ACP17 v Minister for Immigration
[2020] FCCA 763
•6 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACP17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 763 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to take into account a relevant consideration – whether the IAA took into account an irrelevant consideration – whether the IAA was unreasonable – s.473GB certificate – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 359A, 424A, 473CB, 473CC, 473DA, 473DD, 473DE, 473GB, 476, pt.5, pt.7, pt.7AA, div.3 |
| Cases cited: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 |
| Applicant: | ACP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 53 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 March 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Mr Downie |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 9 January 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 53 of 2017
| ACP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 9 January 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“the IAA”) which on 7 December 2016 affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Background
The applicant is a citizen of Iraq of Arab ethnicity and Shia Muslim religion. He arrived in Australia in October 2012 and was considered to be an “Unauthorised Maritime Arrival” (CB 132 – CB 133 and [1] at CB 165). He was interviewed by an officer of the Minister’s department on 17 November 2012 (CB 1 – CB 16) (“the entry interview”).
Ultimately, the applicant applied for the visa on 18 December 2015 following the exercise of the Minister’s discretion pursuant to s.46A(2) of the Act which enabled the applicant to validly make such an application (CB 28 – CB 71).
In making his application, the applicant was assisted by a registered migration agent (CB 36 and CB 64 – CB 66). His claims to protection were set out in a Statutory Declaration submitted with the application (CB 67 – CB 69).
The applicant was interviewed by the Minister’s delegate ([24] at CB 136). The delegate’s decision record which is in evidence before the Court, makes various references to the applicant’s evidence concerning his claims to protection (CB 132 – CB 146, see in particular CB 136 – CB 139). His migration agent was present at the interview and participated by making submissions and requests of the delegate.
The applicant’s claims to fear harm were said to arise from the following.
One, as first raised at the entry interview, he feared harm from his sister-in-law’s family. The applicant claimed that this was because his brother had been “engaged to a girl”. He did not “know the exact story” (item 1 at CB 11 and [30] at CB 136).
Two, in his Statutory Declaration the applicant claimed that his brother observed a violent altercation in the “down town” area of Basra in 2006. As a result he and others present were detained and tortured by the British Army. He was subsequently released and paid “$110,000” as compensation. A group known as the Mahdi Army sought to extort half this amount. They threatened the applicant’s family and shot another brother.
The delegate concluded that the applicant was not “a witness of truth” ([66] at CB 140). The delegate rejected the factual basis for the applicant’s claims because of the contradictions and inconsistencies in his evidence and claims.
The delegate also found that the applicant did not meet the statutory definition of “an excluded fast track review applicant” ([20] at CB 146). As a result the matter was referred to the IAA for assessment on review.
Before the Immigration Assessment Authority
The applicant included a statement of his claims to fear harm with his protection visa application (CB 67 – CB 69). The central issue for consideration for the IAA was the applicant’s reasons for leaving Iraq. The IAA found that the applicant’s reasons for leaving Iraq “varied greatly” ([5] at CB 166).
As set out above, the applicant was interviewed on arrival. What he said, and the evidence and information he provided to the delegate, was summarised by the IAA as follows ([2] at CB 165):
“…
● He attended school to 2010. From January 2012 to June 2012 he worked at Rashid Barber Shop in Basra. He received a call from his [brother] saying they were going to leave the country. [His brother] was in danger from his in-laws. “He was engaged to a girl. I don’t know the whole story”. [His brother] arranged the documentation (to leave Iraq) and paid for everything. It took about 15 days. The applicant, together with [his brother,] his [brother’s] wife and their daughter left Iraq on 5 September 2012, subsequently arriving at Christmas Island at the end of October;
● When asked at his interview why he decided to come to Australia, the applicant replied that it was because his brother did. The applicant wanted to study in Australia. He could not return to Iraq or he would be killed by his sister-in-law’s family. “It’s a tribal thing”.”
