ABJ17 v Minister for Immigration

[2017] FCCA 1240

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABJ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1240

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – applicant providing a purported court summons in Farsi to the delegate, which was given no weight as an untranslated document – Authority permitting the applicant to provide an English translation of the document and taking the translated document into account – whether the translated document was “new information” considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 473CA, 473CB, 473CC, 473DB, 473DC, 473DD

Cases cited:

SZBYR v Minister for Immigration (2007) 81 ALJR 1190

Applicant: ABJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 7 of 2017

Judgment of: Judge Driver

Hearing date: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Solicitors for the Applicant: Labour Pains Legal

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application as amended on 28 February 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 7 of 2017

ABJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 8 June 2017 I dismissed with costs an amended judicial review application filed on 28 February 2017.  The following are my reasons for those orders.

2. The applicant is a national of Iran of Azari Turk ethnicity. He was born on 16 March 1990 and arrived in Australia on 20 December 2012 as an unauthorised maritime arrival. He has been held in detention since his arrival, although it is unclear whether all this time was spent in immigration detention. He is presently detained on Christmas Island.

3. On 20 April 2016 the applicant was informed the Minister had lifted the s.46A bar.[1]

   [1] Court Book (CB) 19

4. On 22 June 2016 the applicant lodged an application for a Safe Haven Enterprise visa (SHEV).[2] The application was accompanied by a statement in which the applicant claimed that summonses had been sent to his address in Iran[3]. The statement attached a translation of a “Court Ruling” of the “Tehran Islamic Revolutionary Court” dated after the applicant departure from Iran by which that Court sentenced the applicant to “10 years of discretionary imprisonment”.[4] The applicant claimed in his statement that his parents obtained the Court documents from the family of the applicant’s co-accused mentioned in the Court Ruling.

   [2] CB 32- 84

   [3] CB 75 at [30]

   [4] CB 83-84

5. On 18 July 2016 the applicant’s advisors (Refugee Advice and Casework Service (RACS)) provided written submissions in support of the application.[5] The submissions referred to the applicant’s claim of “being summonsed and likely sentenced in absentia”.[6]

   [5] CB 107-133

   [6] CB 113

6. On 25 June 2016 the applicant attended an interview with a delegate of the Minister (delegate) in relation to his application for a SHEV visa.

7. On 5 September 2016 the applicant provided an untranslated document to his Departmental case manager who forwarded a black and white copy of it by email to the delegate with the information: “It is not translated but (the applicant) informed me it is a slip that requested him to appear in court in Iran”. On the same day the case manager also emailed RACS a copy of the document. These emails are reproduced in the supplementary court book.

8. On 7 September 2016 the delegate refused to grant the visa.[7] The delegate found the applicant had not provided any evidence of a summons issued by the courts, “in particular the court summons he claims that was issued for him following his departure to Australia”.[8]

   [7] CB 166-185

   [8] CB 172

9. The delegate’s decision records that:[9]

   On 5 September 2016, the applicant's Case Manager forwarded a scanned copy of an untranslated ‘court slip’ as requested by the applicant. As the document is an untranslated photocopy and holds no visible security features, I have not afforded it any weight in this assessment.

   [9] CB 172

10. On 27 September 2016 RACS sent an email to the respondent Immigration Assessment Authority (Authority) including the following description of its attachments:[10]

    a)authority;

    b)submissions

    c)email from Minister’s Department to RACS;

    d)attachment to email;

    e)colour copy of attachment;

    f)translation of  attachment.

    [10] CB 199

11. The RACS submissions attached to the email are also dated 27 September 2016. The submissions include the following [11]:

    In the findings, the Delegate referred to a “court slip” forwarded to the Department by the Applicant’s CIIDC Case Manager on 5 September 2016, two days before the date of the Findings. However the Delegate afforded it no weight in the assessment due to the lack of a translation and “no visible security features”.  As this document was forwarded to RACS on the same date (see email at Attachment) RACS was unable to obtain an official translation before the date of the Findings however we now provide this document to the IAA (see official translation at Attachment). We submit that this should not be considered new information as we understand the original document is already before the IAA and is referred to by the Delegate.

