FEDERAL COURT OF AUSTRALIA

EDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1947

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to be “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    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

COLLIER J:

1    Before the Court is an appeal from the whole of the judgment of the Federal Circuit Court in EDH17 v Minister for Immigration & Anor [2018] FCCA 2965. In that decision the primary Judge dismissed the appellant’s application for judicial review of the decision of the Immigration Assessment Authority (Authority), which affirmed the earlier decision of a delegate of the Minister for Immigration and Border Protection (delegate) to refuse the appellant’s application for a Safe Haven Enterprise (subclass 790) visa pursuant to the Migration Act 1958 (Cth).

2    This judgment was reserved pending the publication of the High Court’s decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, on the basis that issues which were raised in this case were being considered by the High Court. Judgment in BVD17 was delivered on 9 October 2019. On 5 November 2019 the legal representative of the Minister advised my Chambers that the parties had conferred and were content for me to deliver judgment without the need for further hearing or submissions. The legal representative for the appellant was copied into this correspondence, and I understand was similarly minded.

Background

3    The appellant is a citizen of Afghanistan. He claims to be a Shia Muslim of Hazara ethnicity. As a small child the appellant travelled from Afghanistan to Pakistan with his family. He resided in Pakistan for approximately 11 years. In or around February 2013, the appellant left Pakistan and transited through Thailand, Malaysia and Indonesia before arriving in Australia as an unauthorised maritime arrival in or around March 2013.

4    On 19 January 2016, the appellant was advised by letter from the Department of Immigration and Border Protection that there had been changes to the ‘protection application process for illegal maritime arrivals’. The letter stated that the new protection application process would apply to those who arrived in Australia on or after 13 August 2012. The appellant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).

5    On or around 17 March 2016, the appellant lodged an application for a SHEV, claiming that he feared harm from the Taliban and Daesh as a result of his ethnicity, religion, status as a returnee from a Western country and the perception that he may be a spy from Pakistan due to his extensive residency there. On 16 January 2017, the delegate refused to grant the appellant the visa as he:

“is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and d 36(2)(c) of the Migration Act 1958”.

6    As the decision to refuse the appellant’s visa application was a fast track reviewable decision, it was automatically referred to the Authority on 19 January 2017.

Decision of the AUTHORITY

7    The Authority noted that it had had regard to the material given by the Secretary of the Department under s 473CB of the Migration Act.

8    By a submission dated 9 February 2017 the appellant sought consideration of further information by the Authority.

9    The Authority noted:

5.    The submission also provides further information regarding the circumstances of the applicant’s family members who are living in Mazar-e-Sharif claiming that the applicant’s sister and her family are displaced persons who are struggling to support immediate family members and his brother when he arrived in Mazar-e-Sharif was not able to obtain assistance from his sister and would not be able to assist either. The residence of the applicant’s sister and brother in Mazar-e-Sharif was before the delegate and is not new information. However the information regarding the sister’s and brother’s claimed circumstances and their claimed impact on the applicant was not before the delegate.

6.    When the delegate asked the applicant at the SHEV interview on 1 November 2016 why his sister was residing in Mazar-e-Sharif he indicated that his sister moved there after she married because her husband resided there. The applicant was also asked during the interview whether he could relocate to Mazar-e-Sharif where his sister and brother were residing, but gave no indication of their circumstances, instead stating the he would be viewed as a Pakistani due to his language. Although the applicant had no representation at the interview, he was on notice that relocation to Mazar-e-Sharif was a consideration and given that he stated he is in regular contact with all of his siblings, I consider that he would have been aware of his sister’s and brother’s circumstances. He was also aware that if he provided further information prior to a decision it would be considered and in fact did provide further information in relation to another matter after the interview in response to concerns raised by the delegate. I am not satisfied that the information could not have been provided to the Minister prior to a decision. Nor has the applicant satisfied me that it is credible personal information. I am not satisfied that there are exceptional circumstances for considering it.

