Federal Court of Australia

EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    EGW17 arrived in Australia in March 2013 as an “unauthorised maritime arrival”.

2    A delegate of the Minister for Home Affairs (then the responsible Minister) refused to grant EGW17 a Class XE Subclass 790 Safe Haven Enterprise visa (SHEV) on 18 November 2016. The Immigration Assessment Authority (or IAA) affirmed the delegate’s decision.

3    The Federal Circuit Court of Australia (FCCA) dismissed EGW17’s application for judicial review of the IAA’s decision. The FCCA Judge’s reasons for doing so were published as EGW17 v Minister for Immigration and Border Protection [2019] FCCA 653 (Reasons or J).

4    Now before the Court is EGW17’s appeal from the FCCA Judge’s decision. That appeal turns on whether the FCCA Judge fell into appellable error in considering whether there was jurisdictional error in the way the IAA (in a decision made on 23 August 2017) dealt with country information relating to the risk of serious harm to a person who is of Hazara ethnicity and Shia Muslim religion in Afghanistan, and more particularly, in Kabul.

5    It is now well known that by late August 2021, the Taliban had gained control of Kabul and most of Afghanistan during the final withdrawal of international armed forces from Afghanistan. However, it is not open to the Court to take that fact into account on this appeal.

Background

Delegate’s decision

6    Among other things, the delegate said the following in his assessment of the risk to EGW17 as a Shia/Hazara upon his return to Kabul as at 18 November 2016 (footnotes removed):

Regarding the security situation for Hazaras in Kabul, a 2016 DFAT report on Hazaras stated that Hazaras face a degree of societal discrimination in Afghanistan. DFAT also stated in a September 2015 report in Kabul that ethnic based violence in Kabul was rare.

In July 2016 there was an attack on a demonstration by Hazaras claimed by Islamic State that killed 80 Hazaras and injured over 200 more. The attack was targeted at Shia Hazaras and it has been reported that it was possibly aimed at inciting sectarian or racial conflict. There was a more recent attack on Shia Hazaras on the eve of religious holiday Ashura, 11 October 2016, with reports of sixteen to nineteen dead. That being said, since the fall of the Taliban in 2001 such attacks targeting Shias or Hazaras simply on the basis of race or religion have been extremely rare in Kabul. I also note that country information suggests that “instances of sectarian violence have represented more the very occasional exception than the rule.” The recent attacks were the first since the December 2011 bombings of Shia places of worship in Kabul, Kandahar and Mazar-e Sharif, which killed a number of worshipers and which were claimed by a Pakistani terrorist group.

Whilst the latest attacks, all of which have been linked to ISKP, are tragic and raise the spectre of sectarianism in the Afghan conflict, based on the current situation I am not satisfied these attacks represent a substantive change in the nature of the conflict such as to render the earlier assessments by DFAT and other commentators void. I note recent commentary by independent research organisation Afghanistan Analysts Network stated the following: ‘ISKP’s sectarianism is worrying. Yet it is unlikely that it can single-handedly drive the conflict in a sectarian direction. There are many other, reassuring factors which would hopefully prevent the war morphing into the sort of violent religious schism seen in Iraq, Syria, Yemen and Pakistan’.

I have considered a number of reports of Hazaras being kidnapped or killed in other parts of Afghanistan in recent years by the Taliban or other insurgent groups (including Islamic State). While it would appear in most of the cases that the reasons for the killings were not simply based on their Hazara ethnicity or Shia religion, I accept that the victims’ race and religion has been a contributing factor for some of these incidents. These incidents however have all occurred in rural areas with a strong, active Taliban or other insurgent group presence and none in Kabul.

I have taken into consideration the latest (April 2016) UNHCR guidelines for Afghanistan, which noted issues of discrimination and a significant increase in harassment, intimidation, kidnappings and killings of Hazaras in the country. I am not satisfied that these guidelines suggest that all Hazaras face a real chance of persecution throughout Afghanistan, particularly in Kabul.

I note that any analysis that Hazaras do not face persecution throughout Afghanistan, including in Kabul has been rejected by Professor William Maley of the Australian National University and others. Whilst I acknowledge … the differing opinions of Professor Marley [sic] and others, I give more weight to the latest UNHCR guidelines, DFAT reports, and reports on Hazaras from other countries as I find these to be sources of more authority, and these sources do not support a finding that all Hazaras face a real chance of persecution throughout Afghanistan on account of their race and/or religion including in Kabul. In Kabul, as discussed above, no single ethnic group has a majority and Hazaras are one of the dominant ethnic groups together with Tajiks and Pashtuns, and have a well-established community there.

…

While I accept that there has been a decrease in the overall security situation in Afghanistan, including in Kabul, in the last couple of years, including the tragic incident in July 2016 which killed 80 Hazara protesters in Kabul, I am nonetheless not satisfied that ordinary Shia Hazaras in Kabul face a real chance of persecution on the basis of their religion and ethnicity alone. Considering all of the above, I find that [EGW17] would not face any real chance of serious harm if he returned to Kabul on account of his Shia religion or his Hazara race.

Country information cited by the delegate includes:

    A report of the Department of Foreign Affairs and Trade (DFAT), “DFAT Thematic Report Hazaras in Afghanistan 2015-16 update”, 8 February 2016 (DFAT’s February report);

    A report by the Afghan Analysts Network, “With an Active Cell in Kabul, ISKP Tries to Bring Sectarianism to the Afghan war”, 19 October 2016 (AAN October report); and

    “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016 (UNHCR April guidelines).

DFAT’s September report

7    In submissions filed after the hearing of the appeal, the Minister accepted that a report by DFAT entitled “DFAT Thematic Report on Security Conditions in Afghanistan 1 January-31 August 2016” dated 5 September 2016 (DFAT’s September report) prepared specifically for protection status determination purposes was not before the delegate. The Minister also accepted that it was not part of the “referred material” which the Secretary of the Department of Immigration and Border Protection gave to the Authority under s 473CB of the Migration Act 1958 (Cth) and it was not before the Authority.

8    DFAT’s September report contained the following information (footnotes removed):

    The gravamen of the report is set out in its summary assessment as follows:

ASSESSMENT: DFAT assesses that security conditions in Afghanistan continued to decline nationwide in the first eight months of 2016. Civilian casualties as a result of ground engagements between pro-government forces and anti-government elements increased, with fighting occurring in and around several major provincial population centres. High-profile suicide and complex attacks continued, particularly in Kabul, with most attacks carried out by the Taliban against targets linked to the Afghanistan government or international security forces. A major attack on 23 July against a peaceful demonstration of Hazara Shia by a local insurgent group which has pledged allegiance to Islamic State in Iraq and the Levant (ISIL) may represent a worrying introduction of a sectarian dimension to the ongoing conflict in Afghanistan. However, it is too early to say whether this attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks.

Conflict-related abductions of civilians continued to occur. Most kidnappings targeted those believed to have connections to the government or security forces, or were carried out for financial gain. Groups of particular concern to-date in 2016 included health care personnel, judicial authorities, representatives of humanitarian de-mining organisations, journalists, and women and girls.

    Section 2.6 referred to major security incidents in Kabul in the period January-August 2016. Of the 11 incidents of suicide or complex attacks described, one related to an attack on Hazaras specifically. It was as follows:

On 23 July, two explosions occurred in Kabul targeting a peaceful demonstration of Hazaras, killing up to 80 people and wounding at least 230 others. The attack was the single most deadly incident in Kabul since the fall of the Taliban in 2001, and the largest single attack on Hazaras since an attack on an Ashura Day procession in Kabul in 2011. The Taliban was quick to deny any involvement and to condemn the attack.

    Sections 2.7-2.9 then contained the following analysis:

2.7    Unlike most previous major attacks in Kabul, the 23 July attack was clearly targeted at civilian Afghans. ISKP claimed responsibility, identifying the intended targets as ‘Shia’ (of which most Hazara are adherents). The attack was by far the largest attack carried out in Afghanistan by a group linked to ISIL, and the first attack in Kabul (excluding the 20 June attack, which was also claimed by the Taliban).

2.8    DFAT and other commentators have previously assessed that:

•    no particular group was systematically targeted in Afghanistan solely on the basis of ethnicity or religion, including Hazaras/Shias;

•    insurgent attacks were possible, including in Kabul;

•    there were credible reports of the presence of ISIL in Afghanistan, but its capacity to carry out attacks was limited compared to other insurgent groups.

2.9    It is too early to say if the 23 July attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks; or if it heralds the beginning of a targeted and sustained campaign in Afghanistan by groups pledging allegiance to ISIL.

23 December 2016 documents

Covering email

9    On 23 December 2016, EGW17’s representative sent an email (covering email) to the IAA to which were attached:

    Five pages of submissions to the IAA dated 23 December 2016 (IAA Submissions); and

    Two reports by Professor William Maley. The first was “On the Return of Hazaras to Afghanistan”, 22 November 2016 (the November Opinion). The second was “On the Return of Hazaras to Afghanistan, with special reference to Mazar-e Sharif”, 22 December 2016 (the December Opinion) (together, the Opinions). The December Opinion appears to be an update of the November Opinion by including references to events in Mazar-e Sharif.

