the Minister for a protection visa. On 15 November 2016, a delegate of the Minister refused to grant EGZ17 a visa. That decision was referred to the Immigration Assessment Authority (IAA) for review in accordance with Part 7AA of the Migration Act 1958 (Cth). On 25 August 2017, the IAA affirmed the delegate’s decision.

2    EGZ17 commenced judicial review proceedings on 22 September 2017 in what was then the Federal Circuit Court of Australia. The proceedings were heard and determined on 2 September 2021 by which time the Court had become the Federal Circuit and Family Court of Australia. For written reasons delivered shortly after the Minister’s oral submissions (the primary judge did not need to hear oral submissions on EGZ17’s behalf) the primary judge granted a writ of certiorari calling up the record of IAA and quashing its decision and granted a writ of mandamus requiring the IAA to determine the review application according to law: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10.

3    At the core of the primary judge’s reasoning was his Honour’s conclusion that the country Afghanistan, as it existed when the IAA made its decision, no longer existed. In the primary judge’s view, the fact that Afghanistan (as it was) no longer existed had the consequence that the IAA’s decision, made over four years earlier, was “accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA”: [37] to [40].

4    His Honour’s conclusion that Afghanistan (as it was) no longer existed was reached in part by reference to an article in an overseas online media publication which reported on a “tweet” made by Zabihullah Mujahid, the spokesman for the Taliban, in which he had declared the Islamic Emirate of Afghanistan. The primary judge provided this article to the parties about three hours before the hearing commenced.

5    The Minister appeals from the orders made by the primary judge.

6    For the reasons which follow, the appeal should be allowed. It is appropriate first to set out aspects of the procedural background, the events which occurred in the week or so before hearing and what occurred at the hearing.

BACKGROUND

7    On 26 August 2021, one week before the hearing on 2 September 2021, the primary judge made orders in Chambers of his own motion. Those orders included one granting the parties leave to “file and serve further affidavit evidence and … submissions on the matters identified in the notes to” the orders his Honour made. There were two notes to the orders:

1.     Unless conceded as a fact, the subject of judicial notice that the Taliban has taken over Afghanistan, the Court may permit the applicant to adduce evidence of that fact at the hearing.

2.     The Court may also permit the applicant to file an amended application and/or raise a new ground that the decision is legally unreasonable in circumstances where the Taliban has now taken over Afghanistan.

8    On 31 August 2021, EGZ17 served a draft further amended application for judicial review and submissions. The proposed ground of review was that the IAA’s decision was “affected by an absence of jurisdictional fact, resulting in legal unreasonableness given the military coup by the Taliban in Afghanistan”. The previous ground of review was abandoned.

9    The Minister filed submissions on 1 September 2021.

10    After the Minister’s submissions had been cleared for filing, the primary judge varied the second note to his earlier orders so as “to add at the end of the sentence, ‘so that the applicant’s receiving country is now the Islamic Emirate of Afghanistan’” (emphasis in original). Again, this order was made on the primary judge’s own motion. His Honour’s recitation of the facts at [32] is incorrect in suggesting that these words were in the note to the original orders.

11    On 2 September 2021 at 11.33am, the primary judge’s Associate sent an email to the parties attaching a copy of what was referred to “an international news internet site identifying the take-over of Afghanistan by the Taliban, and the declaration of the Islamic Emirate of Afghanistan”. The attached article was dated 19 August 2021 and entitled “Taliban declare Islamic Emirate of Afghanistan”. It came from a website called The Hill, apparently being the synecdochically named American digital media company headquartered in Washington DC in the United States of America. The first two paragraphs of the article stated:

The Taliban officially declared the “Islamic Emirate of Afghanistan” on Thursday, cementing its rule in the country days after capturing the capital city of Kabul and toppling the existing Afghan government.

Zabihullah Mujahid, the spokesman for the Taliban, declared the Islamic Emirate of Afghanistan in a tweet with a photo of the country’s logo.

