Hedari v Minister for Immigration and Border Protection

1. The appeal be allowed.
2. The orders made by the primary judge be set aside.
3. The decision of the second respondent be set aside.
4. The application for review of the decision of the delegate of the first respondent be remitted to the second respondent to be decided afresh according to law.
5. The Minister pay the costs of the appellant: (a) before the Federal Circuit Court of Australia at the scale rate of $7,467; and (b) in this court as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The appellant, Mr Syed Hedari, was born in Afghanistan. He came to Australia by boat in early 2010, was granted a protection visa in the middle of that year, and became an Australian citizen in 2014. His wife, Mrs Bibi Hedari, was also born in Afghanistan. She and her six children with Mr Hedari, all now adults, were unsuccessful applicants for, respectively, partner and associated visas. Mr Hedari was the sponsor of Mrs Hedari (and her children) by reason of their marriage. 2 Mrs Hedari and her six (now) adult children applied for the visas on 23 June 2013. On 28 February 2016, a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refused to grant the visas upon the basis that Mrs Hedari did not satisfy the requirements of cl 309.225 in Schedule 2 to the Migration Regulations 1994 (Cth). This was because the Afghan identity documents that Mrs Hedari submitted in relation to the visa application were found to be "bogus" documents, and she therefore did not satisfy Public Interest Criterion (PIC) 4020(1)(a) in Schedule 4 of the Regulations. The delegate was not "satisfied" that any "compassionate or compelling circumstances that affect the interests of an Australian citizen … [or] permanent resident … justify the granting of the visa", so as to permit the waiver of PIC 4020(1)(a) pursuant to PIC 4020(4)(b). 3 On 18 March 2016, Mr Hedari and the seven visa applicants applied for merits review by the Tribunal in his capacity as the sponsor for the visas. On 26 April 2017, the Tribunal decided to affirm the delegate's decision. On 19 May 2017, Mr Hedari appealed to the Federal Circuit Court for judicial review of the Tribunal's decision. The final iteration of that application was dismissed by the primary judge on 1 November 2019, following a hearing on 28 October 2019. On 28 November 2019, Mr Hedari appealed to this court. 4 Both judicial review in the Federal Circuit Court and the appeal to this court turn on the part of the Tribunal's decision concerning the bases upon which the test of "compassionate or compelling circumstances" was found not to have been met. The four circumstances that were unsuccessfully advanced before the Tribunal were Mr Hedari's mental health arising from his long-term separation from his family, Mr Hedari's financial circumstances arising from the costs he had incurred as a result of the visa process, the nature of the relationship between Mr Hedari, and his wife and their children, and his current separation from his wife and their children. The judicial review challenge and this appeal are confined to the last of these circumstances, being the separation of Mr Hedari from his family and in particular the issue of his ability to travel safely to where they live in Pakistan to address that separation. 5 Mr Hedari's ultimate amended notice of appeal presses only review ground 5 before the primary judge. He contends that the Tribunal's decision is infected with a jurisdictional error, which the primary judge erred in failing to uphold as being made out, arising out of the Tribunal's treatment of country information derived from the Department of Foreign Affairs and Trade (DFAT). The Tribunal interpreted the DFAT country information as only cautioning against travel to the city in which Mr Hedari's family lived in Pakistan, Quetta ("reconsider your need to travel"). In fact, Quetta was the capital of the Balochistan region, which was designated by DFAT as "do not travel". It is common ground that the Tribunal's interpretation was wrong. It is not necessary for present purposes to attempt to unravel how that mistake was made. The dispute is ultimately about the materiality of this error. For this court to draw the conclusion as to jurisdictional error that Mr Hedari needs for his appeal to succeed, the error must have been material. 6 The Tribunal's treatment of the separation issues was as follows (at [119]-[121]): The Tribunal has further considered the matter of the review applicant's current separation from his children and the visa applicant. As things currently stand, in order to be with his family, the review applicant has to return to Quetta, Pakistan where they live. In relation to a visit by the review applicant to Pakistan, the Tribunal takes into account the following matters:  The Department of Foreign Affairs and Trade (DFAT) travel advice in relation to Pakistan currently advises Australians to "reconsider your need to travel" to Pakistan overall. Travellers are advised "not to travel" to some areas of Pakistan, excluding Quetta.  