10    In the covering email, EGW17’s representative said:

We include two expert report dated 22 November 2016 and 22 December 2016 by Professor William Maley regarding Hazaras in Afghanistan (Expert Reports). The Expert Reports specifically addresses the issue of relocation to Kabul and Mazar, both in terms of the risk of harm in Kabul, and the reasonableness of relocation for a person like the applicant. The reports presents new information that reports on security developments in Afghanistan and is relevant to the applicant’s protection claims. As this information postdates the delegate’s decision, we submit that these new information was not and could not have been provided to the Minister before the primary decision was made.

IAA Submissions

11    In the IAA Submissions, EGW17’s representative said the following (numbers in parentheses indicate footnotes, emphasis added). I will refer to the submissions to which emphasis is added as highlighted IAA Submissions.

We submit that the weight of available country information such as media reports, expert opinion papers, and causality [scil casualty] lists support [EGW17’s] claim that he faces a real chance of persecution if he is returned to Kabul, in the reasonably foreseeable future. As provided by Professor William Maley’s 22nd November 2016 report on the security situation pertaining to Hazara returnees to Afghanistan “It is essential to appreciate that the situation is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the second half of 2016”. The fluidity noted by the Professor Maley’s advice is evidenced by the DFAT report released on the 22nd of November 2016 which warns of “the extremely dangerous security situation, and the very high threat of terrorist attack.” The US Department of State has also recently warned that “travel to all areas of Afghanistan remains unsafe”, that “extremists associated with various Taliban networks, Islamic State of Iraq and the Levant – Khorasan Province, and members of other armed opposition groups are active throughout the country.” As stated by Professor Maley “given the fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras”. (4) The increased risk posed by the fluidity in the security environment in Afghanistan to Hazara/Shias have also been noted by DFAT which the delegate has given considerable weight to. DFAT in its assessment of the security situation in Afghanistan has continually assessed that “no particular group was systematically targeted in Afghanistan solely on the basis of ethnicity or religion, including Hazaras/Shias”. However, in its August 2016 [scil September] report, even DFAT could not maintain its previous conclusions, and assessed that it is too early to say if the recent attacks were isolated or if they represent a change in modus operandi of insurgents by introducing a sectarian dimension to attack. Despite stating that it is too early to conclude whether the recent attacks represent a change of modus operandi, DFAT reports that ISKP has claimed responsibility for the July 23 attack, and identified the intended targets as Shia.

We submit that [EGW17] does not have the benefit of time to wait until DFAT reports reflect the reality of the persecutory harm faced by Hazara Shias in Afghanistan. The trend in DFAT’s reports absolutely confirm the fluidity of the security situation in Afghanistan, and it’s move away from maintaining that Hazara Shias are not specifically targeted in Afghanistan, and its acknowledgment of the presence of ISIS in Afghanistan substantiates [EGW17’s] claim that there is a real chance that he will be persecuted in Kabul in the reasonably foreseeable future if returned.

Other objective and more up to date country information have already concluded that Hazara Shia Muslims face a much higher risk in Afghanistan as the trend in insecurity continue. In responding to the delegate’s and DFAT’s shared attitude which asserts there is insufficient evidence which supports that everyday Hazaras are being currently systematically targeted on the basis of the Shia religion, Professor William Maley writes: ‘In light the subsequent carnage in Kabul, and ISIS’s explicit claims of responsibility for it, such conclusions are now completely untenable.’ (5) Recently, on the 23rd of November 2016, a suicide bomber carried out a bombing at an Afghanistan Kabul mosque where an annual Shia ceremony was being held. IS claimed the attack that killed at least 32 people and left more than 50 injured. (6) This attack came shortly after the Afghan Analyst Network published a report titled “With an Active Cell in Kabul, ISKP Tries to Bring Sectarianism to the Afghan War” in which Borhan Osman document the ISKP cells in Kabul, and detail the operational capacity of ISKP in Afghanistan. Human Rights Watch reported that, the security environment is worsening for all Afghans in the face of an intensifying insurgency, as fighting increasingly happens in densely populated areas….however, the wave of targeted attacks on Shia Hazaras is largely attributed to the emergence of insurgent groups affiliated with ISIS, underscoring the increasing vulnerability of the Shia community beyond active battlefields and in urban areas under government control. (7) Despite the delegate’s view that the reach of IS remains limited, “they demonstrate a capacity…to strike targets in the heart of the Afghan capital, where the presence of Afghan security forces is relatively strong”. (8) The deteriorating security situation across Afghanistan emboldens insurgent groups to operate with impunity against Hazara Shias.

In light of the continuing deterioration in security for Hazara Shia’s in Afghanistan, and increased and intensified attacks in Kabul against Shia Hazras the conclusion that [EGW7] will not be persecuted if returned to Kabul in the reasonably foreseeable future is unreasonable and untenable.

We submit the delegate’s reasoning for the delegate’s dismissal of certain country information as described on page 8 paragraph 2 of the delegate’s decision is unreasonable. Furthermore, the delegate’s assertion, in the same paragraph, that certain reports that the delegate has relied upon are sources of more authority, as they do not support a finding that all Hazaras face persecution in Afghanistan, and therefore supports the delegates conclusion, suggests that the delegate had concluded and potentially demonstrates apprehended bias by the delegate. We submit that when assessing the objective element of well-founded fear of persecution, in the context of the fluidity of the security environment in Afghanistan dismissal of up to date country information is unreasonable. Additionally, we contend the delegate’s assertion that the reports that the delegate has relied upon are more authoritative than sources such as Professor William Maley. Professor Maley’s authority on Afghanistan is well established in academia, and Professor Maley’s latest advice on Afghanistan should be considered more authoritative as it provides a more up to date analysis of security situation pertaining to Hazaras in Afghanistan than the reports relied upon by the delegate.

[EGW17] and his family has been a victim of the Taliban, and therefore known to the Taliban. We submit that, upon return to Kabul, the Taliban will be informed of his return or will become aware of [EGW17’s] return. This is supported by the UK Home Office’s December 2016 report, in which it summarized that when an individual wanted by the Taliban relocated or returns to their province of origin and if their background is revealed, depending on the individual’s profile, as well as the political climate of the day, that person could be killed, which has occurred.

12    Country information cited in the IAA Submissions included:

    At footnotes (4), (5) and (8), Professor Maley’s Opinions;

    At footnote (6), a BBC News report, “Afghanistan Kabul mosque suicide attack kills dozens”, 21 November 2016;

    At footnote (7), a Human Rights Watch report, “Afghanistan: Shia Bombing Spotlights Need to Protect”, 21 November 2016;

    The AAN October report referred to by the delegate;

    A UK Home Office report, “Country Policy and Information Note – Afghanistan – Fear of anti-government elements”, 1 December 2016; and

    DFAT’s February report and DFAT’s September report (together DFAT’s 2016 reports).

Professor Maley’s Opinions

13    The basis of Professor Maley’s claimed expertise to give his Opinions was set out in each of them. In his December Opinion he said:

I have been asked to provide an expert opinion on the safety of return to Afghanistan, and specifically to Mazar-e Sharif, for members of the Hazara minority. I am Professor of Diplomacy at the Asia-Pacific College of Diplomacy at The Australian National University. I have published extensively on Afghan politics for over three decades, and am author of Rescuing Afghanistan (London: Hurst & Co., 2006); The Afghanistan Wars (London and New York: Palgrave Macmillan, 2002, 2009); and What is a Refugee? (New York: Oxford University Press, 2016). I have also written a study of The Foreign Policy of the Taliban (New York: Council on Foreign Relations, 2000); co-authored Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy (Boulder: Westview Press, 1991) and Political Order in Post-Communist Afghanistan (Boulder: Lynne Rienner, 1992); edited Fundamentalism Reborn? Afghanistan and the Taliban (New York: New York University Press, 1998, 2001); and co-edited The Soviet Withdrawal from Afghanistan (Cambridge: Cambridge University Press, 1989) and Reconstructing Afghanistan: Civil-military experiences in comparative perspective (New York: Routledge, 2015). I authored the entry on Hazaras in John L. Esposito (ed.), The Oxford Encyclopedia of the Islamic World (New York: Oxford University Press, 2009) Vol.II, pp.385-386. I visited Afghanistan most recently in August-September 2016, and interviewed survivors of several recent terrorist attacks.

14    In his written and oral submissions on the appeal, EGW17 relied on the material set out in the December Opinion as follows, which I refer to as the highlighted Maley Submissions:

2.    Western governments continue to paint a very grim picture of the dangers affecting those in Afghanistan. The Australian Department of Foreign Affairs warns as of 22 December 2016 of ‘the extremely dangerous security situation and the very high threat of terrorist attack’. It goes on that ‘Terrorist attacks can occur anywhere, anytime’. The US Department of State warns as of December 22, 2016 that ‘Travel to all areas of Afghanistan remains unsafe’, that ‘Extremists associated with various Taliban networks, Islamic State of Iraq and the Levant – Khorasan Province (ISILKP), and members of other armed opposition groups are active throughout the country’.