The Islamic Emirate of Afghanistan was the name of the country that was under the rule of the Taliban between 1996 and 2001, before the insurgent group was driven out by US-led forces after the Sept 11, 2001, terrorist attacks.

12    At around 2.15pm on 2 September 2021, a revised further amended application for judicial review was served, together with other documents including the article from The Hill.

13    This revised application for judicial review was in the same form as that served on 31 August 2021, but with the addition of words to the single ground of review such that it now read (addition underlined):

The decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness given the military coup by the Taliban in Afghanistan so that the applicant’s receiving country is now the Islamic Emirate of Afghanistan.

14    The hearing commenced shortly after 2.20pm. The application for leave to amend was opposed. The primary judge granted leave to EGZ17 to amend in the form of what was called the “second further amended application”.

15    The Minister applied for an adjournment. The basis for the application was that the additional words had the potential consequence that the exercise or purported exercise of judicial power would tread upon the sole prerogative of the Executive and that counsel for the Minister required time to obtain instructions, to give advice, to consider what evidence might be required and to make submissions to assist the Court. The primary judge refused the application in reasons given ex tempore. Those reasons have not been transcribed.

16    EGZ17 sought to tender the article. The Minister objected on the ground of relevance. The primary judge stated that he was satisfied that the article was relevant and also that he considered it identified facts of which the Court would be entitled to take judicial notice. No reasons were provided for either of those views. The primary judge made an order admitting the article into evidence.

17    His Honour then stated:

Further, pursuant to section 144 of the Evidence Act, the court takes judicial notice that the Taliban has taken over Afghanistan and that the Taliban have declared the country to be the Islamic Emirate of Afghanistan. Is there anything you further wish to say in relation to both of those propositions, Mr Bevan (the Minister’s counsel)?

18    Counsel for the Minister stated that it was accepted “that the majority of Afghanistan is now under Taliban control or that the Taliban exercise control over much of Afghanistan”. However, the Minister evidently did not accept anything more than that and requested the primary judge to vacate his ruling in so far as it relied on s 144 of the Evidence Act 1995 (Cth) on the basis that the article was not one which fell within s 144(1)(b). The Minister relied upon SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 at [125] (Lander J). The primary judge declined to vacate the order he had made, reasoning:

[T]here’s a decision of Bromwich J, and I will identify it for you shortly, that identifies the court can take into account an unofficial document if it’s satisfied that it is – it meets the high threshold under section 144. I am so satisfied, and I don’t vacate the order I have just made.

19    The primary judge noted that he had the benefit of (written) submissions from both parties and asked the Minister’s counsel to make his closing oral submissions first. In the events which transpired, the primary judge did not need to hear from EGZ17. The primary judge adjourned. His Honour resumed just under 20 minutes later and made orders issuing writs of certiorari and mandamus and delivered written reasons for making those orders.

THE PRIMARY JUDGE’S REASONS

20    The primary judge stated at [34] and [35]:

Under s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”), proof is not required for knowledge that is reasonably open to question and is (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. Taking into account the high standard in relation to s 144 the Court is in this case satisfied that it can and should take into account an unofficial publication [the article from The Hill] and given the international notoriety of the international internet news article as to the characterising of the facts identified in Exhibit B [the article from The Hill], that the Taliban has taken over Afghanistan and the Taliban have declared the Islamic Emirate of Afghanistan.

The takeover of Afghanistan by the Taliban since 16 August 2021 and the declaration by the Taliban of the Islamic Emirate of Afghanistan has been in every Australian newspaper as well as on numerous international internet news sites. The Court is satisfied that it is not reasonably open to question as a matter of common knowledge that since 16 August 2021, the Taliban has taken over Afghanistan. The Court is also satisfied that it is not reasonably open to question that the Taliban has declared the Islamic Emirate of Afghanistan. This means that the country and the receiving country, the subject of the review by the IAA, no longer exists. The receiving country is not the geographic area. The country, which is the subject of the findings by the IAA as the receiving country, included a governance and system of laws of Afghanistan that have ceased. The Afghan government referred to by the IAA was clearly an essential part of the characterisation of the receiving country in the findings by the IAA, as to whether the applicant met the refugee criteria or the criteria for complimentary protection. This is not a case where there has simply been a change of an elected government under an existing governance regime within existing law.

