Federal Court of Australia

DEZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 124

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The appellant is from a province in north-east Afghanistan, referred to as Takhar or Taghar. He left Afghanistan in late 2008 and went to Pakistan. In the second half of 2012 he went from Pakistan to Indonesia by air, and then on to Australia by boat, arriving at Christmas Island in late 2012. In December 2015 the first respondent, then known as the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, lifted the statutory bar on him being able to apply for a protection visa. In mid-2016 he made a valid application for a Safe Haven Enterprise (subclass 790) visa, a type of protection visa. The applicant had been granted bridging visas pending that permission being given and the application being made and determined. The visa application was refused by a delegate of the Minister, a decision that has been upheld in both merits review and judicial review proceedings. He is now in immigration detention and has been assisted in the conduct of this appeal by lawyers from Legal Aid NSW and their instructed counsel, whose involvement is acknowledged and appreciated by the Court.

2    The delegate’s decision to refuse the grant of the visa was made on 27 July 2017. On 2 March 2018, the Immigration Assessment Authority affirmed the delegate’s decision. On 26 October 2020, a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissed an application for judicial review of the Authority’s decision.

3    In November 2020, the appellant attempted to commence this appeal proceeding in this Court within time, but something went astray in the filing process. The appellant was not aware of this until much later, when he was contacted by the Court in May 2021 to provide his appeal forms again, which he did promptly. In those circumstances, the Minister did not oppose the appellant being granted an extension of time within which to bring this appeal proceeding, nor leave being granted to file the notice of appeal. The reasons for the delay were adequately explained, and accordingly leave was given to commence this proceeding out of time, and to file the notice of appeal that is now before this Court.

4    This proceeding is, in form and as a matter of jurisdiction, an appeal from the primary judge’s orders. However, leave is sought to raise, in the form of grounds of appeal, grounds of judicial review that were not advanced before the primary judge. It is therefore in substance a proceeding seeking judicial review of the Authority’s decision. It follows that these reasons will not address his Honour’s decision at all.

5    The Minister opposed leave being granted to rely upon those new grounds, as well as leave to rely upon evidence not adduced before his Honour. No error is asserted on the part of his Honour in relation to the grounds of review that were before him, which are no longer pressed. I am satisfied that, in the particular circumstances of this case, leave to advance new grounds of review on appeal should be granted because:

(a)    on an impressionistic view, the grounds have sufficient merit; and

(b)    there is a sufficient explanation for the grounds not having been advanced before the primary judge of a kind would require procedural fairness to be advanced to a third party before being elaborated upon; and

(c)    it is therefore in the interests of justice to grant leave.

6    I am also satisfied that the appellant should be given leave to rely upon evidence that was not before the primary judge. Some of that additional evidence, being relevant to ground 1, is not objected to by the Minister, being country information that was before the Authority. Further evidence in relation to ground 2 is objected to by the Minister. Because the failure to adduce that evidence for both grounds before the Tribunal has the same source as the failure to raise the grounds now relied upon before his Honour, in the particular circumstances of this case it is appropriate to have regard to that evidence.

7    For the reasons that follow the appeal should be dismissed with costs.

Grounds of appeal

8    The notice of appeal asserts that the primary judge erred in law by failing to find that the decision of the Authority involved jurisdictional error because it:

(1)    failed to consider a substantial and clearly articulated argument advanced by the appellant that he faces a real risk of significant harm in Takhar province under parallel justice structures operated by anti-government elements (AGEs); and.

(2)    refused to consider the appellant’s uncle’s file before the Authority, which the Authority reviewer knew was also before it and/or unreasonably failed to consider exercising power under s 473DC(3) of the Migration Act 1958 (Cth) (Act) and/or unreasonably failed to exercise that power to invite the appellant or his uncle to give information about the land dispute and related common issues of fact.

9    The references to error on the part of the primary judge are necessary to engage this Court’s appellate jurisdiction. There is no suggestion that the substance of either ground was ever raised with his Honour. The competing arguments were therefore directed to the question of error on the part of the Authority, and the following reasons will do the same.

10    It is convenient to consider ground 2 before turning to ground 1.

Ground 2

11    The Authority summarised the appellant’s case as presented to the delegate, and the information that was before it as follows (footnote imbedded in square brackets):

[2]    The applicant claims to fear harm: because of a land dispute with members of his mother’s family; from the Taliban because of the land dispute and as a perceived opponent of the Taliban; as a male landowner and oldest male of a family; as a returned asylum-seeker from the West; from generalised violence in Afghanistan; and because of significant health concerns.

[3]    The delegate accepted the applicant’s claims as to nationality and former residence but found that the applicant had exaggerated his adverse profile with his mother’s family and the Taliban to enhance his claims for protection. The delegate did not accept that the applicant would come to the attention of the mother’s family or the Taliban if he returned to Afghanistan now. The delegate considered recent country information and the applicant’s circumstances and was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm for any reason. The delegate found that the applicant is not a person in respect of whom Australia owes protection obligations.

Information before the IAA

[4]    I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

[5]    On 23 August 2017, the applicant (through his migration agents) provided a submission to the Immigration Assessment Authority (IAA). This submission refers to issues and information that were before the delegate and makes arguments in respect of these, which I have noted.

[6]    In September 2017, the Australian Department of Foreign Affairs and Trade (DFAT) released a new country information report on Afghanistan. [DFAT Country Information Report Afghanistan, 18 September 2017] This report, which post-dates the delegate's decision, provides an update on the security situation, including the situation for persons who have returned to Afghanistan after seeking asylum abroad, and returnees from the west; classes of person that the applicant falls or claims to fall within. I am satisfied that this information is relevant and I have therefore obtained it. I also consider that there are exceptional circumstances to justify considering this information.