The applicant’s claims for protection in his protection visa and Statutory Declaration were summarised by the IAA ([3] at CB 165 – CB 166):
“● In 2006 his brother…witnessed an incident of violence and was detained and tortured by the British forces. In 2010 he was awarded $US110,000 by way of compensation. He received a written threat from the Mahdi Army accusing him of being a traitor and demanding half of the compensation money as contribution to the Mahdi Army efforts in Iraq. There was a bullet in with the letter;
● [His brother] did not comply with the demands and the family received a number of threatening phone calls. [His brother] travelled to Australia from October 2010 to February 2011. The applicant cared for [his brother’s] wife in his absence. He also worked at his father’s shop…from June 2010 to September 2012. In September 2015 the applicant’s brother…(born 1992) was shot and injured in the leg while working in the family store. The Mahdi Army said that this was only a warning because [his other brother] had not complied. The applicant came to Australia with [his brother] and his [brother’s] family because he feared for his life.”
The applicant’s claims from what he reportedly said at the protection visa interview were summarised by the IAA as follows ([4] at CB 166):
“● He had not told the truth at his arrival interview because he was scared. He and [his brother] thought that [his brother] might be gaoled in Australia if he admitted to have been in detention in Iraq. The actual reason that they left was because of the threats from the Mahdi Army. After [his brother] received the threat letter with the bullet in May 2010, he and the applicant went into hiding. They left Basra and travelled around the rural areas of the province, moving on every few days. He never worked at his father’s store. [His other brother] was shot in 2010. The applicant denied having stated that [his other brother] was shot in 2015.”
The IAA agreed with the delegate’s conclusion that the applicant was “not a witness of truth” ([5] – [6] at CB 166).
The IAA did not accept that there was any threat to the applicant, or his family, from the Mahdi Army, Asaib Al-Haq, or any other armed group, leading him to leave Iraq in 2012 ([8] at CB 166). The IAA also did not accept that he was in danger from his sister-in-law’s family ([8] at CB 166 – CB 167).
The Grounds of the Application
Although the applicant was legally unrepresented at the time of the making of the application, solicitors on his behalf came onto the record on 23 August 2017. They withdrew on 3 November 2017.
The applicant’s grounds of the application are in the following terms:
“1. THE IMMIGRATION ASSESSMENT AUTHORITY “IAA” FAILED TO TAKEINTO ACCOUNT RELEVANT CONSIDERATION, THE “IAA” TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION
2. THE IAA DECISION IS UNREASONABLE.”
Before the Court
The applicant first appeared before a Registrar of this Court on 18 May 2017, where orders were made, by consent, for the filing of any evidence by way of affidavit, written submissions, and allowing the applicant to file an amended application. The applicant has filed nothing further to his originating application (and the accompanying affidavit).
At the hearing, the applicant was assisted by an interpreter in the Arabic language. When given the opportunity to make submissions he said he did not know what to say.
It was explained to him that the relief he sought depended on some legal error being found in the IAA’s decision, and that the task for the Court was to consider the applicant’s grounds in that light. The applicant responded by saying that he did not know anything about the law.
Consideration: The Grounds
It is quite understandable that a layperson would not have such knowledge. However, the applicant has had some years to obtain legal advice and assistance. He made no reference to encountering any difficulties in this regard. I note in any event, that for some time the applicant was legally represented. Nor is this a case where the applicant is entitled to legal representation (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50). The applicant’s lack of legal knowledge does not reveal legal error in the IAA’s decision.
Before the IAA, and the delegate, the applicant was represented by a registered migration agent (CB 64 and CB 160.2). Ultimately the applicant was refused the grant of the visa by the delegate, and this was affirmed by the IAA, because of the findings of the lack of credibility in his claims. On the evidence before the Court, the IAA’s findings in this regard were reasonably open to it for the reasons it gave (see further below).
When the applicant’s grounds were brought to his attention, at best his submissions were that he was only 17 years old when he came to Australia and was “scared” at the interview. It was not clear at that point whether this was the entry interview or the interview with the delegate.
This appeared to mirror what the applicant had written in his affidavit which accompanied his application to the Court. I treated that document as submissions.
The applicant’s complaint is that the he did not agree with the IAA’s decision because the IAA did not take into account his age when he was interviewed on arrival. At best, this appeared to be the relevant consideration referred to in ground one.
At the interview before her/him the delegate asked the applicant to confirm that his claims to protection were different at the entry interview to what he had put before the delegate because he had been “scared” at the time of the entry interview ([44] at CB 137).
The applicant provided an explanation ([44] at CB 138). The delegate acknowledged that the process of seeking asylum and being held in detention: “…would create a level of fear…” ([64] at CB 139).
