FEDERAL COURT OF AUSTRALIA

CWF16 v Minister for Home Affairs [2020] FCA 509

ORDERS

THE COURT ORDERS THAT:

1.    Insofar as the same may be necessary, the appellant have leave to amend his grounds of appeal to those set out in his outline of submissions filed on 22 January 2020.

2.    The filing and service of an amended notice of appeal setting out those grounds be dispensed with.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs, of and incidental to the appeal, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The appellant is a citizen of the Islamic Republic of Afghanistan. He arrived in Australia by sea in September 2013 but without the benefit of a visa authorising his entry. He is therefore what the Migration Act 1958 (Cth) (the Act) terms (s 5AA) an “unauthorised maritime arrival”. The appellant was aged about 15 or 16 at the time of his arrival (the appellant is not exactly sure of his age). Having by then been granted the requisite Ministerial permission under s 46A(2) of the Act, and by an application dated 22 August 2015 and lodged on 2 September 2015, the appellant applied under the Act for that class of visa known as a Safe Haven Enterprise visa (SHEV).

2    By a letter dated 16 June 2016, the appellant was advised by an officer on behalf of the then Minister for Immigration and Border Protection that his SHEV application had been refused by a delegate of the Minister. As the Act required, the refusal decision was then referred to the Immigration Assessment Authority (Authority) for “fast track” review in accordance with the scheme established by Pt 7AA of the Act. By a decision sent to the appellant under cover of a letter dated 2 August 2016, the Authority decided to affirm the delegate’s refusal decision.

3    The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Authority’s decision. The judicial review application was heard and also determined on 30 October 2018. For reasons delivered ex tempore that day, the Federal Circuit Court dismissed the judicial review application.

4    The appellant appealed to this Court against the order of dismissal. The appeal was one of those the hearing of which was adjourned, pending the hearing and determination by the High Court of Australia in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 (BVD17).

5    Influenced by BVD17, the grounds of appeal have come to be the following (as extracted from the appellant’s outline of submissions), rather than the more generally stated appeal ground stated in the notice of appeal as filed:

(1)    The learned judge at first instance was in error in failing to find that the decision of the IAA was invalid for jurisdictional error in that the IAA unreasonably failed to consider exercising its discretion, pursuant to ss. 473DC(1) and (3) of the Act, to request relevant new information from the Appellant, namely, the whereabouts of his parents;

(2)    In the alternative, the learned judge at first instance was in error in failing to find that the decision of the IAA was invalid for jurisdictional error in that the IAA, having considered exercising its discretion, pursuant to ss. 473DC(1) and (3) of the Act, to request relevant new information from the Appellant, namely, the whereabouts of his parents, unreasonably decided not to request the information;

(3)    The learned judge at first instance was in error in failing to find that the decision of the IAA was invalid for jurisdictional error in that the IAA erred in law in failing to consider Ghazni as the place in Afghanistan to which the Appellant would return;

(4)    The learned judge at first instance was in error in failing to find that the decision of the IAA was invalid for jurisdictional error in that the IAA erred in law in concluding that Kabul was the place in Afghanistan to which the Appellant would return;

(5)    The errors in grounds (3) and (4) involved the IAA making its decision as to the likely place to which the appellant would return by ignoring the status of Ghazni as the place at which the Appellant had lived his whole life prior to being driven to leave that place by a well-founded fear of persecution and by risk of suffering significant harm: the very matters to which the complementary protection obligations are directed;

(6)    As a result of the errors in grounds (3), (4) and (5), the IAA failed to exercise its jurisdiction by considering, pursuant to s. 36(2B)(a) of the Act, whether it was reasonable for the Appellant to relocate from Ghazni to Kabul;

(7)    In any event, the learned judge at first instance was in error in failing to find that the decision of the IAA was invalid for jurisdictional error in that the IAA’s decision that it was likely that the Appellant would return to Kabul was, on the evidence before it, legally unreasonable.

