FEDERAL COURT OF AUSTRALIA

BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file an application for leave to appeal is granted.

2.    The application for leave to appeal is refused 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    There is an apparent tendency on the part of some practitioners to treat migration appeals as the Galápagos Islands existing apart from the practice and procedure relating to appeals in this Court. This is an application made under r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) for an extension of time to appeal from “the whole of the judgment and all of the orders” of the Federal Circuit Court made on 18 May 2018. Such an application, at least on its own, is misconceived. What occurred below was that the Federal Circuit Court made orders dismissing an appeal from a decision of the Immigration Assessment Authority (Authority). It did so, as is evident from the primary judge’s reasons at [112], because “the grounds of the substantive application were not pressed”.

2    Prior to dismissal, what the primary judge also did was to refuse leave for the appellant to file an amended application on the day of the final hearing. In truth, it is this interlocutory order which is the real subject of complaint by the appellant (although the consequences of the interlocutory order were to lead to the dismissal of the proceeding before the primary judge which is also the subject of complaint, this consequence having flowed from the dismissal of the amendment application). Any challenge made to the decision of the primary judge to refuse the application for leave to amend is an appeal in respect of which leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant, pursuant to FCR 35.13, had 14 days to file such an application. He did not do so. Despite this, given that no opposition has been raised by the first respondent (Minister), I am prepared to take the application for an extension of time to appeal as also an application to extend the time to file an application for leave to appeal and extend time accordingly.

3    When this matter was raised at the commencement of the hearing, counsel appearing for the appellant, correctly, did not demur from the characterisation of the application as primarily an application for leave to appeal from a decision which was a matter of practice and procedure. The principles which inform the determination of whether to grant leave to appeal from such a decision are not novel and do not relevantly differ from the approach taken by the Court in determining whether or not there should be a grant of leave to appeal from a decision of a single judge of this Court.

4    I recently considered these principles in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]-[6] (in reasons that were generally agreed with by Allsop CJ and Rares J). Insofar as the attack on the amendment application is concerned, it is important to draw a difference between the nature of the exercise in which I am engaged and the distinct nature of a re-hearing under s 24 of the Act, as such a re-hearing was recently explained in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 per Gageler J at [29].

5    In the present case, what the applicant must show is that, in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal and supposing the decision to be wrong, substantial injustice would result if leave was refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. In this regard, it is important not to generalise about the nature of practice and procedure appeals in a particular area of the law.

6    With these principles in mind, I come to the two proposed grounds of appeal. They are as follows:

1.    The Court Below erred in failing to give leave for the appellant to amend his application before that Court.

2.    The Court Below erred failing to allow that application, and erred further in finding that;

a.    The [Authority] had complied with the requirements of ss 473CC and 473DB(1) of the [Migration Act 1958 (Cth)] in that it considered review material provided to the Authority under section 473CB of that Act.

b.    The [Authority] had complied with the requirements of ss 473CC and 473DB(1) of the Migration Act in that it considered substantial, clearly articulated submissions provided to the Authority under section 473CB of that Act.

7    The two grounds and the two parts of Ground 2 are all interrelated. That is, the reason why it is alleged the primary judge erred in failing to grant leave, was that his Honour failed in the two ways identified in Ground 2. Accordingly, it is convenient to move directly to the two contentions advanced on behalf of the applicant, which I will describe as Ground 2(a) and Ground 2(b).

8    Prior to doing so, however, it is useful to revisit some relevant principles that relate to the Authority’s duty to consider the review material placed before it and submissions made to it. The principles to be applied in identifying whether error is established by reason of a decision-maker’s failure to refer to particular material or to refer to it in a way which is sufficiently extensive is well-trodden ground. It is unnecessary for present purposes to rehearse the authorities. It is appropriate, however, that I make reference to the very recent decision of the High Court in ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003. In that case, the Court considered the question of whether the absence of an express reference to particular evidence justified an inference that it was not considered and noted the 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 a tribunal failed to consider a matter that was material. In doing so, the Court noted at 1006 [13]-[14] as follows:

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.

