FEDERAL COURT OF AUSTRALIA

CRG16 v Minister for Home Affairs [2019] FCA 374

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The appellant is a citizen of Afghanistan. He is an Hazara of Shia Muslim faith. On 13 July 2016, a delegate of the Minister for Immigration and Border Protection (as it then was) found that the appellant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa (SHEV). The delegate found that it was reasonable for the appellant to relocate to Kabul and did not accept his claimed fear of harm by the Taliban, Kuchis, Sunni Militant Groups and/or the Islamic State if he returned to Afghanistan because:

(a)    he is of the Hazara race;

(b)    he is a Shia;

(c)    his family lost their land; and/or

(d)    he lived in Australia and would be considered an infidel or have pro-western political opinion.

2    On review by the Immigration Assessment Authority, the delegate’s decision was affirmed.

3    On judicial review to the Federal Circuit Court of Australia, the application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Authority under Pt 7AA of the Act was dismissed.

4    The appellant appeals to this Court.

BEFORE THE AUTHORITY

5    The Authority explained that there were limited circumstances in which the Authority could consider new information. It provided to the appellant a Fact Sheet and Practice Direction, giving the appellant an opportunity to provide new information with submissions. Submissions dated 30 July 2016 were duly provided to the Authority together with new information.

6    The Authority referred to this new information in its reasons, specifically to new country information in respect of an attack on Hazaras in Kabul in July 2016. The Authority accepted that there were exceptional circumstances justifying consideration of the new information having regard to its content.

7    The Authority identified the background to the appellant’s SHEV application and had regard to the material referred to the Secretary under s 473CB of the Act. It proceeded to summarise the claims made by the appellant in the evidence in support as well as the legal background.

8    The Authority did accept the claims by the appellant that in 2012 his family farm and home was burnt down by Kuchis. It also accepted that his family then relocated to Kabul where his parents and siblings still reside. The Authority concluded that the family sold their livestock and abandoned their family farm, finding that the appellant had a well-founded fear of persecution in his home region. It then turned to consider whether the appellant also had a well-founded fear of persecution in other areas of Afghanistan. In particular, it had regard to the densely populated capital of Kabul.

9    In considering the appellant’s claim that it was not safe to return to Kabul because of attacks by the Taliban, reference was made to the appellant’s claim that two friends from his neighbourhood were killed in a suicide attack in 2012 in a Mosque together with three of their cousins.

10    The Authority recorded that the delegate had been unable to locate any country information to support the bomb attack on a Mosque in Kabul. It went on to decide that the submission to the Authority did not address the inconsistency in the appellant’s claims with the country information before the delegate or include any supporting country information. In those circumstances, the Authority decided that the appellant had fabricated the claim that he attended a Mosque in 2012 at which there was bomb blast. It also rejected the appellant’s claim that his friends had died in such an attack.

11    The Authority then opined that the SHEV interview contained multiple instances of exaggeration including the assertion that the appellant would be killed by the Taliban or the Islamic State (or ‘daesh’ as referenced in the Authority’s reasons) fighters as soon as they saw him or that he would be considered a spy or an infidel because he had lived in Australia. The Authority also considered that the appellant had exaggerated assertions that all police in Afghanistan are Pashtuns and will not protect Hazaras.

12    Reference was also made to the appellant’s submissions containing new information in respect of a suicide bomb attack in Kabul in July 2016 by daesh on a protest by Hazaras against a government decision. The Authority found that as at the date of its decision, the evidence before it was that there were no reports of any additional targeting of Hazaras or Shias in Afghanistan by daesh. The Authority made reference to the submission of the appellant which included reports of daesh killing Hazaras in two incidents in November 2015. In particular, the Authority made reference to an assertion that daesh were opposed to Shias and targeted them for harm. The Authority concluded that these reports demonstrated that daesh had conducted one-off attacks, but it was not satisfied that these attacks meant that Hazaras or Shias face a real risk of serious harm from daesh throughout Afghanistan or in Kabul in particular.

13    Further reference was made by the Authority to country information provided in submissions made on behalf of the appellant, particularly information in respect of returnees to Kabul.

14    The Authority then turned to consider the proposition that the appellant would face a real chance of persecution in Kabul. Specifically, the Authority considered the appellant’s claimed vulnerability in Kabul as he had not lived in Kabul and he lacked a social network. The Authority found that this submission overlooked the fact that the appellant’s family were residing in Kabul and that he would have the benefit of their network and knowledge acquired by them whilst living there. The appellant’s father was working in a shop and the appellant’s siblings were attending school. The Authority was not satisfied the loss of the family farm meant that the appellant would face a real risk of serious harm if living in Kabul. The Authority was not satisfied on the evidence that the appellant would face a real risk of serious harm from Kuchis if living in Kabul.

15    On the basis of country information, the Authority was not satisfied the appellant had a well-founded fear of persecution from the Taliban, the daesh or Sunni extremists for any of the reasons in s 5J(1)(a) of the Act in the present or the reasonably foreseeable future in Kabul. The Authority therefore rejected the assertion that the appellant satisfied the definition of ‘refugee’ in s 5H(1) of the Act having regard to s 36(2)(a) of the Act.

