AFK16 v Minister for Immigration & Anor (No 2)
[2016] FCCA 1827
•13 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFK16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 1827 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA had not been provided with all relevant material held by the Department of Immigration & Border Protection and failed to give the applicant country information for his comment. |
| Legislation: Migration Act 1958, ss.5, 5AA, 36, 46A, 195A, 424A, 473BB, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 474, 477 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 413 SZOIN v Minister for Immigration & Citizenship (2011) 191 FCR 123 |
| Applicant: | AFK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 220 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 July 2016 |
| Date of Last Submission: | 13 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Counsel for the First Respondent: | Mr B. D. Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicant’s application for an extension of time in which to bring this proceeding be dismissed.
The applicant pay the first respondent’s costs as agreed or assessed by the Court.
The parties have liberty to apply for an assessment of the costs awarded to the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 220 of 2016
| AFK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran who arrived at Christmas Island on 12 November 2012. On 27 July 2015 he lodged an application for a Safe Haven Enterprise (subclass 790) visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Iran because of his imputed political opinion, his membership of a particular social group “asylum seekers returning from Australia who may be suspected of being a spy” and his status as a returned asylum seeker accused of being a spy or of “being anti-Islam”. On 20 November 2015 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). On 17 December 2015 the IAA affirmed the delegate’s decision to refuse the applicant a visa.
On 27 January 2016 the applicant applied to this Court for judicial review of the IAA’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and so the applicant has applied for an extension of that limitation period.
For the reasons which follow, the application for an extension of the time within which to bring these proceedings will be dismissed.
APPLICATION FOR EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of IAA decisions in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
...
(ca)in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); ...
The IAA’s decision was dated 17 December 2015 which meant that the applicant had until 21 January 2016 to commence these proceedings. As the application was not filed until 27 January 2016, it was brought out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicant made an application in writing for an extension of time by including such a request in his amended application which was filed on 9 May 2016. Further, his amended application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. In the circumstances of this case, that question will be determined by whether the allegations made in the substantive application for judicial review have reasonable prospects of success and whether the applicant has provided a satisfactory explanation for the delay in commencing the proceedings.
Satisfactory explanation for delay
In an affidavit sworn on 1 July 2016 the applicant deposed that his application had been filed late because his then-Counsel had miscalculated the due date for the filing of the application as being 35 days from the date of the letter notifying the IAA decision instead of the date of the decision. The applicant was not cross-examined on that affidavit and I accept his evidence. I accept that he has provided a satisfactory explanation for the delay in commencing the proceedings.
Reasonable prospects of success
It should be noted that in proceedings for judicial review of an IAA decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant IAA decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring these proceedings, it was necessary that the applicant demonstrate that he had reasonable prospects of proving that the IAA’s decision on his visa application was affected by jurisdictional error.
Fast track review legislative framework
Section 5AA of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. Amongst other places, s.5(1) of the Act prescribes the Territory of Christmas Island as an excised offshore place. Its excision time was 2pm on 8 September 2001 by the legal time in the Australian Capital Territory.
Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his discretion, lift the bar on an applicant making such an application and s.195A provides that the Minister may use his discretion to grant a visa to an applicant in detention.
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that the division is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of that division relevantly provide:
473DB 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.
…
473DCGetting 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.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
…
473DDConsidering 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; …
…
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non‑disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Background facts
The applicant entered Australia at Christmas Island on 12 November 2012 after the boat he was travelling on was intercepted by Australian authorities. On 12 December 2012 the Minister exercised his discretion under s.195A of the Act and the applicant was granted a bridging visa and released into the community. By letter dated 19 May 2015 the applicant was advised that the Minister had also exercised his power under s.46A(2) of the Act to lift the bar on him applying for a visa and he was invited to apply for a Temporary Protection (subclass 785) visa. On 6 July 2015 the applicant was advised that he could also apply for a Safe Haven Enterprise (subclass 790) visa. The applicant chose to apply for a Safe Haven Enterprise (subclass 790) visa and made his application on 27 July 2015.