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, emphasis in original)

9    As will be explained, the present contention is not that there was no express reference to the material, but rather that there was “absolutely no attempt to engage with” the relevant information. As the Full Court recently cautioned in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, in dealing with arguments such as the present, it is necessary to bear in mind the risk that the Court will impermissibly scrutinise the merits of an administrative decision: see [31]-[34]. The Full Court also emphasised that a finding that a decision-maker had failed to “engage” with a particular matter so as to reveal a lack of any active intellectual process will not be made lightly and must be supported by clear evidence: at [48]. It is also useful to have regard to Robertson J’s analysis of the relevant principles in this area as set out in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, which was cited with approval by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at 451 [68]-[70]. What is evident is that the fundamental question is the importance of the material to which it is said that there has been no consideration given to the exercise of the decision-making function: see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at 74 [29].

10    As to the not entirely unrelated question (at least in the circumstances of the present case) being the legal principles to be considered in determining whether or not a tribunal has committed jurisdictional error by failing to evaluate a substantial and clearly articulated submission, the comprehensive collection of the authorities by Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at 389-391 [81] is, with respect, instructive. They are as follows:

(a)    as the High Court stated in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 … [2009] HCA 39 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]):

[25] … The duty imposed upon the Tribunal by the Migration Act is a duty to review.

In my opinion, the duty to review obliges the tribunal to consider and deal with submissions of substance which are clearly articulated. As noted above, in assessing whether a submission is one of substance it may be relevant to take into account whether it relies upon an established fact, but that is not the only way in which that requirement may be met. Substantiality might also be established by the fact that, for example, a submission has been made in direct response to an important issue which the tribunal has raised which bears upon the state of the satisfaction which it is required to meet under s 65 of the Act. In my view, that is the case here as the written submissions dated 20 February 2013 were provided in direct response to the tribunal’s stated concerns regarding the credibility of the extortion claims and the appellant’s ignorance of the CID officer’s identity;

(b)    merely because the tribunal fails to deal with a submission does not necessarily amount to jurisdictional error. Similarly, the tribunal’s failure to ignore relevant evidence or other material does not necessarily establish jurisdictional error (see the pertinent observations of Robertson J in SZRKT at [97]);

(c)    there is no requirement for the tribunal to refer to every piece of evidence or every contention made by an applicant in its statement of reasons because it may be that some evidence is irrelevant and some contentions may be misconceived. However, as the Full Court held in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]:

[46] … there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; … [2001] HCA 30 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …

(d)    there is a long line of authority which deals with requirements of s 430 of the Act and the circumstances in which a failure by the tribunal to refer to particular evidence or make a particular finding such as to give rise to jurisdictional error can be inferred from the absence of any reference to those matters in the tribunal’s statement of reasons: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 ; … [2000] HCA 1 at [60]-[68] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; … [2001] HCA 30 at [67]-[69] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; … [2011] HCA 1 at [32] per French CJ and Kiefel J and at [69]-[70] per Gummow J. However, in my view, different considerations may arise in a case where there is a failure to deal with a submission of substance (and not a failure to take into account a relevant consideration, consider evidence or make a finding of fact). As noted above, s 430 does not explicitly require the tribunal to set out or summarise submissions which are made to it. Having said that, however, it is clear, as the minister acknowledged, that a failure to deal with a submission of substance could amount to procedural unfairness. I would add that such an error might also be described as a constructive failure to exercise jurisdiction, noting that the tribunal’s core statutory task is to conduct a review. In either case, jurisdictional error may be present;

(e)    notwithstanding that s 430 does not in its terms impose any obligation on the tribunal to set out or summarise submissions of substance which are clearly articulated and made to it, in considering whether the tribunal has in fact failed to consider and determine such a submission, it is appropriate to have regard to the tribunal’s statement of decision and reasons and, in particular, the manner in which that document describes and deals with submissions made to the tribunal which it has received. In an appropriate case this might involve a consideration of any part of the tribunal’s statement of reasons which summarises the submissions it has received, as well as the parts of the tribunal’s reasons which purport to consider and determine the submissions it has received. Accordingly, it may be appropriate to pay careful attention to the structure of the tribunal’s reasons;

(f)    in SZRKT, in considering whether the tribunal is obliged to consider a document, Robertson J said, consistently with VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77] that much depends on the circumstances of the case and the nature of the document. Robertson J added that relevant factors to be considered where the question is whether there was a failure to consider corroborative evidence, include the cogency of the evidentiary material and also the place of that matter in the assessment of the applicant’s claims. In my view, similar factors are also relevant in considering whether the failure to deal with a submission of substance gives rise to a jurisdictional error (at [112]);

