FEDERAL COURT OF AUSTRALIA

DCJ16 v Minister for Immigration and Border Protection [2018] FCA 1865

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to rely on the further amended notice of appeal but the appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

Revised from the Transcript

LEE J:

1    This appeal from the Federal Circuit Court raises a relatively narrow set of issues but, prior to coming to them, it is necessary to deal with a procedural point. A document entitled Further Amended Notice of Appeal from the Federal Circuit Court of Australia was attached to the appellant’s submissions. With commendable frankness, counsel for the appellant notes that, of the two grounds identified in the amended notice, Ground 1 relies on a different argument as to rationality than that which was argued below and Ground 2 was not raised at all before the primary judge.

2    An affidavit, affirmed by the appellant’s solicitor, was read at the hearing. The affidavit deposes to the fact that no deliberate forensic decision was made to refrain from running the points now sought to be agitated on the appeal. Put another way, and more bluntly, a different view is now taken by counsel running the appeal on behalf of the appellant, from that which was taken by the appellant’s solicitor when the matter was being run before the Federal Circuit Court.

3    There have been a number of statements by this Court as to the approach that should be taken in considering whether leave should be granted to rely on a new ground or new grounds of appeal including that a determination as to whether or not to grant leave does not “carry [with it] the practical consequence that an appellant may treat his or her application for leave as the occasion to rehearse the whole of the proposed new case”: Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at 509 [29] (Griffiths and Perry JJ) and stressing the importance that the Court is entitled to have the benefit of the reasons for judgment of the court below in respect of all arguments and that the merits of any ground will not necessarily be the overriding consideration: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68] (Lander and Middleton JJ).

4    Additionally, a number of decisions stress the fact that the Court should approach questions of leave by reference to whether it is expedient to do so “in the interests of justice” and that the likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect: see ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] (Mortimer J).

5    The first respondent, the Minister for Immigration and Border Protection (Minister) makes the point that the Court should decline to grant leave to rely on the new ground for the following reasons: (a) the appellant was represented in the court below by solicitors, being the same solicitors who now act for the appellant on the appeal; (b) the appellant has no explanation as to the circumstances in which the ground now being advanced was not advanced below; (c) the Court does not have the benefit of the trial judge’s reasons; and, (d) the proposed new ground is of insufficient merit.

6    For reasons that I will explain, given the confined nature of the way in which the appeal has been presented and the arguability of the grounds, I have determined that it is appropriate to grant leave. This extends not only to Ground 2, which is new, but also the reformulation of Ground 1.

7    As I remarked to counsel for the appellant, Mr Godwin, during the course of argument, a useful way of characterising the two grounds is that, if they were represented by a Venn diagram, they would overlap very significantly but, in the event that Ground 2 was unsuccessful, there would still be some work for Ground 1 to do. Accordingly, after setting out the two grounds, I propose to deal with them in reverse order.

The grounds of appeal

8    The grounds are as follows:

1.    The Federal Circuit Court Judge erred in finding that the decision of the [Immigration Assessment] Authority that the Appellant could relocate to Kabul was not affected by legal unreasonableness.

2.    The Federal Circuit Court Judge erred by not finding that the Authority had failed to give proper genuine and realistic consideration to the information in the applicant’s [appellant’s] submission that Islamic State proposed to continue attacks on Shia Hazaras in Kabul so long as the Hazaras continued to support the Syrian Regime directly.

9    It is unnecessary for me to set out the details of the applicable legislative framework which gave rise to the decision of the Immigration Assessment Authority (Authority), the details concerning the appellant’s application for a Safe Haven Enterprise visa, the delegate’s decision finding that the applicant is not a person to whom Australia has protection obligations, or the Authority’s review and decision. These matters are set out in the primary judge’s reasons from [9] to [54] in terms which are not suggested by any party to be otherwise than accurate. Accordingly, I can turn immediately to a consideration of Ground 2.

Consideration

Ground 2

10    The starting point is identifying, with precision, the information which the appellant submits the Authority failed to consider in a genuine or realistic way. In identifying this material, the first point of reference is a letter from the Authority to the appellant dated 11 August 2016. In that letter, the Authority invited the appellant to comment on information that may be the reason, or part of the reason, for affirming the decision of the delegate of the Minister.