12    This ground turns on the assessment of one of the appellant’s primary claims of fearing harm if he was returned to Afghanistan due to a dispute over land with members of his extended family on his mother’s side. The key parts of the Authority’s reasons are as follows:

[15]    The applicant claims to fear harm because of a land dispute with his mother’s relatives. He claims that his family owns land and a house in his town, as well as another piece of farming land some distance away. His uncle, A, also owns land near this farming land. In about 2008, the applicant and his family became aware that his mother’s relatives (J, AB and their families) intended to take over the two pieces of land. The applicant and A went to visit the applicant’s grandmother in another town for the Eid festival. One night, some other relatives came to visit the grandmother and said they had heard that J and AB were plotting to kill the applicant and A. They said that J and AB were involved with the Taliban and these threats were very serious.

[16]    The applicant and A returned home to their town but a few days later, the applicant’s father saw some of AB’s relatives in the town. The relatives said that the applicant and A had to come to see AB to answer questions and if they did not do so, the applicant’s father would be killed. The applicant and A were very scared and fled to Kabul and then made their way illegally to Pakistan, where they remained until September 2012. The applicant said that after he and A had gone to Pakistan, J and AB took over the land illegally.

[17]    The delegate asked the applicant why he was targeted when his father was still alive and had the title to the land. The applicant said that he was the oldest son and would inherit the land when his father died. The delegate asked if the applicant’s father still had the title to the land and the applicant said that he had transferred the title to the applicant after the applicant left Afghanistan. The delegate asked if J and AB had tried to harm the applicant’s father while the father still had the title to the land and the applicant said that his father had told J and AB that he had transferred ownership to the applicant.

[18] Following the interview, the applicant was asked to provide additional information relating to his identity. His agent responded to this request on 12 July 2017 and also provided additional information that “last week” AB’s relatives had come to the family home and assaulted the applicant’s father and threatened the family to leave. His brothers fled to Iran where they are now residing unlawfully.

[19]    At the interview, the delegate put to the applicant that his claim was vague and unconvincing. In a post-interview submission, the applicant’s agent submitted that the applicant had answered the delegate’s questions spontaneously and in detail and had provided detailed written and oral accounts of his reasons for fleeing Afghanistan. The agent also submitted that due consideration must be given to the applicant’s background, his medical condition and his experiences. I have considered these factors and accept that these may have affected the level of detail that the applicant could provide but even considering these factors, I still have concerns with the plausibility of the applicant’s story.

[20]    Apart from the applicant’s claims, he has not provided any other evidence, such as statements or letters from his parents, other siblings or any other person about the land, the land dispute or the claimed transfer of title. He has not provided a plausible explanation of why he would be targeted for death in 2008 (when he was aged 16 and did not have the title to the land) but there was no attempt at that time to target or intimidate his father, who did have the title. I also note that he gave evidence that his father retained the title to the land until sometime in 2013 and went to the elders to get a ruling over the land but the elders would not help him. I do not consider it plausible that if J and AB were intent on taking land and killing those who stood in their way, they would have not taken such action against the applicant’s father, particularly if his father was going to the elders. It is not plausible that J and AB would beat the applicant’s father but then merely accept his assertion that he had transferred title to the applicant and take no further action.

[21]    I also have concerns in relation to the new information about the assault on his father in 2017. I note that he claims that J and AB took the land after he went to Pakistan and that his father has not taken any other steps (apart from speaking with the elders) to try and get it returned. He has not claimed that his younger brothers have had any conflict in relation to the land before this time, or that there has been any change in circumstance that would lead J and AB to suddenly confront and threaten the applicant’s family after nine years. I do not accept that the applicant’s family was threatened in 2017 or that his brothers have had to flee Afghanistan because of the land dispute.

[22]    Having regard to all of the above, I do not accept that the applicant’s family has been engaged in a land dispute, that the applicant was threatened by J and AB, that he fled to Pakistan because of threats, or that he is of any current or ongoing adverse interest to J and AB. As I do not accept that the applicant is involved in a land dispute, I do not accept that he will need to fight for his land or face ostracism and dishonour should he return to Afghanistan. I am satisfied that the applicant does not face a real chance of harm for any reason arising from the land dispute.

[23]    The applicant has not provided any separate evidence in relation to his claim to fear harm as a male landowner and oldest male of a family. His claim appears to relate to the land dispute that I have considered above and as I have found that he does not face a real chance of harm because of the land dispute, it follows that he does not face a real chance of harm for being a male landowner and oldest male of a family in relation to this land dispute. I have considered the information in the material and this does not indicate that male landowners or oldest males face a real chance of harm on the basis of that status only. I am satisfied that the applicant does not face a real chance of harm for being a male landowner and oldest male of a family.

[24]    I have found above that the applicant is not of any interest to J and AB and on that basis, I do not accept that he is of any interest to the Taliban arising from the dispute with J and AB. I take into account that he has not claimed to fear the Taliban for any other reason, or that he or any member of his family has previously suffered harm from the Taliban or has an adverse profile with the Taliban for any reason. I am satisfied that the applicant does not face a real chance of harm at the hands of the Taliban.

13    Earlier the Authority had stated at [11]:

The applicant’s uncle A has an application before the IAA (IAA 17/02949) which is also before me. The claims raised by A generally relate to separate issues and I note that none of these claims or supporting evidence have been referred to or discussed with the applicant by the delegate. I have not considered any aspect of A’s claims in my consideration of the applicant’s matter.