16    The Authority also rejected any assertion that the appellant faced a real chance of significant harm in Kabul for the purposes of considering the complementary protection criterion. The Authority found the appellant did not meet s 36(2)(aa) of the Act.

17    In reaching its conclusion as to the complementary protection criterion, the Authority had regard to the qualifications in s 36(2B), specifically in respect of relocation, and drew upon Department of Foreign Affairs and Trade (DFAT) reports and United Nations High Commissioner for Refugees (UNHCR) country information regarding conditions in Kabul for returnees in relation to access to accommodation, essential services and employment opportunities. The Authority concluded that relocation to Kabul was reasonable, especially regarding the appellant’s young age, that he had been receiving education in Australia and had shown himself to be resourceful in adapting to life in Australia.

BEFORE THE FEDERAL CIRCUIT COURT

18    The appellant was represented by counsel in the Federal Circuit Court (as he was in this Court). In the Federal Circuit Court counsel for the appellant sought to rely on an affidavit annexing country information that was not before the Authority. The affidavit was rejected on the basis that the material post-dated the Authority’s consideration and therefore was immaterial to the assessment of jurisdictional error by the Authority.

19    In his reasons, the primary judge listed the extensive review grounds before him as follows (at [20]):

Ground Four – misunderstanding import of new evidence accepted

4.1 The [Authority] … correctly stated the [appellant’s] submission contained new information about a suicide bomb attack in Kabul in July 2016 that targeted Hazaras, resulting in 80 deaths and 230 injuries, and that this new information constituted exceptional circumstances unknown to the Delegate thus allowing the [Authority] to consider it;

4.2 The Delegate of the Minister (the Delegate) had acknowledged that the security situation in Kabul had “clearly deteriorated” but that nonetheless he considered, based on September 2015 DFAT and February 2016 DFAT thematic reports, the [appellant] as a Hazara did not fall within the risk profile of an ethnic and religious minority who would be at risk if relocated to the relative safety of Kabul (Delegate Reasons: paragraph 86, 89 and 90);

4.3 The July 2016 attack specifically targeted ordinary Hazaras in Kabul, such as the [appellant], and made unsustainable the Delegate’s earlier reliance upon the DFAT reports that the deteriorating security situation in Kabul did not show insurgent attacks were targeted specifically against ordinary Hazaras;

4.4 The [Authority] ignored and failed to recognise that this new evidence showed that the July 2016 attack on Hazaras completely undermined the earlier finding of the Delegate based on the DFAT reports that Hazaras, such as the [appellant], would not be at risk of serious harm in Kabul from Daesh. Having ignored the centrality of this additional evidence to the Delegate’s adverse finding the [Authority] merely concluded this new evidence demonstrated Daesh have conducted “one off” attacks and that there was no evidence Hazaras or Shias such as the [appellant] face a real chance of serious harm in Kabul (paragraph 17 of the [Authority’s] Reasons).

4.5 The [Authority] committed jurisdictional error in that:

a) he did not ask himself the correct legal question in the light of the new evidence presented to him which was whether the July 2016 attack undermined the earlier DFAT reports and basis of the Delegate’s earlier adverse finding;

b) he did not address the specific nature of the claim and therefore failed to discharge his statutory duty. Notwithstanding the July 2016 bomb blast targeted specifically ordinary Hazaras, and the acknowledged level of insecurity caused by attacks from anti-Government entities, he wrongly attributes these attaches as non-discriminatory as only faced by the population at large (paragraph 20 of the [Authority’s] Reasons);

Ground Five – Erroneous finding that this was a “one-off” attack

5.1 The [Authority] concluded that the DFAT reports demonstrated Daesh have conducted “one-off” attacks and that at the date of his decision there was no evidence of additional targeting of Hazaras or Shias such that they would face a chance of serious harm in Kabul (paragraph 17 of the [Authority’s] Reasons).

5.2 The attack upon Hazaras in July 2016 occurred within one month of the Delegate’s decision and in the context of a Kabul security setting that the Delegate had found “was deteriorating”. Further, there was no evidence to support a conclusion that based on the reports available to the [Authority] this would be a “one-off” attack against Hazaras such as the [appellant].

5.3 The [appellant] seeks leave to adduce evidence contained in the Affidavit of […] that since the decision made by the [Authority] on 23 August 2016, that there have been further reliable reports which show that this was not a “one-off” attack and the [Authority] was wrong to decide therefore that there was not a real chance of serious harm to the [appellant].

5.4 The [Authority] committed jurisdictional error in that:

(a) the country information did not support a conclusion that there was not a real chance of serious harm against Hazaras such as the [appellant] by Daesh [sic];

(b) the reports referred to in the Affidavit of […] Ion relating to country information subsequent to the decision proves that this was not an isolated “one-off” attack;

(c) there was no intelligible justification, even on the information then available to the delegate and [Authority], for the [Authority] to conclude this would be a “one off” attack. The delegate had correctly referred to “numerous incidents” and to a “deteriorating situation” in Kabul.

