FEDERAL COURT OF AUSTRALIA

AXE16 v Minister for Immigration and Border Protection [2018] FCA 646

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant’s costs of the appeal.

3.    Set aside the orders made in the Federal Circuit Court on 11 October 2017.

4.    Remit the matter to be heard again in the Federal Circuit Court by a different judge.

5.    The Appellant be granted a certificate in respect of the new trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the Appellant in respect of the new trial.

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

REASONS FOR JUDGMENT

PERRAM J:

I. Introduction

1    This is an appeal from the Federal Circuit Court: AXE16 v Minister for Immigration [2017] FCCA 2459. That Court refused the Appellant’s application for judicial review of a decision made by the Immigration Assessment Authority (‘the Authority’) on 15 February 2016. The Authority affirmed an earlier decision of a delegate of the Minister to refuse to grant the Appellant a Safe Haven Enterprise (Subclass 790) visa. The Appellant is a citizen of Afghanistan and arrived at Christmas Island on 22 October 2012. That date is significant as it means he is part of the cohort of persons to whom may be applied the streamlined review process inserted into the Migration Act 1958 (Cth) (‘the Act’) by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). That Act inserted a new Part 7AA which provides for the review process in question. It can be applied (and in this case was applied) to persons who were unauthorised maritime arrivals arriving in the period between 13 August 2012 and 31 December 2013 and who had not, during that time, been removed to a regional processing country. Whereas formerly a review of a decision of a delegate of the Minister was conducted by the Administrative Appeals Tribunal by means of a hearing at which the applicant for review got to put their case, under the special provisions of Part 7AA a much more limited review not usually involving the applicant is involved. That review is conducted on the papers by the Authority.

2    The Appellant is a Shia Hazara. It was not seriously in dispute that the Hazaras have not fared well at the hands of the Sunni Taliban. One of the Appellant’s arguments before the delegate was that, as a former educator of girls and as a Shia Hazara, there was a real risk that he would be harmed if returned to Afghanistan. The delegate concluded that there was no real chance of harm to the Appellant in Afghanistan as a result of his profile as a former teacher. Further, the delegate accepted that the Appellant faced a real chance of persecution as a Shia Hazara if he were to be returned to his home location of Ghazni province but the delegate concluded that the Appellant would be safe (enough) in Kabul. This was because the delegate thought he had a low profile. The delegate accordingly declined to issue the visa.

3    The case was then referred to the Authority. It reached a contrary conclusion to that of the delegate regarding his profile as a former teacher. The Authority found that the Appellant would face a real chance of harm as a former teacher if returned to certain parts of Afghanistan. Nevertheless, the Authority concluded that the Appellant would not face a real chance of persecution as a Shia Hazara teacher in Kabul. Further, the Authority accepted advice contained in a report of the United Nations High Commissioner for Refugees (‘UNHCR’) dated 6 August 2013 that Kabul was safe for Hazaras who had support there from friends, community or tribe or who were, relevantly, single able-bodied men with no vulnerabilities. It concluded that the Appellant was a single able-bodied man with no vulnerabilities and therefore that he could safely relocate to Kabul. The Authority did not seek the Appellant’s views on the idea that as a single able-bodied man with no vulnerabilities he could safely live in Kabul.

4    The Authority had a power which could have been used to ask the Appellant for that additional information: s 473DC(3) of the Act. The Appellant argued at first instance that:

(a)    it was legally unreasonable for the Authority not to have exercised this power so as to ask him about this matter;

(b)    the reasons of the Authority in concluding that the Appellant would not be harmed in Kabul were inadequate, irrational and unreasonable; and

(c)    the Authority had applied the wrong standard in considering whether he faced a ‘real risk’ or ‘real chance’ of harm.