14    The gravamen of this ground is that it was a jurisdictional error on the part of the Authority to either refuse to consider the appellant’s uncle’s file, or to unreasonably fail to exercise or consider exercising the power under s 473DC(3) of the Act to invite the appellant or his uncle to give information about the land dispute and related common issues of fact. He characterises this as important corroborative evidence from his uncle which the Authority knew was before it, but decided not to consider, and then found that his claims were not credible in part because he had not provided corroborative evidence from relatives. The same Authority reviewer had reviewed the delegate’s decision in his uncle’s case and made different findings.

15    The appellant contends that the Authority did not have available the option to disregard his uncle’s file, and, at the same time, take as a point against him that he had not provided evidence from other family members. That, he argues, would have had to include evidence from his uncle, and thus material from his uncle’s file. The appellant further submits that this argument does not turn on the contents of that file. However, the appellant submits that when regard is had to the contents of that file this argument is strengthened because of a Departmental letter to him which was in that file, but not in his own file.

16    The appellant submits that his claims and those of his uncle overlapped in significant respects relating to land owned by the family, the claimed land dispute, and the resulting asserted fear of harm, with them claiming to have fled Afghanistan together. In his statement dated 8 July 2016, the appellant said that his uncle was with him during a visit to his grandmother in 2008, and that they fled Afghanistan together in 2008 as they had both been threatened over land disputes. On the appellant’s claims, that was how he and his uncle discovered that J and AB and their families were plotting to kill him and his uncle in order to take their land. The delegate had accepted that in 2008 the appellant had visited his grandmother with his uncle. However, the Authority did not accept that his family had been engaged in a land dispute at all, or that the applicant had been threatened or faced harm as a result: see [20]-[22] of the Authority reasons reproduced above at [12].

17    The appellant submits that it is significant that the Authority’s finding is expressed in terms of the applicant’s “family” because the critical point is that his claims were about his family’s land disputes, including his uncle’s land disputes. He therefore asserts that the information in his uncle’s file was plainly relevant. That is argued to be so because the reviewer conducting his review knew that the file relating to his uncle’s fast-track reviewable decision was also before him: see [11] of the Authority reasons reproduced above at [13].

18    In support of his arguments, the appellant obtained his uncle’s file by a notice to produce and adduced evidence of part of the contents, including the Authority’s decision and reasons in affirming the decision not to grant his uncle a protection visa. I have admitted that evidence over the objection by the Minister for the purposes of this ground of appeal. The documents so adduced include the Authority’s decision and reasons in respect of the uncle, as well as submissions and statements before the Authority in relation to that review. One of the documents on the uncle’s file was a letter from a departmental officer to the appellant on this proposed appeal dated 31 March 2017 stating:

Dear [DEZ18],

In respect of your application for a Safe Haven Enterprise Visa, I note that your claims for protection are closely linked with your uncle [A] who travelled to Australia with you.

I am currently dealing with the Immigration status of your uncle, [A] and seek your permission to discuss aspects of your case with him. The discussion would be limited to events in Afghanistan relating to family conflict which you have indicated were relevant to both of you.

19    The appellant submits that it is therefore clear that the Minister’s Department considered the claims in both cases to be “closely linked”. The appellant submits that this reference would ordinarily give rise to:

(a)    constructive knowledge on the part of the Secretary of the Minister’s Department sufficient to engage the duty under s 473CB(1)(c) of the Act to provide the uncle’s file to the Authority as part of the “review material” in respect of the Authority’s review of the delegate’s decision in relation to the visa he had sought, citing by analogy Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 31, per Mason J at 45, per Brennan J at 66 and per Dawson J at 71; and

(b)    a material failure to perform that duty which amounted to jurisdictional error, citing Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 at [32] per Yates, Murphy and Moshinsky JJ.

20    However, that alleged failure is not relied upon in the pleaded ground of appeal, apparently because the uncle’s file was before the same reviewer who was conducting the appellant’s review. The appellant submits that whatever question there may be about the legal status of his uncle’s file there is no avoiding a conclusion of jurisdictional error. That is said to be because either:

(a)    the Secretary should have performed the duty under s 437CB(1)(c) to provide material relevant to the review, which the Authority was then bound to consider under s 473DB(1) of the Act; or

(b)    if it was new information under s 473DC of the Act, the Authority was bound to consider whether there were exceptional circumstances to justify considering it under s 473DD, and if so, to consider it.

21    The appellant submits that in circumstances where the Secretary should have provided his uncle’s file to the Authority as part of the “review material” that the Authority was bound to consider, the Authority could not reasonably have found there were no exceptional circumstances to justify considering that material because that would have undermined the statutory scheme in s 473DD. He submits that the statutory scheme could not coherently authorise the Authority to disregard information that it would have been bound to consider had the relevant statutory duties been performed.

22    The appellant also observes that had he obtained and submitted his uncle’s file to the Authority, the criterion in s 473DD(b)(ii) of the Act would have been a mandatory relevant consideration to the Authority’s assessment of the criterion of “exceptional circumstances” in s 473DD(a), citing AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 94 ALJR 1007 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ. That would have required an “evaluation of the significance of the new information in the context of the referred applicant’s claims more generally” citing Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [105] per Kenny, Tracey and Griffiths JJ, and Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 at [50]-[54], [69] per McKerracher, Murphy and Davies JJ. The appellant submits that whichever course was taken, such an evaluation was required.

23    The appellant submits that if the Authority perceived any legal impediment to it having regard to the uncle’s file, it could have, and as a matter of jurisdiction should have, considered exercising power under s 473DC(3) of the Act. That is, the power to invite the applicant or his uncle (or both of them) to give information about the land dispute and other common issues of fact. He submits that, in circumstances where the Authority:

(a)    knew such information was readily available because it was already in its possession;

(b)    knew that such matters were within the knowledge of the applicant and his uncle; and

(c)    knew that part of the Authority’s reasons for affirming the decision would be that the applicant had not provided “any other evidence [from] any other person about the land, the land dispute or the claimed transfer of title”,

its failure to consider exercising power under s 473DC(3) of the Act was legally unreasonable.

