Immigration Assessment Authority Refused Applicant's Grant of Visa
The applicant lodged an application for a Temporary Protection Visa but the Immigration Assessment Authority refused a grant of the visa. The applicant alleged that the decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness given the military coup by the Taliban in Afghanistan so that the applicant's receiving country is now the Islamic Emirate of Afghanistan. The Court, in adjudicating this dispute, relied upon the receipt of evidence as to existence of country.
Facts:
The applicant commenced these proceedings on 22 September 2017 seeking a constitutional writ within the Courts jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the IAA”) under Part 7AA of the Act made on 25 August 2017. The applicant lodged an application for a Temporary Protection Visa (“the Visa”) on 30 May 2016. On 15 November 2016, a delegate of the first respondent (“the Delegate”) refused a grant of the visa. By letter dated 18 November 2016, the IAA informed the applicant that the application for the Visa had been referred to the IAA for review and gave the applicant an opportunity to put on new information and submissions.
The applicant was found to be an ethnic Hazara and Shia Muslim who originates from a Particular village in Mazar-e Sharif. When the applicant was a young child, the applicant’s family departed Afghanistan for Iran. The applicant returned to Afghanistan in 2004 when the Taliban was no longer in control. After 6 months, the applicant went to Syria for the next 8-10 years.
The delegate found the document to be bogus, as did the IAA. The IAA found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act. The IAA also found that it would be reasonable for the applicant to relocate not only in Kabul, but in an area of the country where there would not be a real risk that the applicant would suffer significant harm. It was alleged that the decision by the IAA was affected by an absence of jurisdictional fact resulting in legal unreasonableness given the military coup by the Taliban in Afghanistan so that the applicant's receiving country is now the Islamic Emirate of Afghanistan.
Issue:
Whether the applicant has made out a jurisdictional error as alleged in Ground 1 of the Second Further Amended application.
Applicable law:
Migration Act 1958 (Cth) s 4 - provides that the object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. The scope and purpose of the review powers of the IAA are also provided herein.
Migration Act 1958(Cth) s 5H - defines a refugee as:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Migration Act 1958 (Cth) s 5J - sets out the meaning of "well-founded fear of persecution" which is when:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a Particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Migration Act 1958(Cth) s 5J - provides that effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a Party or organisation, including an international organisation, that controls the relevant State or a substantial Part of the territory of the relevant State; and
(b) the relevant State, Party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
Migration Act 1958(Cth) s 36 - provides that a criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
Analysis:
The IAA was not on the evidence satisfied that the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Kabul from an insurgent group such as Islamic State or any other actor, by reason of him having returned from a western country where he sought asylum. The takeover of Afghanistan by the Taliban since 16 August 2021 and the declaration by the Taliban of the Islamic Emirate of Afghanistan has been in every Australian newspaper as well as on numerous international internet news sites. Hence, the country and the receiving country, the subject of the review by the IAA, no longer exists.
The country, which is the subject of the findings by the IAA as the receiving country, included a governance and system of laws of Afghanistan that have ceased. The Court is not in a position to receive fresh country information because this engages in impermissible merits review. The Court is not receiving fresh country information that concerns the receiving country of Afghanistan, rather the Court is receiving evidence as to whether that receiving country exists. The Taliban takeover of Afghanistan and the declaration of the Islamic Emirate of Afghanistan as identified in the international news internet site article tendered into evidence and marked Exhibit B is relevant within s 55 of the Evidence Act.
The outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist.
Conclusion:
The Court granted a writ in the nature of certiorari calling up the record of the second respondent and quashing the decision made on 25 August 2017. A writ in the nature of mandamus is issued requiring the second respondent to determine the review application according to law. The first respondent is to pay the applicants costs fixed in the amount of $7,206.00