11    The information was identified under two bullet points as follows:

•    Commentary from Afghanistan Analysts Network concerning the regional group, Islamic State in Khorasan Province (ISKP) which states:

“In terms of taking over territory, ISKP’s attempts to expand beyond Nangarhar have failed miserably. However, it does seem to enjoy an appeal much beyond Nangarhar and as far as Kabul in part due to the defection of militants who were previously Taleban, as well as to the presence of a more radical Salafi-jihadist cell in the largest urban centre in Afghanistan. There, it seems to be capable of planning and executing occasional operations against not so-fortified targets, with the help of local recruits, that can cause mass casualties, such as the 23 July 2016 attack. The prospect of ISKP establishing a territorial foothold in Kabul is, however, a distant one.”

•    Commentary from Jane’s Intelligence Weekly concerning the regional group affiliated to the Islamic State, Wilayat Khorasan (WK), which states:

“Despite the Kabul attack, WK is unlikely to gain substantial strength in Afghanistan in at least the one-year outlook. WK has largely struggled to control territory, even in Nangarhar where its influence is strongest. The Taliban has been aggressive in eradicating any WK supporters and factions, and government counter-terrorism efforts have disproportionately targeted WK fighters in relation to the group's operational strength. Moreover, WK's leadership is dominated by former Tehrik-e-Taliban Pakistan (TTP) commanders, which alienates local communities and undermines recruitment.”

(Footnotes omitted)

12    The Authority went on to indicate that this information was relevant to the appellant’s case because it may lead the Authority to conclude:

… that future attacks upon Kabul’s Shia population are likely to be infrequent, and not to such an extent as to pose a real chance or risk of harm to you. This is (sic) may form part of the reason for affirming the decision under review.

13    A response was provided by the appellant on 24 August 2016. After referring to the information extracted above, the letter from the appellant went on to state:

What both authors failed to mention however is that it was confirmed (Reuter on 26 July 2016) that:

A Daesh commander who uses the name Abu Omar Khorasani said ‘the bombing of the rally by thousands of Hazaras protesting about the route of a new power line was in retaliation for the support offered by some members of the community to the regime in Syria.

Many Hazaras have gone through Shi’ite-governed Iran to fight for the government of President Bashar al-Assad, a fellow Shi’ite, against Islamic State.

“'Unless they stop going to Syria and stop being slaves of Iran, we will definitely continue such attacks,” the militant commander told Reuters by telephone from an undisclosed location.

“We can and we will strike them again”

Furthermore, the current threats to Shia Hazaras throughout Afghanistan does not have anything to do with the ISKP or WK gaining territories or gain support from the masses in Kabul or any of the Afghan provinces. It does not have anything to do with the numbers killed declared by the Afghan government of ISKP or WK commanders/militias …

(Footnotes omitted)

14    Further attention was directed to a quotation from the same Reuters article, from a US military spokesman, Brigadier General Charles Cleveland, who was reported as saying: “(w)e think that Daesh is under pressure”; and “(a)s their terrain gets restricted, you see them trying to conduct more external operations and attacks.”

15    It follows that the relevant information identified by the appellant, which is the subject of complaint in Ground 2, can be summarised as information, from a Daesh (or Islamic State) commander, that unless Hazaras give up what was then perceived as support for the government of the President of Syria (a fellow Shi’ite), then Islamic State would definitely continue its attacks, and the recognition, by a US military spokesman, is that as pressure mounts on Islamic State, it is likely that Islamic State will try to conduct more attacks. I will describe this for the purposes of these reasons as the Relevant Information.

16    The key issue in relation to Ground 2 is agreed by the parties as being whether the Authority’s reasons disclose a process of weighing and balancing evidence which includes the Relevant Information as part of its decision-making, or whether it should be inferred, on a reading of the Authority’s decision, that the absence of the Relevant Information is indicative of omission and ignoring, not weighing and preference: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at 447 [50] (Kenny, Griffiths and Mortimer JJ).

17    Prior to concluding whether or not any such error is disclosed, it is useful to pause to identify the principled approach to determining questions such as the present. Very recently, in ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003, the High Court (Bell, Keane and Gordon JJ) had occasion to consider the question of whether the absence of an express reference to evidence in reasons justified or did not justify an inference that the evidence was not considered.