However, the delegate found that ([63] at CB 139):
“63. The applicant has given inconsistent and contradictory information throughout his dealings with the Department. When these inconsistencies have been raised with him, the applicant has generally responded that he has given false information to the Department out of fear: of prolonging his stay in immigration detention, of being returned to detention, of his brother being jailed.”
The delegate on her/his own initiative also considered that the applicant was 17 years of age at the entry interview. The delegate accepted the possibility that: “…this may explain his responses at the Entry Interview” ([65] at CB 140).
However, the delegate found, with examples given, that the applicant continued to give inconsistent evidence even before the delegate at the age of 21 years ([66] at CB 140).
The IAA did not accept that: “…the applicant was too scared to tell the truth in his initial interview…” ([7] at CB 166).
The IAA’s reasons were ([6] at CB 166):
“6. Having closely examined the relevant evidence before me, I agree with the delegate’s conclusion. As set out earlier in these reasons, matters central to his protection claim – the applicant’s claimed reasons for his brother being targeted, his employment history in Iraq, when his brother…was shot, the source of the persecution feared, and his movements in Iraq – have all varied significantly over time. Even his evidence about his time in Australia has been inconsistent. For example, in the reconvened interview on 24 June 2016, the applicant gave information as to where he lived since coming to Australia, and for what period he lived with his brother, which differed significantly from that given on 21 June 2016. When this was put to him by the delegate, the applicant responded that he had given the evidence on 21 June 2016 before being sworn in. From listening to the recording it is immediately apparent that this assertion is also false.”
It is important to note that although the applicant now advances the matter of his age at the time of the entry interview, this was not, even with representation, advanced before the delegate as a reason for the inconsistent evidence he gave (see [65] at CB 140). It was in fact a matter considered by the delegate, on her/his initiative, and ultimately rejected as an explanation for the applicant’s inconsistent evidence.
I agree with the Minister that the IAA was required to review the delegate’s decision and to make its own assessment of the applicant’s evidence (s.473CC(1) of the Act and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [16]-[17]).
In the circumstances presented to it, including the delegate’s rejection of the applicant’s age as a relevant factor, it was open to the IAA to make findings about the applicant’s evidence without specific reference to his age. This is particularly the case in circumstances where the applicant who was represented by a registered migration agent before the delegate, never raised his age as a relevant factor. In all, ground one is not made out.
Ground two asserts that the IAA’s decision was “unreasonable”. No further explanation of this was proffered at the hearing before the Court beyond what the applicant submitted in relation to ground one.
It is the case that IAA decisions must be legally reasonable (Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”), Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11). However, to make out his ground the applicant must show “extreme” illogicality (ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]), not simply seek merits review of the IAA’s decision. The relevant test is “stringent” (Li at [108] and SZVFW at [11]). The applicant’s emphatic disagreement with the IAA’s reasoning is not sufficient to reveal illogicality (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [51](c)).
In the current case, the IAA’s decision is not rendered legally unreasonable simply because the IAA did not consider the applicant’s age at the entry interview to be a relevant factor, or because the applicant is aggrieved with the decision.
The IAA’s findings on which its conclusion was based were all reasonably open to it on what was before it. It gave cogent and logical reasons probative of that material. As the Minister submits it made findings which are not such as to render them unreasonable. The IAA gave an “intelligible justification” for its conclusion, and the findings that informed it (Li at [76] and see also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] – [131]). Ground two is not made out.
The Certificate
The evidence before the Court reveals that on 31 October 2016, a Ministerial delegate issued a certificate pursuant to s.473GB(5) of the Act.
The certificate is reproduced in the Court Book at CB 147. It purports to restrict disclosure of information contained in a document on the Minister’s Department’s file, entitled:
“OLS088 – IMAPS Identity Assessment Form – 25/2/2016ADD2016/247065”.
The Minister concedes that the certificate was invalidly issued because it was issued on the erroneous assumption that the document was relevant to s.473GB of the Act purely because it was an internal working document.
This raises the question as to whether, in the circumstances, the existence of the certificate leads to jurisdictional error being revealed in the IAA’s decision.
For the reasons that follow I agree with the Minister that this is not the case.
One, there is no indication from the IAA’s reasons that it disclosed the existence of the certificate to the applicant, or the document to which it said it related. The immediate question is whether this failure amounted to a breach of the IAA’s procedural fairness obligations.
