Federal Court of Australia

EWQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 778

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The appellant is a citizen of Afghanistan, born in the Jaghori district. He adheres to the Shia religion and is of Hazara ethnicity.

2    The appellant arrived in Australia as an unauthorised maritime arrival in 2012 and on 16 February 2013 participated in an entry interview (entry interview). He was later invited to apply for a Safe Haven Enterprise visa (SHEV).

3    With the assistance of a migration agent, the appellant applied for a SHEV, provided a statement and documents in support, and on 27 January 2017 attended an interview with the delegate (delegate interview). On 9 February 2017 the delegate published its decision and reasons, refusing the appellant's visa application.

4    In accordance with the fast track regime established under Part 7AA of the Migration Act 1958 (Cth), the delegate's refusal decision was reviewed by the Immigration Assessment Authority (Authority).

5    Pursuant to the obligation under s 473CB of the Migration Act, the Secretary of the Department provided information to the Authority for the purpose of the review. It also provided a certificate issued under s 473GB.

6    The Authority affirmed the delegate's decision, and the appellant sought judicial review of the Authority's decision by the Federal Circuit Court of Australia.

7    The primary judge dismissed the application for review. There were four review grounds developed before the primary judge. Review grounds 1 and 2 related to whether or not the Secretary had provided all relevant material to the Authority, and whether or not the Authority considered the material that was provided. Ground 3 related to the adequacy of the entry interview and the delegate interview. Ground 4 related to the s 473GB certificate, and whether the Authority should have exercised its discretion to disclose the existence of the certificate to the appellant.

8    The appellant now seeks to argue the same four grounds by way of appeal to this Court: that is, he contends that the primary judge erred by failing to uphold those grounds of review and should have found that there was jurisdictional error on the part of the Authority.

9    The appellant was unrepresented for the purpose of the appeal. He had the assistance of an interpreter, and although he had not filed any written submissions, he was given the opportunity to explain orally the matters he wished to say gave rise to any grounds of review or appeal.

10    The appellant also sought the assistance of a McKenzie friend, and I granted leave to Mr Wayne McCurry to assist the appellant. Mr McCurry informed the Court that he spent time in Afghanistan in (at least) 2005 and 2006, and indicated that he had knowledge that might assist the appellant in explaining the circumstances relevant to any return to that country.

11    The principles regarding the Court's discretion to allow the participation of a McKenzie friend have been well traversed: Smith v The Queen (1985) 159 CLR 532; Gamage v Minister for Immigration and Citizenship [2009] FCA 1373 at [12]; Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 at [22]-[26]; Cristovao v Registrar Caporele [2012] FCA 1329 at [28]; and Nepal v Minister for Immigration and Border Protection [2015] FCA 366 at [13]-[17]. The authorities consistently note that while a person may attend as a friend of a party to take notes, make suggestions, prompt the litigant and give advice, courts must be careful in allowing an unqualified person to participate as an advocate or make substantive submissions. However, having regard to the genuine difficulties facing the appellant as an unrepresented litigant and as someone needing the assistance of an interpreter, I considered that it was in the interests of justice to permit Mr McCurry to appear on the appellant's behalf in the limited capacity of a McKenzie friend, and the Minister did not oppose that course.

The delegate's reasons

12    Although the judicial review application before the primary judge related to the Authority's decision, having regard to the nature of the appeal grounds, it is also appropriate to address the delegate's reasons.

13    In addition to his written statement of his protection claims, the appellant through his migration agent provided a detailed submission on country information (dated 22 September 2016). The appellant also attended the delegate interview at which the migration agent remained present. Having regard to the transcript, the interview was conducted over the course of one hour and thirty five minutes, and included an eight minute break to enable the appellant to speak to his migration agent in the absence of the delegate before the interview terminated.

14    The appellant claimed protection on a number of grounds: that he feared being killed by the Taliban because he was perceived to be anti-Taliban due to his past employment as a driver for the United Nations (UN) or because he later worked for a bakery that provided supplies to foreign forces; that because of his adverse profile he would be targeted upon his return from a western country; and because he is a Shia Hazara and, in particular, they have been harmed when travelling on the roads (made apparent in his submission on country information).

15    The basis for his claims before the delegate can be summarised as follows:

(a)    between late 2003 and September 2005 the appellant worked for the UN as a driver based in Jaghori, driving foreigners and supplies;

(b)    in about the middle of 2006 the appellant started working for his father in a bakery in Kandahar, and moved there permanently in 2008;

(c)    people working for foreign organisations and people working for the Afghan National Army used to visit the shop to buy bread;

(d)    the appellant was threatened by the Taliban who asked him to stop supplying bread to the foreigners and military people;

(e)    in 2012 two people came to threaten him but he did not pay much attention. Shortly after, he received a letter asking him to close the shop and to stop supplying foreigners. He received a letter three times, each time about 20 days apart;

(f)    the last letter said that if they saw vehicles from the organisations near the shop or found that he was selling to them then they would kill him;

(g)    he was considered as being anti-Taliban, and became very scared and closed the shop;