(g)    the appellant carries the burden of persuading the court to draw an inference that the failure to deal with a submission which the tribunal was obliged to consider amounts to a jurisdictional error (see, for example, MZYTS at [53]); and

(h)    it is important not to lose sight of the now well-established principle that the tribunal’s reasons are not to be approached with an eye keenly attuned to the detection of error: see Liang and also the recent observations of Flick J in Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1; … [2013] FCAFC 141 at [19]-[20] with whom Katzmann and Wigney JJ relevantly agreed.

11    Having identified the relevant principles, I now return to the two contentions advanced by the applicant.

Ground 2(a)

12    It is convenient to commence by identifying the material which the applicant alleges the Authority failed to take into account. As developed before the primary judge and as further refined during the course of oral submissions on this application, attention was directed to [5.21] at p 23 of a DFAT Report dated 18 September 2015 (September DFAT report). The relevant paragraph was as follows:

5.21    DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.

13    In SZSSC, the Federal Court held that a failure to consider a clearly articulated, relevant argument, was a failure to conduct the review lawfully: at 389 [81(a)]. The submission made before the Court today was that this applies to the current circumstances because the Authority was required to consider, as set out above, the paragraphs from the DFAT Report, that is, the submissions (Material) put before it (submissions which contained a clearly articulated relevant argument).

14    After directing attention to this passage, the applicant then points to the Authority’s decision and reasons of 17 June 2016 (Authority’s reasons). At [47], the following appears:

Due to improvements in the situation of the Hazara, at least in a relative sense, Hazara are often perceived to be affiliated with the government and international community in Afghanistan. DFAT has suggested that this, in some circumstances, may contribute to a person being targeted for harm – particularly on the roads. However, outside of that context, DFAT consider low profile Hazara who have spent time in western countries face a low risk of harm as a result of those links. country information before me does not indicate that low profile Hazara who have spent time abroad are imputed to hold any political opinion that would put them at a real risk of harm above that of other Hazara Shia – instead, the risk is to those that have been directly associated with governmental and international bodies.

15    The substance of the point made by the applicant was that at [47] of the Authority’s reasons, the Authority reached a conclusion, based on DFAT material, which considered that low-profile Hazaras who have spent time in Western countries faced a low risk of harm and those that have spent time abroad are not imputed with political opinions such that they are at a real risk of harm when compared to those who were directly associated with governmental and international bodies.

16    It is said that this finding must be inferred as a failure to have had regard to [5.21] of the September DFAT report which, as noted above, makes the point that returnees from Western countries face a “similar level of risk” to persons who are associated with support for the government or the international community. This inconsistency between the relevant part of the September DFAT report and what the Authority found at [47] is, it is submitted, only explicable by reason of a failure to give consideration to the relevant part of the September DFAT report.

17    The first point to be made is that it is important not to isolate [5.21] of the September DFAT report. It is one paragraph among four which deal with the general topic of conditions of returnees. Despite its length, in order to provide the appropriate context, it is useful to set out those paragraphs at [5.19]-[5.22]:

5.19    Returnees from Pakistan are often unable to return to their home communities—in some cases the ‘returnees’ were born in Pakistan and have not previously lived in Afghanistan. As with IDPs, most returnees from Pakistan travel in large groups of multiple families as a social protection mechanism. They may spend long periods of time in temporary accommodation in camps with limited infrastructure and economic opportunities.

5.20    Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face, particularly some time after their return. There are plausible, but anecdotal, reports of returnees from western countries often turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion.

5.21    DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.

5.22    In 2014 there were news reports that an Afghan Hazara, Zainullah Naseri, from Jaghori District in Ghazni Province, was abducted and tortured by the Taliban following his deportation from Australia. He reportedly escaped from his captors and returned to Kabul. These reports have not been corroborated. DFAT has since been in contact with Mr Naseri, who is not currently pursuing any action regarding this matter.