3.    It is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the going into 2017 and beyond. Roads that may have been safe to traverse in 2012, 2013, 2014 2015 or 2016 may be unusable in 2017, and towns and cities that appear ‘safe’ in 2016 may be extremely unsafe in 2017. The information offered by the Immigration Assessment Authority for comment in its letter of 2 December 2016 (Ref: IAA16/00650) does not even begin to come to terms with this feature of the current situation in Afghanistan. …

…

6.    When security in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In February 2016, the United Nations Assistance Mission in Afghanistan reported that ‘In 2015, UNAMA observed a sharp increase in the abduction and killing of civilians of Hazara ethnicity by Anti-Government Elements. Between 1 January and 31 December, 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 Ghazni, Balkh, Sari Pul, Faryab, Uruzgan, Baghlan, Wardak, Jawzjan, and Ghor provinces’ (Afghanistan: Annual Report 2015 – Protection of Civilians in Armed Conflict (Kabul: UNAMA, 2016) p.49). With the withdrawal of foreign forces, there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a ‘cascade’, where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This is a well-recognised phenomenon (see Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005) pp.94-98) and it would likely create especially grave risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban and their associates in groups such as the Haqqani network.

7.    Given this fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared. This was tragically demonstrated on 6 December 2011, when a suicide bomber attacked Shiite Afghans, most of them Hazaras, at a place of commemoration in downtown Kabul during the Ashura festival that marks the anniversary of the Battle of Karbala in 680 AD. Almost simultaneously, a bomb in Mazar-e Sharif also killed Afghan Shia. The Kabul bomb killed at least 55 people, and the Mazar bomb four more … The key point to note is that no one with any knowledge of Afghanistan could seriously doubt that Hazara Shia were specifically targeted on this occasion. To depict this attack as an isolated incident misses the underlying history of antagonism towards Hazaras that is pertinent to assessing what the future holds. It is the kind of reasoning that would have defined the 1938 Kristallnacht experience in Germany as an isolated incident. The same conclusion flows with respect to the attacks (discussed below) on peaceful Hazara demonstrators in Kabul on 23 July 2016, and on Shiite mosques in Kabul on 11 October 2016 and 21 November 2016, and near Mazar-e Sharif on 12 October 2016. (The IAA letter mistakenly states that this attack occurred on 12 October 2012.)

…

9.    These cases speak much more powerfully to the real dangers in Afghanistan than can country information based on diplomatic reporting by officials who, for security reasons, are severely constrained in their ability to move around the country. This is a perfectly legitimate position for an Embassy to take, but it gives rise to the risk that what appears in diplomatic cables may be more a distillation of received ‘wisdom’ in certain circles in Kabul than a full reflection of dangers existing in other parts of the country. In the light of the experiences of [a Hazara man returned to Afghanistan said to have been tortured by the Taliban and an Australian citizen of Hazara origin said to have been murdered by the Taliban] as well as the December 2011 and July 2016 bombings, the October 2016 and November 2016 mosque attacks, and the reported 2015 upsurge of attacks on Hazaras, any ‘country information’ suggesting that Hazara Shia are not at risk of persecution for reasons recognised by the 1951 Convention, or at real risk of harm if they seek to travel to places outside Kabul where their families may be located, is outdated and irrelevant.

…

12.    This was brutally demonstrated on 23 July 2016, when a peaceful demonstration by Hazaras associated with the so-called ‘Enlightening Movement’ (Jumbesh-e Roshnayi) over the routing of a proposed electricity system was struck by a suicide bombing. Some 85 people were left dead, and 413 injured (‘UN Chief in Afghanistan renews Call for Parties to Protect Civilians — UNAMA Releases Civilian Casualty Data for Third Quarter of 2016’ (Kabul: UNAMA, 19 October 2016) p.2), ISIS claimed responsibility for what it called ‘a “martyrdom attack” on Shiites’ (Mujib Mashal and Zahra Nader, ‘ISIS Claims Suicide Bombing of Protest in Kabul, Killing at Least 80’, The New York Times, 24 July 2016, p.A6). A number of further major attacks have since taken place directed against Hazara Shia. On 11 October 2016, gunmen opened fire at the Kart-e Sakhi shrine in Kabul and threw grenades into the crowd, killing at least 14 over a three-hour period (Zahra Nader and Mujib Mashal, ‘Gunmen Hit Kabul Shrine on the Eve of a Holy Day’, The New York Times, 12 October 2016). The following day, a bombing killed fourteen Shia at a mosque near Mazar-e Sharif (see ‘Shia Muslims killed in mosque bombing in northern Afghanistan’, The Guardian, 13 October 2016). On 21 November 2016, a bomber struck at the Baqir-al-Ulum mosque in western Kabul, killing 30 worshippers and wounding at least 40 more (Mujib Mashal and Fahim Abed, ‘ISIS Again Strikes at Afghan Shiites’, The New York Times, 22 November 2016). The implications of these attacks are profound. They demonstrate a capacity on ISIS’s part to strike targets close to power centres where the presence of Afghan security forces is relatively strong; in the light of ISIS’s claims of responsibility, they put on display a commitment to attack on the basis of religious identity, plainly engaging one of the bases of refugee status under Article 1.A(2) of the 1951 Convention Relating to the Status of Refugees; and they highlight particular dangers for Hazaras, who are overwhelmingly Shiite, are physically distinctive because of their East Asian phenotypes, and make up the vast bulk of the Shiite component of the Afghan population.

13.    In February 2016, the Department of Foreign Affairs claimed in a Thematic Report specifically prepared for protection status determination purposes that ‘The threat of conflict-related violence faced by Hazaras is similar to that faced by members of other ethnic groups’ and that ‘DFAT is not aware of any credible evidence that everyday Hazaras are currently being systematically targeted on the basis of the Shia religion [sic]’ (DFAT Thematic Report: Hazaras in Afghanistan, 8 February 2016, paras.2.13, 3.7). In the light of the subsequent carnage in Kabul, and ISIS’s explicit claims of responsibility for it, such conclusions are now completely untenable. In September 2016, the Department of Foreign Affairs claimed, in a further Thematic Report specifically prepared for protection status determination purposes, that in respect of the 23 July attack, ‘it is too early to say whether this attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks’. Given the subsequent mass-casualty attacks of 11 October 2016, 12 October 2016 and 21 November 2016, it is equally untenable to depict the 23 July attack as an ‘isolated incident’. As Patricia Gossman, Senior Afghanistan Researcher at Human Rights Watch has put it, ‘ISIS has stepped up its horrific and unlawful attacks on Shia public gatherings, making no place safe’ (‘Afghanistan: Shia Bombing Spotlights Need to Protect’ (Kabul: Human Rights Watch, 21 November 2016)).

IAA decision record (or DR)

15    The FCCA Judge usefully summarised the IAA’s findings concerning EGW17’s protection claims at J[10]-[16] as follows:

10.    The IAA accepted that [EGW17’s] eldest brother was killed in around 1998 by the Taliban for reasons related to his ethnicity. However, [EGW17] had not claimed a fear of future harm in Afghanistan directly in connection with the death of his eldest brother. The IAA was not satisfied that [EGW17] faced a real chance of serious harm on that basis, upon his return to Afghanistan, now or in the foreseeable future.

11.    The IAA accepted that [it was plausible that EGW17’s] uncle was killed by the Taliban in 2009 in the circumstances claimed [being, that the Taliban shared sensitive information with his uncle, a Hazara, and that he was ultimately killed by his father-in-law following five years of marriage to his daughter because he refused to join the Taliban]. It did not accept that [EGW17’s] nephew, elder brother, and his father were targeted by the Taliban following the death of his uncle.

12.    The IAA found many discrepancies in the evidence which led it to conclude that [EGW17] was not recounting a genuinely lived experience. It had regard to the reasons put forward by [EGW17] as to why there may be inconsistencies in his evidence but it was not persuaded that those reasons adequately accounted for the discrepancies. It did not accept that his family were targeted by the Taliban, or any other person or group. It accepted that [EGW17’s] brother went missing in 2011, but it was not satisfied that he was targeted by the Taliban due to his familial relationship to his uncle. It did not accept that [EGW17’s] father was a person of adverse interest to the Taliban prior to, or following, his death in 2012 and it rejected [EGW17’s] claim that he was threatened by a Pashto speaking man in 2012.

13.    The IAA was not satisfied that there was a real chance [EGW17] would suffer serious harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of him being a Shia Hazara, now or in the foreseeable future.

14.    The IAA also was not satisfied on the evidence that returnees like [EGW17] are targeted in Kabul by insurgents or that he would be targeted on return to Kabul as a Shia Hazara, due to an imputed association to the Afghan government or similar organisation, or as a returnee asylum seeker.

15.    It was not satisfied there were any barriers that would deny [EGW17’s] capacity to earn a livelihood in Kabul, that he would experience significant economic hardship, or denied access to basic services (including mental health services) that would threaten his capacity to subsist, now or in the foreseeable future.