[IAA is a reference to the Authority]

6    Having regard to the issues raised in the Federal Circuit Court by the appellant, I doubt whether the new grounds of appeal raise any new issues. In any event, it is in the interests of justice that, insofar as the same may be necessary, the appellant have leave to amend the grounds of appeal as set out in his outline of submissions.

7    The only active party respondent to the appeal is the Minister for Home Affairs (Minister). As it did in the court below, the Authority has, quite properly, filed a submitting appearance.

8    There is no suggestion that the Authority did not accurately summarise in its reasons (at [8]) the basis of the claim which the appellant made for a SHEV. Given the issues raised by the grounds of appeal, it is desirable to set out in full that summary:

The applicant’s claims can be summarised as follows:

•    The applicant’s family is originally from Ghazni city where his father owned a shop selling metal for use in construction, and land. At the SHEV interview he indicated that his father is a wealthy man.

•    The applicant claimed that in 2011 he was kidnapped by Taliban and held for four days until his father paid a ransom for his release.

•    After a year, the Taliban again approached his father demanding that he sell his land and give them money, and demanding that the applicant should join them for jihad as his religious duty.

•    Because of problems from the Taliban in Ghazni, his family moved to Kabul in 2012. At the SHEV interview he stated that his parents and one of his sisters remained in Kabul. At the time he said that he did not know the whereabouts of his two brothers. It has since emerged that his brothers are in Australia.

•    The Taliban tracked down the family in Kabul and continued to harass and threaten his father, asking for money and demanding that the applicant join them.

•    The applicant’s father arranged for him to leave Afghanistan in June 2013.

•    The applicant claims that when he was in Indonesia he was told that his father had been beaten in Kabul by the Taliban. He claimed that his parents were planning to leave Kabul.

•    The applicant claims that in about October 2015 a paternal uncle was shot on the road between Ghazni and Kabul. The applicant said that his uncle was targeted because he bought timber from the Americans.

•    He claims that in November 2015 his paternal great uncle was killed because he was the librarian at a government school for girls in Ghazni.

•    The applicant claims his details were revealed in the “data breach” and that this could put him at further risk from insurgent groups who might realise that he has been in a Western country; the risk would be greater because he has a brother who has lived in Australia for some time.

[The reference to the applicant is a reference to the appellant] [footnote references omitted]

9    Both on the hearing of the appeal and in the court below, the appellant’s submissions focussed upon that part of the Authority’s decision in which the Authority considered whether or not it was satisfied that the appellant was a person to whom protection obligations in terms of s 36(2)(aa) of the Act, commonly known as complementary protection obligations, were owed. It was common ground that this consideration necessarily entailed an assessment by the Authority of the place or places in Afghanistan to which the appellant was likely to return. In the result, the Authority was not satisfied that such obligations were owed to the appellant. That absence of satisfaction in turn informed the Authority’s decision to affirm the refusal decision made by the Minister’s delegate.

10    The Authority concluded that the place in Afghanistan to which the appellant would return was Kabul. The critical paragraphs in the Authority’s reasons are [32] and [34]:

32.    As set out above, I have accepted that there is a real chance that the applicant may face serious harm in Ghazni, largely because of the substantial Taliban presence there which could result in his being specifically targeted for harm such as abduction for ransom; in addition the general security situation in Ghazni Province itself and on the roads leading to Ghazni from Kabul, is much worse than in Kabul, and could result in a real chance of harm to the applicant. Based on the same information I am also satisfied that there is a real risk that the applicant would face significant harm in Ghazni or if he were to attempt to travel there from Kabul on return.

…

34.    While the applicant’s representative has made submissions about his situation in Kabul on the basis that he would be relocating there, given that the applicant resided in Kabul with his parents for two or three months prior to his departure from Afghanistan, and given that this was the last known location of his parents, I have assessed Kabul as the area of Afghanistan to which the applicant would return. The applicant stated at the SHEV interview in November 2015 that his parents and a sister were at that time still residing in Kabul. He has since indicated that they were planning to leave because of the security situation, and in an email dated 1 December 2015 written by his older brother, [N], who is now an Australian citizen, [N] states that for the last two years his parents have been moving around neighbouring countries trying to find a place to settle. However, at the time of the applicant’s representative’s July 2016 submission to the IAA, it appears that the applicant’s parents were still in Kabul, although possibly planning to leave. I consider that if the applicant’s parents had actually left Kabul, the applicant would have provided definite information about this.