(d) that it was procedurally unfair for the [Authority] to conclude that the July 2016 attack was likely to be a “one-off” attack without giving the [appellant] an opportunity to refute what comprised a reason for making the adverse determination.

Ground Six – not putting credibility finding to [appellant]

6.1 The [Authority] said that the [appellant], when asked by the Delegate whether anything had happened to his family since they relocated to Kabul, the [appellant] referred only to the death of friends in a Muharram bomb blast “which I rejected the above as not being credible” ([Authority]: paragraph 27). The [Authority] considered the [appellant] “fabricated the claim” that during Muharram in 2012 that he attended a Mosque when friends were killed (paragraph 16). The [appellant] did say he believed it was during Muharram in 2012 the friends were killed, but did not say he was present and attended the Mosque where this occurred.

6.2 The Delegate found that “when [the [appellant]] was living in Kabul in October 2012, some of his friends experienced an explosion in a mosque, however I have been unable to locate any country information that supports this claim… in light of this lack of supporting information as to the scale of any such attack, I give more weight to the DFAT information which states there is no evidence that Hazaras have been systematically targeted…” (paragraph 91). No adverse finding as to credibility was made by the Delegate against the [appellant].

6.3 Conversely, the [Authority] found the evidence given by the [appellant] to the Delegate was not credible and was “fabricated” without first inviting the [appellant] to give any evidence about the matters in 3.1 and 3.2.

6.4 Had the [Authority] invited the [appellant] to give evidence, the [appellant] would have explained:

(a) as stated in the Affidavit of […] that his calculated dates were based on the Persian calendar; that he could name the two friends killed; that he has checked on line and there was in fact a Mosque bombing in December 2011 which covered the Muharram period;

(b) he had told the Delegate that ordinary people get attacked here, not the Government authorities, and also there is a lot of suicide bomb attacks against Shia people in mosques and that sort of thing” (page 16, transcript line 510-530). That this is now supported by verifiable recent events.

6.5 The [Authority] therefore failed to extend procedural fairness to the [appellant] and thereby committed jurisdictional error.

Ground Seven - Misapplication of test for complementary protection

7.1 The [Authority] fell into jurisdictional error by misconstruing or misapplying the test for complementary protection and or failing to ask himself the correct legal question.

7.2 The [appellant] claimed to be at real risk of suffering significant harm throughout Afghanistan and thus to be a person to whom Australia owes complementary protection obligations (CB 205, [22]). The [appellant] also claimed to be owed protection obligations as a refugee (CB 205, [21]).

7.3 The [Authority] found that the [appellant], as a Hazara did not have a well-founded fear of serious harm and for a Convention reason in Kabul, and thus was not a person to whom Australia owed protection obligations as a refugee, even though there is a level of general insecurity in Kabul due to attacks “but consider these threats are faced by the population at large” (CB 217-8, [20]-[21]).

7.4 In coming to his conclusion about the [appellant’s] refugee status, the [Authority] cited country information detailing a suicide bomb attack in Kabul (CB 217, [17]) and threats to the population generally from anti-government elements such as the Taliban and Daesh (CB 217, [20]).

7.5 The [Authority] then found that the [appellant] was not owed complementary protection obligations and stated “again for the same reasons and applying the authority in MIAC v SZQRB I am not satisfied that the [appellant] faces a real risk of significant harm in Kabul” (CB 218, [26]).

7.6 The [Authority] thus fell into jurisdictional error in that:

a) Having recognised that the level of general insecurity in Kabul due to attacks from anti-government entities, including the Taliban and Daesh, is faced by the population generally, he did not then ask himself whether the [appellant] was owed complimentary [sic] protection because the threats from the Taliban and Daesh also puts him at personal risk so as to negate exclusion under s.36(2B)(c) of the Act (see BOS 15 v Minister for Immigration 2017 FCCA 745 at [29]).

b) The [Authority] instead equated his finding that the [appellant] would not face a real chance of serious harm in Kabul for a Convention reason with his finding that the [appellant] would not face a real risk of significant harm under the complimentary [sic] protection head;

c) The [Authority] did not make an assessment on the risk of generalised violence in relation to the refugee convention which would foreclose further consideration for the purposes of his assessment of the [appellant’s] complementary protection claim (see BOS15 v Min for Immigration [2017] FCCA 745 at [30]).

d) The [Authority] had been provided with information of significant and deteriorating conditions in the country information relating to Kabul after the delegate decision. The [appellant] also referred to the risk of suicide explosions ‘every day’ in Kabul (p16 transcript of delegate interview). In addition the [appellant] himself, provided examples of risk of generalised violence to residents if returned to Kabul (CB- 19) and raised the issue of lack of security, (CB- 88 [20]) where he referred to attacks from Sunni militia, Taliban, ISIS, and stated that Kabul is too dangerous to return.

e) Further the [appellant] referred to a ‘personal risk’ being that ‘they say you lived in an infidel country and you might be a spy’ (p17 transcript of interview) and that he would ‘get killed, it’s only a matter of me being seen by a Talib and they would kill me’. He further stated they would kill him because he came from ‘this country they will think I am a spy or something’ and that he feared ISIS as well (p17 transcript of interview). Therefore, the [appellant] in addition put forward material to support a real and personal risk to engage a non refoulement obligation against a backdrop of serious human rights violations. Although this material was considered as an ‘exaggeration’ it was only in the context of Convention Grounds or ‘Refugee Assessment’ (CB- 217 [16].