5    The primary judge rejected each of these arguments. On appeal to this Court, the Appellant renewed his argument that it was legally unreasonable for the Authority not to give him a chance to comment on the desirability of relocating to Kabul. He also submitted that the primary judge’s reasons were inadequate in two ways: first, in rejecting his argument that the reasons given by the Authority that he would be safe in Kabul were inadequate, irrational and unreasonable; secondly, in finding that the Authority applied the correct test of what constitutes a ‘real chance’ of harm.

II. Section 473DC(3): legal unreasonableness

6    Section 473DC of the Act provides:

‘473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.’

7    It will be seen that subsection (3), in particular, contemplates that the Authority may obtain ‘new information’ from an applicant whether by means of an interview in person or otherwise. Under subsection (1), however, information will only be ‘new information’ if it was not before the Minister or the delegate at the time of the decision to refuse to grant a visa and it is information that the Authority considers may be relevant.

8    The Appellant’s argument turns upon a report prepared by the UN High Commissioner for Refugees dated 6 August 2013 entitled ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ (‘2013 UNHCR document’). Before turning to the critical part of that report it is necessary to understand the claims which were made by the Appellant and how the delegate and the Authority dealt with those claims. The Appellant had made four claims:

(a)    a claim that he faced persecution if returned to Afghanistan because he was a member of the social group consisting of former teachers. The delegate treated this as a claim about being a former teacher but the Authority treated it as a claim about being a former teacher of girls. For present purposes, this difference does not matter. It is convenient to refer to both claims together as the former teacher claim;

(b)    a claim that he faced persecution if returned to Afghanistan because he would be a member of the social group consisting of persons who had unsuccessfully sought asylum in the West (the failed asylum seeker claim);

(c)    a claim that he faced persecution if returned to Afghanistan because he was a member of the ethnic and religious group of Shia Hazaras (the Shia Hazara claim); and

(d)    a claim that he was entitled to complementary protection because he faced a real risk of serious harm if returned to Afghanistan.

9    The Authority rejected the failed asylum seeker claim and Shia Hazara claim on the basis of a statement in the 2013 UNHCR Document in these terms:

‘The UN High Commissioner for Refugees (UNHCR) has advised that relocation may be a reasonable alternative only where the individual can expect to benefit from meaningful support of his or her own (extended) family, community or tribe in the area of prospective relocation. According to UNHCR the only exception to this requirement of external support are single able-bodied men and married couples of working age without identified vulnerabilities. I am satisfied that the applicant is a single able-bodied man without vulnerabilities. While I accept that there is evidence that some returnees have been targeted for robbery or extortion on the basis of wealth, I am not satisfied that the weight of the evidence indicates that an adult male such as the applicant faces a real chance of harm in Kabul on this basis now, or in the foreseeable future.’

10    It reasoned that because he was a single able-bodied male he could safely live in Kabul. The delegate had not rejected these claims on this basis. He had instead refused them on the basis of other material.

11    Outside the regime of Part 7AA of the Act, a failure to give an applicant an opportunity to comment would result in a denial of procedural fairness: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; 228 CLR 152 (‘SZBEL’) at 163 [35]. However, that reasoning is not applicable to Part 7AA because of s 473DA(1):

‘473DA Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)     To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.’

12    The Full Court has held that the effect of this provision is that SZBEL has no direct traction under Part 7AA: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]. The Appellant did not deny this, however, and did not rely directly on SZBEL. Instead, the submission was that, returning to s 473DC, it was legally unreasonable for the Authority not to seek the information from him under s 473DC(3) about the 2013 UNHCR Document. If it had done so, it was submitted on his behalf, he would have pointed out the difficulties he faced by reason of being a former teacher of girls.

13    The power to obtain new information conferred on the Authority by s 473DC is to be exercised under the auspices of legal reasonableness: M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (M174) at [21] and [86]. An unreasonable failure to exercise the power under s 473DC may invalidate a purported decision of the Authority: M174 at [21] and [86]. Specifically, it would not have been an answer to the Appellant’s argument that:

(a)    the Authority did not consider whether to exercise the power in s 473DC(3); or that

(b)    subsection 473DC(2) provides that the Authority is under no duty to consider whether to exercise the power in s 473DC(3).