10    The Authority also noted the appellant’s submission that he was in a de facto relationship with a non-Muslim woman in Australia in breach of Islamic norms; that his family had responded negatively to his lifestyle; and accordingly if he were to return to Afghanistan and live in Mazar-e-Sharif he would not have access to meaningful support. The Authority observed that this relationship and alleged ramifications had not been mentioned to the delegate. The Authority observed:

8    …..The applicant was aware he could provide additional information relevant to his claims prior to a decision being made but did not raise any claim arising from his claimed relationship. The delay in proving this information also raises doubts about its credibility. I am not satisfied that there are exceptional circumstances for considering it. Nor am I satisfied that the information could not have been provided to the Minister prior to a decision or that it is credible personal information.

11    Further, the Authority was not satisfied that there were exceptional circumstances to consider a number of other documents which pre-dated the delegate’s decision and were new information, namely a December 2012 document, a 2015 Asia Foundation report, a Reuters article dated 1 June 2015 and a media article from The Guardian dated 14 March 2014.

12    Before the delegate the appellant had not raised the issue of being able to access Mazar-e-Sharif by air, however the Authority was satisfied that the appellant may not have been aware of the potential relevance of information referable to the cost of internal air travel in Afghanistan prior to the delegate’s decision. The Authority was prepared to consider this information, as well as a September 2016 report from the Norwegian Refugee Council relating to the escalating numbers of returnees from Pakistan.

13    The Authority accepted that the appellant was not a Pakistani citizen, and the circumstances of his entry into Afghanistan.

14    The Authority accepted the experiences described by the appellant as involving him, his brother, and the Taliban in 1999, however observed further that a considerable period of time had passed since relevant events. The Authority noted the country information indicating the continuing presence of the Taliban in Qarabagh (the area in Afghanistan to which the appellant could return), but was not satisfied that the appellant would continue to have an adverse profile in relation to those events, or that he would be targeted on return to Afghanistan for that reason.

15    The Authority referred to country information indicating that the Taliban’s operations in the relevant areas did not seem to involve active recruitment of Hazaras.

16    Although the appellant claimed that he would be harmed because he lived in a western country and in Pakistan for a considerable period, and would be considered a spy, the Authority found that returnees from western countries were generally not specifically targeted for that reason. However the Authority also found that the appellant would be recognisable as a person who has lived in Pakistan and in a western country, even if he took precautions, through his appearance, accent and demeanour. Accordingly, the Authority found at [27] of its reasons that there was a real chance of the appellant being harmed if he attempted to return to Qarabagh.

17    The Authority noted that s 5J(1)(c) of the Migration Act provided that the real chance of persecution must relate to all areas of the receiving country, and the Authority was not satisfied that the appellant faced a well-founded fear of persecution in Mazar-e-Sharif. After consideration of the appellant’s claims the Authority continued:

37.    The applicant fears that as a Shia Hazara who has lived in Australia and spent a significant period of his life in Pakistan he will be easily identified as a returnee from Pakistan by his accent and dialect. DFAT advises that between 2002 and 2013 an estimated 5.8 million refugees returned to Afghanistan from Iran, Pakistan, as well as western countries. Although returnees from western countries are almost exclusively returned to Kabul country information indicates that there is an international airport in Mazar-e-Sharif accepting flights from Kabul and international locations. DFAT also assesses that in general returnees from western countries are not specifically targeted on the basis of being failed asylum-seekers, although there have been 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 and refers to a report of a Hazara from Ghazni province who was kidnapped on the road. UNHCR also indicates that returnees from the west may be viewed as foreigners or spies and targeted, and refers to the 2014 incidents where an Australian citizen was kidnapped and killed on the road to Jaghori and an Afghan asylum seeker was accused of being a spy after being captured by the Taliban. However the evidence does not indicate that Mazar-e-Sharif is an area where returnees are targeted on the basis of being perceived as Western.