16.    Considering [EGW17’s] claims individually and cumulatively, the IAA concluded that he did not have a well-founded fear of persecution within the meaning of s.5J of the Act and that he faced a real risk of suffering significant harm in returning to, and residing in Kabul.

16    The Authority discussed country information cited in the IAA Submissions at DR[7]-[8].

17    At DR[7] the IAA said:

There are several sources of country information (1) cited in the IAA submission that post-date the delegate’s decision and on that basis could not have been made available to the Minister. The situation in Afghanistan has evolved over recent times, and the information addresses the broader security situation and how it may impact on the real chance or risk of harm to the applicant in Afghanistan in the reasonably foreseeable future. I am satisfied that there are exceptional circumstances for considering this information. In terms of country information cited that pre-dates the delegate’s decision, and was not before the delegate, I am not satisfied that this information was not, and could not have been, provided to the Minister before the delegate made their decision. I am also not satisfied that as general country information, it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. Neither am I satisfied that there are exceptional circumstances to warrant its consideration.

The “country information” which the IAA referred to in footnote (1) was the BBC News report, the Human Rights Watch report and the UK Home Office report. I note that all of these reports were cited in the IAA Submissions and are dated either 21 November or 1 December 2016.

18    The Authority said the following about the Opinions at DR[8]:

The two opinion pieces by Professor Will Maley post-date the delegate’s decision and on that basis could not have been made available to the Minister. The applicant’s representative contends that this new information discusses the risk of harm in Kabul, reports on security developments in Afghanistan, and is relevant to the applicant’s protection claims. I am satisfied there are exceptional circumstances to justify consideration of this information.

This reflects the characterisation of the relevance of Professor Maley’s Opinions made in EGW17’s covering email (see [10] above). Professor Maley’s Opinions are not expressly referred to again in the IAA’s decision record.

19    At DR[33]-[35], the IAA addressed EGW17’s claim to fear serious harm in Afghanistan on the basis that he is Hazara and Shia (numbers in parentheses indicate footnotes):

33.    In his SHEV statement, the applicant stated that he feared he will be killed because he is Hazara. In the IAA submission, the applicant’s representative states that there is a continuing deterioration in security for Shia Hazaras in Afghanistan and that attacks in Kabul against Shia Hazaras have increased and intensified. Country information indicates that the Afghan government retains effective control of the [EGW17’s] home city of Kabul (9) and the Afghan security forces are generally capable and effective at protecting the major population centres. (10) While insurgents do conduct high-profile attacks in Kabul, (11) DFAT assess that ethnic based violence in Kabul is rare, and that the primary targets for such attacks include government institutions, political figures, the Afghan security forces, other security services, and international organisations, (12) rather than targeting specific ethnic groups such as Hazaras. (13)

34.    While there have been no recent reports of the Taliban carrying out mass casualty attacks against the Hazara and/or Shia population in Kabul, there have been attacks by other groups in recent years in that city. In December 2011, Pakistani militant group Lashkar-e-Jhangvi claimed responsibility for a targeted attack against Afghan Shias commemorating Ashura at Kabul’s Abu Fazl Mosque that killed more than 80 people. (14) In February 2014, there was an attack on an Ismaili (Shia) cultural centre which killed one security guard. In October 2015, one person was killed in a bomb attack on a Shia prayer hall and the Islamic State in the Khorasan Province (ISKP) claimed responsibility. (15) On 23 July 2016, explosions targeting a demonstration of Hazaras, killed up to 80 people. The Taliban denied involvement and condemned the attack. The ISKP claimed responsibility and indicated that it would continue to target Shia groups. (16) On 11 October 2016 on the eve of Ashura, a gunman killed some 16 Shia Muslims at the Kabul’s Kart-e Sakhi Shia shrine. (17) On 21 November 2016 a bomb attack on a Shia mosque killed around 30 worshippers. Islamic State claimed responsibility while the Taliban condemned the attack. (18) Country information indicates [that] attacks carried out by the Taliban in Kabul in recent years have been against government and security personnel, and the international community. (19)

35.    I accept that Islamic State has a presence in Kabul and while it has gained a capability of carrying out occasional fatal attacks in the city, this has not been at a sophisticated level. (20) I also accept that further attacks are possible. However, I am not satisfied that the level of risk is such that it will mean that [EGW17] will face a real chance of harm within the foreseeable future for reason of his being a Shia Hazara. [EGW17] does not claim to have ever been politically active and there is no evidence before me to indicate that upon return to Afghanistan he would, in the future, have any interest in attending a public demonstration like that which was attacked in Kabul on 23 July 2016. I accept that [EGW17] is a Shia Muslim and that upon return to Kabul he may, like most Afghan Shia Muslims, attend communal worship and religious festivals. Nevertheless, given the nature and extent of the attacks perpetrated against Shia Muslims and Shia Hazaras in Kabul, and the size of Kabul’s Shia Hazara population (estimates vary between around 1.6 million to two million, or 40-50 per cent of Kabul’s population) (21) and government measures in place, I am not satisfied that there is a real chance he will suffer serious harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of him being a Shia Hazara, now or in the foreseeable future.

Footnotes are as follows:

    DFAT’s February report: footnotes (9)-(14) and (21);

    The UNHCR April guidelines: footnote (11);

    The AAN October report: footnotes (15)-(17) and (20);

    The BBC News report: footnote (18); and

    The UK Home Office report: footnote (19).

FCCA proceedings

Grounds of judicial review

20    At J[2] the FCCA Judge noted the judicial review application was amended and EGW17 relied on the following grounds (as written):

The [IAA] has made a number of jurisdictional errors in a specific area or the decision. These are:

(i)    The [IAA] has ignored relevant material;

(ii)    The [IAA] has made a decision that is illogical and irrational;

(iii)    The [IAA] has made a decision that is so unreasonable that no reasonable decision maker would have made such a decision.

PARTICULAR Ground 1(i)

The [IAA] has not considered the material from Professor William Maley. This material asserts that the conclusions made by the DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016 are that ‘DFAT is not aware of any credible evidence that everyday Hazaras are being systematically targeted’ ... such conclusions are now completely untenable. This is in relation to the information at [34] and [35] of the Decision.

The Applicant faces a ‘real risk’ of serious harm should he return to Afghanistan.

PARTICULAR Ground 1(ii)

The [IAA] states that ‘... it is not satisfied that there is a real chance that the Applicant will suffer serious harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of him being a Shia Hazara, now or in the foreseeable future.’ The [IAA] sets out the dates that atrocities were carried out against Shias/Hazaras, namely in December 2011, February 2014; October 2015; 23 July 2016; 11 October 2016 and 21 November 2016.

The Second Respondent has made a decision that no logical or rational decision maker could arrive on the same evidence.

The Applicant again faces a ‘real risk’ of serious harm should he return to Afghanistan.

PARTICULAR Ground 1(iii)

In relation to Ground 1(iii) the Applicant relies upon the information in the Particulars for Grounds 1(i) and 1(ii) as set out above.

…

(footnotes removed)

EGW17’s submissions

21    The FCCA Judge set out EGW17’s submissions as follows at J[17]-[19]:

Applicant’s submissions

17.    With respect to ground one, counsel for the applicant was at pains to stress that Professor Maley was a highly qualified academic. Further, he submitted that in relying on the DFAT Thematic Report relating to Hazaras in Afghanistan, as well as a report from the UK Home Office, the IAA relied on information that was not as up to date as that contained in the reports of Professor Maley. Professor Maley’s reports specifically commented on the DFAT Thematic Report as follows:

“In February 2016, the Department of Foreign Affairs claimed in a Thematic Report specifically prepared for protection status determination purposes that ‘the threat of conflict related violence faced by Hazaras is similar to that faced by members of other ethnic groups’ and that ‘DFAT is not aware of any credible evidence that every day Hazaras are currently being systematically targeted on the basis of the Shia religion [sic]’ (DFAT Thematic Report: Hazaras in Afghanistan, 8 February 2016, paras 2.13, 3.7). In the light of the subsequent carnage in Kabul, and ISIS’s explicit claims of responsibility for it, such conclusions are now completely untenable.

…

Given the subsequent mass-casualty attacks of 11 October 2016 and 21 November 2016, it is equally untenable to depict the 23 July attack as an ‘isolated incident’”

18.    It would be unwise, it was submitted, for the IAA to give more weight to the generalised DFAT report than to the more specific report from a renowned expert such as Professor Maley. Further, there was no indication in the reasons of the IAA that it had actually considered Professor Maley’s reports. This is notwithstanding that the IAA found that there were exceptional circumstances to justify considering it. The failure of the IAA to discuss or even refer to the reports of Professor Maley in the body of its reasons could not be explained away by concluding that the IAA simply did not regard it as being material. A jurisdictional error is demonstrated on the basis that the IAA did not take into account relevant considerations, namely the information and opinion contained in the reports.