It is to be remembered that the review conducted by the IAA was under Part 7AA of the Act, and not Part 7 or Part 5 of the Act. There is nothing to challenge the delegate’s finding that the applicant was an excluded fast track applicant, and that therefore his case was subject to review by the IAA under Part 7AA of the Act (CB 145 – CB 146).
Section 473DA of the Act provides that Div 3 of Part 7AA of the Act contains the exhaustive statement of the natural justice hearing rule relevant to the applicant’s review before the IAA. In the circumstances there is no statutory obligation pursuant to s.473DA of the Act, for the IAA to have disclosed the certificate, or the document to which it related, to the applicant (BVD17v Minister for Immigration and Border Protection [2019] HCA 34 (“BVD17”) at [2]).
Two, any possible procedural fairness obligation to disclose this or the document was with reference to s.473GB(3) of the Act, which provided a discretion to the IAA to disclose certain information to the applicant contained in the certificate, or the document to which it related.
While reviews under Part 7 or Part 5 of the Act contain requirements for the disclosure of such certificates, and the information they cover, these do not apply to reviews under Part 7AA of the Act, given the operation of s.473DA(1) of the Act (BVD17 at [35] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) at [100]).
Three, nor was there anything in Part 7AA that required the IAA to give the applicant any of the material that was before the delegate at the time of the delegate’s decision (BVD17 at [36]).
Four, there is no indication from the IAA’s decision record that it gave any consideration to whether it should have disclosed the certificate, or the document, to the applicant pursuant to the exercise of the discretion in s.473GB(3) of the Act. Although I note that at [1] (under the heading of: “Information before the IAA”), the IAA said it had regard to all of the material referred to it by the Secretary pursuant to s.473CB of the Act. This included the certificate and the document to which it referred (BBS16 at [87]).
However, the onus of establishing whether there was any failure in the exercise of this consideration rests with the applicant (BVD17 at [38]). Nor was the IAA under any obligation to give reasons for the exercise, or the non-exercise of any such procedural power. In the circumstances, the IAA’s failure to mention the discretion is not such as to allow a reasonable inference that any exercise of the discretion was not considered (BVD17 at [40]).
Five, the Minister submitted that the invalid s.473GB certificate formed part of the “review material” within the meaning of s.473CB of the Act. It was not “new information” for the purpose of s.473DD and s.473DE of the Act. As such it was not necessary for the IAA to have considered the operation of those sections (BBS16 at [90]). In that circumstance no error arose from the existence of the s.473GB certificate, even though it was invalid (BBS16 at [85]–[99]).
However, the Minister also drew attention to a later case of CED16v Minister for Immigration and Border Protection [2018] FCA 1451; (2018) 256 FCR 115 (“CED16”) in which the Court found that an invalid certificate was “new information” for the purposes of s.473DD and s.473DE of the Act.
The Minister formally, and respectfully, submitted that CED16 was wrongly decided and was the subject of a grant of a special leave application before the High Court.
Nevertheless, for the present CED16 is binding on this Court. It is plainly not open for this Court to proceed on the basis that this case was wrongly decided. The invalid s.473GB certificate therefore must be considered as “new information” for current purposes.
However, even in that circumstance, given that the terms of s.473DE(1)(a) are in essentially, and materially in the same terms as s.424A(1)(a) and s.359A(1)(a) of the Act (which also deal with information to be given to an applicant, under Part 7 and Part 5 of the Act respectively), then the IAA’s obligation did not extend to information that did not: “…contain in their terms a rejection, denial or undermining of the [applicant’s] claims to be persons to whom Australia owed protection obligations” (SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 at [17]).
There is nothing in the invalid s.473GB certificate, or the document to which it relates, that meets that description. In particular, the document which was the subject of the invalid s.473GB certificate dealt with the applicant’s identity, which was never at issue before the delegate, or the IAA. Nor does the applicant now claim otherwise. In that circumstance, I accept the Minister’s submission that it is not appropriate to draw any inference that the IAA acted on the basis that the certificate was not “new information”.
In all, therefore, no legal error arises from the invalid s.473GB certificate.
Conclusion
No jurisdictional error arises from the applicant’s grounds, his submissions before the Court, or otherwise. It is appropriate therefore to dismiss the application. I will make that order.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 April 2020
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