38.    I accept that as a person who has lived most of his life in … Pakistan the applicant may face difficulties in returning to Mazar-e-Sharif where he has not lived before. However I am not satisfied on the evidence that returnees like the applicant who have lived in Pakistan for a significant period of time, and in a western country are targeted in Marnr-e-Sharif by insurgents or that the applicant would be targeted on return to Mazar-e-Sharif as a Shia Hazara returnee with an imputed pro-Western political opinion. The applicant does not have affiliations with international organisations or the Afghan government which would raise his profile in Mazar-e-Sharif and lead to him being specifically targeted by insurgents for a pro-Western political opinion. He would also be returning to a large urban area where there is a significant population of Shia Hazaras, which is under government control and which unlike Qarabagh there is no ongoing Taliban presence. I am not satisfied that he would be imputed with a pro-government political opinion by the Taliban or other anti-government elements (AGEs) in Mazar-e-Sharif as a Shia Hazara who resided in Pakistan and in a western country. I am not satisfied that the applicant faces a real chance of serious harm in Mazar-e-Sharif as a western returnee.

39.    I am satisfied that the applicant would be able to access Mazar-e-Sharlf by air upon return, despite the representative's claim regarding the high cost of domestic flights to Mazar-e-Sharif when considered against the average income in Afghanistan. The applicant would be returning directly from Australia to Mazar-e-Sharif and would not be reliant on income earned in Afghanistan to finance his travel. Given that it is highly likely the applicant's return via air would be a single journey and his ability to send occasional money transfers to his father in Ghazni I am satisfied that the applicant would be financially able to travel by air to Mazar-e-Sharif.

40.    Considering all the circumstances, I am not satisfied that the applicant faces a real chance of harm upon return to Mazar-e-Sharif, which he can safely access by air.

18    The Authority concluded that the appellant did not meet the requirements of the definition of “refugee” in s 5H(1), and that he did not meet s 36(2)(a) of the Migration Act.

19    The Authority then turned to the complementary protection regime, and the question whether the appellant would suffer “significant harm” within the meaning of s 36(2A) of the Migration Act. The Authority noted its finding that there was a real chance the appellant could be killed or physically harmed by local Taliban if he returned to Qarabagh, and was satisfied that this harm amounted to significant harm. However the Authority also noted s 36(2B) of the Migration Act, which said there was taken not to be a real risk of significant harm in a country if it was reasonable for a person to relocate to an area of the country where there would not be a real risk that the person would suffer significant harm. The Authority was not satisfied that the appellant faced a real risk of significant harm if he relocated to Mazar-e-Sharif, which he could safely access by air.

20    The Authority noted, inter alia, the submission of the appellant that it would not be reasonable for him to relocate, as he would have no pre-identified accommodation or livelihood options and would likely find himself in a similar situation to other urban displaced persons, namely forced to live in a slum household or informal settlement with inadequate access to water and sanitation. Further, the appellant claimed that although he had a sister and brother in Mazar-e-Sharif, it did not follow that they were in a position to or willing to support him. The Authority considered economic issues, and the view of the UNHCR that the reasonableness of relocation was dependent on the effective availability of traditional support mechanisms provided by members of family or ethnic groups. The Authority accepted that there was unemployment and underemployment in Mazar-e-Sharif, however noted further that despite his lack of education the appellant was multilingual including in English, and further he was a trained tailor who, in the opinion of the Authority, could obtain employment in Mazar-e-Sharif.

21    The Authority also considered that the appellant would have access to his family links in Mazar-e-Sharif, and that he would financially be able to travel there.

22    Accordingly the Authority also found that the appellant did not meet s 36(2)(aa).

Decision of the federal circuit court

23    On 15 September 2017, the appellant filed an originating application in the Federal Circuit Court for judicial review of the decision of the Authority. The application was subsequently amended on 10 January 2018 and 12 September 2018.

24    In the Federal Circuit Court the appellant relied upon the following grounds of review:

1A.     The Immigration Assessment Authority (IAA), the Second Respondent, fell into jurisdictional error in determining whether, under s 473DD(a) of the Migration Act 1958 (Cth) (the Act), there were exceptional circumstances to justify the IAA considering new information that had been provided by the Applicant.

…

1B.     The IAA fell into jurisdictional error in failing to consider, in substance, whether the New Information “could not have been, provided” before the delegate’s decision for the purposes of s 473DD(b)(i) or, alternatively, was “credible personal information” for the purposes of s 473DD(b)(ii) of the Act.