19.    Counsel for the applicant submitted that the reports were contrary to the DFAT information and in fact objectively had more weight as they were compiled by a person who is an expert in the field, whilst the DFAT information was presumably compiled by a person who was simply employed by the Australian Embassy, or similar. In that regard, counsel emphasised the following observation made by Professor Maley who was commenting on examples provided in one of his reports:

“These cases speak much more powerfully to the real dangers in Afghanistan than can diplomatic reporting by officials pronouncing on the safety of roads which, for security reasons, they are not themselves allowed to use. ... it would be useful to know how much of the Australian Embassy reporting from Kabul is based on field research carried out by Embassy staff. As a regular visitor to the Embassy, my impression is that its impressively ­ dedicated and hard-working staff are very severely limited in their movements by security concerns”

FCCA Judge’s consideration

22    The FCCA Judge dismissed ground (i) at J[22] as follows (footnotes inserted into text):

22.    I dismiss ground one. Firstly, it seems clear that whilst the IAA did not footnote Professor Maley’s reports, or refer to him by name after its finding that there were exceptional circumstances justifying consideration of his reports, it clearly had regard to the contents of them. A fair reading of its reasons supports that view. It is well established that the weight to be accorded to country information is a matter for the IAA. [NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]] Further, it is not an error of law or a jurisdictional error to rely on country information that is untrue. The accuracy of country information is a matter for the IAA and if a Court enters the arena in an attempt to assess the accuracy and therefore the respective weight to be given to competing sources of country information, it is sliding into an impermissible merits review. [NAHI at [11]] It would not be correct to state that the assessment of weight to be accorded to country information could not in any circumstances amount to a jurisdictional error. It is established that failure to give adequate weight to a matter of great importance might justify the setting aside of an administrative decision on the grounds that it was manifestly unreasonable. [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41]] However, I am not satisfied that in this case, the exercise of the discretion by the IAA, in relying on the country information it chose to rely on, represents such a departure from the realm of decisional freedom vested in it that the decision was unlawful by virtue of being unreasonable. I am not satisfied that it could be said that the decision was such that no reasonable person could have made it. [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] and [105]]

23    The FCCA Judge commented (at J[23]) that his observations at J[22] “in effect dispose” of ground (iii), but nonetheless proceeded to consider grounds (ii) and (iii) together and went on to say the following at J[24]-[26] (some footnotes inserted):

24.    As to ground [(ii)], which alleges illogicality and/or irrationality, whilst expressed in those terms, the submissions of [EGW17] framed his argument to include a complaint that the IAA had misapplied the real chance test as enunciated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [(1989) 169 CLR 379]. Counsel reminded the Court that a real chance was one which was not remote and that the question was not simply whether it was more or less than a 50% chance of significant harm on return to the country of origin. If there is a real chance, then the fear will be well-founded.

25.    I am not satisfied that the applicant has demonstrated either that the IAA misconstrued the test for a well-founded fear of persecution, or the real chance test as provided for in s.5J of the Act, or that the decision was irrational or illogical. The IAA clearly set out its reasoning process in paragraphs 34 and 35 of its reasons. In doing so, it based its reasoning on a range of country information including that provided in the reports of Professor Maley. In so far as illogicality is concerned, it has been observed that assertions of illogicality and irrationality can “all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s finding and decision.” [Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56]] In order to keep the proper focus of judicial review on whether jurisdictional error has been demonstrated, it is necessary for an applicant to demonstrate extreme illogicality. As the Court observed in CQG15 v Minister for Immigration and Border Protection [(2016) 253 FCR 496 at [61]]:

“For present purposes, there is a difficulty for the appellant in demonstrating ‘extreme’ illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality …”

26.    Those remarks are apposite to this case. I am satisfied that the finding of the IAA is within the scope of decisional freedom under the Act. I dismiss grounds two and three.

The appeal

24    EGW17 was represented by counsel on the appeal as was the Minister. Both parties filed written submissions before the hearing and post-hearing submissions.

Grounds of appeal

25    The notice of appeal contained eight grounds but EGW17 did not press the eighth ground. Accordingly, the seven grounds on which EGW17 relied are as follows (as written):

Grounds of appeal

1.     The learned trial judge misinterpreted and misapplied the definition and/or test for unreasonableness

2.     The learned trial judge erred when he stated in his reasons: “it is not an error of law or a jurisdictional error to rely on country information that is untrue.”

3.     The learned trial judge erred by failing to properly apply and/or interpret the statutory definition of refugee found in s5H and 5J of the Migration Act 1958 and the associated provisions

4.     The learned trial judge erred by misunderstanding the function of the IAA in that once it admits country information, it no longer has a function based on discretion, the IAA being a review body is charged with making a proper decision based on findings of fact and the application of the law.

5.     The learned trial judge erred by failing to appreciate that in its fact finding functions the IAA made a jurisdictional error in that the IAA’s findings of facts were unsupported by probative material and that its inferences of fact upon which its decision was based could not reasonably be drawn from its findings of facts.

6.    The learned trial erred by not finding that the lack of analysis of the Professor Maley material by the IAA meant that it had not conducted a proper review.

7.    The learned trial judge erred by failing to find that IAA’s failure to properly consider the Professor Maley material was a failure to take account of a substantial and clearly articulated argument advanced by the applicant in support of his case and/or failed to have an active intellectual engagement with the case put by the applicant.

26    As acknowledged by counsel for EGW17, the nub of these grounds is claimed appellable error in the FCCA Judge failing to find jurisdictional error arising from the IAA’s claimed failure to “grapple” with Professor Maley’s Opinions.

27    As emerged at the hearing of the appeal, EGW17 also sought to rely on the fact that DFAT’s September report was not before either the delegate or the Authority in circumstances where that report predated both decisions.

First ground

28    This ground relies on the fact that at J[22] (see [22] above), the FCCA Judge said the following in the final sentence:

I am not satisfied that it could be said that the decision was such that no reasonable person could have made it.

29    Counsel for EGW17 submitted that the FCCA Judge erred because this sentence reflects an application of the so-called Wednesbury test (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) and that is not the test for assessing whether an administrative decision is legally unreasonable. Counsel submitted that the final sentence of J[22] coloured the FCCA Judge’s reasoning. He relied on the reasons of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [68], [72] and [76].

30    I do not accept that submission. As submitted by the Minister, the final sentence of J[22] simply reflects the language employed in ground (iii) of the grounds of review which the FCCA Judge rejected, not an application by the FCCA Judge of that standard as the test for legal unreasonableness.

31    As submitted by the Minister, the FCCA Judge’s assessment did not just rely on the Wednesbury test for legal unreasonableness. At J[22], the FCCA Judge relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) at 41 and Li at [28] (French CJ) and [105] (Gageler J) to recognise the concept of the decision-maker’s area of “decisional freedom” in which minds might differ within the bounds of legal reasonableness. The fact that the FCCA Judge did not cite the plurality in Li at [68], [72] (which itself relied on Peko-Wallsend at 41) and [76] is not material. Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness and that concept is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. The task of reviewing a decision for legal unreasonableness is one of characterisation, it is not definitional: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [6]-[11] (Allsop CJ).

32    There is no reason to doubt that the FCCA Judge’s reasoning at J[22] (and at J[26]) was consistent with the reasoning of the plurality in Li at [68], [72] and [76] that:

(a)    The standard for determining whether an administrative decision is legally reasonable is not limited to consideration of whether the decision is one that is “so unreasonable that no reasonable person could have arrived at it”;

(b)    The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power (which might also be described as the area of “decisional freedom”); and

(c)    An inference of legal unreasonableness can be drawn objectively, even where a particular error in reasoning cannot be identified, where the reasoning is illogical, lacks “evident and intelligible justification” or is plainly unjust, arbitrary, capricious or lacking in common sense.

Second ground

33    This ground relies on the fact that at J[22], the FCCA Judge said “it is not an error of law or a jurisdictional error to rely on country information that is untrue”. In saying that, the FCCA Judge relied on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11], where the Full Court (Gray, Tamberlin and Lander JJ) said:

… There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

34    Counsel for EGW17 accepted that it is uncontroversial that the degree of weight to be attributed to any piece of country information is a matter for the Authority. He said, however, that: The FCCA Judge had been “distracted” by the “obiter” that it is not “an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true”. He submitted that this “statement of obiter has not probably survived the development of the law since 2004” and the impugned statement at J[22] is not just looseness of language but rather demonstrates misunderstanding of the law. Counsel did not explain why the impugned statement in NAHI at [11] should be considered “obiter”.

35    Counsel for EGW17 relied on:

(a)    SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 (SZUEP) at [27] in which the Full Court (Perram, Robertson and Wigney JJ) found, with reference to NAHI at [11], that the weight to be given to country information is a matter for the Tribunal subject to principles of legal unreasonableness;

(b)    The law as articulated by the Victorian Court of Appeal in Chang v Neill [2019] VSCA 151; (2019) 62 VR 174 at [92] (emphasis in the submissions and footnotes removed):

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.