24    The appellant submits that the only lawful basis upon which the Authority might have refused to consider the information was if acting reasonably, was if the Authority considered it to be irrelevant, citing CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [7] per Kiefel CJ and Gageler J. However, the Authority did not say that the information was irrelevant. Instead, it described claims raised by the uncle generally relating to separate issues. The appellant submits the Authority effectively acknowledged at [20] that other evidence from any other person about the land, the land dispute or the claimed transfer of title would have been relevant. The appellant submits that it would not have been reasonably open to the Authority to find that the information was irrelevant in any event.

25    The appellant submits that the error is material because the same reviewer, when considering the uncle’s decision, made much more favourable findings about the uncle’s land dispute. These findings were as follows:

[26]    The applicant claims to fear harm from his uncle J and members of J’s family, arising from an intra-family land dispute and blood feud. While I consider the blood feud to be the more significant aspect of his claim, it is necessary to understand the context of the blood feud and how it arose in relation to the land dispute.

[27]    The applicant claims that his father owned a number of pieces of land which he farmed together with his brother, J. The applicant’s father died in about 1987, when the applicant was aged five, and ownership of the land was passed to the applicant and his brother, AWK. …

…

[32]    The applicant’s account of events leading to the loss of his land and being assaulted by J’s family is consistent with the information set out above. I accept that J took at least some of the land that the applicant and AWK inherited, including the land with the house on it, and that despite the ruling of the elders, J has refused to return to the land. I accept that the applicant has been harassed and assaulted by J and J’s relatives because of the issues with the land. I am prepared to accept that the police detained the applicant for a short period of time following a brawl outside a mosque but I note that he was not charged, fined or brought before a court or any local/cultural mediation process.

[33]    I have then considered whether the applicant is likely to face a real chance of serious harm now or in the foreseeable future because of the land dispute. This dispute arose 10 years ago but even noting the significant passage of time, I am satisfied from the information cited above the nature of the dispute and the issues of family honour and pride will in all probability lead to a resumption of animosity between the applicant and J if the applicant returns to Takhar.

[34]    The applicant has stated at the interview that he would have to go back to “first square” and fight with the family because he has to fight for his land. He said it is “my right, our house land and farm. It belongs to me, why shouldn’t I do that?” I have noted above that Afghani land disputes often contain issues of honour and pride.

[35]    I am satisfied that if he returns to his home area he is likely to either assert his right over his land, or come to the adverse attention of J and J’s family simply from his presence. As such I am also satisfied that there is a real chance that he may face harm in this area. I am satisfied from the country information above that this harm could include conduct which may constitute serious harm for the purposes of s.5J(5) of the Act. However, I consider that this harm would be inflicted for the essential and significant reason of the intra-family land dispute and would not be because of the applicant’s race, religion, nationality, political opinion, or his membership of a particular social group.

26    The appellant submits that had the uncle’s file been considered, there was a realistic prospect that the Authority might not have rejected the claim that “the applicant’s family has been engaged in a land dispute”, being sufficient to discharge any onus of materiality. He therefore submits that in all the circumstances, the Authority’s decision-making process was unreasonable and involved jurisdictional error.

27    The Minister summarises the appellant’s arguments as in substance advancing three points, each of which are characterised as fundamentally misconceiving the role of the Authority and the structures enacted around the provision of information by the Minister’s Department for the purposes of a fast track review. The Minister submits, and I accept, that the three arguments advanced by the appellant are essentially that:

(a)    insofar as the appellant’s uncle’s file contained material that was before the Minister (delegate) when he made his decision, the Authority was “bound to consider such documents as part of the review material”;

(b)    insofar as the uncle’s file was “new information” the Authority was required to consider whether s 473DD(a) applied to it; and

(c)    the Authority failed to consider exercising the power in s 473DC(3) and failure to do so was unreasonable.

28    As to the first point, the Minister submits that the appellant wrongly assumes that his uncle’s claims, or the material that constituted his protection visa file, must have been considered by the Secretary to be relevant to the review, based upon the 31 March 2017 letter (the text of which is reproduced at [18] above). The Minister submits that nowhere in that correspondence (which only appears on the uncle’s file), or anywhere else, is there any indication that any officer of the Department considered the uncle’s claims or evidence in support of those claims to be capable of supporting or corroborating the appellant’s claims. The Minister submits that while the letter states that the claims were “closely linked” this does not of itself render those claims relevant to the appellant’s review. The Minister submits that it is apparent that this was the Secretary’s view, as the uncle’s file was not provided to the Authority in respect of the appellant’s fast track referral under s 473CB(1). The Minister relies upon the following obiter observations by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 concerning the effect on an Authority’s decision of a failure by the Secretary to comply with s 473CB(1):

[41]    … A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process – cf: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].

[42]    In amplification of the last proposition:

(1)    If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.

29    The above statements of principle in EMJ17 were endorsed in CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; 269 FCR 367 at [28] per Jagot J with whom Reeves J agreed at [4]; and at [80] per Derrington J, and again in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; 274 FCR 82 per Allsop CJ, Jagot and Moshinsky JJ: see [55], [60(a)] and [70].

30    The Minister submits that the appellant has not discharged the onus of establishing any error, let alone material error, arising from any failure by the Secretary to comply with s 473CB(1)(c) with respect to the uncle’s protection visa file.