(h)    because of the letters he realised that the Taliban knew he was working for the UN, and he knew the Taliban would not spare anyone found to be helping foreigners, so he decided to leave the country;

(i)    the Afghanistan government would not provide protection from the Taliban;

(j)    if he were forced to return to Afghanistan he fears he will be harmed and killed for being anti-Taliban;

(k)    he also feared harm and mistreatment on the basis of his race and religion, because he is Hazara and Shia Muslim, at the hands of a variety of Afghani and Pakistani people, as well as other foreign anti-Shia groups known to operate all over Afghanistan;

(l)    the appellant feared harm including physical assault, abduction and murder at the hands of the Taliban on the basis of his Hazara ethnicity, Shia Muslim religion, and his association of belonging to a group having anti-Taliban views and failing to follow restrictions imposed by the Taliban;

(m)    the appellant feared persecution and serious harm as a returnee from a western country, and specifically from Australia; and

(n)    the appellant is unable to relocate to another area of Afghanistan because his risk of harm extends throughout the whole country.

16    The delegate found that it was not credible that the appellant received threats because he was perceived to continue to have a profile as a supporter for the 'Allied forces in Afghanistan'. In reaching this view the delegate accepted that terrorist groups, including the Taliban, do target people associated with the international community. The delegate expressly referred to country information reported by the Department of Foreign Affairs and Trade (DFAT) to this effect, noting that individuals are often subject to intimidation, threats, abduction and killing. However, the delegate noted that some seven years had passed between when the appellant worked for the UN and the time of the alleged threats. The delegate considered it was difficult to accept that the Taliban would have waited until 2012 to make threats 'if they knew he worked for the UN and were at all interested in him'.

17    Nor did the delegate consider that the appellant's later work as a baker would have given rise to the claimed threats. The delegate said that there would have been many businesses in Kandahar which sold goods and services to foreign nationals and the Afghan army, and that the appellant had substantially complied with the Taliban's request to stop supplying bread to foreign nationals by closing the shop.

18    The delegate also observed that the appellant was not forthcoming in disclosing the specifics of the threatening letters: he mentioned Taliban letterhead late in the interview, but failed to mention such detail when specifically asked how he knew the threats were made by the Taliban.

19    The delegate did not believe that the appellant had a profile with the Taliban prior to his departure from Afghanistan.

20    As to the appellant's claims to fear harm on the basis of his Shia religion and Hazara ethnicity, the delegate again considered the DFAT country information available. The delegate said that the appellant had not been specifically persecuted as a result of his race or religion and referred to country information that indicated that people from all ethnic groups are at risk of violence, but that no particular group is systematically targeted by the Taliban.

21    The delegate also rejected the appellant's claims that were based on imputed pro-western views, noting that country information indicates that many thousands of Afghans have left Afghanistan and returned without any problems, and that with the exception of those travelling the road between Kabul and Hazarajat, low-profile Hazaras who have spent time in western countries face only a low risk of violence as a result of such links.

22    The delegate was not satisfied that the appellant faced a real chance of persecution or a real risk of harm in his home province in Afghanistan, and found that regardless he could relocate to another area in the country under government control where there are significant numbers of Hazara Shias if he did not wish to remain in Jaghori.

23    Having regard in particular to those matters, the delegate was not satisfied that the appellant had a well-founded fear of persecution within the meaning of s 5J(1)(a) of the Migration Act, was not satisfied that the appellant was a refugee within the meaning of s 5H(1), was not satisfied that the appellant is a person in respect of whom Australia has protection obligations within the meaning of s 36(2)(a) and was not satisfied that the complementary protection criteria in s 36(2)(aa) of the Migration Act applied.

The Secretary's obligation - legislative framework

24    I recently summarised the statutory framework in FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723, and acknowledge that what follows largely adopts that summary.

25    Part 7AA of the Migration Act provides a limited form of review of certain decisions to refuse protection visas to some applicants. This includes applicants who are unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014, and so includes the appellant in this case.

26    Division 2 of Part 7AA provides the mechanism by which fast track reviewable decisions are to be referred to the Authority. Section 473CA requires the Minister to refer such a decision to the Authority as soon as reasonably practicable after the decision is made. An obligation is placed on the Secretary to provide relevant materials to the Authority for the purpose of its review.

27    For present purposes, the relevant provision is s 473CB. It provides:

Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct - such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor - the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

28    Division 3 of Part 7AA of the Migration Act concerns the conduct of the review. Relevantly, the review is to be undertaken on the papers: that is, by considering the review material provided to the Authority pursuant to s 473CB without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Migration Act.

29    In limited circumstances the Authority may obtain and consider documents or information, called 'new information', that was not before the delegate and that it considers may be relevant: s 473DC and s 473DD of the Migration Act.

30    The manner in which Part 7AA operates is the subject of a number of High Court authorities: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34.

31    In ABT17 the majority of the High Court described the purpose of the obligation to provide the review material as follows:

[8]    The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

Notification - s 473GB

32    The operation of s 473GB is also relevant to this appeal. It provides that the Minister may certify that, relevantly, particular information should not be disclosed to a visa applicant because the disclosure may be contrary to the public interest. The Authority's use of the information is then subject to (relevantly) s 473GB(3), which provides:

If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

33    The Authority therefore has a discretion as to whether the information should be disclosed. The operation of the section is discussed in further detail below.