11    The appellant submitted that Ghazni was “the obvious place to which the Appellant was likely to return”. That was because, he submitted, “it was his home region which he only left because of the well-founded fear of persecution and significant risk of harm found by the Authority to be present”. It was then submitted that Kabul was “at best, any other place where the fear of persecution or risk of harm is not present”.

12    From this emerged one of the two issues raised by the grounds of appeal, which was that it was, contrary to the conclusion of the learned primary judge, illogical, irrational or unreasonable for the Authority to have based its absence of s 36(2)(aa) satisfaction on a conclusion that the likely place to which the appellant would return was Kabul.

13    Paragraph 34 of the Authority’s reasons was reactive to this part of a comprehensive submission dated 26 July 2016, made to the Authority by the appellant’s migration agent on his behalf. Materially, the submission stated:

The Delegate at paragraph 110 states that “the applicant’s parents reside in Kabul and would provide the applicant with an established family network on which to draw support.” However, as stated in the Applicant’s submissions on 13 November 2015, with increasing attacks from Anti-Government Elements in Kabul a number of the Applicant’s family members have already left Afghanistan with the Applicant’s parents intending to follow as the Taliban has been threatening the Applicant’s father. Additionally, as the Applicant and his family are from Ghazni and not Kabul there would be no family or tribal networks in Kabul to support the Applicant. We submit that the even if the IAA finds the parents will remain in Kabul for the reasonably foreseeable future, we submit that it is not safe in Kabul for the parents nor the applicant given the recent violence by ISIS and other insurgent groups in Kabul, and in addition the real risk of ongoing targeting from the Taliban. We also submit that if Taliban groups who have been targeting the applicant’s family defect to ISIS that the applicant will be at further risk of violence both personally, and, in a more general sense given the growing influence of ISIS in Afghanistan and Kabul.

[sic – emphasis added]

14    One thing which is not put in this submission is that the appellant’s parents have left Kabul.

15    The delegate’s finding (at [110]) was indeed, as the Authority recited, that the appellant’s parents resided in Kabul. The delegate’s finding and, in turn, that of the Authority (at [34]) as to the location of the appellant’s parents was based on a statement of the appellant’s brother, N, which formed part of a submission dated 1 December 2015 sent to the delegate that day by email by the appellant’s migration agent. In that statement, N stated, materially:

From last 2 years my family has been traveling around the neighbor countries

thy went to India spend time there but couldn’t live there because of their age thy could not get long term visa to live there .

They went to Pakistan to settle there but situation is even worst then Afghanistan this days

Every day they had to face the corrupted police there and bribe them so they can stay for another day.

I have tried to settle them in Dubai thy moved there but my dad could not stay for long time.

His Health issues and DUBAI weather force them to leave and go back to Kabul.

Every time they have to change their rental home so no one know them in the area.

[sic – emphasis added]

16    Also before the delegate, and thus the Authority, was the following statement made by the appellant in a statutory declaration appended to a submission to the delegate by his migration agent dated 13 November 2015:

My family’s fears have increased for their life. My parents were already making plans to leave Afghanistan, as more and more people die in my family their departure becomes more imminent.

17    In his statutory declaration annexed to his SHEV application, the appellant had stated (at [26]), in relation to his situation prior to leaving Afghanistan:

I was in Kabul for 2 months with my family. We were still in danger in Kabul we had not escaped the problems of Ghazni.