31    As to the second point, that the uncle’s protection visa file was “new information” as defined in s 473DC(1), the Minister submits that there is no evidence that the Authority in fact had before it the material in relation to the uncle. All the Authority reviewer said at [11] was that the uncle had an application before the Authority, “which is also before me”. That is, the uncle’s review had at that time been allocated to the same Authority reviewer. The Authority gave no indication as to what information relating to the uncle it possessed, or what information it had read, although it could be inferred that the reviewer must have at least read the uncle’s claims as they referred to those claims by stating that they “generally relate to separate issues”. Section 473DC(2) provides that the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”. Where the appellant took no steps to give any information from his uncle to the Authority, no such information was contained in the review materials, and there is no evidence of what of the uncle’s protection visa materials were before the Authority, the applicant’s argument that the uncle’s file was “new information” that it was obliged to consider under s 473DD cannot be sustained.

32    In relation to the s 473DC argument, the Minister submits that the statutory purpose of the discretionary power is not to enable the Authority to get information that an applicant otherwise could have obtained and provided, but did not. It was the appellant’s obligation to provide information in support of his claims, initially to the Minister’s Department, and then to the Authority. The Authority is subject to significant express statutory constraints in considering new information. In submitting that the Authority “knew such information was readily available” the appellant overlooks that he knew that his uncle had made protection claims, and could have taken steps to put before the Authority (or the Department had he thought to do so) information from his uncle. It was not the Authority’s role to exercise its discretionary powers to assist the applicant in making out his case. To the contrary, such a function is antithetical to the Authority’s role as an independent reviewer.

33    The Minister submits that it cannot have been legally unreasonable for the Authority not to have exercised its power to get the uncle’s file, in circumstances where the Authority regarded the uncle’s claims as relating to separate issues.

34    In relation to the appellant’s submission that the Authority’s error was plainly material by reference to the Authority’s findings made in the uncle’s case, the Minister submits that there are serious problems with seeking to establish materiality by reference to material that was not before the Authority, noting that the Authority’s decision in the uncle’s case was made 17 days later on 19 March 2018. The Minister submits that the test for materiality does not involve the Court engaging itself in a hypothetical merits review.

Consideration

35    The appellant faces two steep hurdles in relation to this ground of appeal: the strictures of the legislative regime and the evidentiary onus. As to the legislative regime, I am not satisfied that the legislative regimes operates in the manner suggested by the appellant, and prefer the analysis advanced by the Minister which is supported by Full Court authority. However, even if I were to adopt the interpretation submitted by the appellant, this preceding legal argument cannot avail the appellant of any relief if the inferences sought to be drawn and the materiality of the error cannot be established. I therefore turn to consider the evidentiary onus.

36    I have carefully considered the material that is in evidence in relation to the uncle’s claim and the Authority’s reasons as relevantly reproduced above, noting that the assertion of an overlap was cast in broad and general terms. I also note that the appellant has relied upon the Departmental letter’s reference to the matters being “closely linked” as the basis for that assertion, rather than demonstrating for the Court why he considers they are so linked by reference to the material in evidence.

37    Having reviewed the material in question, I am unable to accept that there is any proper basis to infer that the Secretary of the Minister’s Department failed to comply with the duty in s 437CB(1)(c) to provide material to the Authority relevant to the appellant’s review, being the material that was before the Authority in relation to the uncle’s review pertaining to the appellant’s land dispute. The appellant has not pointed to any material obtained from the uncle’s file to indicate that such relevance existed and none is otherwise apparent.

38    Even if I were to assume that the Authority reviewer was sufficiently cognisant of the content of the material in the uncle’s file to appreciate any significance it might have had, I am unable, as the appellant urges, to give an extended interpretation of the words of the Authority at [11], reproduced at [13] above. The Authority reviewer expressly states that that the claims raised by the uncle in his review process generally related to separate issues. This is a conclusion that was open to the Authority to reach, based on the material that has been placed before this Court.

39    I am therefore unable to accept that it has been established that there was a circumstance that might reasonably have given rise to the Authority considering formally getting the material in the uncle’s file as “new information” or obtaining such information from the appellant or his uncle for the purposes of s 473DC, let alone sufficient to give rise to reaching the point of assessing whether there were exceptional circumstances to justify consideration such information for the purposes of s 473DD. Additionally, I am not satisfied that the material before this Court as to the Authority’s decision and the material before the Authority relating to that decision realistically could have made a difference to the outcome in the appellant’s case.

40    It follows that ground 2 must fail.

Ground 1

41    This ground deals with the appellant’s claim that there was a real risk that he would suffer significant harm within the meaning of s 36(2)(aa) of the Act by reason of parallel justice structures operated by the Taliban in areas under their control, including the home area of Takhar province, being parallel to the official justice system administered by the government of Afghanistan. The complementary protection claims were made relying upon the same circumstances as the refugee claims, but without reasons based upon the limited scope of the statutory version in the Act of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees. The appellant relies upon the definition of significant harm in s 36(2A).

42    The appellant’s migration agent, in the submissions referenced by the Authority at [5], reproduced at [11] above, had relevantly stated (footnotes omitted, emphasis added):

Complementary Protection

In the event that you are not persuaded by our compelling arguments that [the appellant] should be determined to be a refugee, then we submit that he is owed complementary protection. We submit that as a real and foreseeable consequence of being returned to Afghanistan [the appellant] will be at real risk of significant harm in the forms of:

•    arbitrary deprivation of his life, and;

•    torture, and;

•    cruel and inhuman treatment or punishment, and;

•    degrading treatment or punishment.

We submit that [the appellant] is at real risk of significant harm in the form of arbitrary deprivation of his life and torture by reason of his ongoing family dispute. We draw upon the above cited country information which is consistent with [the appellant]’s testimony and demonstrates the scale of violence carried out against victims in a land dispute.