Material before the delegate

34    The delegate made a list of materials that were before her and listed them in Attachment A to her reasons:

Departmental file [redacted] relating to the applicant.

Australian case law as footnoted throughout the assessment record.

Country information as footnoted throughout the assessment record including any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations (see Direction No.56).

The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-issued, Geneva, December 2011 (the UNHCR Handbook).

Procedures Advice Manual 3: Refugee and Humanitarian - Refugee Law Guidelines

Procedures Advice Manual 3: Refugee and Humanitarian - Complementary Protection Guidelines

Procedures Advice Manual 3: Refugee and Humanitarian - Common Processing Guidelines

Procedures Advice Manual 3: Refugee and Humanitarian - Temporary Protection and Fast Track Assessment Process

35    The materials before the primary judge also included a document headed 'Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist' (checklist) prepared by the case officer, who in this case was also the relevant delegate.

36    The checklist includes, relevantly, a general heading 'Review material', and inserts under that heading details such as the appellant's contact address. There is then a subheading which reads, 'the PDFP contains the following material', and beneath that heading are listed some 24 categories of documents. 'PDFP' is a reference to a 'pdf portfolio' (DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220 at [5]). A second column is headed 'status', and it provides an indicator next to each document of 'yes', 'no' or 'N/A' for selection. A third column is headed 'Non-disclosure considerations' (and there is a reference to s 473GB next to some items). The fourth column is headed 'TRIM Reference (for records that are NOT contained in the TPV/SHEV client file)'.

37    Documents listed in the first column of the checklist for which the indicator 'yes' is selected are:

•    Invitation to apply for a TPV or SHEV

•    VAC receipt

•    Acknowledgement of valid application

•    Any other relevant correspondence in regard to application lodgement

•    The PV [protection visa] application and its supporting documents (including any document translations)

•    Invitation to attend PV interview and any other relevant correspondence

•    The PV interview audio file

•    The PV primary decision

•    Any non-disclosure certificate(s) (see below under 'Non- disclosure')

•    Entry interview (transcript and audio file) + those of any dependant applicants

•    Any other relevant documents that should be included in the PDF Portfolio

38    Relevantly, there are no items in the checklist with a selected status of 'no'. There are some items marked as 'N/A'. Apart from country information, none of the items listed for which 'N/A' is indicated are items to which the delegate appears to have made any reference in the reasons relating to the appellant: for example, there is nothing in the delegate's reasons that suggests she had regard to a 'five country reference report' or a 'dob-in'. There are no items listed in the fourth column, indicating there are no relevant records that were not contained in the appellant's SHEV file. As to country information, the relevant item prescribed by the checklist is 'any referenced country information which is not available on CISNET'. That item is marked as 'N/A', indicating that any referenced country information was available on a particular database (and I was told by counsel that both the delegate and Authority have access to such database).

39    There is also a section in the checklist that is headed 'Non-disclosure' that specifies that a s 473BG certificate is required. Relevantly, it provides for selection of 'yes' or 'N/A' as to whether any s 473GB certificate is included in the PDFP and whether the relevant information is also included in the PDFP - and the option 'yes' has been selected with respect to both requirements. Additionally, I note that the documents the subject of the s 473GB certificate are AUSTRAC records that show transfers of various funds from Australia by the appellant to Afghanistan, described as 'family support'. These records were in evidence before the primary judge.

40    The checklist also provides that the appellant's file 'is contained in a PDFP'.

41    It is apparent on the face of the checklist that it is a document deployed for the purpose of referring a case to the Authority and to assist the Secretary in referring the matter to the Authority: see generally AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82 at [30]-[31], [75]-[76].

The materials before the Authority in this case

42    The Secretary provided material to the Authority under s 473CB. So much is to be inferred from the delegate's letter of 9 February 2017 informing the appellant of the outcome of the application, and informing him that the Department had referred the decision to the Authority. The letter stated that the Department had provided to the Authority the decision record, any material provided by the appellant prior to the date of the refusal decision and 'any other material the Department considers to be relevant to the review'.

43    Part of the appellant's case queries the scope of information that was provided to the Authority, relying on the fact that the Authority does not expressly list such information.

44    The Authority's reasons specify that the reviewer 'had regard to the material given by the Secretary under s 473CB of the Migration Act'.

45    The Authority then recites that it received a submission from the appellant's representative that refuted a number of the delegate's findings, and said that to that extent, the submission was regarded as argument rather than information.

46    Part of the submission provided information about the appellant's contract to supply bread to foreign organisations, but the Authority did not consider the information was of the nature that should be considered under s 473DD, the appellant's involvement in the bakery having been squarely raised before the delegate.

47    The submission then referred to a number of documents which predated the delegate's decision. The Authority declined to consider some of those documents, on the basis that it was not satisfied that the information could not have been provided to the delegate prior to the decision and that there were no exceptional circumstances for considering them.