Ground Eight: Failure to ascertain if legal criteria for internal relocation has been met

8.1 The [Authority] found that the [appellant] had a well-founded fear of persecution from Kuchis for the combined reasons of his race and/or religion if returned to Wardak being his place of origin (paragraph 14 of the Reasons of the ITAA), but he was not satisfied the [appellant] had a well-founded fear of persecution for any of the reasons in s.5J(1)(a) of the Migration Act 1958 (the Act) if he returns to Kabul (paragraph 20) and he does not meet the definition of refugee in s.5(H)(1) and s.36(2)(a) of the Act.

8.2 In determining the question of relocation to Kabul, the Delegate failed to consider, aside from the risk of serious harm, the appropriate legal criteria as to whether it was reasonable, in the sense of practicable, taking into account the [appellant’s] personal circumstances and the situation in Kabul and whether he could now reasonably subsist in Kabul, and instead limited assessment to the existence of a family network in Kabul, and some linguistic and computer skills attributed to the [appellant] as gained since his arrival in Australia (paragraphs 104 and 105 of the Delegate’s reasons).

8.3 The [Authority] in considering reasonableness of internal relocation referred only to the limited factors set out at paragraphs 19, 27 and 28 of his Reasons.

8.4 The [Authority] (and Delegate) erred in that;

(a) country information was ignored which showed: that when the [appellant’s] family came to Kabul the city had expanded from 500,000 to nearly 5,000,000 and that large parts of the city are extremely poor and have no sanitation or basic services; the low capacity of government to absorb returned refugees; that the Government was encouraging migrants to Kabul to go back to their areas of origin; rents are high and persons are living in illegal housing; that the migrants had little or no protection against eviction; that it was very difficult for them to obtain a livelihood; and that public services such as water and sanitation were not available (Submission to Delegate of 30 July 2016);

(b) failed to consider whether the [appellant] returning from a Western country after six years could gain employment in Kabul with the skills attributed to him by the [Authority];

(c) failed to consider the prospects of the [appellant] being able to obtain employment restricted to employment in Kabul taking into account his inability to travel to his original homeland because of recognised unsafe areas, e.g. roadways to Hazarajat.

8.5 The [Authority] committed jurisdictional error in that he:

(a) erred in law in failing to consider relevant legal criteria relating to both the [appellant’s] personal circumstances and the conditions presently in Kabul (MIPB v SZSCA2014 HCA 45 adopting at [26] and [27] the principles in Januzi v Secretary of State 2006 2AC 426 (5));

(b) ignored the submissions advanced pursuant to the claim as to why the [appellant] could not reasonably be relocated to Kabul taking into account the extent of likely economic hardship and the unlikelihood of finding employment in Kabul itself (s.5J(5)(d), (e),(f));

(c) ignored or failed to consider relevant country information about Kabul conditions;

(d) failed to consider how far it would be “reasonable” in the sense of practicable for the [appellant] on return to be confined to Kabul taking account of the risk of serious harm accepted as occurring outside Kabul.

20    The primary judge then proceeded to examine each of the grounds.

21    As to ground 4, the primary judge determined that the conclusion by the Authority was one which was reasonably open in respect of characterising particular attacks as being one-off attacks. It could not be said that no reasonable decision-maker could make such a finding.

22    As to ground 5, again, the primary judge held that it could not be said that the findings concerning the one-off attack lacked an evident and intelligible justification. His Honour said that in substance it was an invitation to the Court to engage in impermissible merits review.

23    As to ground 6, the primary judge emphasised the appellant had been given the opportunity to put on new information and submissions. The Authority was not constrained by the findings made by the delegate. It was held that the proposition advanced by counsel in respect of an assertion of non-compliance with the requirements of procedural fairness had no substance in light of the statutory regime in Pt 7AA of the Act.

24    Ground 7 was also rejected, the primary judge finding that the Authority had not misapplied the correct test in respect of complementary protection.

25    Ground 8 was also dismissed as the appellant had not established that the Authority confined itself to limited issues in relation to considering country information regarding relocation.

THE APPEAL TO THIS COURT

26    The grounds of appeal in the amended notice of appeal are also detailed and extensive. The first ground goes to the rejection of the appellant’s credit. The second ground goes to the rejection of new evidence as supporting the appellant’s claims. They are expressed in the following terms:

Amended Grounds of appeal

Ground One

1.1    In determining that the [appellant] would not be at a serious risk of harm if returned to Kabul the Immigration Assessment Authority (the Authority) made a finding that the [appellant] “fabricated” an account that friends of his had been killed in a mosque bombing (the Bombing) when he was living in Kabul and which finding formed part of the reasons for refusing the [appellant’s] claims.