…

1D.     Alternatively, the IAA’s failure to consider getting further documents, information or comment from the Applicant in regard to the Applicant’s relationship was legally unreasonable.

…

1E.     The decision of the IAA is affected by jurisdictional error because there was a failure to comply with s 473CB and s 473DB of the Act leading to a constructive failure to exercise jurisdiction.

…

Each ground was particularised.

25    In relation to grounds 1A and 1B the primary Judge noted that the appellant contended the Authority should have had regard to:

    New information that the appellant’s sister and her family were displaced persons who were struggling to support immediate family members and his brother when arrived in Mazar-e-Sharif was not able to obtain assistance from his sister and would not be able to assist either (the appellant referred to this information as “financial hardship information” in the course of his appeal, and it is convenient to continue to refer to this information in those terms); and

    He was in a de facto relationship with a non-Muslim woman in Australia, and because of his family’s disapproval he would not have access to meaningful support in Mazar-e-Sharif (the appellant referred to this information as “relationship information” in the course of his appeal, and it is convenient to continue to refer to this information in those terms).

26    In respect of grounds 1A and 1B, his Honour examined s 473DD and observed that there were two limbs to the consideration of new information:

    There must be exceptional circumstances, and

    More importantly, the new information was not or could not have been provided to the Minister before the decision, or was credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims.

27    His Honour noted at [16] the appellant’s argument that the Authority had too narrow a focus in looking at whether there were exceptional circumstances that existed.

28    In relation to this point his Honour observed, in summary, as follows:

    In the context of s 473DD there must be something which is exceptional, that is something out of the ordinary in looking at the facts which would cause that information to be information that the Authority now says it should consider (at [23]);

    The Authority’s conclusion at [6] of its reasons that there were no exceptional circumstances for it to consider new information in respect of the appellant’s siblings, was open to it (at [26]);

    In relation to the refusal of the Authority to consider new information concerning that alleged de facto relationship of the appellant, the Authority had stated that there were no exceptional circumstances for considering it. The Authority was not satisfied that the information could not have been provided prior to the delegate’s decision. Further, the Authority was not satisfied that it was credible personal information. The primary Judge considered that once the Authority formed the view that there were no exceptional circumstances for considering that information, there was no need to look further (at [34]). The fact that the Authority did look further was merely indicative of its thoroughness, however whatever it decided in that respect did not give rise to jurisdictional error.

    It followed that grounds 1A and 1B failed.

29    The primary Judge rejected ground 1D, on the basis that it could not be said that the Authority was unreasonable in forming the view the subject of that ground.

30    In relation to ground 1E, the primary Judge noted that the gist of the complaint was that the Authority had overlooked country information, specifically documents evidencing:

    An attack on a court building in Mazar-e-Sharif City where judges, prosecutors and judicial staff were targeted;

    A 2015 UNAMA report observing a sharp increase in the abduction and killing of civilians of Hazara ethnicity by anti-government elements; and

    An attack near Mazar-e-Sharif on 12 October 2016 where 14 people were killed in a bomb attack outside a mosque in the northern province of Balkh, and where the report referred to an emerging pattern of sectarian violence.

31    The primary Judge observed, in summary:

    Although the Authority did not refer to the death of 14 civilians, the Authority did refer to a 2015 attack on a court, as well as a bombing 20 kilometres from Mazar-e-Sharif, and other attacks;

    Simply because a report referred to an emerging pattern of sectarian violence did not mean that the Authority needed to accept that part of the country information;

    The Authority was only looking at Mazar-e-Sharif, and appeared to have looked at that information;

    The Authority was not satisfied that the October incident was indicative of the onset of a sectarian campaign in Mazar-e-Sharif;

    The appellant’s criticism of the Authority could not be sustained;

    In any event, any failure of the Authority to have regard to the 14 deaths in the court attack was not a jurisdictional error because it was not a pivotal finding on which the decision rested.

32    It followed that ground 1E failed.

Appeal to the federal court

33    The appellant appealed from the decision of the Federal Circuit Court by notice of appeal dated 24 October 2018. He relied on two grounds of appeal:

1.    The Federal Circuit Court of Australia erred in failing to find that the Second Respondent fell into jurisdictional error by failing to properly apply s 473DD of the Migration Act 1958 (Cth) (the Act).