(c)    Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 (Gill), a case in which the Tribunal critically mistook the word “rissole” for “risotto” such that the Tribunal’s findings concerning a work experience letter lacked a logical basis in probative evidence.

36    This ground is rejected.

37    The qualification to NAHI at [11] identified by the Full Court in SZUEP at [27] simply reflects the impact of the High Court’s decision concerning legal unreasonableness in Li. As much was recognised by the FCCA Judge in the penultimate sentence of J[22].

38    It must be accepted that a decision-maker’s reliance on a factual error may constitute jurisdictional error on the basis of legal unreasonableness or because it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. However, I accept the Minister’s submission that EGW17 has not established any factual error. That Professor Maley and DFAT (or any other source of country information) came to different conclusions as to the significance of the events in Kabul on 23 July, 11 October and 21 November 2016 is not determinative of factual error in either’s assessment or that the IAA made an error in its fact finding in preferring the country information on which it relied over Professor Maley’s Opinions.

39    In my view, NAHI at [11] and [13] remains good law and no appellable error is revealed. In the absence of demonstrated legal unreasonableness, both the choice and the assessment of the weight of country information is a matter for the IAA. The Court cannot substitute its own view of the country information even if it had a different view from that reached by the IAA. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that in the context of judicial review applications of this kind.

Third ground

40    The third ground of the notice of appeal asserts that the FCCA Judge did not properly interpret or apply the statutory definition of refugee found in ss 5H and 5J of the Migration Act and the associated provisions. EGW17’s written submissions did not address this ground at all.

41    During oral submissions in chief, the following interchange occurred:

HER HONOUR: But you don’t appear to have provided submissions about ground 3.

COUNSEL: That may have been absorbed into the others.

HER HONOUR: Unless I’ve missed something, but - - -

COUNSEL: Well, they, in effect, they’re absorbed into the others by not properly taking into account the country information globally, then the trial judge has erred in the interpretation of that division. So it’s more consequential upon the other submissions, though, your Honour’s correct, there’s no specific submissions on that point.

HER HONOUR: I’m not quite sure what that means.

COUNSEL: Well, if the IAA wrongly interpreted the country information, then it follows there has also been a misapplication of the refugee definitions.

HER HONOUR: Okay. Thank you.

42    In oral submissions in reply, counsel for EGW17 said:

Now, I appreciate ground 3 is problematical and it could have obviously been better put, but in the sense that if it has wrongly applied the country information or not done the proper exercise, then it couldn’t have come to a proper interpretation of those provisions. So inevitably, they are interrelated with the others.

43    This ground is embarrassing. As explained by counsel, the success of this ground rises or falls on EGW17’s success on other grounds. Accordingly, there is no injustice to EGW17 in rejecting it, which I do.

Fourth ground

44    In written submissions relating to this ground, counsel for EGW17 said (emphasis in the submissions):

No discretion in determining the test in section 36 of the Migration Act as to whether Australia has protection obligations because the person is a refugee

6.    The learned trial judge erred in thinking that the IAA had a discretion in determining whether a person is a refugee. His Honour was wrong in stating:

However, I am not satisfied that in this case, the exercise of the discretion by the IAA, in relying on the country information it chose to rely on, represents such a departure from the realm of decisional freedom vested in it that the decision was unlawful by virtue of being unreasonable (paragraph 22 of his reasons (AB 287)).

7.    There is no element of discretion in the legal test for being a ‘refugee’. A person is either a refugee or not a refugee. This is not looseness of language. This is a misunderstanding of the legal test to determine if a person is a refugee. The use of the word ‘discretion’ may have meant that the trial judge thought that the IAA had some sort of public interest leeway in determining whether an applicant was a refugee or not.

8.    Hence Ground 4 of the appeal is established.

45    This ground is rejected. In my view those submissions misinterpret what the FCCA Judge was saying in the cited sentence from J[22] and are misconceived. The FCCA Judge should not be understood to have suggested that the IAA was not required to apply the tests set out in ss 5H and 5J of the Migration Act in determining whether it was satisfied that EGW17 was a refugee by reason of having a well-founded fear of persecution and thus whether it should exercise the power to refer the decision back to the delegate. I am satisfied that the impugned language amounts to no more than the proposition founded on NAHI at [11] and [13] that the choice of, and weight to be given to, country information is a matter for the decision-maker, subject to principles of legal unreasonableness, which was the position taken by the Full Court in SZUEP at [27].

Fifth, sixth and seventh grounds

46    EGW17’s submissions in chief and the Minister’s submissions in response dealt with these grounds together.

47    In summary, EGW17 claims that the FCCA Judge fell into appellable error by failing to find that the IAA fell into jurisdictional error on the bases that: the IAA made factual findings and related inferences that were not supported by probative material (fifth ground), it failed to conduct a proper review (sixth ground) and it failed to take into account a substantial and clearly articulated argument and/or it failed to have an “active intellectual engagement” with EGW17’s case (seventh ground).

EGW17’s submissions

48    Counsel for EGW17 submitted that:

    A decision-maker has to choose country information rationally and logically; and

    The IAA must grapple with the submissions of an applicant and give meaningful consideration to a clearly articulated and substantial or significant claim.

In support of those propositions, counsel relied on GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 (Flick, Griffiths and Moshinsky JJ) (GBV18) at [32(e)-(g)] as follows:

(e)    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) ALD 331 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

49    Counsel also relied on Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ) (MZYTS) at [52] where the Full Court said (emphasis in the submissions):

In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.

50    Counsel acknowledged that the IAA has “diluted obligations” under Part 7AA of the Migration Act compared to those imposed on the Administrative Appeals Tribunal under s 430 of the Migration Act. Counsel submitted that, nevertheless, the emphasised sentence in MZYTS at [52] remains apposite: if Professor Maley’s Opinions had been considered properly and rejected, one would have expected that analysis to have been set out in the IAA’s decision record.

51    Counsel confirmed that it is not EGW17’s case that the IAA must have found that Professor Maley’s Opinions are true and correct and superior to DFAT’s February report. It is EGW17’s case that:

    The IAA ought to have engaged in a meaningful intellectual process to analyse the highlighted Maley Submissions. If the IAA did reject them, then it had to have a logical intellectual basis for doing so.

    Professor Maley is a recognised expert; his Opinions were not mere assertions by an advocate.

    The IAA should have set out the basis for rejecting the highlighted Maley Submissions so the appellant and others could see whether the IAA had properly dismissed them. That is what is missing from the IAA decision.

52    Counsel acknowledged that there is an overlapping of fact in the IAA’s consideration and the Opinions, including the July, October and November 2016 attacks on Shia/Hazaras in Kabul. Counsel submitted, however, that the IAA failed to address Professor Maley’s expert assessment in a logical way. Counsel submitted that the critical aspect of the IAA’s reasoning is the last sentence of DR[33] which is based on DFAT’s February report (footnotes removed):

While insurgents do conduct high-profile attacks in Kabul, DFAT assess that ethnic based violence in Kabul is rare, and that the primary targets for such attacks include government institutions, political figures, the Afghan security forces, other security services, and international organisations, rather than targeting specific ethnic groups such as Hazaras.

53    Counsel submitted that this reasoning does not deal with Professor Maley’s assessments and relied in particular on the following elements of the December Opinion at [6] and [13] (see [14] above) as follows:

(a)    When security in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. Hazara are at risk of being targeted by resurgent Taliban as foreign forces pull out of Afghanistan. In 2015, anti-Government elements abducted at least 146 members of the Hazara community in 20 separate incidents (and all but one of them took place in areas with ethnically mixed communities). Elements of society in Afghanistan (who may in fact despise the Taliban) may target Hazaras to gain credibility with the Taliban. There is a cascade effect recognised by sociologists so that the Taliban have impact beyond their initial force;

(b)    The conclusions in DFAT’s February report that the threat of conflict-related violence faced by Hazaras is similar to that faced by members of other ethnic groups in Afghanistan and that DFAT is not aware of any credible evidence that everyday Hazaras are currently being systematically targeted on the basis of their Shia religion are “completely untenable” “[i]n the light of the subsequent carnage in Kabul, and ISIS’s explicit claims of responsibility for it”; and

(c)    The characterisation of the 23 July 2016 attack in Kabul as an “isolated incident” in DFAT’s September report is “equally untenable” in light of the mass casualty attacks in Kabul on 11 October and 21 November 2016 and near Mazar-e Sharif on 12 October 2016.

54    Counsel submitted that the IAA needed to say why Professor Maley’s general proposition, that Shia/Hazaras are likely to be the victim of violence from groups like the Taliban in the future, is not correct.

Principles

55    It is the applicant in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is said to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) citing Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J), [91] (Heydon J), [92] (Crennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ).

56    The Minister observed that GBV18 was a decision made under s 501CA(4) and in the context that s 501CA(3)(b) requires the Minister to invite “representations” as to whether there is “another reason” why a visa cancellation decision should be revoked. In that context, such “representations” have particular significance as does the manner in which they are addressed in reasons. I accept that submission and note that in GBV18 at [31(a) and (c)], the Full Court discussed the significance of that context when the Court said:

(a)    Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see, for example, Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ).

