Aav19 v Minister for Home Affairs
[2019] FCCA 517
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAV19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 517 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application in a case to set aside orders for non-appearance – no satisfactory explanation for the failure to appear – no reasonably arguable case of jurisdictional error made out by the proposed grounds – application in a case dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c), 16.05 Migration Act 1958 (Cth), ss.473DB, 473DC, 476 |
| Applicant: | AAV19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 10 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 4 March 2019 |
| Date of Last Submission: | 4 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law |
| Solicitors for the Respondents: | Mr J McGovern Clayton Utz |
ORDERS
Grant leave to the applicant to rely upon the affidavit of Ali Alkafaji sworn 4 March 2019 and the Court dispenses with the need for the filing of an electronic copy of the same.
The application in a case is dismissed.
The applicant pay the first respondent’s further costs fixed in the amount of $2,000.00.
DATE OF ORDER: 4 March 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 10 of 2019
| AAV19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application in a case to set aside an order made in the absence of the applicant pursuant to r 16.05 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). The order was made by Registrar Morgan on 7 February 2019, that the application be dismissed pursuant to r 13.03C(1)(c) of the Rules.
The applicant has put on affidavit evidence explaining that the applicant did not check his emails in respect of the notification of the hearing date. The applicant also explained that he anticipated engaging a solicitor to assist and the solicitor put on an affidavit supportive of that intention, and Mr Zipser of counsel has appeared for the applicant today.
The explanation for the failure to appear is unsatisfactory. However, in an application under r 16.05(2)(a) of the Rules, the real issue is whether there would be any utility in the Court setting aside the order. In that regard, the Court is considering whether the applicant has a reasonably arguable case of relevant error by the Authority in its decision under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
The applicant’s substantive application seeks a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 3 December 2018, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
I accept Mr Zipser’s submission that it is a relatively low threshold to identify an arguable case, and that the Court must take into account that a refusal to permit the applicant to have the order set aside means the applicant has no right of appeal and must seek leave. Mr Zipser accepted that in determining whether or not an order should be made under r 16.05(2)(a) of the Rules. In the circumstances of the present case, the grounds that were identified in the originating application were inadequate to identify any arguable case of error. At the commencement of the hearing today, Mr Zipser sought an adjournment in order to put on material identifying proposed grounds upon which the applicant would wish to rely and to identify why there was utility in the setting aside of the order made.
The proposed grounds
The proposed grounds by the respondent are as follows:
1. The Minister’s delegate accepted in a decision dated 10 August 2018 that the applicant “deserted the army”: see IAA decision at [2]. In contrast, the Immigration Assessment Authority (“the IAA”) at [19] did “not accept [the applicant] deserted the army” (see also at [26]) and instead found that the applicant “resigned from the army”. The IAA fell into jurisdictional error in making this finding for the following reasons:
a) First, whether or not the applicant deserted the army was significant to the applicant’s claims since:
i. an express claim in his SHEV application was that he feared serious harm because he “left the Army without permission”; and
ii. if the applicant had deserted the army, it is likely this would have affected the IAA’s assessment of the applicant’s claims.
Where the Minister’s delegate makes a finding of fact concerning an important matter or issue in the applicant’s favour and the IAA is considering making a finding adverse to the applicant concerning the matter or issue, it is legally unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 (Cth) to give the applicant an opportunity to comment. In the circumstances, the IAA’s conduct in failing to exercise its power under s 473DC to give the applicant an opportunity to comment on the IAA’s concerns was legally unreasonable.
b) Second, the IAA stated at [19] “I consider it more plausible he resigned from the army ...”. This wording involves a finding on the balance of probabilities and some doubt by the IAA concerning the finding. As stated in Minister v Rajalingam (1999) 93 FCR 220 at [67], “if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred”. In the present case, the IAA erred by not considering the possibility that its past finding of fact on this material question was wrong.
c) Third, the applicant explained in the statement accompanying his SHEV application at [19] that “When I left the country I was still within the 1 month Army leave [and] the authorities at the airport did not know my intention to flee Iraq”. The IAA overlooked this evidence in rejecting the application’s army desertion claim on grounds that “he was able to legally depart from Iraq without issue”. To overlook significant evidence is a jurisdictional error.