Furthermore, we submit that [the appellant] is at real risk of significant harm in the form of arbitrary deprivation of life, torture or cruel, inhuman and degrading treatment or punishment if he is forced to return to Afghanistan. In the context of the armed conflict in Afghanistan, the UNHCR notes that factors to be taken into account in assessing an asylum seeker’s need for protection under the broader mandate criteria must consider the threat to the life or person by reason of indiscriminate violence include the number of civilian casualties, the number of security incidents, as well as the existence of serious violations of international humanitarian law which constitute threats to life or physical integrity.

Further, the UNHCR guidance states that:

More long-term and indirect consequences of violence should be considered, including:

(i)    the control over civilian populations by AGEs, including through the imposition of parallel justice structures and the meting out of illegal punishments, as well as by means of threats and intimidation of civilians, restrictions on freedom of movement, and the use of extortion and illegal taxation;

(ii)    the impact of violence and insecurity on the humanitarian situation as manifested by food insecurity, poverty, the destruction of livelihoods and the loss of assets;

(iii)    high levels of organized crime and the ability of local strongmen, warlords and corrupt government officials to operate with impunity;

(iv)    systematic constraints on access to education and basic health care as a result of insecurity; and

(v)    systematic constraints on participation in public life, including in particular for women.

We note that the country information cited earlier in this submission identifies that the North/North Eastern parts of Afghanistan, including [the appellant]’s area of [appellant’ province], is a stronghold of the Taliban and a deeply volatile region subject to ongoing fighting between the ASF [sc. ANSF: Afghan National Security Forces] and AGEs. We submit that if returned to [appellant’ province], [the appellant] is likely to be arbitrarily deprived of his life by AGEs including the Taliban for reasons other than the refugees convention. Further, [the appellant] faces a real risk of being tortured or subjected to cruel, inhuman or degrading treatment under parallel justice structures and during kidnappings for ransom and extortion.

43    The appellant contends that a distinct aspect of this claim concerning “parallel justice structures” emphasised above was clearly supported by country information that post-dated the delegate’s decision, being the Department of Foreign Affairs and Trade new country information report on Afghanistan dated 18 September 2017 (DFAT 2017 Report), referred to in the footnote to [6] of the Authority’s reasons reproduced above at [11]. The Authority obtained this report for itself and found there were exceptional circumstances to justify considering it for the purposes of s 473DD of the Act.

44    The substance of this ground is that the Authority failed to consider and respond to what the appellant asserts was a substantial, clearly articulated and distinct claim, citing EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; 262 FCR 304 at [36], and like authority, for the jurisdictional responsibility to do so in the circumstances of this case. There is no issue as to that principle, only as to whether this was a separate claim that was not addressed so as to arguably breach that jurisdictional requirement. The DFAT 2017 Report is relied upon as having been overlooked by the Authority in respect of, and in practical support of, this asserted separate claim.

45    It is necessary to reproduce the parts of the Authority’s reasons as relevant to this issue, as the appellant’s argument turns on what he contends was not addressed, including by reference to the supporting material in the DFAT 2017 Report. The relevant passages concern both the Authority’s refugee assessment and complementary protection assessment (footnotes imbedded in square brackets):

[29]    The applicant claims to fear harm from generalised violence if he returns to Afghanistan. I take into account the applicant’s evidence that prior to leaving Afghanistan he lived in the family home in Takhar. His parents continue to reside in this home, although he claims that his sister now lives with her husband and his two younger brothers have gone to Iran. The applicant does not claim to have family in any other part of Afghanistan and does not have a right to reside in any other country. I am satisfied that if he returns to Afghanistan he will return to Takhar province.

[30]    DFAT has assessed that the ongoing insurgency across the country means that the government struggles to exercise effective control over many parts of the country, particularly areas outside major urban centres. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas. Despite these challenges, DFAT assesses that the government maintains effective, but not absolute, control in major urban centres, particularly Kabul. While violent attacks still occur and there are major concerns over the capacity of law enforcement and judicial systems, security in these urban centres is typically better than in rural areas. [DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 21] Of the specific incidents detailed in the 2015 DFAT report, the majority were attacks on the police, military, government, judiciary or media, although these nonetheless caused significant civilian casualties. The other two attacks appeared to be attacks on civilians, including an attack at the American University, but no organisation or specific target was identified.

[31]    DFAT has also noted that in contested areas in the north, AGE operate parallel political and judicial structures and impose punishments. There is a perception in some parts of the community that these systems are preferable to official ones, due to the swift and decisive action that often results as well as widespread distrust of an official system seen as corrupt, slow and ineffective. DFAT does not report that AGE engage in generalised violence against civilians in these contested areas, although some do seek to propagate fear and uncertainty among the civilian population to discourage them from cooperating with the government and international forces. [Ibid: DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 21]]

[32]    The European Asylum Support Office (EASO) reported in 2016 that since the departure of foreign troops commenced in 2012, the dynamics of the conflict in Afghanistan have changed. AGE have increasingly attacked and challenged the Afghan security forces (ANSF), operating in larger units (up to several hundreds of fighters, using small arms fire, rockets, mortars and grenades). They increasingly took control over larger territories outside the urban centres and became more successful in capturing district administrative centres. Mostly the ANSF has been able to regain control quickly but certain district centres fell under the sustained control of Taliban forces. Apart from Taliban-ANSF clashes, several other insurgent groups fought against ANSF or each other during 2015 and 2016. There were reports of clashes between different Taliban factions, between different pro-government militia and between Jamiat-i-Islami and Junbish Party militiamen. Islamic State (IS) groups have attacked governmental positions in Nangharhar but also clashed with Taliban groups. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at p 26]

[33]    In relation to Takhar, EASO described it as a volatile province where AGE are present in large numbers, and it is bordered by two other volatile provinces. From 1 September 2015 to 31 May 2016, Takhar Province counted 136 security incidents but I note that most of these involved attacks on government and military forces. The most significant attack aimed at civilians was an attack on female school students but at the time of this report the motive was not known. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at p 129-132] I also note that while Takhar suffered 136 security incidents, the neighbouring provinces of Kunduz and Baghlan each reported more than 400 incidents for the same period, including the capture and looting of large cities, while Badakhstan reported 109. Takhar’s southern neighbour Panjshir (which is closer to Kabul than the other provinces) recorded one incident of an IED detonation in a government compound.