48    However, it took a different view with some of the documents that were new information, explaining that there were exceptional circumstances for considering it. In particular, it considered:

(a)    excerpts from a Canadian Immigration and Refugee Board report dated 22 February 2016;

(b)    European Asylum Support Office dated December 2012 (EASO 2012 report);

(c)    media report of a suicide attack on police headquarters in Kabul in March 2017; and

(d)    Blue Mountains Refugee Support Group report which contained information relevant to the possibility of the appellant relocating to Mazar-e-Shari).

49    The Authority also obtained and had regard to country information from 2016 and 2017, which referred to attacks against Shias in those years and contained information about the evolving status of the Islamic State in Afghanistan, a matter the Authority considered relevant to the question of the real chance or risk of harm to the appellant in Afghanistan.

50    The Authority is not obliged under the Migration Act to list the materials that are provided to it by the Secretary. However, from its reasons it is apparent that the Authority was provided with (at least) the statement of the appellant's claims, the audio of the delegate interview, the delegate's reasons and country information that was before the delegate beyond that referred to at [48] or [49] above. As to the country information, so much is apparent from, for example, para 28 of the Authority's reasons that refers to a DFAT report of 5 September 2016, and being the same report referred to by the delegate at footnote 17 of the delegate's reasons. There are another three instances where country information referred to by the delegate is also referred to by the Authority.

51    As to the audio of the delegate interview, it is apparent that it was considered by the Authority from, for example, the Authority's reference to the appellant's evidence given during the delegate interview and recorded in the transcript to the effect that the appellant thought the visit to him by people when he was working in Kandahar was a 'prank', evidence not recounted by the delegate in her reasons. It was further confirmed before the primary judge that the audio of both the entry interview and the delegate interview was provided to the Authority.

52    Finally, the index to the Court Book before the Federal Circuit Court lists documents said to have been 'provided by the Department to the Authority'. That index includes all of the particular documents referred to at [37] above, and also includes reference to the submissions provided by the appellant's migration agent and the documents that were provided by him to the delegate, together with various communications between the migration agent on behalf of the appellant and the Department.

53    The Minister invited the Court to infer that all of the documents that were listed in the checklist were in fact provided to the Authority. It is not clear that it must follow that the Secretary provides all documents listed in the checklist to the Authority as a matter of course, but in any event I am satisfied that in this case, having regard to the matters to which I have referred, those documents identified in the checklist were in fact provided to the Authority.

The Authority's decision

54    The Authority accurately summarised the appellant's protection claim, concluding that:

The applicant fears being killed by the Taliban as he is perceived to be anti-Taliban due to his employment and he has not followed the restrictions imposed by the Taliban. He fears that his adverse profile arising from him being personally targeted will be enhanced by his return from a western country. He also fears serious harm as a Shia Hazara particularly when travelling on the roads.

55    The Authority accepted that the appellant had worked as a driver for the UN, but noted that the appellant did not claim to have been threatened during the time he performed this work.

56    The Authority was not satisfied that, even if the local Taliban were aware of the appellant's work for the UN, they considered him to be an adverse interest. The Authority noted that there was no evidence of the appellant having any ongoing association with the UN. It was not satisfied that the appellant would be considered to hold anti-Taliban views by virtue of his employment with the UN. Referring to the EASO 2012 report, the Authority observed that 'generally if a person quit his job or ceased activities of adverse interest the Taliban would not further target or threaten a person'.

57    As to the appellant's work as a baker supplying bread to the local Afghan army camp and foreign forces, the Authority accepted that the appellant was of adverse interest to the Taliban in Kandahar in 2012, due to his local contract arrangements with the army camp and was threatened for this reason (and so came to a different view to that of the delegate on this point). However, referring to the country information, the Authority was not satisfied that he would be targeted after having closed the bakery and ceased his work over five years previously, and noted the appellant had not indicated any intention to return to Kandahar.

58    The Authority took considerable care to assess the country information with a particular emphasis on Jaghori, noting that, as with certain other districts, it was at that time Hazara dominated.

59    As to the appellant's claim to fear harm as a returnee from a western country, the Authority was not satisfied that he would be targeted in Jaghori as being pro-western or a 'perceived collaborator with the international community', based on country information and the nature of the appellant's work and profile in Afghanistan. The Authority noted that although there were reports of incidents on the roads involving harassment and kidnapping of those believed to have connections to the government or security forces, the DFAT country information, recent at that time, indicated that the Hazarajat areas were not highlighted as a particular area of concern. Nor did it highlight Jaghori as an area where Hazaras are being targeted. There was no evidence of incidents after 2014 on the roads or of returnees being targeted in Jaghori itself.

60    The Authority was satisfied that the appellant could reside in Jaghori, without a real chance of harm by virtue of being Shia Hazara, particularly in light of the country information relating to Jaghori which indicates it is dominated by the Hazara ethnic group.

61    Having regard to the appellant's work history both with the UN and as a baker, his ethnic and religious background, and his potential status as a returnee from Australia, the Authority concluded that it was not satisfied that there was a real risk of harm in the foreseeable future if he returned to Jaghori.