2.    The Federal Circuit Court of Australia erred in failing to find that the Second Respondent fell into jurisdictional error by failing to consider all relevant “review material” as required by s 437DB of the Act.

34    Both the appellant and the Minister were represented by Counsel at the hearing of the appeal.

35    In respect of the first ground of appeal the appellant submitted in summary:

    The new information on which the appellant sought to rely was directly relevant to the pivotal finding about whether he could reasonably relocate to Mazar-e-Sharif, which was a factor relevant under s 473DD(a) and 473DD(b).

    Section 473DD(b) requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally (Minister for Immigration v BBS16 (2017) 257 FCR 111 at [105]).

    The Authority’s failure to be satisfied that the appellant could not have provided the Minister with the new information was based merely on its findings that he was “aware” of that information and “aware” that he could provide additional information to the Minister. The Authority failed to consider whether the appellant could have, or did, appreciate the significance of providing the new information to the delegate, and applied an impermissibly narrow test for whether information “could not have been provided” for the purposes of s 473DD(b)(i). This caused the Authority to overlook a relevant factor in its assessment under s 473DD(a).

    The test under s 473DD(b)(ii) whether the new information was “credible personal information” arose even if s 473DD(a) was not satisfied. The issue whether new information was “credible personal information” was relevant to the assessment of “exceptional circumstances”, and in the particular facts of this case capable of affecting the assessment of exceptional circumstances.

36    The Minister submitted in respect of this ground of appeal, in summary:

    Subsections (a) and (b) of s 473DD are cumulative, and both limbs must be satisfied.

    The onus of proof lies on the appellant to establish the evidence the Authority considered. Merely because a decision maker did not refer expressly to a particular piece of evidence does not mean that it was not considered.

    The Authority considered as material the fact that the appellant had been given an opportunity to give his evidence on this point including at or following the SHEV interview, but only sought to adduce it after the adverse decision of the delegate.

    The appellant had been given ample warning of the need to give all details before the decision was made; and the appellant knew he could provide additional information.

    The appellant could have provided information to the Minister about either financial hardship or his relationship before the decision was made, or when he was specifically asked about the topic of his siblings.

    The Authority is permitted to consider matters including whether the information is credible in determining the question of “exceptional circumstances”.

    The new information was to a large extent uncorroborated.

    Although the appellant claimed that the Authority had not given consideration to the issue of reasonableness of relocation, it was clear that the Authority was well aware that the issue of reasonableness of relocation was a key issue relevant to its consideration of s 36(2)(aa), and that this information was relevant to that issue. The Authority considered that the circumstances were not exceptional for it to consider the financial hardship information.

    In relation to the relationship information, the absence of an explanation for failure to provide this information earlier to the delegate (or the Authority) was a relevant circumstance in deciding whether the Authority was satisfied exceptional circumstances existed.

    The Authority set out at [6] of its reasons factors including that the appellant was aware that he could provide additional information to the delegate, was aware of the information itself, and was aware of the fact that relocation to Mazar-e-Sharif was a consideration.

    The exercise the Authority entered in relation to considering new information was further illustrated at [9] of its reasons, where the Authority allowed airfare information to be considered.

    There was no error in relation to the conclusions that the Authority was not satisfied that the new information was credible, and even if there was an error it was inconsequential. Even if the new information was “credible” the Authority could still only have found that s 473DD was not met. The Authority was not satisfied that the new information could not have been provided to the Minister before the decision was made, in terms of s 437DD(b)(i).

    In any event any error in relation to the term “credible” was not jurisdictional as the Authority was not satisfied that there were exceptional circumstances.

    It is not a mandatory relevant consideration for the Authority to consider the factors in s473DD(b)(i) and (ii) in considering whether exceptional circumstances exist under s 473DD(a).

37    In respect of the second ground of appeal, the appellant submitted in summary:

    A failure to consider the review material as required by s 473DB(1) may disclose jurisdictional error.