18    Reacting to the claimed fear of persecution, the Authority addressed the position in Ghazni in its s 36(2)(a) refugee claim assessment. It also concluded, at [32], for s 36(2)(aa) purposes, that the appellant may face serious harm in Ghazni. That was consistent with a conclusion reached about Ghazni and roads between Kabul and Ghazni already reached by the Authority in its s 36(2)(a) refugee claim assessment (see [28] of the Authority’s reasons).

19    The Authority then turned its mind to where in Afghanistan the appellant would return. It concluded, at [34], that that place was Kabul. The Authority was not obliged to accept statements made by the appellant’s older brother, N, in his statement as to his parents’ whereabouts. However, once [34] of the Authority’s reasons is read in the context of the statements in the appellant’s two statutory declarations and the excerpted part of N’s statement, the Authority evidently did accept N’s statements about his and the appellant’s parents’ movements and location. That statement admitted of a finding, and the Authority did find, at [34], that the appellant’s parents had previously moved from Afghanistan to various countries but had returned to Kabul. In the face of the submission of 26 July 2016, in particular the emphasised part of the excerpt quoted, the Authority was entitled to assume, and self-evidently from [34] of its reasons did assume, that, if the appellant’s parents were no longer residing in Kabul, the appellant, by his migration agent, would have mentioned this and sought to introduce and rely upon new information to that effect.

20    Recently, in BKX18 v Minister for Home Affairs [2020] FCA 432, at [48], by reference to Jebb v Repatriation Commission (1988) 80 ALR 329, at 333, I observed that an administrator’s reasons “should not be read out of the context of the administrative decision-making continuum … of which they form part”. I then added (also at [48]):

As with the tribunal review considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, at [40], “the Act assumes that issues can be identified as arising in relation to the decision under review”. Thus, the earlier course of the administrative decision-making continuum up to the time when the Authority comes to make its decision will colour and shape the issues on a particular review.

These observations are also pertinent to the present appeal. Given the aspects of the “administrative decision-making continuum” in this case which I have highlighted from the initial SHEV application, including the annexed statutory declaration of the appellant, to the submission of 13 November 2015, including the appellant’s statement in the statutory declaration, to the submission of 1 December 2015, including N’s statement, to the delegate’s decision, to the migration agent’s submission of 26 July 2016 and to the Authority’s decision – it is unremarkable that the Authority found that the appellant’s parents remained in Kabul.

21    In his submissions, the Minister aptly drew attention to these observations made by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [131]:

[The] test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

22    There was nothing illogical, irrational or unreasonable, in the circumstances mentioned, in the Authority’s acting upon the submission made to it by the appellant’s migration agent, especially against the background of the appellant’s statements and N’s statement as to their parents’ whereabouts; rather the reverse. Particularly that was so given that the submission of 26 July 2016 was so very proximate to when the Authority made its decision and its author chose not to mention any change in the appellant’s parents’ present whereabouts. The Authority was entitled to find that the appellant would return to Kabul, which was where his parents were located, and that he did not there face a risk of significant harm.

23    On analysis, the appellant’s submissions are just, as the Minister submitted, a solicitation impermissibly to conduct merits review in the exercise of appellate jurisdiction in respect of a judicial review proceeding where that course was likewise impermissible. The learned primary judge was correct in concluding that the Authority’s decision, insofar as it turned on an absence of satisfaction in relation to s 36(2)(aa) of the Act, was neither illogical, irrational nor unreasonable.

24    The second of the issues raised by the new grounds of appeal was inspired by BVD17. The appellant submitted, with respect correctly, that, in BVD17, the High Court had “held that s. 473DA(1) extended the exhaustiveness of its prescription of the contents of the natural justice hearing rule to all aspects of the [Authority’s] conduct of a review pursuant to s. 473CC(1) of the Act” and that “Section 473DA(1) precluded an incident of the [Authority’s] obligation of procedural fairness arising as a matter of implication through the common law principles of statutory interpretation”. The appellant then submitted, “Nonetheless, s. 473DA(1) does not preclude the implication that a statutory power within the provisions to which s. 473DA(1) refers must be exercised within the bounds of reasonableness”. This submission was based on, and took up in so many words, an observation made by Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ in BVD17, at [33]. So it must be accepted.

