Sorry Sandy … Judicial friends take divergent paths … “Plainly wrong” … “High esteem” … Immigration assessments made prior to the Taliban takeover in Afghanistan … Ignoring the changed circumstances in the Islamic Emirate … Comity and “principle” … FCFC judges at sixes and sevens … Max Shanahan reports 

In a bold decision last September, Judge Street found that, for all intents and purposes, the Islamic Republic of Afghanistan had ceased to exist after the Taliban’s takeover, despite the Australian government’s continuing recognition of the deposed government. 

“What Australia as a sovereign nation may or may not recognise as a foreign state is not relevant to or determinative of the application in these proceedings.”

To Street, the existence and security apparatus of the previous Afghan government was “an essential part of the characterisation … as to whether the applicant met the refugee criteria”. 

The changed status of “the receiving country” was relevant and amounted to a “jurisdictional fact”.

Now that the Islamic Republic of Afghanistan has been replaced by the Taliban’s Islamic Emirate of Afghanistan, Street reasoned that the Immigration Department’s failure to consider new information was unreasonable and he ordered the application for protection to be heard again. 

Predictably, this was not well received by the departmental people who swooped in immediately with submissions to a similar fact case heard by Judge Kendall, arguing that Street’s decision was so “plainly wrong” that judicial comity should not apply. 

Key to the submission is the notion that “if a decision is valid at the time that it was made, it does not become invalid (i.e. affected by jurisdictional error) because of a change of circumstances after the decision is made”. 

Immigration assessments made before the emergence of the extremist emirate cannot be found to have unreasonably ignored material facts which did not exist at the time of decision. 

Kendall followed an October 13, 2021 decision of Judge Gregory Egan in DVF18 v Minister for Immigration where it was declared that Street’s reckoning of Afghan affairs was “plainly wrong”. 

Judge Egan will be remembered for his triumphant 2018 swearing-in speech, where he said: 

Stuck between comity and an incontrovertible principle, Judge Kendall took a long-winded dance around his outright rejection of Street’s approach. 

“It is never easy for a judge to state publicly that an assessment made by his colleague is ‘plainly wrong’. This is particularly difficult where, as here, the judge holds that colleague in high esteem, where that colleague is a friend and where that colleague has offered guidance and support to that judge when he began his judicial career.”

Maybe this helped Sandy Street feel a bit better after enduring Justice Nye Perram’s “forensic birds-nest” broadside. 

Even so, Judge Kendall’s caresses couldn’t cover the inevitable rejection of Street’s “judicial notice” of changed circumstances in the prospective receiving country. 

“Having said that … this court is of the view that Judge Street is ‘plainly wrong’.” 

We’re still left with the problem of people from Afghanistan losing their applications for protection because there was no jurisdictional error made by the IAA when assessing conductions during the era of the Islamic Republic and ignoring the possibility of their return to the regime of the Islamic Emirate. 

So much for “common knowledge” and “jurisdictional facts”. 

See:

GLX18 v Minister for Immigration, Kendall J January 18, 2022

DVF18 v Minister for Immigration, Egan J October 13, 2021

EGZ17 v Minister for Immigration, Street J September 2, 2021