The review applicant travelled to Quetta and spent time with his family in late January 2016 and returned to Australia on 1 March 2016.  The review applicant does not have the legal right to reside in Pakistan but he is entitled to visit that country. The Tribunal acknowledges there are possible risks and comparative hardships associated with the review applicant visiting his family in Quetta but it takes into account the history of his visit to his family in 2016 and DFAT's current travel advice which, in relation to Quetta, is limited to "reconsider your need to travel" rather than "do not travel." For the above reasons the Tribunal considers it is open to the review applicant to visit his family in Quetta thereby ending his physical separation from them. 7 After citing and quoting from Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [9], DZT18 v Minister for Home Affairs [2019] FCA 1639 at [24], and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [48], the primary judge addressed this aspect of the judicial review application as follows (at [36]-[39]): In this case, the Tribunal was not considering the safety or risk to the review applicant visiting Quetta as a fundamental aspect. It was considering whether there were compelling or compassionate reasons to waive PIC 4020. One of these matters submitted to the Tribunal, as constituting such reasons, was the separation of the review applicant from the visa applicant. It was one of five submissions considered, which were balanced against the credibility of the applicants and the fact that they had provided bogus documents. If the AAT had considered the correct information, it would seem to me it would then have had to consider what the DFAT warning was a year earlier, when the applicant did actually visit Quetta. It seems to me that the possibility that this information could have changed the decision of the Tribunal is not realistic. The information may only have been capable of changing one aspect but it still could not have overcome the issues of credibility, or the provision of the bogus document consideration. If there was an error, it did not amount to a jurisdictional error. Therefore ground five fails. 8 Mr Hedari submits that the Tribunal's error in its understanding of the DFAT country information had the following characteristics rendering it, subject to materiality, a jurisdictional error as follows: (1) "no rational or reasonable decision-maker could have found that the DFAT [country information] meant what the Tribunal interpreted it as saying", going well beyond merely a decision in which, citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], "logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from [the] evidence", but rather, per SZMDS at [135], "there is no logical connection between the evidence and the inferences or conclusions drawn"; (2) the DFAT country information not only did not support the conclusion which the Tribunal reached, but supported the opposite conclusion, such that the interpretation given lacked any "intelligible justification", quoting Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]; and also relying upon like characterisations in other leading cases on this topic; (3) the Tribunal's error led it to a factual conclusion that was not open, namely, that the possible risks associated with Mr Hedari visiting his family in Quetta were offset by, inter alia, travel advice that was limited to "reconsider your need to travel" rather than "do not travel". Mr Hedair quoted Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] in relation to the consideration of risk identified by country information (albeit in the context of visa cancellation on character grounds), where the Full Court reasoned that the Tribunal's task could not be lawfully undertaken "without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture … on the ground in Zimbabwe for him if he were to be returned there". The Tribunal's task in the present case in determining whether it was satisfied that "compassionate or compelling circumstances" affecting Mr Hedari and justifying the grant of the visa existed required it to proceed with a like consciousness and consideration of the material before it that was likely to give an accurate picture of the risks he would face if he were to visit his family; (4) the Tribunal failed to have regard to substantial and consequential material that was before it, citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112]. As Robertson J pointed out at [111] in SZRKT, "[t]he fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error"; (5) the Tribunal referred to the DFAT country information insofar as it contained advice relating to Pakistan as a whole, but plainly failed to consider the critical part of that country information that directly related to travel to Balochistan (and thus Quetta), leading to the incorrect observation that "[t]ravellers are advised 'not to travel' to some areas of Pakistan, excluding Quetta" (emphasis in original), which was "a failure to take account of relevant material" in that country information and therefore a jurisdictional error, quoting VOAO at [13]. 