62    The Authority also concluded that the appellant did not meet the definition of a refugee under the Migration Act, and did not meet the complementary protection criteria in s 36(2)(aa), and accordingly affirmed the delegate's decision not to grant the appellant a SHEV.

63    As will be seen, of particular relevance to the fourth appeal ground is the Authority's conclusion as to the ability to travel, and for completeness I include relevant parts of its conclusions:

25.    I am satisfied that the applicant could reside in Jaghori safely without a real chance of harm as a Shia Hazara. I accept that there were a number of incidents on the roads during 2015 where Shia Hazaras were targeted on the roads. However there is no evidence that Shia Hazaras are targeted in Jaghori itself. There have been security concerns in some parts of Ghazni including districts adjoining Jaghori such as Qarabagh, Gelan and Moqur which are Pashtun majority areas, however there have been a low number of security incidents and insurgent activity within Hazara dominated Jaghori. Unlike Kabul where there were attacks against Shias in 2016 and 2017 by Islamic State (IS), there is no evidence confirming the presence of IS in Ghazni or of Shia Hazaras being targeted by Islamic State (IS) or other insurgents in Jaghori due their religion or ethnicity. I am not satisfied that there is a real chance of the applicant being harmed in Jaghori as a Shia Hazara.

26.    Considering the applicant's history and profile, including his ethnicity and religion, his former employment, and his residence in Australia, I am not satisfied there is a real chance he will be harmed in Jaghori in the reasonable foreseeable future.

27.    The applicant also fears harm as a Shia Hazara while travelling between cities and claims that Hazaras have been abducted on the routes from Kabul.

28.    As noted above, country information indicates that Hazaras were targeted in Pashtun areas on roads between Kabul and Hazarajat during 2015.There were reports in 2014 of two returnees from Australia being targeted on the roads when returning to Ghazni. However there is no recent evidence of Hazaras being targeted on these roads in 2016 or more recently due to their ethnicity or religion. Nor have there been any further reports of the targeting of returnees on the roads since 2014.

29.    Given the absence of evidence regarding the targeting of returnees since 2014 or of Shia Hazaras on the roads to Jaghori in 2016 or more recently, and the applicant's lack of profile due to his previous employment, or as a returnee I am satisfied that the applicant does not face a real chance of harm on the roads when returning to Jaghori.

30.    I also note that there is a regular flight connection between Kabul and Bamiyan. The applicant is therefore not restricted to road travel when accessing Hazarajat, and would be able to return to Jaghori from Bamiyan airport on roads through adjoining Hazarajat areas which are considered safe. Given that the applicant's return via air would be a single journey and his demonstrated ability to send money transfers to his family in Afghanistan I am satisfied that the applicant would be financially able to travel by air to Bamiyan.

31.    On the evidence, I am not satisfied that the applicant would face a real chance of harm in Jaghori or in travelling to his home area either on the road from Kabul or via Bamiyan airport and on roads through adjoining Hazarajat areas which are considered safe, as a returnee Shia Hazara, or due to any profile arising from his former employment, other associations or for any other reason. I am not satisfied there is a real chance the applicant will be harmed in Jaghori or when travelling on the roads to return to his home area.

(footnotes omitted, emphasis added)

The appellant's grounds of appeal

64    The appellant relies on the following four grounds of appeal (included without editing):

Ground 1

The judge erred by not finding that the decision of the Immigration Assessment Authority (IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017is affected by jurisdictional error because the IAA carried out the review in circumstances where the Secretary had not provided all of the material it was required to give the IAA under s 473CB of the [Migration Act].

Particulars

The IAA does not set out the material provided to it by the Secretary under s 473CB of the Migration Act in its reason for decision and it is to be inferred thereby that the Secretary did not provide all the material it was required to provide.

Ground 2

The judge erred by not finding that the decision of the Immigration Assessment Authority (IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017 is affected by jurisdictional error because contrary to s 473DB(1) of the Migration Act the IAA did not consider all of the material given to it by the Secretary under s 473CB of that Act.

Particulars

The IAA does not set out the material provided to it by the Secretary under s 473CB of the Migration Act in its reasons for decision and it is to be inferred thereby that the IAA did not consider all of that material.

Ground 3

The judge erred by not finding that the interviews dated 16 February 2013 and 27 January 2017 were defective or inadequate (such that the IAA did not have all relevant information before it).

Ground 4

The judge erred by not finding that the IAA erred in failing to consider exercising the discretion to under s 473GB(3)(b) of the Migration Act by failing to reveal to the applicant (and invite him to comment upon) the certificate.

65    I note that initially the appellant relied on grounds similar to grounds 1 and 2 before the primary judge. The hearing took place over two separate hearing days, being 26 June 2018 and 18 March 2019. During the first day, the appellant raised an issue as to the quality of the entry interview and delegate interview, and as a result the primary judge adjourned the hearing, directing that the Minister advise whether the recordings or transcripts were before the Authority and granting the parties leave to file further submissions. Following the hearing, the Minister confirmed that the Authority had been provided with the audio of both interviews (and this is consistent with the index to which I have already referred).