[34]    There is no other information before me that indicates that civilians are specifically or systematically targeted in Takhar. The statistics noted above indicate that Takhar has reported significantly fewer incidents of violence, including undirected and untargeted killings of civilians, than two of its neighbouring provinces and about the same number as a third province. I note that a report of a lower incidence of violence in one place compared to another does not of itself mean that there may not be a real chance of harm in that place. However, in this case, while I accept that there may be a risk to civilians in Takhar of being harmed by generalised violence, including as bystanders, from explosive attacks or from explosive remnants of the fighting, I am satisfied that any risk the applicant may face in relation to generalised violence in Takhar is remote, and therefore I am satisfied that he does not face a real chance of harm from generalised violence.

[35]    I have also considered whether the applicant may face a risk of harm in accessing Takhar. The EASO report cited above notes that the Taliban has blocked roads in the province at different times and that abductions have occurred along highways in Takhar. The information before me does not indicate that Takhar has a civilian air service to Kabul and I accept that if the applicant returns to Takhar he will need to do so by road.

[36]    Information before me indicates that incidents of abduction and other harm on the road networks are generally linked to specific profiles rather than being incidents of random violence. In 2015, DFAT assessed that while all ethnic groups are subject to a high risk of violence from AGE, no particular group is systematically targeted solely on the basis of ethnicity. Although ethnicity or religion may sometimes be a contributing factor, especially in kidnappings of civilians travelling by road, insurgent groups typically target people associated with the government and the international community, or people who appear wealthier than other Afghans. [DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 10] Other information notes that Improvised Explosive Devices (IED) and landmines are often deployed on the roads and in most cases the initiating systems cannot distinguish between military and civilian targets. Kidnappings, hostage taking and summary executions of civilians on the roads are also a growing threat; however, a large part of these abductions concern Hazara people. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at pp 27, 37-38]

[37]    As noted above, the applicant is a Sunni and a Tajik. He has not claimed to have any profile (including any family association) with the government, international forces or international organisations. He has not claimed that his family is, or appears to be, wealthier than other Afghans. Based on his profile I am not satisfied that he faces a real chance of being targeted by AGE or any other groups if he was to travel by road to Takhar. While I accept that he may be at risk of harm from IED and landmines, the information does not indicate that this would be a targeted risk. I have considered this further in relation to complementary protection. Having regard to all of the above I am satisfied that the applicant will not face a real chance of harm accessing Takhar for any reason associated with race, religion, nationality, membership of particular social group or political opinion.

…

[42]    I have found above that the applicant does not face a real chance of harm: because of a land dispute; from the Taliban; as a male landowner and oldest male of a family; as a returned asylum-seeker from the West; or from generalised violence. As 'real chance' and 'real risk' have been found to equate to the same threshold13 and for the same reasons given above, I am also satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Afghanistan, the applicant will face a real risk of significant harm for any of these reasons.

…

[47]    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

46    The appellant contends that [31], [34] and [37] above are contrary to the DFAT 2017 Report. In particular, reliance is placed upon the following passages in that later report (being part of the material that was not before the primary judge, but proven by additional evidence to which no objection was taken by the Minister):

Death Penalty

…

4.10    Summary executions by beheading, shooting and hanging reportedly occur frequently in areas controlled by anti-government elements, particularly the Taliban. In 2016, UNAMA documented 38 civilian deaths by summary execution, although this number is likely to be a conservative estimate given the limited access to areas controlled by anti-government elements.

…

Torture

…

4.13    UNAMA also documents torture and other abuses carried out by anti-government elements, including the Taliban, to punish civilians for alleged infractions of sharia, perceived offences, and allegations of spying or connections with the government or security forces. These punishments, inflicted within a parallel justice structure, include the use of lashings, beatings, amputations and mutilations. DFAT is not able to provide additional information on the number or frequency of such incidents.

4.14    DFAT assesses that the use of torture and significant mistreatment of detainees by government officials to obtain confessions or other information is common and widespread. DFAT further assesses that civilians living in areas controlled by anti-government elements, particularly the Taliban, are at a high risk of torture or other abuses through parallel justice structure punishments.

Cruel, Inhuman or Degrading Treatment or Punishment

4.15    Article 29 of the Constitution prohibits punishment contrary to human dignity. However, reports of cruel, inhuman or degrading punishment by both government officials and anti-government elements persist. Aside from the incidents of torture outlined above, these incidents are largely undocumented and rarely publicised. According to UNAMA, many of the parallel justice structure punishments carried out by anti-government elements as outlined in ‘Torture’ amount to cruel, inhuman or degrading treatment.

47    The appellant contends that notwithstanding the reference to parallel political and judicial structures in [35] of the Authority’s reasons, it failed to consider those matters and instead:

(a)    considered at [34] country information on levels of civilian deaths in the appellant’s province and neighbouring provinces, finding that “any risk the applicant may face in relation to generalised violence in [the appellant’s province] is remote”;

(b)    considered at [37] that there was no civilian air service the appellant’s province and so he would need to return by road, where he would be at risk of harm from landmines and improvised explosive devices, but that this would not be a “targeted risk” for a Convention reason; and

(c)    at [44] gave no separate consideration to the parallel justice structures claim.