At that time cl.790 of sch.2 to the Migration Regulations 1994 relevantly provided:
790.2—Primary criteria
790.21—Criteria to be satisfied at time of application
790.211
(1) Subclause (2) or (3) is satisfied.
(2) The applicant:
(a)claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b)makes specific claims as to why that criterion is satisfied.
...
790.22—Criteria to be satisfied at time of decision
790.221
(1)Subclause (2) or (3) is satisfied.
(2)The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
...
Section 36(2) relevantly provides:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; …
The applicant’s claims for protection were made in an entry interview on 15 November 2012, in a statutory declaration dated 26 June 2015 attached to his safe haven enterprise visa application, in a submission by his migration agent dated 27 July 2015 and at an interview with the delegate on 14 October 2015. As summarised by the IAA in its decision, the applicant relevantly made the following claims:
a)he believed in God but did not believe in Shia Islam;
b)during his compulsory military service in Iran he was assigned to a prison and was attached to the Etelaat division of the Sepah. The IAA referred to the Sepah as an all-volunteer force ideologically committed to defending the principles of the Iranian Islamic revolution and the Islamic Republic of Iran;
c)in 2009 he conveyed an unauthorised message from a political prisoner to the prisoner’s family. As a result he was arrested, detained and tortured for five to seven months and following release was monitored by the Etelaat and the Sepah;
d)as a result of his interactions with the Iranian authorities he left Iran in 2012 by illegally crossing the border into Turkey. He then left Turkey by air on a fraudulent Turkish passport;
e)he feared that he would be arrested, imprisoned, humiliated, tortured and executed by the Sepah and the Etelaat because of his imputed political opinion owing to the information he conveyed to the prisoner’s family and owing to the authorities’ fear that he would talk about the atrocities he had witnessed in the prisons in which he had worked. He would also be harmed because of his membership of the particular social group of asylum seekers returning from Australia who might be suspected of being spies and because of his status as a returned asylum seeker who will be accused of spying and being against Islam;
f)if he returned to Iran he would be in a constant state of anxiety because he would be targeted by state agents for his outstanding matter with the authorities. The mental suffering he would suffer would amount to cruel or inhuman treatment or punishment; and
g)he feared that if he returned to Iran he would be denied employment and other services on the basis of being an apostate and because he would be perceived as being an opponent of the Iranian government. He also feared being executed as an apostate.
As noted earlier, the applicant’s application was refused by the delegate on 20 November 2015. The delegate found that the applicant was not an “excluded fast track review applicant” and so referred his matter for review by the IAA.
On 30 November 2015 the IAA wrote to the Department requesting a copy of the audio recording of the first part of the applicant’s arrival entry interview which had been held on 15 November 2012. The IAA noted that two audio files had been provided but both of them were copies of the second part of the interview. In a response on the same day an officer in the Department stated that extensive searches had been undertaken to locate the audio of the first session of the applicant’s entry interview but that it was not in the Department’s possession. The officer noted that a transcript of the arrival interview was available and had been provided to the IAA on 23 November 2015.
A record of the applicant’s entry interview reproduced in the Court Book, which was exhibit A, indicated that the interview commenced at 1:30pm, adjourned at 2:55pm at the request of the interpreter, resumed at 3pm and then concluded at 3:28pm. The record also noted:
Technical Issues with recorder – only noticed at end of interview once client and interpreter had left. Appeared to have recorded the interview – checking “levels” – but check of recording only produced “white noise”. Part 2 of interview recording fine.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
The IAA did not accept the applicant’s claims concerning his attachment to the Etelaat, his alleged conveyance of an unauthorised communication on behalf of a prisoner, his alleged illegal departure from Iran and the alleged risks he said he faced on his return to Iran as a failed asylum seeker from Australia.
Relevantly for this proceeding, in relation to the applicant’s claims to fear harm because of his lack of belief in Shia Islam the IAA said:
I have had regard to the material referred by the Secretary under s.473CB of the Act.