18    It is also important not to decontextualise [47] of the Authority’s reasons. It is clear from a review of the Authority’s reasons that it carefully considered the applicant’s submission that he would be subjected to harm as a failed asylum seeker and returnee from the wfest: see [51]-[65]. It is notable that in the course of considering that principal submission, the Authority footnoted the very pages containing the passage which the applicant claims was not considered: see [55] n 34. What the Authority did was to consider a range of information concerning the situation for returnees from the West to Kabul, finding:

(a)    there was no country information indicating that the returnees to the West had been targeted in Kabul (at [55]);

(b)    DFAT had advised that a returnee to Kabul was unlikely to be discriminated against on the basis of religion (at [57]);

(c)    a DFAT report published in February 2016 had advised that “low-profile Hazaras who had spent time in western countries face a low risk of violence as a result of those international links” (at [58]); and

(d)    UNHCR guidelines regarding the targeting of individuals were general in nature and that, “the information before me does not indicate that there is a real chance or risk of harm in Kabul to a returnee from the west, or a ‘westernised person’, or a person perceived to be from (or affiliated with) the west”: at [59].

19    It was based on this process of reasoning that the Authority concluded at [60]:

There is no country information before me that indicates that in a city as diverse as Kabul, which has experienced such significant population growth since the fall of the Taliban, that returning from the West imputes a person with a political opinion, nor is there any indication that as a young Hazara man with an education, English language skills, or Western traits would give rise to a profile that would place the applicant at a real chance of harm if he returns to Afghanistan and lives in Kabul.

20    Further, at [64], it was found that the applicant had “no specific profile, singularly or curatively [sic] that would put him at real chance of harm if he returned to live in Kabul”.

21    Moreover, if one was to pay specific attention to [47], it appears the Authority did have regard to [5.21] of the September DFAT report in noting that DFAT assesses that returnees from Western countries who maintain a low profile, do not face a significantly higher risk above other people in Afghanistan with a similar ethnic or religious profile, that is, other Hazara Shia.

22    Having regard to the way in which the Authority approached its task, I do not consider it can be successfully asserted that “absolutely no attempt” was made to engage with the information in the September DFAT report upon which the applicant places particular emphasis. It follows that there is no merit in Ground 2(a).

Ground 2(b)

23    Ground 2(b) alleges that the primary judge fell into error in refusing leave to allow the applicant to submit that the Authority failed to take into account claims identified in what was described as a substantial clearly articulated argument. That argument was developed in submissions which comprise annexure DJP1 to the affidavit of David John Prince, sworn on 26 October 2018.

24    The submission was to the effect that there was an “intrinsic link” between the Shia religion and Hazara ethnicity and hence a close connexion between Hazara ethnicity and political allegiances as political views of Afghanis are “often guided and influenced by their ethnicity”. It followed that Shia Hazaras are often imputed with pro-government, pro-Afghan National Army and pro-Western views by insurgent fighters. Given that the applicant had spent time outside Afghanistan and, indeed, in Australia, it was submitted that this risk was significantly increased. In particular, it was submitted that the applicant would face “additional persecution” by insurgent groups as a young, foreign-educated male who was sympathetic to the West and that he will stand out as an easily-identifiable person, having received a Western education making him an obvious target for insurgent groups.

25    It is clear that the primary judge was alive to the argument that was advanced: see, for example, the judgment below at [78]-[83].

26    Not surprisingly, given the principles that I have summarised above, it is not in dispute that the Authority is required to exercise its discretionary power, taking into account the claims the subject of a substantial, clearly articulated argument, which relies on established facts. However, in circumstances where the Authority (as is clear from the Authority’s reasons at [44], [52]-[53]) clearly referred to the submissions, and then considered them carefully (at [45]-[50]; [55]-[60]), it does not seem that it can be contended that there was a failure to deal with the submission advanced. It follows that Ground 2(b) is, similarly, without merit.

27    It follows from the above that the primary judge did not fall into error in considering the merits of the argument in his overall discretionary decision to refuse leave to amend in accordance with the application made to the primary judge at the time of the hearing. In those circumstances, his Honour’s decision to refuse leave is not attended by sufficient doubt to warrant reconsideration nor, given that I do not consider the decision to be wrong, is substantial injustice occasioned if leave was refused. Given that neither limb is made out, the appropriate order is to refuse the application for leave to appeal with costs.

Associate:

Dated:    28 November 2018