    [11] CB 202

12. In its submissions in relation to the delegate’s findings of a lack of security features on the “court slip” RACS also submitted that the colour copy of this document demonstrated more features than a black and white copy.[12]

    [12] CB 202

13. The Authority did not enter into any correspondence with the applicant or his advisors after the email of 27 September 2016. The Authority did not conduct an interview with the applicant.

14. By decision dated 29 November 2016 the Authority affirmed the delegate’s decision.[13]

    [13]  CB 212-236

The judicial review application

1. The application as amended contains three grounds:

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   1. The Authority failed to identify the correct legal test provided by s 473DC(1) Migration Act 1958 (the Act) or to ask the correct questions in assessing whether certain information provided by the applicant was ‘new information’.

   Particulars

   a. Following the delegate’s decision the applicant’s advisors provided to the Authority:

   i.      an English translation of a Court summons, when only the Farsi original of which had been provided to the delegate who described it as “a court slip” and did not recognise to be a summons.

   b. On the basis that “an explanation” of the untranslated copy of the Court summons was provided at the time the untranslated document was submitted prior to the delegate’s decision, the Authority considered the English translation of the Court summons provided to it was not ‘new information’ and so it went on to consider the document. The “explanation” provided to the delegate was cursory and did not provide the same information as the English translation.

   c. In finding that the translation of the Court summons was not ‘new information’ on the basis of the “explanation”, the Authority did not identify or apply correctly the legal test provided by s.473DC(1)(a)&(b) which defined ‘new information’ to mean “a document or information” that:

   (a)     was not before the Minister when the Minister made the decision under s.65;

   and

   (b)     the Authority considers may be relevant.

   d. The Authority drew conclusions adverse to the applicant’s claims for protection from its consideration of the contents of the translation of the Court summons not known to the delegate. These adverse conclusions were part of the Authority’s reasons for affirming the delegate’s decision.

   2. As a result of the Authority’s consideration of the translation, the Authority also breached its mandatory obligations under s.473DD of the Act.

   Particulars

   a. The Authority considered the translation of the Court summons

   i.      without first making an assessment of any ‘exceptional circumstances’ to justify considering the translation as required by s.473DD(a);

   ii.      without first being satisfied either that the translation was not, and could not have been, provided to the delegate before she made her decision as required by s.473DD(b)(i);

   iii.     without first being satisfied that the translation was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims as required by s.473DD(b)(ii).

   3. As a result of the Authority’s consideration of the date of the issue of the summons as adverse to the applicant’s claims that he was sentenced in absentia to 10 years imprisonment for his political activities in a verdict of the Revolutionary Court of Iran , the Authority breached its mandatory obligations under s.473DE of the Act.

   Particulars

   a. The Authority did not provide particulars to the applicant, or explain to him the relevance of, or invite him to comment on the date of the issue of the Court Summons in the translation of the Court summons which the Authority took to be adverse to the applicant’s claims.

2. Ground 3 was not pressed.  Counsel for the applicant conceded at the trial of the matter that, if Ground 1 were to be rejected, Ground 2 would fall with it.

3. I received as evidence the court book filed on 5 April 2017 and a supplementary court book filed on 19 May 2017.

Consideration

1. The first ground is critical to the outcome of these proceedings. The applicant contends that the Authority failed to identify the correct legal test provided by s.473DC(1) of the Migration Act or failed to ask the correct questions in assessing whether the information in issue provided by the applicant was “new information”.

2. The relevant legislative scheme of the Migration Act is as follows.

3. Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.

4. Pursuant to s.473CA, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

5. Section 473CB(1) requires the Secretary of the Minister’s Department (Secretary) to give to the Authority certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the Authority under s.473CA. That material includes, relevantly, “material provided by the referred applicant to the person making the decision before the decision was made”. This material must be given at the same time as, or as soon as reasonably practicable after the decision is referred to the Authority.[14]

   [14] Section 473CB(2)

6. Section 473CC(1) compels the Authority to review a fast track reviewable decision referred to it under s.473CA. However, the manner in which that review is to be conducted is addressed in Division 3 of Part 7AA. That Division relevantly contains ss.473DB, 473DC and 473DD, which provide as follows:

   Immigration Assessment Authority to review decisions on the papers

   (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)     without accepting or requesting new information; and

   (b)     without interviewing the referred applicant.