48    In substance, the appellant submits that the Authority failed to give consideration to his distinct claim of being at risk of significant harm because his province was a Taliban-controlled area where they operated parallel political and justice structures involving human rights abuses. He submits that although the Authority referred to parallel justice structures at [31], this was only considered as part of “generalised violence”, as is made clear by the conclusion at [34] as to the remote risk from generalised violence “including as bystanders, from explosive attacks or from explosive remnants of the fighting”.

49    The appellant asserts that this did not go far enough because the parallel justice structures claim was distinct from the issue of generalised conflict-related violence. He argues that this claim was not about civilian casualties brought about by fighting between AGEs and the Afghan Security Forces, which the Authority considered in detail, but rather concerned the Taliban’s imposition of alternate systems of rules involving human rights abuses against the population. He submits that because the Authority found that he would return to his province where the Taliban held control, it was required to confront his claim that he faced the real risk of harm from parallel justice structures operated in Taliban-controlled areas.

50    In support of those arguments, the appellant points to significant country information before the Authority which strongly and directly supported the parallel justice structures claim and which was not specifically referred to in the Authority’s reasons for decision. The appellant submits this strengthens the conclusion that the Authority failed to apprehend and consider that separate and distinct claim.

51    Further, the appellant relies upon, in addition to the information referred to by the Authority at [31], the fact that the earlier 2015 DFAT Report stated under the heading “Cruel, Inhuman or Degrading Treatment or Punishment” that “[i]n areas where the influence of anti-government elements such as the Taliban is greater, there are reports of illegitimate parallel justice systems carrying out punishments such as executions, amputations and mutilations”. He submits that the updated information in the updated DFAT 2017 Report went significantly further on the risk of human rights abuses in areas controlled by the Taliban, relying upon 4.13 and 4.14 reproduced above, and in particular the reference to a “high risk of torture”, being information that was not in the DFAT 2015 Report.

52    The appellant also relies upon there being only one overt reference to the later report at footnote 5 of the Authority’s reasons (reproduced above at [22]). He submits that the failure to refer to this updated country information at all, even in passing, requires an inference to be drawn that the Authority failed to consider the parallel justice structures claims. He submits that this was a material error as the claim was capable of establishing that the applicant satisfied s 36(2)(aa) of the Act.

53    The substance of the Minister’s response is that the appellant’s case turns on the sufficiency of the consideration of the claims that he had made, rather than upon them not having been considered at all, a characterisation which, if accepted, would necessarily be fatal to this ground. The Minister submits that the focus must be on the claims that were made, rather than focussed upon claims that might have been made if the DFAT 2017 Report had been relied upon as part of those claims, and that read in context:

(a)    the complementary protection claim advanced was that Takhar province was a “deeply volatile region” with ongoing fighting between Afghan forces and anti-government elements;

(b)    that there were various risks for the appellant if returned due to the consequences of the violence throughout the region;

(c)    one aspect of the violence that the appellant feared was in connection with the justice structures in place, but this was not the only aspect of violence the appellant feared if he returned; and

(d)    the appellant did not claim to be at particular risk of being targeted by AGEs for torture or other mistreatment, but rather claimed to be at a generalised risk of being exposed to such harm.

54    The Minister submits that it was in this context that the Authority’s reasons disclose that it:

(a)    understood the appellant’s claim to be one of “generalised violence”: [29];

(b)    identified the DFAT information supporting the appellant’s claim and noted that DFAT did not report that AGEs engage in generalised violence against civilians in the contested areas: [31];

(c)    also referred to information consistently with the appellant’s claim that Takhar was a volatile province: [33];

(d)    addressed, and rejected, the asserted prospect of the appellant being subject to harm by reason of generalised violence in his province, including but not limited to the risk of being caught up in an explosive attack: [34].

55    The Minister submits that, had the Authority in fact overlooked the appellant’s claim as made, or misunderstood it, it would be incongruous that it would have referred expressly in its reasons to DFAT information addressing the very point of AGEs operating parallel political and judicial structures, being one of the forms of generalised violence that the Authority considered. Rather, the Authority had regard to the appellant’s submission made to the Minster’s Department, and applicable country information advanced in support of the submission, that he would be at risk of generalised violence if he returned to Afghanistan, and in particular to Takhar province, and that accordingly the specific claim of harm connected to the parallel political and judicial structures was subsumed within the broader findings addressing generalised violence, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 at [47].

Consideration

56    Had this been a merits review process, the arguments advanced by the appellant may well have had considerable heft. However, as an exercise judicial review involving the high bar of jurisdictional error, the appellant’s arguments fall short of establishing what is required. It is not enough to point to a better or more thorough consideration of material that was before the Authority, or merely that a different way of viewing at the information might have caused a different result. Nor is it to the point that the DFAT 2017 Report might have supported claims that had been made in reliance upon it. That is the very essence of merits review.

57    Given that the Authority expressly referred to the parallel justice structures upon which the appellant relies upon as having been overlooked, identifying a new characterisation of the claims on appeal does not invalidate the assessment and understanding of those claims, or the emphasis to be given to different aspects of them. The Authority was entitled to regard the claims made as giving rise to an issue of generalised violence rather than depart from the way it was presented and treat it as a separate and distinct claim. The parallel justice element was an important part of the consideration of the issue of generalised violence. It follows that the arguable deficiencies in the assessment of the material that was before the Authority fall short of identifying anything more than a possible error within jurisdiction. However, I am not satisfied that an error within jurisdiction has been established either. Ground 1 must therefore fail.

Conclusion

58    As both grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    18 February 2022