    The Authority failed to have regard to evidence put before it referable to the following:

(a)    There was a “wave of targeted killings, complex and suicide attacks against judges, prosecutors and judicial staff in April and May 2015… [with] 161 civilian casualties”, including “the 9 April attack on the Balkh provincial prosecution office, in Mazar-e-Sharif city, that killed 14 civilians and injured 47 others”.

(b)    “In 2015, UNAMA observed a sharp increase in the abduction and killing of civilians of Hazara ethnicity by Anti-Government Elements… abducted at least 146 members of the Hazara community in 20 separate incidents. All but one incident took place in areas with mixed Hazara and non-Hazara communities, in… Balkh…” (Mazar-e-Sharif being in the Balkh province)

(c)    In the attack near Mazar-e-Sharif on 12 October 2016, “at least 14 people were killed on October 12 in a bomb attack outside a mosque in the northern province of Balkh… wounded at least 30 people, targeted Shi’ite mourners who were leaving a mosque”. The evidence referred to an “emerging pattern of sectarian violence” (according to a UN representative) and to the fact that “Afghan police had warned Shi’a – mostly ethnic Hazara – against large gatherings as attacks were expected.”

(d)    There was an attack in July 2015, claimed by “IS extremists”, that “killed 84 people, many of the Shi’a from the ethnic Hazara minority.”

(e)    The October 2016 attack near Mazar-e-Sharif was described by “White House National Security Council spokesman Ned Price” as “‘cowardly’ and ‘clearly designed to stoke sectarian tension’ in the country”.

(f)    The attacks in October 2016 involved “attacks on the mourners in Kabul and Balkh province” (ie, near Mazar-e-Sharif) and officials said: “We regret the Afghan forces’ failure to put in place needed measures for protection of the people” and “More such attacks were possible if inadequate security measures would have been in place”.

(g)    In respect of the October 2016 attack, “The blast near the city of Mazar-e-Sharif, home to one of Afghanistan’s most important Shiite shrines, followed a mass-casualty attack Tuesday in Kabul at a Shiite shrine that raised fears of further violence during the Shiite processions and gatherings… the Afghan government had urged people not to congregate during Ashura and expose themselves to danger”.

(h)    There was an attack in 2011 where “A Shi’ite Mosque in the northern city of Mazar-e-Sharif was also hit the same day, leaving four dead”.

(i)    More generally, the “Taliban and allied jihadist groups control 10 percent of the Afghan population and contest another 20 percent”. It was also said that the “Taliban control and contest more territory today [ie, September 2016] than at any time since US forces invaded the country after al Qaeda’s attack on 9/11”.

    The primary Judge erred in rejecting this ground of review in circumstances where the question of risk in Mazar-e-Sharif was clearly central to the Authority’s decision.

    On a fair reading of the Authority’s reasons as a whole, the Authority did not have regard to this evidence, did not make any express mention of the documents, and failed to engage with the substance of the documents.

38    In relation to the second ground of appeal the Minister submitted, in summary, that the mere failure of the Authority to refer to particular items of evidence does not mean that they were not considered, and in any event the Authority considered relevant information.

Consideration

39    The appeal turns on the proper interpretation and application of ss 473DD (referable to the first ground of appeal) and 473DB (referable to the second ground of appeal). I will examine each ground of appeal in turn.

Ground of appeal 1

40    Section 473DD of the Migration Act provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)     the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

41    As the primary Judge correctly observed at [15], the two limbs of s 473DD are clearly separate but cumulative, requiring the Authority to reach a state of satisfaction in respect of both matters. It follows that the Authority must be satisfied that there are exceptional circumstances to justify the consideration of new information, and the new information was either not able to be provided earlier to the Minister or was credible personal information not previously known.

42    In this case the Authority was not satisfied that there were exceptional circumstances for considering the financial hardship information or the relationship information, because (in summary) the appellant would have been aware of this information, was aware of the need to provide information to the delegate, and indeed did provide further information in relation to another issue raised by the delegate.

43    The primary Judge observed at [23] that for exceptional circumstances to arise, there must be something out of the ordinary in looking at those facts that would cause that information to be information that the Authority now says it should consider. His Honour noted the view of the Authority that the relevant information could have been provided to the Minister before the hearing, and that it was therefore open to the Authority to form a view that no exceptional circumstances had arisen for it to consider the information.