   …

   Getting new information

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a) were not before the Minister when the Minister made the decision under section 65; and

   (b) the Authority considers may be relevant.

   …

   Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

7. The applicant’s contention in Ground 1 is curious, given that RACS, in its submission to the Authority, submitted that the document in issue was not “new information”.  The applicant in these proceedings finds fault with the Authority’s reasoning in accepting the applicant’s submission. 

8. The applicant notes that the Authority’s “erroneous consideration” of whether the translation of the summons was “new information” is at [5] of its decision:[15]

   Attached to the submission was a translation of a document previously provided to the delegate. An explanation of the document was provided when the document was submitted prior to the delegate’s decision.  I therefore do not consider the translation to be new information and I have considered it.

   [15] CB 213

9. The basis for the Authority’s finding that the translation was not “new information” was that an explanation of the untranslated document was provided when that document was submitted to the delegate.

10. As noted above this explanation was only that the untranslated document was “a slip that requested him to appear in court in Iran”.[16] The delegate did not recognise the untranslated document as evidence of a summons issued by a court, or as the summons the applicant claimed had been issued following his departure. The delegate did not afford any weight to the photocopy of the untranslated “court slip” (as the delegate referred to it)[17]. The delegate made no finding that the “court slip” was not genuine.

    [16] Supplementary Court Book

    [17] CB 172

11. The Authority did not otherwise discuss s.473DC(1) in determining that the translation document was not “new information”, ie was not a “document or information” that was not before the Minister and which the Authority considered may be relevant.

12. The applicant contends that the translation of the summons was “new information” according to the test in s.473DC(1). First, he submits that neither the translated document nor the information it communicated to the Authority was before the delegate.

13. Secondly, the applicant submits that the translation of the summons was relevant to the Authority’s review because information in the translation, which was not available from either the untranslated summons or the explanation provided when that document was originally submitted, purportedly verified the applicant’s claims.

14. The Authority used information from the translation of the summons to “undermine” the applicant’s original claims that summonses were issued against him and that he was pursued and sentenced to prison as described in the Court Ruling.[18]  The Authority ultimately found that the original summons document was not genuine.[19]

    [18] at [29] and [36] of its decision

    [19] at [44]

15. At [29][20] the Authority reasoned upon information on the face of the translated summons, including warnings of the issue of a warrant and the date of the issue of the summons in the translation (27 November 2012) to find it questionable that the intelligence police did not issue a summons closer to the date of the raid alleged by the applicant, according to the Court Ruling, ie 1 November 2012.

    [20] CB 218 - 219

16. At [36][21] the Authority reasoned upon the date of issue of the summons and its requirement for the applicant to attend court on 5 December 2012 in conjunction with country information that authorities conduct searches for persons who do not respond to summonses, to identify a gap in the applicant’s evidence that “he has made no mention of the authorities going to his home in search of him or inquiring about him at any time after the summons was issued” (emphasis added)

    [21] CB 220

17. At [44][22] the Authority found “After assessing all the evidence in relation to the applicant’s claims of anti-government political activity” that it did not accept, among other things, that he was involved with his alleged co-accused or that a genuine summons was issued for the applicant to attend court on 5 December 2012.

    [22] CB 221

18. The Authority’s determination that the translation document was not “new information” was a mix of fact and law.  The applicant submits that, as the Authority failed to ascertain or apply the correct law which applied to its determination, it cannot now argue that its finding was only a matter of fact beyond challenge in this Court.

19. In my view, the Authority did not fall into error in accepting the translated document. The question in this case is not whether the Authority’s reasons for accepting the applicant’s submission, that the English translation of the document before the delegate in the Farsi language was not new information, were good or bad. The question is whether the Authority’s finding that the English translation was not new information was right or wrong. I am firmly of the view that a faithful English translation of a document that was before the delegate in a foreign language is not new information for the purposes of s.473DC(1). In that regard, I accept the Minister’s submissions as follows.

20. First, contrary to the applicant’s submissions, the English translation of the summons contained information (that is, evidentiary material)[23] that was before the delegate when she made her decision to refuse to grant a visa to the applicant under s.65 of the Migration Act. The substance of the evidentiary material in the English translation of the summons was the same as that contained in the original summons.