21    At [36], the primary judge held that on an application for judicial review of the kind before it, the court could admit “evidence that the country and the receiving country, the subject of the application of the criteria by the IAA, has ceased to exist”. His Honour said:

There is binding principle that the Court is not in a position to receive fresh country information because this engages in impermissible merits review. Under this principle, the Court cannot receive fresh evidence as to a change in the security situation of the receiving country. That principle has no application to evidence that the country and the receiving country, the subject of the application of the criteria by the IAA, has ceased to exist. The cessation of the existence of Afghanistan of which the IAA found the applicant was a national and is the applicant’s receiving country, is distinguishable from and falls outside the said binding principle and accordingly the Court can receive fresh evidence upon the exercise of the review jurisdiction of the IAA in order to do justice and reason under s 75(v) of the Australian Constitution. Accordingly, the Court is not receiving fresh country information that concerns the receiving country of Afghanistan, rather the Court is receiving evidence as to whether that receiving country exists. The Court is also satisfied that the fact of the Taliban takeover of Afghanistan and the declaration of the Islamic Emirate of Afghanistan as identified in the international news internet site article tendered into evidence and marked Exhibit B is relevant within s 55 of the Evidence Act. The power to admit evidence exists to serve the demands of justice and in this case to exclude evidence as to the cessation of the existence of Afghanistan being the country and receiving country, the subject of analysis by the IAA in the present case, would not advance the demands of justice.

22    The primary judge held, further, that:

(1)    the power vested in the IAA was “conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national”; and

(2)    the existence or otherwise of the country and receiving country was a jurisdictional fact “as a matter of construction of the protection visa provisions”: at [37].

23    His Honour explained:

[37]    … Whilst the finding of whether the applicant is a national of a particular country is a matter of fact within the review decision of the IAA under Part 7AA of the Act, the existence of the country is as a matter of construction, taking into account the reference to country and receiving country and the definitions referred to above a jurisdictional fact. Afghanistan the country, the subject of the findings as to whether the applicant met the protection visa criteria in the present case by the IAA no longer exists. The non-existence of the country and/or receiving country, the subject of the purported exercise of review power by the IAA, is as a matter of construction of the protection visa provisions, a jurisdictional fact.

24    The primary judge continued his analysis, ultimately concluding that the non-existence of Afghanistan as it once was had the result that the decision made by the IAA on 25 August 2017 was “so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA”:

[38]    Further, because the issue of whether the applicant is a national, must be determined by reference to the law of that country. The cessation of the country and its laws must be a jurisdictional fact, taking into account s 36(6) of the Act and the definition of the receiving country in s 5 of the Act which also refers to the determination of whether a person is a national by reference to “the law of the relevant country”. The text of the definition of effective protections measures in s 5LA of the Act further supports this conclusion. In terms of that provision, the relevant State for the application of the criteria is not Afghanistan and the receiving country as defined in s 5 of the Act is not Afghanistan. That country, Afghanistan, on the evidence no longer exists and the Islamic Emirate of Afghanistan is a different country, a different relevant State and a different receiving country. This text and the clear humanitarian purpose of the protection visa provision criteria in the Act support the construction that the existence of the country or receiving country is a jurisdictional fact. What Australia as a sovereign nation may or may not recognise as a foreign state is not relevant to or determinative of the application in these proceedings.

[39]    It is for these reasons that the Court has accepted that further evidence may be adduced as to the cessation of the existence of the country Afghanistan, the subject of the application of the purported application of the statutory refugee criteria under Part 7AA by the IAA in its review of the application by the applicant for a protection visa. The new existence of a country being the Islamic Emirate of Afghanistan, which on the evidence, the Court finds is as a result of the takeover by the Taliban, is a new and different country to Afghanistan and is a new and different receiving country to Afghanistan which were, as a matter of focus on the reasoning of the IAA, fundamental and central in determining the review under Part 7AA in the present case.