44    In my view this finding was, in turn, open to his Honour. The comments of his Honour were entirely consistent with the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. As Gageler, Keane and Nettle JJ observed in that case:

29.    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are "exceptional circumstances" to justify considering it.

30.    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".

31.    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

(Footnotes omitted.)

45    The breadth of the concept of “exceptional circumstances”, as explained in Plaintiff M174/2016, means that it is not to be viewed through the prism of whether the new information on which the appellant sought to rely was credible personal information, which requires engagement by the Authority with s 473DD (b)(ii). In the context of the appellant’s awareness of the information and the importance of its disclosure to the Minister (prior to the hearing) or the delegate (at or after the hearing) as described by the Authority and his Honour, it was open to the Authority to find that there were no exceptional circumstances warranting its consideration of either the financial hardship information or the relationship information.

46    I also note that the Authority specifically directed its mind to the question whether there were exceptional circumstances to consider new information, and indeed did so in respect of information concerning the cost of flights to Mazar-e-Sharif and a September 2016 report from the Norwegian Refugee Council relating to escalating numbers of returnees from Pakistan.

47    It also follows that, as the primary Judge correctly stated at [34], it was unnecessary for the Authority to look at issues relevant to s 473DD(b), and any findings of the Authority in respect of whether the new information on which the appellant sought to rely was credible personal information were inconsequential to its decision to refuse consideration of that material.

48    The first ground of appeal is not substantiated.

Ground of appeal 2

49    Section 473DB of the Migration Act provides:

Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

50    In this ground of appeal the appellant took issue with the alleged failure of the Authority to have regard to evidence identified by the appellant as relating to civil unrest in Mazar-e-Sharif, and in summary, events in 2011, April and May 2015, July 2015 and October 2016; and the status of the Taliban in Afghanistan in September 2016.

51    At [50] of the primary judgment his Honour observed that, of the nine evidentiary matters the Authority had allegedly failed to have regard to, at the Federal Circuit Court hearing the appellant had only relied on three of those matters, namely the evidence of an attack upon a court building in Balkh, the UNAMA report, and evidence regarding an attack near Mazar-e-Sharif on 12 October 2016 outside a mosque in Balkh. To the extent that the appellant now seeks to rely on alleged failure of the Authority to have regard to evidence which was not pressed before the primary Judge, I consider that it is improper for me to have regard to such claims.

52    However even having regard to the nine matters to which the appellant refers as not considered by the Authority, I do not accept the claim of the appellant that the Authority had failed to have regard to them.

53    The appellant submits that the issue of safety in Mazar-e-Sharif was a pivotal issue in the reasoning of the Authority concerning the prospect of his relocation to Mazar-e-Sharif. In my view this is correct, particularly as the Authority found that the appellant had a well-founded fear of persecution if he were to travel to Qarabagh in Afghanistan. The question whether a visa applicant can safely relocate within his or her country of citizenship is important to determination of issues of protection and complementary protection under the Migration Act. As the Full Court recently pointed out in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14:

24.    It is also well-established that notions of “relocation”, or “internal relocation” and the approach to that question through the concepts of reasonableness and practicability are not to be found in the Convention text, but rather are derived as a matter of inference from the more generally stated provisions of the Art 1A definition: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [11]. The plurality in SZATV endorsed the description given by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 at 440 about how the inference arises. Lord Bingham said that the Refugee Convention:

... does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate , it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.

25.    In SZATV at [32], the plurality expressly concluded that a failure by a decision-maker to consider what might reasonably be expected of an applicant with respect to her or his “relocation” is an error of law going to the “essential task” of the Tribunal and therefore jurisdictional in nature.