    [23] Cf SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ

21. The English translation was merely in a different language to the original, thereby making it comprehensible; but that did not add to the information in the original summons. The information was before the Minister’s delegate, but the translation rendered the information intelligible without altering in any way its content.

22. As the Minister points out, the applicant’s construction of s.473DC(1) could, in certain circumstances, lead to very harsh outcomes for referred applicants. For example, an applicant may give to a delegate of the Minister, prior to a decision being made on his or her visa application, a document in a foreign language that contains information so cogent and important to his or her claims for protection that, if accepted, would result in a visa being granted to him or her. The delegate might consider the document but place no weight upon it as it is in a foreign language. That decision would then be referred to the Authority pursuant to s.473CA for review under Part 7AA. Assume that the applicant gives to the Authority a copy of the same document, this time in English. On the applicant’s construction of s.473DC(1), the Authority would not only be precluded from having regard to the translated copy of the document without first determining whether it meets the requirements of s.473DD, but it would also likely find that the document falls foul of s.473DD(b), as it comprises credible personal information “which was … previously known” and, save for extenuating circumstances, “could … have been … provided to the [delegate]”. If the applicant could have provided a translated copy to the delegate, but did not do so, he or she would then be prevented from a positive decision on the review.

1. Secondly, the summons, being a document containing certain information, was a “document” that the applicant had given to the delegate prior to a decision being made on his visa application and was, therefore, before her. The form of the document before the delegate was different, as it was in a foreign language. But that is of no relevant consequence for the purposes of s.473DC(1). The word “document”, as it appears in s.473DC(1), needs to be given a sensible construction. It is an ordinary English word that should be given its ordinary meaning. It cannot merely be a reference to a piece of paper (or some other format) devoid of content; rather, it refers to “[s]omething written … which provides evidence or information or serves as a record.”[24] If that were not so, a duplicate or reproduction in a new format of a document that was before the Minister that is given to the Authority would be characterised as new information even though it also formed a part of the review material. That would be an absurd result, but could be the consequence of the applicant’s construction of s.473DC(1) being adopted. There is no difference in substance between that scenario and the present case. Indeed, the applicant’s representatives in the present case provided to the Authority a duplicate (actually a reproduction in colour format) of the original summons.[25]

   [24] Shorter Oxford English Dictionary (6th ed, 2007), “document” (noun), sense 3

   [25] CB 199

2. Thirdly, the original summons, being a document that the applicant provided to the delegate prior to a decision being made on his visa application, was given to the Authority by the Secretary pursuant to s.473CB(1). It formed a part of the review material and was considered by the Authority in accordance with its duty under s.473DB(1).[26]  Were it not for the fact that the information in the original summons was translated into English, the Authority, like the delegate,[27] may not have given any weight to it.

   [26] CB 213 [3]

   [27] CB 172

3. However, the English translation permitted the Authority to understand the document that had already been given to it under s.473CB(1) and to place some weight on it. In other words, there is no good reason why the Authority’s references to the summons at [29],[28] [36][29] and [44][30] should be treated as anything other than references to the original summons, which, in the light of the English translation, was rendered comprehensible.

   [28] CB 218-219

   [29] CB 220

   [30] CB 221

4. On that view, all that the Authority did in the present case was (with the assistance of the applicant) to have regard to a document that comprised a part of the review material, as it was obliged to do by force of s.473DB(1).

5. Fourthly, to the extent that the Authority’s reasons for treating the document as not being new information have any relevance, and contrary to the applicant’s submissions, it is not correct to say that “[t]he” basis for the Authority’s finding at [5][31] was that “[a]n explanation of the document was provided when the document was submitted prior to the delegate’s decision”. The bases for the Tribunal’s finding were not only that an explanation of the original summons had been given by an officer in the Department[32] but also that the summons had already been provided to the delegate. It does not matter that the explanation was not on all fours with, or as detailed as, that which was given by RACS in producing the English translation of the summons. What matters is the fact that the original summons was given to the delegate before a decision was made under s.65. For the reasons given above, that was alone sufficient to support the Authority’s decision to treat the English translation as not constituting new information.

   [31] CB 213

   [32] Supplementary Court Book 3

6. For these reasons, the Authority did not misconstrue or misunderstand s.473DC(1). Ground 1 therefore fails. It follows that Ground 2 in the amended application falls away.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 June 2017