18    In dismissing the appeal in ETA067, the High Court noted that there is a distinction between an omission indicating that a tribunal did not consider evidence or an issue raised by it to be material, and an omission indicating that a tribunal failed to consider a matter that was material. At 1006 [13] and [14], the Court noted:

13    The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

14    Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.

(Footnotes omitted)

19    The observations above are, of course, consistent with a long line of authority including Robertson J’s analysis of the relevant principles in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, which was cited with approval in MZYTS at 451 [68]–[70]. As the Full Court (Katzmann, Griffiths and Wigney JJ) explained in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at 74 [29]:

… The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.

20    It seems to me to follow from the above that, as was put nicely by Mr Kay Hoyle who appeared on behalf of the Minister, reference to a series of cases might seek to “illuminate the terrain” but the relevant inquiry is one which is fact dependent and dependent upon an analysis of the material said to be the subject of omission.

21    With these principles in mind, it is appropriate then to come to the relevant parts of the decision of the Authority. At [6] the Authority noted:

On 24 August 2016 the applicant responded to the invitation to provide comment. He stated that irrespective of the information in the reports, the current threats to Shia Hazaras throughout Afghanistan stem from the ease of which suicide bombings can be conducted. Shia Hazaras are not only being systematically discriminated by the Taliban, Kochis and other Sunni insurgents but now by Islamic State (Daesh). It should not take another attack by the Taliban, Daesh and Sunni insurgents on Shia Hazaras to agree that Shia Hazaras are being systemically persecuted in their home country.

22    The Authority then at [7] proceeded to summarise the claims for protection made by the appellant, including the assertion that Hazaras are the main targets of both the Taliban and Islamic State. The Authority went on:

… In the [appellant’s] home district, the harassment and torture of Shia Hazaras has become increasingly more frequent and brutal as Taliban strengthens its grip on the province. Suicide bombings can be conducted with ease against Hazaras in Afghanistan. Hazaras are not only being systematically discriminated against by the Taliban, Kochis and other Sunni Insurgents groups but now also by Daesh.

23    In the context of considering whether or not there was a well-founded fear of persecution, the Authority, at [13], noted the appellant’s claim that as a Hazara he was in danger of being killed by the Taliban or other insurgent groups such as Islamic State. Reference is then made to the historical discrimination against, and segregation of, Hazaras from the rest of Afghan society for a combination of complex political, ethnic and religious reasons, and to country information concerning the contemporary manifestations of such discrimination. The critical part of the Authority’s reasoning is then set out at [23]–[25] as:

According to country information, the security situation for Hazaras in Kabul does not differ significantly from that experienced by the general population of the city. DFAT assesses that, in the current environment, people from all ethnic groups are at risk of violence from anti-government elements, but no particular group is systematically targeted solely on the basis of their ethnicity. Although ethnicity or religion is sometimes a contributing factor, especially in the kidnappings of civilians travelling by road between Kabul and Hazarajat, insurgent groups typically target people associated with the government and the international community, or those who appear wealthier than other Afghans, rather than targeting specific groups on basis of ethnicity. For these reasons I do not accept the applicant’s claim that as a Hazara, he faces a real risk of harm upon return to Afghanistan wherever he resides.

I accept that attacks upon the Shia Hazara community in Kabul have occurred in the recent decade. One 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 was claimed by Pakistan-based Lashkar-e Jhangvi. Violence occurred again in February 2014 where there was an attack on a Shia cultural centre in Kabul which killed one security guard. In March 2015, gunmen attacked a Sufi mosque in Kabul, killing 11 worshippers. While DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul, a major attack on a large group of Hazaras occurred on 23 July 2016, for which a local insurgent group with allegiance to Daesh claimed responsibility. While this attack demonstrated the ability of Daesh to carry out a large scale attack in Kabul, the available evidence gives no indication that the group is building in strength either in Kabul or across Afghanistan. Relevant analysis suggests that while Daesh may have the capability to undertake attacks on Kabul’s Shia population, this is not indicative of an escalation into targeted, sustained future attacks.