…

(c)    The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT. The statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the decision-maker’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane) at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material presented in the representations. The same applies to a case where the AAT is conducting a review of a Ministerial delegate’s decision under s 501CA(4).

57    The IAA made its decision pursuant to Part 7AA of the Migration Act. Relevant principles in that statutory context were usefully summarised by Perry J in EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [37], [46]-[50] as follows:

37    … The IAA would make a jurisdictional error if, for example, it failed to correctly construe and consider a visa applicant’s claims and their component integers: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ) (Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] (Black CJ, French and Selway JJ). The IAA would also make a jurisdictional error if it made a decision which was irrational or illogical or lacking in a probative basis: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

…

46    Secondly, “the question of whether the decision-maker in question has failed to consider a contention which may have been dispositive of the outcome will turn upon the construction of the particular reasons read in the light of their statutory context”: BYA v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 at [45]. In this regard, s 473EA(1) of the Act provides that the IAA must make a written statement that relevantly:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; …

47    In turn, a statement of reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) (AIA): BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [45]-[49]; see also Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [74]. Section 25D requires that “the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based” (emphasis added). As such, the position with respect to the drawing of inferences where the Tribunal fails to mention a matter in reasons produced in compliance with s 430 of the Act applies by analogy to the drawing of inferences in the context of reasons produced in compliance with s 473EA(1). In this regard, Gleeson CJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) that:

5.    When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question.

(emphasis added)

48    As such, Gleeson CJ held that the requirement is for the Tribunal to set out its findings on those questions of facts which it regarded subjectively as material, as opposed to those which a Court on judicial review might regard as objectively material: Yusuf at [9]-[10]. The reasoning of McHugh, Gummow and Hayne JJ in Yusuf at [68]-[69] is to similar effect.

49    Thus, as Perram J observed in SZTMD v Minister for Immigration and Border Protection [2105] FCA 150; (2015) 150 ALD 34 at [20], “there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court” (quoted with approval in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 (HSKJ) at [44] (the Court)).

…

50    It follows from these principles that the absence of any reference in the IAA’s written statement of reasons to the country information in question does not of itself give rise to an inference that the IAA failed to consider that information. To the contrary, the effect of s 473EA(1) is that “the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material” (HSKJ at [44] (the Court)) (by analogy). Other considerations may, of course, displace that inference: HSKJ at [43]-[47] (the Court) …

I respectfully adopt those principles.

58    Of course, if the IAA has failed to engage in an active intellectual process in considering EGW17’s claims for protection, that would amount to jurisdictional error. However, it is necessary to bear in mind that:

(a)    EGW17 carries the onus of proving that that is what occurred; and

(b)    An expression such as “proper, genuine and realistic consideration” (or “active intellectual engagement”) can, if taken out of context, encourage a Court to “slide” into impermissible merits review. A finding that the IAA has failed to do so will not be made lightly and must be supported by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [32] and [48] (Griffiths, White, Bromwich JJ).

Consideration

59    Given Professor Maley’s apparent expertise and his disagreement with the conclusions in DFAT’s February report and DFAT’s September report which are set out in the Opinions and also referred to in the IAA Submissions, it is perhaps surprising that the fact of the issue of DFAT’s September report and the position taken by Professor Maley is not referred to in the IAA’s decision record. It would undoubtedly have been preferable if the IAA had been more transparent about its consideration of Professor Maley’s Opinions and its determination that it preferred other country information, as the delegate was in his decision record (see [6] above). However, I do not accept that the FCCA Judge fell into appellable error or the IAA fell into jurisdictional error for the reasons alleged in the fifth, sixth and seventh grounds by reason that the IAA did not undertake a similar process to that employed by the delegate. I say that for the following reasons.

60    At DR[8], the IAA acknowledged the existence of Professor Maley’s Opinions. Further, as they were “new information”, the IAA performed the steps required by s 473DD of the Migration Act to determine whether it should consider those Opinions, contrary to the “primary requirement” set out in s 473DB that the IAA must review a fast track reviewable decision by considering the review material provided to it under section 473CB without accepting or requesting new information: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174/2016) at [22] (Gageler, Keane and Nettle JJ). The Authority found that it was justified in considering the Opinions, noting that the Opinions related to “security developments in Afghanistan” and that they were “relevant to the applicant’s protection claims”. Accordingly, it cannot be said that the IAA overlooked the existence and purpose of Professor Maley’s Opinions.

61    At DR[7], the IAA expressly referred to the IAA Submissions (set out at [11] above) and the country information cited in them which was not included in the delegate’s decision, being the BBC News report, the Human Rights Watch Report and the UK Home Office report. It is therefore apparent that the IAA read the IAA Submissions. That view is reinforced by the fact that different matters raised in the IAA Submissions are referred to expressly at DR[11], [20] and [33]. On that basis, the IAA should be taken to be aware of the following:

(a)    The focus of the IAA Submissions (appropriately) concerned the risk of harm to EGW17 as a Shia/Hazara if he was returned to Kabul where he was born and his remaining family lived;

(b)    Professor Maley’s academic standing to give his Opinions; and

(c)    The summary of the high points of Professor Maley’s December Opinion (see [14] above). The highlighted IAA Submissions refer to the gravamen of DFAT’s September report. They also refer to Professor Maley’s opinions that DFAT’s view (set out in DFAT’s February report) that no particular group was targeted systematically in Afghanistan solely on the basis of ethnicity or religion, including Hazaras/Shias, was no longer tenable in light of the attacks on Shia/Hazara in Kabul in July, October and November 2016, and that the July 2016 attack could not be regarded as an “isolated incident”.

62    In the second sentence of DR[33] (see [19] above), the IAA records the thrust of the IAA Submissions that there is a continuing deterioration in the security position of Shia/Hazaras in Afghanistan and that attacks in Kabul against Shia/Hazaras have increased and intensified. In my view that is directly referable to the paragraph in the IAA Submissions which states:

In light of the continuing deterioration in security for Hazara Shia’s in Afghanistan, and increased and intensified attacks in Kabul against Shia Hazaras the conclusion that [EGW7] will not be persecuted if returned to Kabul in the reasonably foreseeable future is unreasonable and untenable.

That is the force of Professor Maley’s Opinions which are quoted and relied on in three paragraphs of the IAA Submissions preceding this one; this paragraph is the peroration of the preceding three paragraphs (see [11] above).

63    Contrary to EGW17’s submissions, the last sentence of DR[33] does not “reject the detail or thrust” of Professor Maley’s Opinions but rather focusses on the available country information as it applies to the risk faced by EGW17 upon his return to Kabul:

(a)    Having noted the submission in the IAA Submissions concerning the continuing deterioration in the security position of Shia/Hazaras in Afghanistan generally and the increase of attacks in Kabul, it focuses on the security position in major population centres;

(b)    It does not ignore the possibility of mass casualty attacks in Kabul. Rather, it notes the primary targets of those attacks and accepts the assessment that ethnically based attacks in Kabul are rare. But that is not the end of its assessment;

(c)    The IAA continues its assessment at DR[34] by considering the nature of each of the attacks in Kabul against Shia/Hazaras referred to in Professor Maley’s Opinions from 2011 to 21 November 2016. It does not treat the 23 July 2016 attack as an “isolated incident”. It notes that those attacks have not been conducted by the Taliban in recent times. It records that the Taliban’s targets have been government and security personnel and the international community, and that ISIS affiliates who claimed responsibility for some of the attacks were criticised by the Taliban for two of the attacks. The AAN October report, the BBC News report and the UK Home Office report are expressly footnoted; that is some of the country information relied on in the IAA Submissions. Some of that information is discussed in Professor Maley’s Opinions albeit that Professor Maley relied on some other country information, such as contemporaneous news reports from The New York Times and The Guardian in relation to the October and November attacks.

64    At DR[35], the IAA expressly recognised that Islamic State had a presence in Kabul, that it had gained a capability of carrying out occasional fatal attacks in Kabul and that further attacks were possible. The IAA took into account that EGW17 was not politically active (which was relevant to his risk as discussed in the country information) and that he was someone “like most Afghan Shia Muslims” who might attend communal worship and religious festivals. However, given the size and nature of the attacks perpetrated against Shia/Hazaras in Kabul compared to the Shia/Hazara population in Kabul (between 1.6 million and 2 million), the IAA was not satisfied that the degree of risk to EGW17, as a Shia/Hazara, was such that it would mean that he faced a real chance of harm from an insurgent group, such as the Taliban or Islamic State, for that reason within the foreseeable future.

65    In my view, this reasoning took into account the information on the basis of which Professor Maley formed his contrary view in his December Opinion at [13]. The IAA accepted that Shia/Hazaras may be the subject of future mass casualty attacks in Kabul but it relied on factors (the size of the attacks, the relative size of the Shia/Hazara population in Kabul, government control of Kabul and measures to address the attacks) which Professor Maley did not evaluate in the same way. The IAA’s reasoning was not illogical, irrational or unreasonable in the legal sense nor does it reveal any failure by the IAA to consider EGW17’s claims in light of Professor Maley’s Opinions. It was open to the IAA to form the view that it did based on the information available to it at the time its decision was made.