2. On 4 September 2018 the applicant provided a submission and supporting documents to the IAA. One supporting document was a statement of Ali Sharqi in which Mr Sharqi gives evidence that in April 2012 a person associated with a riot in Tikrit was looking for the applicant in Basra, and intended to harm the applicant (“the Witness Statement”). The Witness Statement was significant because if the IAA accepted the evidence of Mr Sharqi recorded in the statement:
a) The evidence indicated that, contrary to a finding of the IAA at [14], the applicant had been “personally targeted”.
b) If the IAA accepted that the applicant had been personally targeted, this may have affected the IAA’s assessment of whether the applicant faced a real chance of serious harm if required to return to Basra.
The IAA’s reasons for decision indicate that it overlooked the Witness Statement in deciding under s 473DD of the Migration Act whether it was required, or alternatively not permitted, to consider the Witness Statement.
3. The IAA at [22] rejected as not genuine a letter provided by the applicant to the Department for two reasons:
a) One reason the IAA rejected the letter was because “in the ... SHEV application [the applicant] said his father was in Australia”. However, in the SHEV application the applicant said his father was in Iraq. For the IAA to make a wrong finding of fact and misunderstand evidence concerning a critical matter is a jurisdictional error.
b) The other reason the IAA rejected the letter was because “the letter is dated 19 February 2017 which is the same date the applicant claims his family first found out about his extra marital affair”. However, the applicant never gave evidence, and there was no evidence before the IAA, that the letter is dated on the same date the applicant’s family first found out about the affair. For the IAA to make a wrong finding of fact and misunderstand evidence concerning a critical matter is a jurisdictional error.
In the circumstances, the IAA fell into jurisdictional error in rejecting the letter as not genuine, and in rejecting this claim by the applicant.
4. The applicant claimed in his SHEV application lodged in June 2017 and subsequent SHEV interview that, because of his attendance as a soldier at a prison riot in Tikrit September 2012, people from Tikrit (and not just escaped prisoners) were targeting the applicant. The IAA at [18] did “not accept people from Tikrit were looking for the applicant in Basra as claimed”. For the following reasons, the IAA fell into jurisdictional error in making this finding:
a) The IAA relied significantly on the fact that the applicant, in his arrival interview, had said that “the army were targeted by the escaped prisoners in Tikrit after the prison riot” (IAA decision at [15]), but the IAA did not claim he was targeted by any other groups. As stated by the Full Federal Court in MZZJO v Minister (2014) 239 FCR 436 at [56], “some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interviews”. The IAA relied too heavily on the omission, which was a jurisdictional error.
b) The IAA relied on an answer by the applicant at the arrival interview that “In Al Basra, yes I was safe”. The IAA found that “when looked at in the context of what was being said in the arrival interview, he meant he was safe from being targeted in Basra in connection with the prison riot”. The IAA erred in rejecting the applicant’s claim based on this interpretation.
5. According to an arrival interview record, the applicant stated at his arrival interview that, following the prison riot in Tikra in September 2012, he “went back home [to Basra] and he left the job”: see IAA decision at [19]. The IAA at [19], in partial reliance on this answer, did “not accept [the applicant] deserted the army”. If the applicant’s answer in Arabic at the arrival interview was to the effect that the applicant deserted the army, then the interpreter erred by interpreting the applicant’s answer as being that he “left the job” In light of the significance of the error, this gave rise to a jurisdictional error in the IAA’s decision. Although the IAA would not be personally at fault, there may be a jurisdictional error if an administrative decision is based on an error by an interpreter provided by the Department during the visa application process.
6. According to an arrival interview record, the applicant stated at his arrival interview that, following the prison riot in Tikra in September 2012, he “returned to Basra and “In Al Basra .. I was safe”: see IAA decision at [16]. The IAA at [16] interpreted the applicant’s answer to mean that “he was safe from being targeted in Basra in connection with the prison riot. If the applicant’s answer in Arabic was different to the interpreter’s interpretation (“In Al Basra .. I was safe”) and inconsistent with the IAA’s interpretation of the applicant’s answer, this gave rise to a jurisdictional error in the IAA’s decision. Although the IAA would not be personally at fault, there may be a jurisdictional error if an administrative decision is based on an error by an interpreter provided by the Department during the visa application process.