66    At the adjourned hearing on 18 March 2018 the Minister disclosed that the Authority had received material the subject of a s 473GB certificate, and provided a solicitor's affidavit annexing the documents. At the conclusion of the hearing, the primary judge made orders requiring the Minister to file further submissions relating to the certificate issue, and inviting the appellant to do the same. The appellant obtained legal representation for that purpose, and filed submissions. Further submissions apparently were also filed by the appellant and the Minister following the High Court's decision in BVD17.

67    The primary judge had regard to these developments in his reasons, and properly chose to treat the issue as to adequacy of the interviews that had been raised by the appellant as review ground 3, and the issue as to non-disclosure of the certificate as review ground 4 (noting that consideration of the certificate issue also included consideration of disclosure of the actual documents, and not only the certificate).

The primary judge's determination of the review grounds

68    The primary judge dismissed each of the four grounds of review.

69    As to the first ground, the primary judge considered the obligations of the Authority and found that the Authority was not obliged to specifically set out all of the evidence before it. His Honour referred to the disclosure checklist and found that it suggested the Secretary had complied with their obligations under s 473CB, noting there was no evidence to the contrary.

70    As to the second ground, the primary judge found that it followed from the dismissal of the first ground that the second ground should be dismissed: there was no evidence from which it could be inferred that there was any material that the Authority had failed to consider.

71    It is necessary to address the primary judge's reasons as to ground 3 in a little more detail.

72    As to ground 3, the primary judge relevantly noted (including in part by accepting the Minister's submissions) that:

(a)    the entry interview and delegate interview transcript were before the Federal Circuit Court, and his Honour had considered them;

(b)    those transcripts did not reveal any difficulties or inadequacies with the standard of interpretation such as could give rise to jurisdictional error;

(c)    even if the delegate's decision was affected by jurisdictional error by reason of procedural unfairness due to error of interpretation, it does not follow that the Authority's decision was made with jurisdictional error;

(d)    the jurisdictional limits to the performance of the Authority's functions, as discussed in BVD17, are ascertained from Part 7AA;

(e)    the natural justice requirements of the Authority are prescribed by s 473DA(1) of the Migration Act, which provides that Division 3 of Part 7AA and s 473GA and s 473GB are taken to be exhaustive statements of those requirements;

(f)    the appellant had the opportunity to raise matters with the Authority, as was indicated in the materials provided to him when the matter was referred to the Authority, but he did not raise anything regarding the quality of the interpreting, and so the Authority was not on notice of any alleged defects, and under no obligation to consider inviting the appellant to an interview;

(g)    the submissions provided to the Authority by the appellant's migration agent did not raise any issue as to the standard of interpretation;

(h)    in any event there was no cogent evidence that linked any error in interpreting and the review decision;

(i)    further, there was no other manner of procedural unfairness disclosed by the transcript;

(j)    a reading of the transcript of the delegate interview indicated that the appellant was told that if he had not provided some information to the Department, or if he wished to correct some information provided previously, that he could do so during the interview - the appellant was then asked if there was anything in his application that he might like to add or change, and the appellant responded 'No';

(k)    at the commencement of the interview the delegate stated as follows:

… If you do not understand the interpreter, or you think the interpreter does not understand you, please let me know immediately by raising your hand. Do you understand the interpreter?

(l)    the appellant responded 'Yes' to that question;

(m)    the delegate's questions and the appellant's answers as set out in the transcript do not indicate that the appellant was prevented by the delegate from providing any answers which he wished to give in response to the delegate's questions;

(n)    at the conclusion of the delegate's questions she advised the appellant that he would be given some time to consider what had been discussed, and that he was to take this time to make sure that everything that he wished to talk about had been covered, and also to talk to his representative - when the interview resumed the appellant provided further information to the delegate, at the conclusion of which the delegate asked whether that was all, and the appellant's representative answered 'Yes';

(o)    the submission provided by the migration agent to the Authority raised certain shortcomings as to the interview, suggesting that the speed of the interview and the speed of the provision of the delegate's reasons indicated bias on the part of the delegate, and further suggesting that it was incumbent on the delegate to consider all evidence and not be critical of the appellant based on one answer (and as to this 'one answer', apparently being a reference to the delegate's reliance on a delayed explanation that letters were on Taliban letterhead, I interpolate to say that the Authority did not rely in any manner in its reasons on such delay);

(p)    as to these matters, the migration agent did not ask for the appellant to be re-interviewed; and

(q)    further, the Authority addressed the migration agent's submissions (at para 5), stating that it was satisfied that the appellant was aware of the importance of providing all information to the delegate and was given an opportunity to do so during the interview, and noting that the appellant made an oral submission at the end of the interview and that the [migration agent] also made some further comments.

73    The primary judge concluded that no jurisdictional error arose as contended for by ground 3, stating:

[89]    Having reviewed the transcript of the interview, the Court is satisfied that there was no issue in relation to translation. The applicant's responses to the questions asked were direct. They do not indicate that the substance of what was asked and what was translated was inadequate. Further, the Court does not accept that the substance of the interview was lacking. The applicant was given the opportunity to discuss his claims.