1.2    In so finding the authority misunderstood and/or misconstrued the evidence presented by the [appellant] to the Delegate in relation to the bombing, and other alleged “instances of exaggeration” and thereby committed jurisdictional error.

1.3    Further and alternatively, in Plaintiff M174/2016 2018 HCA 16 Gageler, Keane and Nettle JJs said at [21] that various powers conferred on the [A]uthority by Division 3 of Part 7AA of the Migration Act 1958 (Cth) (“the Act”) are conferred on the implied condition that they are exercised within the bounds of reasonableness, and where there is non-compliance in giving an applicant an opportunity to respond to adverse prejudicial information and the considered information is relevant to a decision, the authority may transgress the bounds of reasonableness (s.473DC(3) and also under s.473DD and 473DE(1)(a)(b) & (c) of the Act).

1.4    The learned [primary judge] erred in failing to hold that the Authority misinformed itself and further was unreasonable in the making of credibility findings against the [appellant] without the Authority first giving him an opportunity to respond to the adverse inferences, which the [Authority] drew from his evidence before the Delegate and further in so doing acted in a disproportionate manner.

1.5    The learned [primary judge] and Assessor said that it was not unreasonable to decline to exercise the power under s.473DC of the Act for there was no request for the Authority to exercise any such power. However, representatives of the [appellant] had presented country information to the Department about a mosque bombing in 2011 and a bombing similar to the one referred to in paragraph 1.1 in July 2016 to support the [appellant’s] contention to the delegate that he would be at serious personal risk if returned to Kabul.

Ground 2

2.1    That the learned [primary judge] erred in failing to find jurisdictional error on the part of the Authority, in relation to the [appellant’s] claim before the Minister’s delegate, in that:

a)    The [appellant], as an Hazara, said he was at risk of serious harm if returned to Kabul. He had told the Delegate that ordinary people get attacked there and also there is a lot of suicide bomb attacks against Shia people in mosques; and that when he was in Kabul two of his friends got killed in a suicide bomb attack;

b)    That in relation to this claim the Delegate found the [appellant’s] evidence coherent, consistent and plausible and without embellishment (delegate reasons para. 45). Nonetheless, the Delegate was unable to locate country information in support of the [appellant’s] evidence of a mosque bombing in October 2012; and that although the situation in Kabul was “deteriorating” DFAT reports did not support systematic targeting on the basis of ethnicity and so the [appellant] as an Hazara could locate safely to Kabul (delegate reasons para. 91);

2.2    That in relation to his claim the Authority found:

(a)    That a suicide bomb attack on 23 July 2016 in Kabul by [daesh] did kill 80 people and injured 250; that this incident occurred ten days after the Delegate’s decision; and the Authority accepted it as “exceptional circumstances”. However, as at 23 August 2016, when the Authority’s decision was made, there were no additional targeting of Hazaras or Shias in Kabul and such attacks were “one off” attacks;

(b)    Further, contrary to the delegate’s findings, that the [appellant] had “fabricated” a claim that he “had attended a mosque at which friends were killed” and that there were “multiple exaggerations” in his interview.

2.3    That the Authority committed jurisdictional error:

a)    Having accepted the 23 July 2016 bombing were “exceptional circumstances” the Authority did not ask itself the question whether the evidence that [daesh] had now been shown to attack ordinary Hazaras in Kabul like the [appellant] (i) supported the [appellant’s] testimony before the Delegate that he had been endangered in Kabul and would be endangered if returned was also true; (ii) undermined the Delegate’s reliance upon earlier DFAT reports that ordinary Hazaras like the [appellant] would not be endangered if returned to Kabul for reasons of ethnicity and religion.

b)    That in predicting that the attacks in Kabul by [daesh] were “one-off attacks” when there was no evidence to support this finding by the Authority given (i) the limited interval between the 23rd July 2016 bombing and the Authority’s decision of 23rd August 2016; and (ii) a DFAT report of the 5th September 2016 which acknowledged its earlier reports had denied targeting of Hazaras for ethnicity and religion and now said it was too early to say if the 23rd July bombing was an isolated incident; (iii) the manifest error of so finding in the light of subsequent attacks against ordinary Hazaras in Kabul;

c)    In adopting the Delegate’s view that there was not “any country information” when there was the report of an attack on Hazaras in December 2009[.]

2.4    That the learned [primary judge] erred:

(a)    In adopting the reasoning of the Authority as set out in paragraph 2.3; and stating that there was “no basis to find the conclusion was not open to the Authority in respect of finding the attacks to be one-off”.

(b)    In rejecting the affidavit of Daniela Anne Maria before the learned [primary judge] which included of (i) reliable reports of frequent fatalities to ordinary Hazaras in Kabul since the decision of the Authority; and (ii) a DFAT report of the 5th September 2016 which admitted “it was now too early to say if the 23rd July attack was an isolated incident”.

(Emphasis added.)