Proposed ground 1(a)
In relation to proposed ground 1(a), Mr Zipser submitted that the Authority had engaged in jurisdictional error by failing to consider exercising the power under s 473DC of the Act before making a different finding to that of the delegate in relation to the applicant’s contention that he deserted from the army. The Authority in its reasons expressly identified in paragraph 2 that the delegate had accepted a number of the applicant’s claims, including, relevantly, that he had deserted from the army.
The Authority in its reasons squarely made a finding that it did not accept that the applicant deserted the army and found that the applicant had resigned from the army just after the prison riot. That adverse finding was made by the Authority in the context of the applicant having left Iraq on his genuine passport in May 2013. Dealing with the provisions of Part 7AA of the Act, and in particular the primary rule identified in s 473DB of the Act, I do not accept that the departure in reasoning by the Authority from that of the delegate identifies any reasonably arguable ground as alleged in proposed ground 1(a).
Proposed ground 1(b)
In relation to proposed ground 1(b), Mr Zipser submitted that the findings of the Authority were expressed as being the subject of doubt and that, accordingly, the Authority should have considered the issue of “what if I am wrong?” test. The Authority’s finding that the applicant did not desert from the army is not couched in language of doubt. There is no scope for the application of such principle. Proposed ground 1(b) fails to identify any reasonably arguable ground.
Proposed ground 1(c)
In relation to proposed ground 1(c), Mr Zipser submitted that the Authority had overlooked the applicant’s evidence in his statement that he was on leave at the time he departed. Paragraph 19 of the Authority’s reasons makes clear that the Authority was aware of the contention that the applicant was still on leave and it did not accept the same. No arguable jurisdictional error as alleged in proposed ground 1(c) is made out.
Proposed ground 2
In relation to proposed ground 2, Mr Zipser submitted that there was an unsigned statement that the solicitor’s evidence supported having been provided to the Authority. There was tendered into evidence a copy of the email of 4 September 2018 by the applicant to the Authority, together with its annexures. No issue is taken with the authenticity or accuracy of the email and its annexures. That email is entirely inconsistent with the assertion in the solicitor’s affidavit. There is no other evidence to support the Authority being provided with the unsigned statement the subject matter of proposed ground 2. Nor does the Court accept that the content of the subject matter of the statement in proposed ground 2 is of a kind that was material in the context of the Authority’s reasoning.
The Authority’s reasoning in relation to the applicant’s claims of his targeting was considered in paragraph 14 by the Authority in the context of the applicant being identified as a Shia and the risk of harassment being detailed and consistent, but given the lack of detail, the Authority did not accept that the applicant was personally targeted. I do not regard the unsigned statement as a material fact to which the Authority was required to refer, even if it had been provided to the Authority. The Court does not accept the unsigned statement was provided to the Authority. On the face of the material before the Court, no arguable case is disclosed that the unsigned statement was provided to the Authority. Accordingly, no arguable case of relevant error is disclosed by proposed ground 2.
Proposed ground 3(a)
In relation to proposed ground 3(a), Mr Zipser referred the Court to the form completed by the applicant in his Safe Haven Enterprise visa application and the reference to various family members currently being in Iraq, including a reference to the applicant’s father. Mr Zipser submitted that the Authority, in paragraph 22, in referring to what occurred at the arrival interview in the Safe Haven Enterprise visa application, where the applicant is alleged to have said his father was in Australia and has not otherwise indicated he has returned to Iraq, that this reflected a critical misunderstanding of fact of a kind to constitute jurisdictional error.
The Authority’s reasons in paragraph 12 identify that the applicant is a Shia Arab from Basra and finds that his mother and a number of adult siblings continue to reside there. I do not regard the reference to what was said in the arrival interview and Safe Haven Enterprise visa application in paragraph 12 as giving rise to any arguable case of error as alleged in proposed ground 3(a). It is not apparent that there was any misunderstanding by the Authority as alleged. I do not accept that the identification of family members in the form of the Safe Haven Enterprise visa application reveals any wrong finding by the Authority, let alone a wrong finding that was material. No arguable case of jurisdictional error is made out by proposed ground 3(a).
Proposed ground 3(b)
In relation to proposed ground 3(b), Mr Zipser referred to the Authority’s reasoning in relation to a letter from the applicant’s father in Iraq provided to the delegate in the Safe Haven Enterprise visa interview. The Authority refers to the letter, being dated 19 February 2017, as the same date the applicant claims his family first found out about his extramarital affair, and the Authority identified that it did not accept the letter as genuine. The Authority’s reasons are to be read as a whole, and the Authority’s reasons in that regard continue after paragraph 22 up to and including paragraph 28.