[40]    Given the finding that the country Afghanistan, the subject of the findings by the IAA, no longer exists and focusing upon the reasoning of the IAA and the outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist. The outcome, given the cessation of the country and reviewing country of Afghanistan, the subject of the reasoning of the IAA, is accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA.

THE APPEAL

25    Against this background, the Minister confined himself to four grounds of appeal. In summary, they are as follows:

(1)    Ground 1:

(a)    the primary judge erred in granting leave to amend the originating application;

(b)    the primary judge erred in refusing the Minister an adjournment.

(2)    Ground 2:

(a)    the primary judge erred in admitting the article because it was irrelevant; and

(b)    the primary judge erred in concluding that the article was evidence to which s 144 of the Evidence Act applied and that the primary judge failed to comply with s 144(4).

(3)    Ground 3: the primary judge erred in finding as a fact that “the country and receiving country … [the subject of the IAA’s review] … no longer exists” and that there is “[t]he new existence of a country being the Islamic Emirate of Afghanistan”.

(4)    Ground 4: the primary judge erred in holding that:

(a)    the “existence of the country” is a jurisdictional fact;

(b)    the decision of the IAA was affected by jurisdictional error in that it was legally unreasonable by reason of the primary judge’s findings about the existence of Afghanistan.

26    For the reasons which follow, the appeal should be upheld on Grounds 2(a), 3 and 4. It is not necessary to address the remaining grounds.

27    The task on judicial review may be simply stated. It is to determine, on the grounds of judicial review advanced, whether the judicial review applicant has discharged the onus of showing that the decision under review was not made in accordance with the authority conferred by the relevant statute. In MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [29] and [30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained (footnotes omitted):

[29]    The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

[30]    The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.

28    The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118:

In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made

and by Mortimer J in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ):

The appellant’s submission that the “outcome” of the Minister’s cancellation decision is, after the annulment, legally unreasonable misunderstands the Court’s function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.

This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200, see in particular at [59].

29    The situation in Afghanistan, or whether Afghanistan existed in some and if so what form, at the time of the court’s hearing was irrelevant to the question before the primary judge as to whether the IAA had erred in a way going to jurisdiction. It follows that the primary judge erred in concluding that the article had any relevance, within the meaning of s 55 of the Evidence Act, to any issue which the primary judge had to determine. Ground 2(a) must be upheld. It also follows that Ground 4(b) must be upheld.

30    As noted, the primary judge concluded that one country had ceased to exist (Afghanistan) and a different one had come into existence (Islamic Emirate of Afghanistan). This conclusion was not one about which judicial notice could be taken and nor was it based on findings of fact of which judicial notice could be taken. The conclusion was not open on the basis of the evidence before the Court, even if that evidence included the wrongly admitted evidence. A change in governance of a country, even if secured through activity which does not conform to the laws of the country, does not inexorably lead to a conclusion that the country has ceased to exist as the primary judge appears to have assumed. Nor, obviously, does a change in name. Ground 3 must be upheld.

31    As noted earlier, the primary judge concluded that the power vested in the IAA was “conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national” and that the existence or otherwise of the country and receiving country was a jurisdictional fact. These conclusions are incorrect. Part 7AA of the Migration Act is engaged where a decision has been made to refuse to grant a protection visa to a fast track applicant. The relevant decision forms the subject matter of the IAA’s review: s 473CC. There must be a decision to which Part 7AA applies, even if it be one which is legally ineffective: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [52] per Gageler, Keane and Nettle JJ. The existence of such a decision is a jurisdictional fact. The existence or otherwise of a decision engaging Part 7AA could be the subject of evidence on judicial review.