74    As to ground 4, it is also necessary to provide some detail.

75    The primary judge addressed the issue of the non-disclosure of a notification or certificate under s 473GB(2)(a) by correctly reviewing the arguments against the backdrop of the guidance provided by the High Court in BVD17, and its determination that procedural fairness does not oblige the Authority to disclose the fact of such notification to a visa applicant in a Part 7AA review.

76    However, the primary judge relevantly noted that the Minister accepted that the Authority did have regard to the AUSTRAC documents, and so exercised its discretion under s 473GB(3)(a) to do so. So much was apparent from a limited aspect of the Authority's reasons, being its reference to the potential for the appellant to fly domestically: see para 30 of the Authority's reasons extracted at [63] above.

77    The Authority was then obliged to consider the exercise of its discretion under s 473GB(3)(b): BVD17 at [10]. It cannot be inferred from the absence in the reasons of a reference to the exercise of its discretion to disclose that it did not consider doing so: BVD17 at [40].

78    The primary judge noted that the appellant bore the onus of establishing that the Authority failed to consider the exercise of its discretion as to disclosure, and the appellant had not met that onus. The primary judge was also not satisfied that it was unreasonable in all of the circumstances not to exercise the discretion.

79    The primary judge noted that the information the subject of the certificate, that is, the transfers of funds to his family in Afghanistan, had been discussed with the appellant by the delegate (as is evidenced by the transcript of the delegate interview), and so the appellant should have known that the Authority was on notice that he had transferred payments to his family, and no issue of practical unfairness arose.

80    However, and regardless, the primary judge considered that the failure to disclose the AUSTRAC documents was not material and could not have realistically resulted in a different decision, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [49]-[50]. This was so because the Authority's comments as to the potential for the appellant to fly one way from Kabul to Bamiyan and then travel by road to Jaghori was an alternative finding, the Authority having already decided that in any event the appellant did not face a real chance of harm on the roads when returning to Jaghori (see para 30 and para 31 of the Authority's reasons extracted at [63] above).

81    Accordingly, the primary judge dismissed ground 4.

Oral submissions on the appeal

82    As noted, the appellant did not file written submissions. Neither the appellant with the help of the interpreter, nor Mr McCurry on his behalf, addressed the particular appeal grounds set out in the Notice of Appeal in their oral submissions. Rather, they raised matters relevant to the merits of the visa application or relevant to what was described as the deteriorating situation in Afghanistan in recent times and the appellant's desire to stay in Australia. It was submitted that the appellant is well known in Jaghori and easily identified; that it would be very dangerous for him to now return to any part of Afghanistan; that it is not safe to fly internally in Afghanistan; even if domestic flights were available (which was denied); that the position has always been dangerous in Afghanistan but continues to decline; that there is evidence of many Hazara being murdered in Jaghori in recent times (referring to a particular recent incident in which ten persons were allegedly murdered); and that it is not safe for the appellant to return.

83    Insofar as the submissions focussed on the purported current situation and recent events, reference to the current situation does not establish error on the part of the Authority.

84    Counsel for the Minister accepted that the position in Afghanistan has declined since the time of the Authority's decision and noted that it is open to the appellant to provide further information to the Department as to any changed circumstances since the Authority's decision that, in his view, means that he is owed protection obligations. Counsel also noted that such a course might be something that the Court might comment upon in this judgment. I therefore confirmed the basis of counsel's submission, and the Minister's solicitors indicated that if the appellant provided such information, then the Department may then carry out a protection obligation assessment. If the Department were to conclude that the appellant is now owed protection obligations, the Department could put a submission to the Minister to exercise his discretionary power under s 46A(2) and s 48B(1) of the Migration Act to lift the bar under s 46A(1) and s 48A and allow the appellant, as an unauthorised maritime arrival, to make a further protection visa application. Alternatively, the appellant could request that the Minister exercise his personal discretion under s 46A(2) and s 48B(1) of the Migration Act to allow him to make a further protection visa application because of the changed circumstances in Afghanistan since the Authority's decision.

85    I do not suggest there is any certainty as to whether or not any such approach by the appellant to the Department would lead to a further assessment of the appellant's position or any certainty as to the outcome of any such assessment. But there is practical value to the appellant in formally recording that the Minister through his counsel has indicated that there is the potential for the appellant to at least pursue such course.

86    However, that potential does not affect or resolve this appeal, with its focus on the particular decisions of the Authority and the Federal Circuit Court, and the question of whether any error is established.

Determination

Ground 1

87    By ground 1 the appellant seeks that an inference be drawn that the Secretary did not provide all the relevant material to the Authority. In order to raise an inference of a negative proposition, sufficient evidence needs to be addressed by the party carrying the onus: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]-[69]. I take into account that it may be difficult for a visa applicant in the position of the appellant to prove what was or was not provided by the Secretary to the Authority. As already observed, there is no obligation on the part of the Authority to list the material it has received from the Secretary. However, in this case, there are a number of matters that can be relied upon, as the analysis at [42]-[53] of these reasons indicates, that tell against the inference that the appellant invites the Court to draw. Those matters indicate that the Secretary complied with the obligation under s 473CB. The appellant has not pointed to any relevant material that he asserts was available to the delegate but was not made available to the Authority, or to any other evidence which would support the drawing of an inference to that effect.