14    So much is established by the Full Court’s judgment in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (‘CRY16’) at, respectively, [69] and [70]. Further, in determining whether what occurred was legally unreasonable, it is not irrelevant that the outcome which has ensued is unfair ‘in an ordinary sense’: CRY16 at [67].

15    In CRY16, the Full Court concluded that it was legally unreasonable not to consider getting documents or information from the visa applicant. The Authority in that case determined that although the visa applicant, as a Sunni Lebanese, faced a real risk of significant harm in his place of habitual residence he could relocate to Beirut where that risk did not exist. The delegate had not decided the case on that basis at all and the first the visa applicant heard of it was when the Authority told him his application had been rejected because of it. The Full Court held that it was legally unreasonable not to seek information about this from the visa applicant under s 473DC(3). The Full Court explained it this way at [82]-[83]:

‘82     Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

83    As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.’

16    The difficulty, however, with the Appellant’s argument in the present case is twofold. First, the issue of relocation to Kabul was subject to a finding by the delegate (unlike the decision before the Authority in CRY16). Secondly, he had in fact made a submission to the Authority about the risks he faced as a former teacher of girls and the Authority concluded that the Appellant would not face a real chance of persecution as a Shia Hazara former teacher of girls if returned to Kabul.

17    I can discern therefore no unreasonableness in the Authority’s decision not to obtain new information from the Appellant under s 473DC of the Act. I do not see that there was any basis upon which it can be said that the Authority should have sought the Appellant’s further views under s 473DC.

18    The primary judge dealt with the matter this way at [29]-[32]:

‘29.    It is apparent from the delegate’s decision that the issue of relocation was an issue before the delegate on which the applicant had an opportunity to put submissions. The delegate expressly referred to particular UNHCR country information in relation to single able-bodied men in considering the reasonableness of relocation to Kabul.

30.    Ms Grotte properly conceded that there was no request for the Authority to exercise its powers under s.473DC(3). I do not accept that the positive findings in the present case give rise to the position where no reasonable Authority conducting a review under Part 7AA could fail to exercise the power under s.473DC(3). The Authority provided detailed reasons in relation to the ability of the applicant to relocate to Kabul including the availability of the teaching of girls that takes place in Kabul and the country information referred to in the Authority’s reasons.

31.    It was a relevant consideration in respect of the criteria for complementary protection to take into account the applicant’s personal circumstances and the reference to the applicant being an able-bodied male was one referred to in country information identified by the delegate. This was also a relevant matter for the Authority and optn [sic] to the Authority to so find.

32.    This is not a case where there is made out legal unreasonableness by reason of the failure to exercise the power under s.473DC(3). No jurisdictional error as alleged in Ground 1(a) is made out.’

19    To the extent that this may suggest that a failure by the Authority to exercise the power in s 473DC cannot be judicially reviewed, it is contrary to M174. However, although the explanation by the primary judge for why it was not unreasonable for the Authority not to inquire of the Appellant is brief, I agree with the underlying conclusion that it was not unreasonable for the Authority to act as it did. The Appellant fails on this argument because, in fact, he received and took the opportunity to make submissions about this matter to the Authority.

III. Adequacy of Reasons

20    One of the Appellant’s arguments before the Authority centred on the proposition that he would be physically harmed or even killed if returned to Afghanistan. It is apparent that the Authority accepted that this was so. However, as discussed above, it also concluded that he could relocate to Kabul where, so it reasoned, he would not face such a risk. Consequently, it concluded he did not have a well-founded fear of persecution invoking what is sometimes called the relocation principle: cf SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18.