I accept that there have been targeted attacks on Shia Hazaras in Kabul, including the most recent one on 23 July 2016. I accept that despite having limited capability in the past, Daesh now has the potential to conduct large-scale attacks in Kabul. Country information is that common targets for insurgent attacks are government institutions, political figures, the Afghan National Defence and Security Forces, other security forces, foreign missions and international organisations. I find the applicant has no association to these institutions and does not have a particular profile that would make him a target of such attacks. Although the recent attack was on a large protest and demonstrates the capacity of Daesh to undertake high-profile attacks in isolated circumstances, it is not indicative of an increased risk to an ordinary Shia Hazara, such as the applicant, residing in Kabul. On the available evidence I am not satisfied that Kabul’s security situation is such that an ordinary Shia Hazara such as the applicant with no particular profile of interest will face a real chance of harm from Daesh or any other group, now or in the reasonably foreseeable future.

(Footnotes omitted)

24    The issue for determination is whether, as the appellant contends, this part of the Authority’s reasons is indicative of a failure to consider the Relevant Information or, rather, as the Minister would contend, the above is indicative of the Authority stating an overall conclusion as to the risk faced by the appellant as a Shia returning to Kabul and to the relevance of potential future attacks in assessing this risk.

25    At the risk of oversimplifying the careful submissions put by Mr Godwin on behalf of the appellant, the key contention of the appellant was that the Relevant Information, and in particular the notion that the attacks were going to be sustained so long as Hazaras continued to support the Syrian government, was material of such significance that one would have expected it to have been referred to expressly. Given the Authority had the duty to state its reasoning, which includes all material findings of fact, it was contended that an inference can be drawn that such an important matter was not taken into consideration if it was not referred to in the Authority’s reasons. Put more precisely, the failure to refer to the relevant information is indicative of a failure to give proper, genuine and realistic consideration to the material provided by way of response to the Authority’s invitation to comment.

26    Although not developed in entirely the same way, this submission was put in not materially different terms below before the primary judge. Her Honour rejected it, observing that the choice and weight given to country information (which, noted above, was referred to by the Authority) was a matter for the Authority. In response, the appellant again contends that the information about the motives and continuing intent of Islamic State in attacking Hazaras (evident from the Relevant Information) was of such importance in the overall assessment, such that if the Authority had genuinely considered it, it would have formed part of the express reasoning process.

27    The contentions made by the Minister were essentially fourfold: (a) it was noted as being common ground that the Authority (operating under Pt 7AA of the Migration Act 1958 (Cth)) carries out a de novo consideration of the merits of the decision, and hence the Authority may, in an appropriate case, engage in jurisdictional error if it fails to consider a claim or properly engage with a claim; (b) it is well established that it is not necessary for a decision-maker to refer to every piece of evidence and every contention made by an applicant, and any inference that there has been a failure to consider particular evidence is something not lightly drawn (relying on the well-known authority of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [46] (French, Sackville and Hely JJ)) and, in addition, insufficient consideration is not disclosed merely by a decision-maker’s preference for one part of the evidence over another: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174–176 [26]–[30] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); (c) the assessment and weight given to information such as the country information referred to by the Authority is part of the Authority’s fact-finding function and is a matter for the decision-maker; and (d) the most appropriate inference to be drawn from a textual and contextual analysis of the relevant paragraphs of the Authority’s decision is that the Authority did not accept that the information reached a level or weight in the balancing process which was determinative in its assessment of relevant risk, bearing in mind its analysis of the evidence before it generally.

28    It seems to me that there are a number of matters evident from [24] and [25] of the Authority’s reasoning which point against the appellant persuading the Court to draw the inference that a failure to have express regard to the relevant information evinces jurisdictional error. In particular, in the context of making a refugee assessment in circumstances of a claim which had asserted, among other things, that suicide bombings could be conducted with ease against Hazaras, the Authority not only referred to the applicable country information but also expressed acceptance of the fact that attacks upon the Hazara community had occurred at the various times identified in [24].

29    The reliance on the country information in assessing that Sunni-Shia sectarian violence is infrequent in Kabul was tempered by recognition that a major attack on a large group of Hazaras occurred on 23 July 2016, for which a local insurgent group with an alliance to Islamic State claimed responsibility. That is, there was a recognition of the importance of that attack and its demonstration of the ability of Islamic State to carry out a large scale attack in Kabul. There was also recognition that this represented a change. Despite having limited capacity in the past, Islamic State, at the time of the Authority’s decision, had a potential to conduct large-scale attacks in Kabul.