66    Accordingly, the FCCA Judge’s conclusion that no jurisdictional error by the IAA was made out has not been demonstrated to be wrong on any of the bases pleaded in the fifth, sixth and seventh grounds and I will reject these grounds.

67    For completeness, EGW17’s counsel raised in oral submissions (summarised at [53(a)] above) an historical and sociological perspective to the risk faced by Shia/Hazaras in Afghanistan discussed in the December Opinion at [6] (see [14] above) that does not appear to have been raised in the proceedings before the FCCA Judge. That perspective was also not referred to in the IAA’s decision record. It is troubling that the December Opinion at [6] appears to have foreshadowed the Taliban’s success in retaking control of Afghanistan and Kabul in August 2021 during the implementation of the final withdrawal of foreign forces.

68    However, the December Opinion at [6] related to events in regions outside of Kabul. As EGW17 would be returned to Kabul where he and his family had lived since his birth, the IAA was obliged to and did consider whether there was a real chance of EGW17 meeting serious or significant harm in Kabul in the foreseeable future. A significant factor in the IAA’s conclusion that he would not was that country information indicated that the Afghan government retained effective control of Kabul and had measures in place to address insurgent attacks: DR[33] and [35]. On that basis, and in the absence of evidence of change in the situation in Kabul between December 2016 and the time the IAA made its decision in August 2017, the IAA’s reliance on DFAT and other sources of country information in preference to the December Opinion does not reveal jurisdictional error on any of the bases pleaded in the fifth, sixth and seventh grounds.

Significance of DFAT’s September report

69    As noted above, EGW17 and the Minister filed submissions after the hearing addressing the significance of the fact, conceded by the Minister, that DFAT’s September 2016 report was not before either the delegate or the IAA even though it predated both of their decisions.

70    EGW17 submitted that the IAA’s failure to take into account the latest DFAT country report meant that it did not conduct a proper review and that that was both a jurisdictional error and material. He noted that s 499 of the Migration Act relevantly provides as follows:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    …

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

71    EGW17 noted that “Direction No 56 – Consideration of Protection Visa applications” (Direction) was then in force. It directed decision-makers performing functions relating to the grant of protection visas under ss 65, 414 and 415 of the Migration Act to take into account available country information prepared by DFAT expressly for protection status determinations. The rationale expressed in the Direction was that it was “undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies”.

72    EGW17 submitted that:

(a)    Although the Direction did not, on its face, apply to decisions made by the IAA, it does not mean that the IAA conducts a proper review by ignoring the most recent DFAT report;

(b)    The IAA is bound by ss 414 and 415 of the Migration Act on the basis that it is, by s 473JA of the Migration Act, established as part of the Migration and Refugee Division of the Administrative Appeals Tribunal;

(c)    The delegate was bound to comply with the Direction but because it did not do so its decision was not a valid decision;

(d)    Although the IAA cannot set aside a fast track review decision and replace the delegate’s decision with its own decision and it is not concerned with correction of error by the delegate, the IAA is engaged in a de novo consideration of the merits of the decision referred to it: see Plaintiff M174/2016 at [17] (Gageler, Keane and Nettle JJ);

(e)    Although the plurality in Plaintiff M174/2016 noted that an error by a delegate did not necessarily have an impact on the decision of the IAA, if the IAA makes the same error, the IAA’s decision is also contaminated;

(f)    In the “shifting sands” of the conflict in Afghanistan, it is difficult to see how not taking into account the most recent DFAT information would not be an error. Anyone forcibly required to return to that country ought to at least have the confidence that those making the decision had the latest information available to him or her;

(g)    Having regard to the decision in BDI17 v Minister for Immigration and Border Protection [2018] FCCA 2162 at [60] and [69], it was a jurisdictional error for the IAA to fail to consider getting DFAT’s September report under s 473DC of the Migration Act and to fail to take into account DFAT’s September report if it was available to the IAA. Further, the general statement of principle made by Mason J in Peko-Wallsend at 45 needs to be borne in mind (emphasis in the submissions):

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

(h)    The IAA’s failure to obtain DFAT’s September report highlights its failure to engage intellectually with Professor Maley’s Opinions; if it had read the Opinions and absorbed their contents, it would have picked up that that report existed.

73    I do not accept that EGW17 has demonstrated jurisdictional error as claimed in his post-hearing submissions.

74    The Minister concedes that the delegate breached the obligation imposed on him by the Direction and s 499 of the Migration Act to take DFAT’s September report into consideration in making his decision. The Minister also concedes that the report was not included in the “review material” which the Secretary gave to the IAA under s 473CB of the Migration Act and that the report was not before the IAA when it made its decision.

75    I accept the Minister’s submission that any invalidity which might affect the delegate’s decision by reason of that breach does not affect the IAA’s jurisdiction to review that decision: Plaintiff M174/2016 at [52].

76    I also accept the Minister’s submission that the Direction did not bind the IAA. The Direction in its terms only applies to decisions made under ss 65, 414 and 415 of the Migration Act. The IAA’s decision-making power arises under s 473CC of the Migration Act; it has no power to grant or refuse a protection visa under s 65. Further, ss 414 and 415 of the Migration Act apply to “Part 7-reviewable decisions”; “fast track decisions” are expressly excluded from the definition of “Part 7-reviewable decisions” by s 411(2)(c) of the Migration Act. Further, I also do not accept that the IAA is required to comply with the Direction on the basis that, by s 473JA of the Migration Act, it is established within the Migration and Refugee Division of the Tribunal.

77    Although EGW17 did not rely on the Practice Direction issued by the President of the Tribunal on 22 September 2016 pursuant to s 473FB of the Migration Act, the Minister supplied a copy of it with the post-hearing submissions. In its terms, it requires the Secretary of the Department to provide to the IAA (at the time a fast track reviewable decision is referred to the IAA) any information in the Secretary’s possession or control which the Secretary considers to be relevant. The Practice Direction also relates to country information referred to in the written statement of the decision to refuse a protection visa that is referred for review. There is no evidence that the Secretary considered that DFAT’s September report was relevant to delegate’s decision and it was not referred to in the delegate’s decision record. Accordingly, the Practice Direction has no relevance to these proceedings.

78    I do not accept that the IAA’s failure to refer to DFAT’s September report in its decision record is indicative of failure to consider its gravamen. That is because:

(a)    The IAA did not overlook the existence of Professor Maley’s Opinions: DR[8];

(b)    The IAA should be taken to know the gravamen of DFAT’s September report. It is set out in both the IAA Submissions and Professor Maley’s Opinions (see [61(c)] above);

(c)    DFAT’s September report adopted a “wait and see” approach to the issue of whether insurgency had taken on a sectarian character. It therefore did not change the assessment in DFAT’s February report, contrary to submissions made in the IAA Submissions;

(d)    Relevantly, in forming its view of whether there was a real chance that EGW17 would suffer serious or significant harm in the foreseeable future in Kabul, the IAA considered the significance of each of the attacks targeting Shia/Hazaras in Kabul referred to at DR[34], being the same attacks in Kabul referred to in the December Opinion at [12]. The IAA therefore took into account the most recent information relating to ethnically/religiously based attacks in Kabul. In so doing, it expressly had regard to other country information dated November and December 2016, being the BBC News Report and the UK Home Office report drawn to the IAA’s attention by EGW17’s representative and which the IAA found satisfied the criteria in s 473DD at DR[7]; and

(e)    I conclude that the IAA did not disregard the gravamen of DFAT’s September report even though it did not refer to it in its decision record. It was not necessary for the IAA to refer to the fact that Professor Maley held a contrary opinion to that expressed in DFAT’s 2016 reports.

79    While the delegate had an obligation to get the most recent DFAT country information relevant to a protection visa by reason of s 499 and the Direction, the IAA did not have the same express obligation. In the circumstances discussed in the preceding paragraph, I do not accept EGW17’s submission that there was the same “contaminating breach” in the IAA’s review of the delegate’s decision.

80    There is no evidence concerning whether the IAA considered exercising its discretion under s 473DC(3) to get a copy of DFAT’s September report and I do not accept that EGW17 has established that it failed to do so or that there was any practical injustice to EGW17 in its failure to do so. While there is nothing in the IAA’s decision record touching on this issue, s 473EA of the Migration Act and s 25D of the Acts Interpretation Act 1901 (Cth) do not require any such determination to be included in the IAA’s decision record: see BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [47]-[50] (Flick, Markovic and Banks-Smith JJ).

81    I accept that there may be circumstances in which it would be legally unreasonable for the IAA to fail to exercise the discretion in s 473DC(1) to get new information (see Plaintiff M174/2016 at [21] (Gageler, Keane and Nettle JJ) and [86] (Gordon J)). However, the circumstances of this case are not circumstances of that kind for the reasons set out at [78] above.

Disposition

82    The appeal should be dismissed with costs.

Associate:

Dated:    29 September 2021