25    From this premise the appellant then proceeded to the Authority’s discretionary power under s 473DC of the Act to “get” information. It was then put that, to “fail to exercise the discretion to get information or to consider exercising the discretion to get information on that basis is capable of amounting to jurisdictional error. Inter alia, the content of the new information may be relevant to the question as to whether exceptional circumstances exist”. It was submitted that definite information concerning the whereabouts of the appellant’s parents was of crucial importance, because it grounded the Authority’s finding that Kabul was the likely place to which the appellant would return and obviated any need by the Authority to consideration relocation. From this it was said to follow that the learned primary judge was in error in failing to conclude that it was unreasonable for the Authority not to have got, or not to have considered getting, precise information as to the appellant’s parents’ whereabouts.

26    In dealing with this point, the learned primary judge (who did not at that stage have the benefit of the High Court’s judgment in BVD17) stated, at [23]:

It was open on the facts before the [Authority] to proceed precisely in the manner which it did. Each case in that regard turns on its own facts. It was not unreasonable in the circumstances for the [Authority] not to seek new information as submitted on behalf of the applicant pursuant to section 473DC.

27    I respectfully agree with his Honour’s conclusion. However, in deference to the eloquent way in which the contrary proposition was put in the appellant’s oral submissions, some elaboration is necessary.

28    The Authority did not “have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”: s 473DC(2) of the Act. It was also under no obligation to give reasons for its exercise or non-exercise of any procedural power: BVD17, at [40]. Necessarily, that includes the power under s 473DC(1) to “get” information.

29    It is not apparent on the face of the Authority’s reasons whether or not it turned its mind to “getting” further information as to the appellant’s parents’ present whereabouts. However, absence of supporting reasons does not sterilise an administrative decision from effective judicial review. As Gibbs CJ (with whom Wilson, Brennan and Dawson JJ agreed) observed in Public Service Board (NSW) v Osmond (1986) 159 CLR 656, at 663-664, by reference to Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997:

[The] fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason.

30    It does not follow from this that an inference favourable to the appellant must be drawn. That the discretionary power to “get” information fell to be exercised (or not exercised) within the bounds of reasonableness did not require that any decision as to whether or not even to consider exercising that power had to be “advantageous to the person who is the subject of it”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), at [15], per Kiefel CJ.

31    In SZVFW also, the Tribunal was under no obligation to give reasons for proceeding to determine a review application following a failure by applicants to appear at an appointed hearing. However, in the context of what I have termed the “administrative decision-making continuum”, there was nothing which necessarily took the Tribunal’s act of proceeding to decide the review application into what Gageler J in that case, at [70], described as “the realm of the extraordinary”. That is likewise the position in the present case. The learned primary judge was right to highlight the importance of factual context. The appellant had been represented throughout the “administrative decision-making continuum” by a migration agent. It was via that migration agent that information about the parents’ whereabouts had been provided to the delegate. The submission of 26 July 2016 was directed to the situation in Ghazni and in Kabul. In the overall context of the “administrative decision-making continuum”, the Authority was entitled to proceed on the basis that Kabul was where the appellant’s parents were located. So to do was not “extraordinary”. There is no necessary inference to be drawn from the circumstances prevailing that it was unreasonable, in the sense explained in the joint judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [76], for the Tribunal neither to consider “getting” information as to the parents’ whereabouts nor, if that were considered, to decide not to “get” such information.

32    It may readily be accepted that the whereabouts of the appellant’s parents was important. But it was always open to the appellant to provide an update which put a changed position to the Authority. Had the Authority declined to receive that new information a very different jurisdictional error case based on unreasonableness might then have been open. As it is and for the reasons just given, which in essence take up those put in the Minister’s submissions, no jurisdictional error case based on s 473DC of the Act is made out.

33    It follows from the foregoing that the appeal must be dismissed, with costs.

Associate:    

Dated:    20 April 2020