27    The appeal is supported an affidavit of the appellant’s solicitor, affirmed on 17 January 2019, in which he deposes to numerous attacks on Shia Muslims and Hazaras in Kabul in 2018, including four specific attacks in March, August, September and November. Media reports of those attacks were annexed. This affidavit was admitted for a very limited purpose only, which is discussed below.

Some procedural matters

28    The appellant makes the point that the application in the Federal Circuit Court was heard on 1 August 2018. Without calling upon the Minister, judgment was delivered extempore in favour of the Minister. The reasons were not available within the appeal period, but after enquiries of the primary judge’s associate, an edited judgment was made available on 5 October 2018. In the Federal Circuit Court, the appellant relied on affidavits setting out the transcript of evidence before the delegate and evidence from witnesses concerning incidents in Kabul subsequent to the decision of the Authority. The affidavit containing evidence of incidents subsequent to the Authority’s decision was not admitted into evidence.

The appellant’s first ground of appeal

29    The appellant argues that a central feature of the adverse finding by the Authority was the conclusion that the appellant was not credible and that he had lied about a bombing in Kabul at which he said his friends were killed and at which the Authority assumed the appellant had been physically present. Much of the appeal turns on this point.

30    It is correct to say, as the appellant has, that the Authority unlike the delegate impugned the credibility of the appellant in a number of respects, including in relation to the bomb blast claim.

31    The point the appellant has stressed is that he had never suggested to the delegate that he was present at the bomb blast. At the SHEV interview, the appellant informed the delegate that when he was living in Kabul two of his friends who were attending the Mosque were killed. Secondly, the appellant said he did not say ‘all police in Afghanistan are Pashtun and will not protect Hazaras’ as the Authority recorded (at [16]). Rather, he said that in some areas of Afghanistan the majority of the police were Pashtuns and do not care, and that in Kabul high ranked officers ‘all/mostly are Pashtuns’. Further, the appellant says he prefaced the comment that he would be considered a spy or infidel because he lived in Australia by first stating that because he had lived in an infidel country, he might be thought to be a spy and he gave two examples of returnees deported to Afghanistan who were killed by the Taliban.

32    The appellant argues that the above comments by the Authority were misstatements of his evidence before the delegate. He acknowledged that there were minor inconsistencies in his evidence which had been identified. He explained that the mistaken reference in his statutory declaration of 23 September 2015 to one of his friends being killed ought to have been, as he said at his SHEV interview, that when he was living in Kabul several of his friends were attending a Mosque and two of them were killed. He explained this by affidavit filed in the Federal Circuit Court. He named the friends. He went on to explain in detail the circumstances.

33    He also nominated the incorrect date, saying it was October 2012 to the delegate, but later realised that the Mosque attack occurred on 6 December 2011 in which about 70 people died. It was suggested that the mistake was caused by the appellant relying upon his Islamic calendar rather than the Gregorian calendar. He drew on support for the December 2011 date for the attack by reference to a report of Professor Maley which the appellant’s migration agent had lodged with the Department of Home Affairs prior to the delegate’s interview.

34    The appellant contends there are several misdescriptions of the appellant’s evidence by the Authority and that the finding of fabrication strongly influenced the adverse determination made. The appellant relies on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 where the Court (Black CJ, French and Selway JJ) said (at [63]):

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):

If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.

In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant's son to a Muslim woman although it made reference to the claim in its overview of the appellant's case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.

(Emphasis added.)

35    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, Gageler, Keane and Nettle JJ said (at [21]):

[T]he various powers conferred on the Authority by Div 3 of Pt 7AA [of the Act] are conferred on the implied condition that they are to be exercised within the bounds of reasonableness...

Where an applicant is not given an opportunity to respond to adverse prejudicial information and the considered information is relevant to a decision, the Authority may transgress the bounds of reasonableness.

36    The primary judge had noted that the migration agent’s submissions on behalf of the appellant to the Authority did not address the fact that the delegate was unable to locate any country information about a bomb attack on a Mosque in Kabul or include any supporting evidence about this. The appellant notes, however, that the migration agent had submitted Professor Maley’s report to the delegate which refers to the Kabul bomb attack in December 2011. Further, the appellant’s representative did advance evidence of further bomb blasts injuring and killing Hazaras in July 2016 subsequent to the decision of the delegate which was a ‘principal claim’ of the appellant. The appellant makes the point that his representatives were not to know prior to the Authority’s decision that the Authority would find the appellant had fabricated his claim in this respect given that the delegate had found him to be credible. Having regard to the fact that the proceedings before the Authority were on the papers, it is said that the migration agents relied upon the July 2016 bombing incident as being exceptional circumstances unknown to the delegate which could be received by the Authority to corroborate the appellant’s evidence that bombing of ordinary Hazaras regularly occurred both before his departure from Kabul and would occur in the future, as the appellant had indeed contended before the delegate.

37    The appellant also relies upon the concept of ‘proportionality’, citing Lord Mance in Pham v Secretary of State for the Home Department (2015) 1 WLR 591 (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) describing proportionality as ‘a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction’ (at [96]). This argument, it is said, is to be taken into account:

Given the dire risk to the [appellant] if returned to Kabul shown by the country information, a fair balance would not be struck between the individual and the community where an Applicant is not first able to be heard before an adverse credibility decision is made.