21    In the course of arriving at that conclusion the Authority had occasion to consider evidence about the risk of harm to the Appellant in Kabul. It did so at [25] in these terms:

‘It is estimated that Hazaras constitute the largest ethnic group in Kabul, and that they make up some two million or Kabul’s estimated overall population of seven million persons. Attacks upon the Shia Hazara community in Kabul have occurred in the recent decade. The most significant of these was the Moharram 2011 bomb attack which resulted in the death of at least 70 people, many of whom were Shia Hazaras, responsibility for which claimed by Pakistan-based Lashkar-e Jhangvi (LeJ). Some commentators, such as the academic William Maley, have argued that events such as this are evidence that is a mistake to conclude that Kabul is safe for Hazaras. Maley also points to the 2010 outbreak of violence which occurred in Kabul between the Hazara and the Kuchi communities on 13 August 2010, in which a number of ethnic Hazaras had been killed. Since this time, however, Kabul has seen very few subsequent incidents of ethno-sectarian violence. A rare instance of such violence occurred again in February 2014 there was an attack on an Ismaili (Shia) cultural centre in Kabul which killed one security guard. In March 2015, gunmen attacked a Sufi mosque in Kabul, killing 11 worshippers. And on 9 October 2015 one person was killed and three others were wounded in a bomb attack on a Shia prayer hall in the Kabul district of Chendawol, with Daesh subsequently claiming responsibility. There have been no further instances of mass casualty attacks like the Moharram 2011 bomb attack, and DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul.’

(footnotes omitted)

22    There was, therefore, evidence before the Authority of:

    an attack on a Shia cultural centre in February 2014 in which one security guard was killed;

    a killing in March 2015 of 11 Sufi worshippers in a mosque in Kabul; and

    a bomb attack in October 2015 on a Shia prayer hall in Kabul.

23    The Authority concluded at [26]:

‘Nevertheless, abductions and/or executions of Hazaras are not occurring in Kabul. I am not satisfied that the applicant faces a real chance of such harm now or in the foreseeable future.’

24    The Appellant criticised this conclusion by the Authority before the Federal Circuit Court. Two complaints were made. First, it was submitted that the Authority’s conclusions were illogical in that one could not infer from the evidence that attacks were happening in Kabul to the Authority’s conclusion that they were not. Secondly, it was said that the reasons given by the Authority for rejecting that conclusion were, in any event, not adequate in law. Here the point was that one could not discern how it was the Authority had concluded there was no risk.

25    To resolve the first of these issues it is necessary to understand and articulate the alleged illogicality. This requires as a minimum an identification of the Appellant’s argument and the parts of the Authority’s reasons at which it was directed. This cannot be done without directing consideration to [25] in the Authority’s reasons where the critical findings appear. To resolve the second issue it is necessary to identify in what way the reasons are said to be deficient.

26    The primary judge dealt with these twin topics as follows:

‘33.     In relation to a Ground 3, Ms Grotte sought to argue that the Authority had failed to provide adequate reasons as required under s.473EA in support of the findings in the last sentence in each of paragraph 26, paragraph 27, and paragraph 29.

34.     The Authority provided logical rational reasons in support of the findings made in those paragraphs. Those findings cannot be said to lack an evident and intelligible justification and were open on the material before the Authority. There was no failure to give adequate reasons in support of the adverse findings made by the Authority. No jurisdictional error as alleged in Ground 3 is made out.’

27    The primary judge appears to have assumed in the Appellant’s favour that an obligation lay upon the Authority to produce reasons which were adequate. That assumption may be controversial but that issue need not take up any space here (the issues are: (a) is there an obligation on an administrative decision-maker to give ‘adequate’ reasons; and (b) assuming there is, is a failure to do so jurisdictional?).

28    I do not think it can be said that the primary judge failed to identify the arguments with which he was dealing. Although brief, the reference in [33] to the argument pursued by Ms Grotte sufficiently identified the argument being put.