30    What the Authority then did, however, is identify the persons it considered common targets for such insurgent attacks in respect of which the appellant, it was found, had no association. The Authority then added that the appellant otherwise did not have a particular profile that would make him a target of such attacks. Again, the recent attack was referred to, and although there was some consideration given to the possibility of future attacks, this was characterised as an isolated circumstance and not being indicative of an increased risk for a person such as the appellant.

31    It was by reference to this process that the Authority concluded that on the available evidence it was not satisfied that the security situation in Kabul was such that the appellant, as an ordinary Hazara with no particular profile of interest, would face a real chance of harm from Islamic State or any other group. The Relevant Information was relevant in the sense that it was material which could bear rationally upon the risk assessment undertaken by the appellant, but that assessment was one which was to have regard to the whole of the material. It follows that the appellant has not established that the Authority ignored or failed to have regard to the Relevant Information and accordingly, Ground 2 is not sustained.

Ground 1

32    As noted above, the determination of the argument reflected in Ground 2 adversely to the appellant is not determinative of Ground 1. Ground 1, as I understand it, amounts to a claim that the Authority’s fact finding or its finding about relocation was illogical, bearing in mind the material before the Authority concerning the July 2016 bombing and the nature of the demonstration that was the subject of the attack. In particular, the appellant submits that the conclusion that an ordinary Hazara such as the appellant, with no particular profile of interest, will not face a real chance of harm from Islamic State or any other group now or in the reasonably foreseeable future, is infected by illogical reasoning. This illogicality is said to arise by reason of the fact that although the Authority found that the appellant: (a) has no connection to institutions which are being targeted; and (b) did not have a personal profile that would cause him to be a target, these findings did not mean that the appellant would not face the risk of being harmed in an attack similar to the July 2016 bombing.

33    The material discloses that the protest which was being undertaken at the time of the bombing was not about any particular ideological or religious issue; rather, it was the more prosaic catalyst of a controversy over the proposed route for a new power line. It appears the demonstration was chosen as a target evidently because it involved the congregation of a large number of Hazara Shias. In these circumstances, any conclusion about the fact that the appellant did not face harm because he had no particular profile of interest did not really speak to a situation where (merely as a Shia) he might be placed in a situation where he was likely to be subjected to a similar attack.

34    Again it may be accepted that, as a general proposition, a decision-maker may fall into jurisdictional error where the reasons are, in the applicable legal sense, irrational. The relevant principles are collected, conveniently, in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at 330–331 [59]–[62] (Griffiths and Moshinsky JJ).

35    The appellant places particular reliance on two matters in the development of his argument. The first is that, in the letter from the appellant to the Authority to which I have already made reference, there was a recognition in the commentary from Afghanistan Analysts Network that Islamic State was capable of planning and executing occasional operations against not so-fortified targets that would cause mass casualties such as the July 2016 bombing. Secondly, in the commentary from Jane’s Intelligence Review, also referred to in the letter, reference was made to Islamic State’s ambition for greater political and operational influence and that its likely motivation in making attacks is to attract recruits and mark itself as an important “player” within Afghanistan. Both these matters were before the Authority.

36    Ultimately, however, what the Authority was doing in conducting its refugee assessment was, in part, engaging in a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present and by reference to what has happened in the past: see MZYTS at [33]. Read fairly, I do not consider that the conclusion reached by the Authority in its assessment of whether the appellant would face a real chance of harm from Islamic State was one which could be characterised as evincing irrationality.

37    The Authority accepted that there were attacks on the community, including in Kabul and that Islamic State had an ability to carry out such attacks in the future; but that, importantly, its assessment of the material as a whole, was that the risk was relatively isolated. Despite the fact that there was material before the Authority which would suggest that identified targets with a particular profile may not be the only target of future attacks, the overall assessment of risk was one which seems to me to be one which was open for the Authority to make. It follows that the primary judge was correct to reject the formulation of Ground 1 below and that the reformulated Ground 1 before this Court has no merit.

38    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    28 November 2018