38    It must be said that the grounds of appeal do not appear to clearly identify this argument, although it was developed in written submissions and expanded upon in oral submissions. Insofar as unreasonableness and proportionality are concerned, it may be accepted for the purposes of analysis of the argument that proportionality is one factor that may be relevant in assessing legal reasonableness. However, the starting point is much more basic. The question of legal unreasonableness must be approached through the lens of the specific statutory scheme. What is reasonable has to be assessed according to that scheme.

39    I do not consider that in the circumstances of the appellant that the doctrine of proportionality plays a role. However, as noted above, in Australia, at most, proportionality informs the application of legal unreasonableness: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 per Allsop CJ (at [10]) and Griffiths J (at [57]).

40    In any event, the Minister makes the point that the appellant’s affidavit tendered in the Federal Circuit Court did not establish the facts to which it referred, but was admitted only for the limited purpose of making the point that had he been invited to attend a further interview, the appellant would have said certain things. The solicitor’s affidavit filed in the appeal was also, at best, only going to the question of materiality or futility. In other words, it went not to prove that those things actually occurred. Rather, it went essentially to the question of materiality of those facts. Jurisdictional error cannot be determined by information not before the decision-maker. Judicial review is clearly confined to the material that was or ought to have been at the time of determination before a decision-maker: see, for example, Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1 per Kenny, Tracey and Griffiths JJ (at [64]).

41    It is clear that on 23 September 2015 by statutory declaration accompanying the SHEV application, the appellant said:

When I was living in Kabul in October 2012 several of my friends were attending the Mosque on Muharam [sic], which is a special prayer day for Shia Muslims, when there was an explosion and one of my friends, along with a number of other people, were killed. If I had been with my friends that day, which I actually intended to be, I would have been harmed, possibly killed.

42    In the SHEV interview with the delegate which took place on 18 February 2016, a few months after the statutory declaration, there were questions and answers to this effect:

Okay so you moved to Kabul say the summer of 2012 and it looks like you came to Australia in June 2013 so that looks like about a year later that you left and came to Australia, is that right?

The appellant agreed with that and in discussion about life in Kabul the appellant said ‘[t]he Taliban were there, everyday there were suicide explosions’. The delegate said to him that was ‘true to some extent, but to my understanding is that the attacks the Taliban do in Kabul are more aimed at big government buildings and things like that rather than targeting Hazaras’. There was further exchange:

Did anything happen to you or [your] family while you were living in Kabul?

Two of my friends from the same neighbourhood, like same street, they got killed in the suicide bomb attack including three of their cousins.

What suicide bomb attack was that one?

When the suicide bomber attacked the mosque.

43    In the SHEV interview, the following exchange occurred with the appellant:

You mentioned in your claims that you would be at risk if you returned to Afghanistan because you had been in Australia. Can you tell me what you mean by that?

Well if I go there, there would be a number of things, they say you lived in an infidel country and you might be a spy or you know like things like that.

44    In the delegate’s decision of July 2016, the delegate said:

I have considered the claim by the [appellant] he was living in Kabul in October 2012, some of his friends experienced an explosion in a Mosque however I have been unable to locate any country information that supports this claim or provides any further information [concerning] the alleged incident. In light of this lack of supporting information as to the scale of any such attack, I give more weight to the DFAT information which states that there is no evidence that Hazaras are being systematically targeted in violent attacks for reasons of ethnicity alone. As at February 2016, DFAT maintained the assessment 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 ethnicity.

(Citations omitted.)

45    The DFAT report of February 2016 was relatively recent at the time of the decision.

46    As noted, the appellant’s migration advisors put in a submission by letter dated 30 July 2016 saying since the delegate made his decision on 13 July 2016, new information had arisen in relation to Kabul. Reliance was placed on a British Broadcasting Corporation report. There was nothing in the letter from those representatives on the appellant’s behalf suggesting that the delegate was wrong in understanding the appellant was present or not at the bomb blast. In those circumstances, where the appellant had representation who was able to correct the record but failed to do so, it does not seem reasonable to criticise the Authority for looking at what was said by the delegate and assessing the position in light of the content of that decision. The Authority went on, however, to say:

Two friends in his neighbourhood were killed in a suicide bomb attack in 2012 [in] a mosque together with three of their cousins. I note [in] the statement accompanying his SHEV application … the [appellant] referred only to one friend being killed in a bombing at a mosque in Kabul during Muharram in 2012. I note too the delegate was unable to locate any country information about a bomb attack on a mosque in Kabul supporting that claim of the [appellant]. I would expect such an event to have been heavily reported on. The [appellant’s] submission does not address this inconsistency in the [appellant’s] claims or include any supporting country information.