29    However, it is impossible to discern why his Honour rejected that argument. Only the first two sentences of [34] seem to address the matter. But these are entirely conclusory. The Appellant’s argument that the Authority had reasoned illogically is not adequately dismissed by saying its reasons were logical. The same can be said of the second sentence. It is impossible to say whether the primary judge erred in his analysis of the Appellant’s argument because it is impossible to perceive what his Honour’s process of reasoning was. The same may be said of his treatment of the argument concerning the adequacy of the Authority’s reasons. It is not enough in response to a suggestion that reasons were not adequate simply to say that they were: see AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [19].

30    I accept, of course, that the thoroughness of a judge’s treatment of an issue will legitimately be a function in very many cases of the substance of the point the judge is considering. The Minister submitted in this case, therefore, that the admitted brevity of the primary judge’s reasons reflected this underlying reality. I do not agree. I do not regard either of these arguments by the Appellant is being of so little merit as to warrant the insignificant treatment given them by the primary judge. To the contrary, there is some force in the points although I am to be taken to express no concluded view on that matter. In any event, the reasons of the primary judge at [33]-[34] are not adequate.

IV. Real Chance of Harm

31    The final argument pursued in the Federal Circuit Court was a submission that the Authority had applied the incorrect approach to determining whether there was a real chance of harm within the meaning of the Convention. The point, as I understood it, was that the Authority had identified some real harms and then asked whether there was a real chance of those harms actually occurring. This was said to transgress the principle in refugee law that one can have a well-founded fear of an event happening even where there is less than a 50 percent chance of the occurrence taking place: Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) at 431 per Stevens J; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 397 and 429.

32    Accepting that to be so, I do not think the Authority departed from this standard. The submission was directed at [26]-[27] in the Authority’s reasons which I have set out above. These are as follows:

‘DFAT’s 8 February 2016 report on Hazaras in Afghanistan indicates that over 100 Hazaras were abducted while traveling through regional areas of Afghanistan during 2015, and that while most were subsequently released, a group of seven Hazaras (four men, two women and a nine-year-old girl) who were kidnapped in Ghazni Province in October and later murdered, their bodies being found in neighbouring Zabul. DFAT notes that there was speculation that the killings were carried out by Daesh, and local Taliban leaders claimed to have tried and immediately hanged the perpetrators; while authorities from the Afghan National Directorate of Security (NDS) were reported in the media as suggesting that the Taliban were responsible, and it is unclear which faction may have been involved. Subsequently there were reports (which DFAT considers unconfirmed) that Hazara militia cooperating with Taliban loyal to Mullah Akhtar Mansour had entered Zabul and destroyed the resident Dadullah Taliban faction and its Islamic Movement of Uzbekistan (IMU) allies in Zabul province in November 2015. I am mindful that the situation in Ghzani and Zabul thus remains fluid. Nevertheless, abductions and/or executions of Hazaras are not occurring in Kabul. I am not satisfied that the applicant faces a real chance of such harm now or in the foreseeable future.

On the evidence, I am not satisfied that there is a real chance that the applicant would be killed or otherwise harmed in Kabul by a bomb attack, or some other form of violence, as a consequence of his being a Shia Hazara now or in the foreseeable future.’

33    It is clear that the Authority asked itself whether there was a real risk of the identified harms occurring which was the correct question. I am unable to construe these two paragraphs as involving the impermissible imposition of the wrong standard of proof.

V. Relief

34    The appeal must be allowed and the matter remitted to the Federal Circuit Court to rehear. Since the Appellant does not seek a fresh hearing before the same judge, the matter should be remitted to a different judge: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [60] per Griffiths J. The brevity of the primary judge’s treatment of the issues generates creates the risk of a perception of prejudgement. For the reasons given in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [28] the Appellant should also have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). I make the following orders:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant’s costs of the appeal.

3.    Set aside the orders made in the Federal Circuit Court on 11 October 2017.

4.    Remit the matter to be heard again in the Federal Circuit Court by a different judge.

5.    The Appellant be granted a certificate in respect of the new trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the Appellant in respect of the new trial.

Associate:

Dated:    11 May 2018