The Authority did not accept that the applicant’s family and tribe had threatened to kill him or otherwise harm him because he had converted to Christianity and the Authority referred to having found in relation to the late raising of claims that the applicant’s explanation was farfetched. The Authority did not accept that the applicant’s tribe and his estranged wife’s tribe are fighting, because in the context of the applicant’s claim that he had split from his wife in paragraph 22. The Authority referred to the applicant’s claim that he had renounced Islam and converted to Christianity, and because of the shame that he had brought on his family and tribe, the applicant alleged they disowned him and he was issued with a threatening letter from his tribe that said he would be killed if he was returned. The Authority noted that the letter was purportedly signed by the chief of the tribe and purported to have been signed by the applicant’s father. It was in that context that the Authority identified the issue as to where the applicant’s father was said to be by the applicant.
The applicant’s supplementary statement was referred to by the Authority, which makes reference to the separation from his wife and disclosure of a relationship with another person which was made on Facebook, and reference was made to the applicant’s father calling him in relation to photos posted on Facebook, and that the father became furious and his family disowned him, and that his father believes he has renounced Islam and that he has converted to Christianity. The Authority’s reasons are not to be read with a keen eye for error. The adverse finding by the Authority in not accepting the letter as genuine was open to the Authority for the reasons given by the Authority. I do not accept that the reference by the Authority to the letter being the same date as the applicant’s claims that his family first found out about his extramarital affair should be read with a keen eye for error.
It is apparent from the applicant’s supplementary statement that the letter dated 19 February 2017 appears to coincide with when the applicant says he moved to Canberra to be with the relevant person and lived together for about a month before the relationship broke down and he moved back to Sydney. It was in that period of one month that the applicant identified having posted photographs to Facebook of them together. The Authority expressly referred to the applicant’s claim that he would be killed by his family, his estranged wife’s family, and his and his estranged wife’s tribes. On a fair reading, the reasoning of the Authority logically applies by reason of being around the same date. I do not accept that proposed ground 3(b) identifies any reasonably arguable case of jurisdictional error in the finding that the letter is not genuine.
Proposed ground 4
In relation to proposed ground 4, Mr Zipser referred to the Authority’s finding in paragraph 18 rejecting the applicant’s claim that people were looking for the applicant in Basra. The argument developed by Mr Zipser was that there was reference in the reasoning to what was said or omitted from the arrival interview in paragraph 17. On no view did the Authority reason in relation to the applicant’s credit in this regard only by reference to the arrival interview.
Mr Zipser sought to further support the ground by contending that the Authority’s understanding of the applicant’s contention in the arrival interview that he was safe in Basra should not be understood as meaning he was safe from being targeted in Basra in connection with the riots. This, in substance, is a disagreement with the merits of the adverse finding by the Authority. The Authority referred to, in paragraph 16, what the applicant had said in that regard. The same issue had been touched upon in paragraph 15. The issue of the applicant’s safety in Basra was the subject of submissions to the Authority that the Authority referred to, and the Authority referred to the applicant’s assertion that there had been interpretation issues and rejected the same. The Court is not satisfied that proposed ground 4 discloses any reasonably arguable case of jurisdictional error to give rise to any utility in setting aside the orders made in the absence of the applicant.
Proposed grounds 5 and 6
As to proposed grounds 5 and 6, Mr Zipser acknowledged these were hypothetical grounds and, in substance, dependent upon an assumption that is not apparent in the material currently before the Court. Mr Zipser candidly acknowledged that further steps would have to be taken to seek to identify if there was any such flawed assumption that could be made out. There is no material before this Court to support any flawed assumption. Proposed grounds 5 and 6 on their face do not disclose any reasonably arguable proposed ground of jurisdictional error.
Conclusion
In the circumstances, where the explanation for the failure to attend is unsatisfactory, and where the Court is not persuaded that there is a reasonably arguable case of relevant error on the merits of the proposed grounds, the Court is not satisfied that there would be any utility in setting aside the order made on 7 February 2019. Accordingly, the application in a case is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 29 March 2019
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