47    The Authority continued:

I consider the [appellant] has fabricated that claim that during Muharram in 2012 he attended a mosque at which there was a bomb blast and it follows I reject any of his friends died. I consider the [appellant’s] evidence during the SHEV interview contained multiple instances of exaggerations such as he would be killed by any Taliban or daesh fighters as soon as they see him, or that he will be considered a spy or an infidel because he has lived in Australia. I consider he also exaggerated when stating all police in Afghanistan are Pashtun and will not protect Hazaras.

48    The approach of the Authority was to say that:

The [appellant’s] submission contains new information regarding a suicide bomb attack in Kabul in July 2016 … As at the date of my decision, the evidence before me is there are no reports of any additional targeting of Hazaras or Shias. The [appellant’s] submission includes reports of daesh killing seven Hazaras in Afghanistan by daesh in Ghazni province in November 2015. The migration [agent] quotes an opinion piece that daesh are opposed to Shias and target them for harm. I conclude these reports demonstrate daesh has conducted ‘one-off’ attacks, but I am not satisfied these attacks mean Hazaras or Shias face a real chance of serious harm from daesh throughout Afghanistan or in Kabul.

49    Whether that finding is factually correct or otherwise, it is a finding within jurisdiction. From the foregoing it is demonstrated there were features other than the concern about presence at the Mosque bombing on which reliance was placed by the Authority for not being satisfied as to the appellant’s credibility. It is quite clear from NABE and DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 per Reeves, Robertson and Rangiah JJ (at [70]-[76]) that the Authority is entitled to reach different conclusions from the delegate on credibility without being required to put such thoughts or thinking processes to an applicant for submission.

50    It is also clear according to Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 that the error must be material for there to be jurisdictional error. In this instance, even if there was a misunderstanding as to the thrust of the evidence concerning the bombing, there were other bases on which adverse credibility findings were made and were likely to be made.

51    In my view, this case does not fall within the categories of adverse credibility findings giving rise to jurisdictional error discussed in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ or the discussion in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 per Flick J or in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J.

52    Shortly put, as Tracey J observed in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (at [60]) (see also DEL16 v Minister for Immigration and Border Protection [2017] FCA 1401 per Derrington J (at [56]-[57])), inevitably there are value judgements involved in determining whether material can be regarded as so fundamental, important or overwhelming that failure to have regard to the material constitutes jurisdictional error. Here, the question of whether the appellant was present or not at the Mosque may be a misapprehension as to a part of the story, but it is not a misunderstanding as to the true nature of the claim. The claim was well understood and was well explored. The reasons for rejecting the claims were clearly expressed. Ground 1 cannot succeed.

The appellant’s second ground of appeal

53    As I understand it, the appellant’s second ground is that his case before the Authority was that the July 2016 bombing in Kabul of ordinary Hazaras undermined the finding of the delegate based upon earlier DFAT reports. The Authority did not directly address that argument, but concluded that such attacks were ‘one-off’ attacks and did not mean that Hazaras or Shias face a real chance of serious harm in Kabul. The appellant says, given that the delegate acknowledged that at 13 July 2016 the position in Kabul was deteriorating and this was then followed by the bombing of ordinary Hazaras on 23 July 2016 referred to in the submission to the Authority, this undermined, or at the very least cast doubt on, the veracity of the earlier DFAT reports. The decision of the Authority was given on 23 August 2016. This was a month after the Kabul bombing of ordinary Hazaras. There was no evidence, the appellant says, to make a prognosis that the incident was a one-off event. Further, it was illogical to conclude that it was a one-off event.

54    The appellant attacks the judgment of the Federal Circuit Court in which it was concluded that it was open to the Authority to make the finding it did without addressing these issues. The difficulty for the appellant in this argument is that the July 2016 bombing could have been regarded as the beginning of a series of similar events or it could have been considered an isolated incident. The Authority was exclusively charged with the decision as to what weight to give the bombing in the context of whether a return would be reasonably free of risk or not. Against the background identified of the DFAT and UNHCR reports over a much longer period of time, it cannot be said that the ‘one-off’ conclusion was irrational or illogical. A sensible basis for preferring that conclusion was expressed. It may not be a conclusion with which the appellant is pleased but it was a conclusion reasonably open and within jurisdiction.

55    The only ground of review open to the Federal Circuit Court in exercising jurisdiction under s 476 of the Act in relation to the Authority’s decision was in relation to jurisdictional error. The Federal Circuit Court had no jurisdiction to engage in merits review. The finding of fact is uniquely within the jurisdiction of the Authority subject only to jurisdictional error. Questions of weight to be attached to the material are plainly matters for the Authority. Errors of fact based on a misunderstanding of evidence or even overlooking evidence will not be jurisdictional error so long as the Authority has properly understood an applicant’s claim and properly addressed it.

56    In this instance, the Authority’s function was to assess the circumstances in Kabul in the reasonably foreseeable future. The choice and interpretation of country information and the weight to be given to it was a matter for the Authority. The question of the accuracy of that country information is also a matter for the Authority, not a court undertaking judicial review: see the discussion in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ (at [11]-[14]).

57    This ground cannot succeed.

CONCLUSION

58    The appeal must be dismissed with costs.

Associate:

Dated:    19 March 2019