26.    The same point was made again by the majority in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [23]. The circumstances in SZSCA were not in fact concerned with a person who had been assessed as having a well-founded fear of persecution if he were to return to one part of his country of nationality (in that case, Afghanistan) and whether there was another place to which he could reasonably be expected to relocate. Rather, SZSCA concerned a person who, on the material before the Tribunal, would return to a place he had lived previously (Kabul), but whose work as a truck driver would take him outside Kabul and onto a number of roads and into a number of regions where the risks were quite different for a person of his ethnicity (Hazara) and religion (Shia). In those circumstances, the majority (at [29]) approached the Tribunal’s expressed “expectation” that he would remain, or need to remain, within Kabul as raising “considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable” (our emphasis). The description of this approach being an “analogy” with the internal relocation principle was also used in the majority’s reasons at [25]. The majority found (at [31]) that the Tribunal was required to, but did not, consider “the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business”.

54    In this case the Authority was not satisfied that the appellant faced a well-founded fear of persecution if he relocated to Mazar-e-Sharif, and gave very detailed reasons over numerous pages of its decision for this view. In the course of those reasons the Authority had regard to, inter alia:

    That there was an overall decline in the security situation in Afghanistan in 2015, which continued in 2016;

    That there was a slight decrease in the overall number of security incidents in 2016;

    The Afghan government remained in effective control of all major urban centres;

    Major urban centres were considered to be more secure;

    Mazar-e-Sharif was regarded as one of the safest cities in Afghanistan, for reasons referable to army and police presence;

    EASO reports from January and November 2016;

    An EASO report that there had been sporadic attacks in Mazar-e-Sharif including on the Indian and German consulates in 2016, a court complex in April 2015, a police vehicle in December 2015, targeted killings of relatives of a provincial council member and a government official in March 2015; and small bombs in local markets in November 2014, October 2015 and August 2016;

    Incidents involving Hazaras in Balkh province in 2015 (in areas which EASO reported the provincial governor conducted a clearing operation in March 2016);

    That Mazar-e-Sharif was a large city where sectarian violence on the basis of religion or ethnicity had been rare, and where there was no evidence that ethnic or religious groups had been deliberately targeted since 2011;

    Attacks on Shias in Kabul in 2016 (in respect of which the Taliban denied involvement, and for which Islamic State claimed responsibility);

    An attack on 12 October 2016 on a mosque where Shias were worshipping in Balkh province approximately 20 kilometres from Mazar-e-Sharif, and consideration of the entities claiming responsibility;

    The absence of presence of ISKP in or near Mazar-e-Sharif; and

    The absence of evidence of a Daeish/ISKP presence in or near Mazar-e-Sharif, and no evidence of Shia Hazaras being forcibly recruited to the Taliban or forced to support the Taliban in Mazar-e-Sharif.

55    In respect of the attack on 12 October 2016 the Authority observed:

33    …I accept that the October attack near Mazar-e-Sharif targeted Shia worshippers, however I am not satisfied that the evidence indicates that ISKP, IMU or the Taliban were involved or that the incident is indicative of the onset of a sectarian campaign in Balkh. Nor am I satisfied that it is indicative of a risk to Shia Hazaras living in Mazar-e-Sharif itself. I am satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 do not indicate that the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif in the reasonably foreseeable future.

56    As his Honour correctly pointed out:

    Whilst it was true that there was no reference by the Authority to 14 people being killed, there certainly was reference by the Authority to a 2015 attack on a court, and reference to the bombing 20 kilometres away from Mazar-e-Sharif;

    The Authority mentioned a number of other attacks as well;

    It was not incumbent on the Authority to accept a reference by a report to an alleged emerging pattern of sectarian violence; and

    Other than the attack on the court house, the incidents to which the appellant referred appeared to be either out of date (including the reference to events in 2011) or relating to areas outside Mazar-e-Sharif.

57    Further, as observed by French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [46]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, 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] HCA 30; (2001) 206 CLR 323 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.

58    See also for example Atkins v Minister for Home Affairs [2019] FCAFC 159 at [63].

59    The additional evidence to which the appellant referred was either actually noted by the Tribunal in its reasons, or was encompassed by its findings.

60    In my view the second ground of appeal is not substantiated.

Conclusion

61    In light of my findings and the grounds of appeal upon which the appellant relies, it is apparent that no issues arose from the decision of the High Court in BVD17 which require further consideration in the present context.

62    Neither ground of appeal is substantiated. The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    25 November 2019