9 As to materiality, Mr Hedari submits that the primary judge, having assumed the existence of the error now quite properly conceded by the Minister to exist, erred in finding that this was not material and thus not a jurisdictional error. The key asserted error lies in his Honour's conclusion that there was not a realistic possibility that the correct information could have changed the Tribunal's decision. Mr Hedari submits that the, or at least a key question going to whether the Tribunal was satisfied that there were "compelling or compassionate circumstances" to waive PIC 4020(1)(a) was whether Mr Hedari could safely visit his family in Quetta, as to which the impediments and risks he faced were plainly regarded as determinative. Whether or not he could visit his family safely was integrally connected to whether he would continue to remain separated from them. Mr Hedari submits that because of the error made, the Tribunal did not consider the real level of risk he faced in making a decision about whether or not to visit his family in Quetta, and the primary judge erred in taking into account the separate reasons why the other three considerations advanced were unsuccessful. 10 The Minister's contrary submissions boil down to the following propositions, relying upon much the same principles and authorities: (1) the ability of Mr Hedari to visit his family was but one of a number of circumstances relied upon by the Tribunal in determining that it was not satisfied that there were compelling or compassionate circumstances to waive PIC 4020(1)(a) - that is correct as far as it goes, but this was an independent basis upon which the Tribunal was unable to be satisfied that such circumstances existed, and it was independently tainted by error; (2) it is speculative to suggest that the warning "not to travel" to Quetta could have changed the overall assessment of the separation issue - that submission overlooks the fact that the Tribunal itself treated this as being an inextricable part of why safety was not an impediment to Mr Hedari travelling to Quetta to address that separation issue; (3) the Tribunal was clearly aware that travel to Quetta involved potential risk, but a fair reading of the DFAT country information is that there are risks to travelling to many areas of Pakistan, not limited to areas designated "do not travel', but extending to areas described as "reconsider your need to travel". This was argued to be so even if the former was generally a higher risk, since there was nothing to indicate that the Tribunal considered this incremental difference had any bearing on this assessment. There are two separate problems with this submission: (a) first, it invites in-depth consideration of the country information, in the absence of anything to suggest that the Tribunal delved into that material in that way, and also carries the risk of sliding into impermissible merits review, if not downright speculation; (b) secondly, it is plain enough that the Tribunal did consider this incremental difference significant, using it as part of the reasoning for erroneously downplaying the risk that Mr Hedari faced; (4) the hardship faced by Mr Hedari had to be viewed in light of his actual conduct in visiting Quetta in early 2016, such that regardless of the level of risk he was able to visit his family - the problem is that this was expressly taken into account by the Tribunal, but bolstered by erroneous reference to a comparatively lower, rather than higher, level of risk, explaining why he was able to travel there. (5) the present situation was akin to that considered by the High Court in SZMTA at [48] as to materiality - that comparison is inapt, because that conclusion was reached upon the basis that an item of correspondence that was overlooked could not realistically have made a difference because it was similar in effect to correspondence that was not overlooked in producing the decision that was made. 11 As will be apparent from a comparison of the consideration above of the competing arguments, Mr Hedari more accurately characterises the Tribunal's decision and thereby the application of well-established authority to it. I am comfortably satisfied that the Tribunal's admitted error went to the essence of the determination of the waiver of PIC 4020(1)(a) via PIC 4020(4)(b), that the error was material and therefore operative, that had the error not been made there was at least a realistic possibility of a different conclusion as to the waiver being reached, and accordingly that a jurisdictional error has been established. The primary judge erred in reaching a different conclusion. In particular, his Honour erred in concluding that the error (which was only assumed) was not material and thus not jurisdictional.