32    Further, the IAA’s exercise of the decision-making power depends on the existence of a jurisdictional fact, namely the reaching of a state of satisfaction or non-satisfaction by the IAA as to the refugee and complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act at the time that the decision was made: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 207 ALR 12, [2004] HCA 32 at [37]-[38] (Gummow and Hayne JJ); BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [8]-[13] (Rangiah, SC Derrington and Abraham JJ). The Migration Act has a binary structure in this respect; if a non-citizen can make a valid application for a visa, the Minister must decide either to grant (s 65(1)(a)) or refuse to grant (s 65(1)(b)) that application according to whether the Minister is satisfied that the requirements stated within the Act or regulations are met: Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1; 86 ALJR 1372 at [176] (Hayne J); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2012) 251 CLR 322; 88 ALJR 324 at [116] (Hayne J). The various factual matters which the decision-maker must address in reaching a state of satisfaction, including whether the visa applicant has met relevant visa criteria, are not themselves jurisdictional facts simply because those facts necessarily need to be addressed in reaching the state of satisfaction leading to the grant or refusal of the visa.

33    The IAA’s power is not conditioned expressly on the existence of the relevant country of nationality or the objective existence of the receiving country the subject of the decision being reviewed and nor is any such condition implied. That is not to deny that in any given case there might not be factual issues in connection with the relevant country, including perhaps its geographical boundaries, the regime in power or the recognition by other countries, including Australia, of the State or its government or those in power. It is only to say that the existence or otherwise of the receiving country is not a jurisdictional fact in the sense of a fact the objective existence of which is a precondition to the exercise of the power.

34    EGZ17 relied upon what was said by the Full Court in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 at [85] (Kerr, White and Charlesworth JJ). In FER17, the IAA proceeded on the basis that the visa applicant was a Sri Lankan national when in fact he was not a citizen of Sri Lanka (although he was entitled to become one). In his cross-appeal, the Minister contended that the IAA did not err in determining the applicant’s nationality and that any such error was not jurisdictional: FER17 at [25]. In rejecting the argument, the Full Court said at [85]:

The Court rejects the proposition that applying the wrong law with respect to a person’s nationality when determining his or her application for a protection visa is not a failure to comply with a statutory precondition or condition. The correct characterisation of a person’s nationality is fundamental. The IAA’s decision thereby lacked an essential characteristic necessary for that decision to be given force and effect by the statute pursuant to which the decision-maker purported to make it.

35    EGZ17 contended that the Full Court in FER17 concluded, by what it said in the first sentence, that the continued existence of the receiving country is a statutory precondition to valid exercise of the power. The first sentence of [85] must be read in context. The principal question before the Full Court which had been raised by the Minister was whether any error concerning nationality was jurisdictional. The Full Court cannot be understood as having intended to conclude that the identification of the receiving country was a statutory precondition to the exercise of the review function.

36    Ground 4(a) must be upheld. It might also be observed that, even if the primary judge had been correct and the IAA’s power was conditioned in the way the primary judge erroneously thought, that would not have been a basis for disturbing the IAA’s decision. There was no dispute that Afghanistan existed at the time of the IAA’s decision.

CONCLUSION

37    The appeal must be allowed.

38    It remains to observe that EGZ17 sought leave under s 27 of the Federal Court Act 1976 (Cth) to adduce fresh evidence on appeal. The proposed evidence was country information being the DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) published 14 January 2022. Leave to adduce this evidence is refused. The evidence, which was unavailable at the time of the primary judge’s decision, is irrelevant to the question whether the primary judge erred and it is irrelevant to the question whether the decision of the IAA is attended by jurisdictional error. The evidence is therefore inadmissible by reason of s 56 of the Evidence Act. Further, the evidence cannot be said to be such that, if it had been adduced before the primary judge, the result would very probably have been different: NASB v Minister for Immigration and Multicultural Affairs and Citizenship [2004] FCAFC 24 at [42].

39    The following orders should be made:

Associate:

Dated:    11 February 2022