88    In EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299 the Full Court considered that there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Part 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review: EVS17 at [40]-[42]. In this case, however, I am not satisfied that there was any such failure on the part of the Secretary to provide relevant material, let alone any failure that could have affected the outcome of the review.

89    It follows that I am not satisfied that the Authority was prevented from conducting its review under Part 7AA of the Migration Act and I am not satisfied that jurisdictional error is established.

90    Accordingly, I conclude that the primary judge did not err in dismissing the ground of review.

Ground 2

91    Ground 2 fails for the same reasons that apply to ground 1. It does not follow from the absence of a list of material in the Authority's reasons that it failed to consider relevant information that was provided to it. Reference is made to [44]-[53] of these reasons in particular. The appellant has not pointed to any relevant material to which the Authority failed to have regard. In any event, failure to refer to any particular material does not of itself ground an inference that there was a failure to consider it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

92    For those reasons, I am not satisfied that the primary judge erred in dismissing the second ground of review.

Ground 3

93    The appellant did not seek to make any submissions in support of ground 3, other than stating:

Maybe I was unable to explain myself in detail that how I travelled from other places within Afghanistan from one city to another city, and how I was going through different groups. So it was scary, it was difficult, but I was not mentally prepared to explain myself at that time.

94    This submission perhaps reflected disappointment in the manner in which the interview proceeded, and it can readily be accepted that the interview process is a difficult one for visa applicants, particularly those who require the assistance of an interpreter. However, the submission does not point to any apparent absence of procedural fairness before the delegate, and nor does it agitate any complaint as to the quality of the interpreting. In any event, the primary judge considered the transcript of the interview before the delegate in some detail and came to the view that it did not reveal jurisdictional error arising out of the alleged, but un-notified, complaints as to the quality of interpretation, nor for other reasons of procedural unfairness. Further, the primary judge correctly stated the principles as to the obligations of both the Secretary in providing information and the obligations of the Authority in conducting its review, and noted the opportunity that was provided to the appellant to provide information for the purpose of the review. The reasoning does not disclose error, and I would dismiss ground 3.

Ground 4

95    The appellant in his oral submissions as to ground 4 sought to deflect perceived criticism that he had transferred payments to Afghanistan, and sought to reiterate that it was neither possible nor safe to now fly from Kabul to Bamiyan (or elsewhere internally).

96    As to the first aspect, there was no criticism of the appellant by the Authority of the appellant's conduct in that regard, and no criticism of that nature formed any part of its reasons. The fact of the payments was referred to only in the context of the assumption by the Authority, which already had information about the payments via the audio of the delegate interview, that the appellant would be financially able to travel by air to Bamiyan.

97    As to the second aspect, the submission (which did not refer to particular country information) was directed at the changes in Afghanistan and the increasing dangers and current impossibility of such domestic plane travel. As already noted, those matters do not disclose any error on the part of the Authority or the primary judge, but might be raised as indicated at [84] above.

98    Returning to ground 4, it is apparent that the primary judge properly understood the manner in which s 473GB(3) operates, having regard to BVD17. His Honour correctly identified that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a): BVD17 at [2]. His Honour correctly identified the passages from BVD17 as to the exercise of discretion as to disclosure of documents or information under s 473GB(3): for example, BVD17 at [10].

99    The Minister submitted that the primary judge's reasons were correct, but added that there was some evidence that meant it was open to infer that it considered the exercise of its discretion and elected not to disclose the information as it would not have affected the outcome. In particular, the Authority would have been entitled to give weight to the fact that the AUSTRAC documents reflected information already known, discussed and undisputed before the delegate: that is, that the appellant was providing funds to support his family in Afghanistan. The Authority would also have been entitled to take into account that in light of its conclusion as to road travel, the ability to pay for a flight was not decisive of any matter, but was included only by way of an alternative finding and so was not material to the outcome.

100    I accept that these matters are consistent with the prospect that the Authority considered the exercise of its discretion to disclose, in accordance with its duty, and decided that it was not necessary to make such disclosure. I accept that those matters tell against the inferences that the appellant sought to have drawn before the primary judge. In the end, the position remains that the appellant has not met his onus of establishing that the Authority failed to consider exercising its discretion to disclose the documents or information in them, or establishing that it was unreasonable for it not to have so disclosed.

101    Finally, I also accept that further and in any event, the relevance of the AUSTRAC records is limited by the fact that the information was relied upon by the Authority only in regard to an alternative argument that was not decisive of the outcome: in my view, realistically the outcome for the appellant would have been the same regardless of whether the AUSTRAC records were disclosed to him. Those records were not relevant to the Authority's principal conclusion that it was not satisfied that the appellant would face a real chance of harm in Jaghori or in travelling to his home area including on the road from Kabul and on roads through adjoining Hazarajat areas which are considered safe. This case is an example where there was no realistic possibility of a different outcome for the appellant: SZMTA at [48]-[49]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[3].

Orders

102    It follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    8 July 2021