I have obtained new information, specifically information addressing the situation in Iran of persons who cease to practise the Muslim faith (information not specifically about the applicant but about a class of persons of which the applicant is a member). At his Illegal Maritime Arrival Entry Interview of 15 November 2012 (the 2012 Entry Interview) the applicant indicated that one of the reasons for his departure from Iran was that he did not believe in the religion he was raised in, and that he only believed in God. The applicant submitted no claims for protection in this regard in his Safe Haven Enterprise visa application. The applicant’s former representative made a submission on the applicant’s behalf on 27 July 2015 (the July 2015 submission) in which it is submitted that the applicant fears harm on the basis of being perceived as being anti-Islam and an apostate.
The delegate’s decision did not explicitly consider this issue, but I am satisfied it is a relevant part of the applicant’s claims for protection. I am satisfied that there are exceptional circumstances to justify considering new information of this kind.
The IAA went on to accept that the applicant believed in God but not in Shia Islam. It did so based on four country information articles which indicated that a large segment of Iran’s population who were born Muslim did not attend mosque or perform Islamic practices and that many of them professed to be agnostics or atheists. The IAA noted that it was not aware of any information which indicated that such persons were subject to arrest, significant physical harassment or any other form of serious harm or harm of any other kind. It also noted that at his departmental interview the applicant said that he had never experienced any problems as a result of his religious faith. The IAA was therefore not satisfied that the applicant would be perceived to be an apostate or as being opposed to Islam. It was not satisfied that he would be arrested, imprisoned, humiliated, tortured and/or killed or executed or that he would live in a constant state of anxiety of being targeted by state authorities or that he would be denied employment and other basic services. The IAA was not satisfied that the applicant would face a real chance of persecution for his lack of belief in Shia Islam were he to return to Iran.
Proceeding in this Court
In his further amended application the applicant alleged:
1.The IAA failed to review the decision pursuant to section 473CC of the Migration Act 1958 (Cth) by failing to comply with section 473CB of the Migration Act 1958 (Cth), which requires the Secretary to give to the Immigration Assessment Authority the “review material”.
Particulars
a)At page 340 of the Court Book, on 30 November 2015, the Immigration Assessment Authority (IAA) sent a post referral request for “existing” documents to the Department of Immigration and Border Protection (DIBP) which were missing or incomplete from [sic].
b)Specifically, the IAA requested the audio of the first half of the Illegal Maritime Arrival Entry Interview of 15 November 2012. The PDF portfolio provided two audio files in this regard but both were copies of the second half of the interview. The two files were labelled: - AUT024 [Applicant] Arrival Interview Recording; - AUT024 [Applicant] Arrival Interview Recording Part 2.
c)At page 341 of the Court Book, on 30 November 2015, DIBP responded to the request by the IAA by way of a letter which stated that ‘[e]xtensive searches were undertaken to locate the first session of the audio interview but unfortunately, it is not in the Department’s possession.’ However, a ‘transcript of the arrival interview was available and was provided…’ ‘included in the PDF portfolio sent on 23 November 2015.’
d)Section 473CB(1) of the Migration Act 1958 (Cth) provides that the Secretary must give to the Immigration Assessment Authority the “review material”.
e)However, the Secretary failed to give the IAA the material provided by applicant in the form of the audio of the applicant’s arrival interview, pursuant to section 473CB(1)(b) or (c) of the Migration Act 1958 (Cth).
2.The IAA violated the ‘exhaustive statement of natural justice hearing rule under section 473DA of the Migration Act 1958 (Cth) by failing to comply with section 473DE of the Migration Act 1958 (Cth), which requires the IAA to give new information to the applicant.
Particulars
a)At [6] of the decision record by the Immigration Assessment Authority (IAA), page 345 of the Court Book, the reviewer obtained new information specifically information addressing the situation in Iran of persons who cease to practise the Muslim faith (information not specifically about the applicant but about a class of persons of which the applicant is a member) pursuant to section 473DC of the Migration Act 1958 (Cth).
b)At [7] of decision record by IAA, page 345 of the Court Book, the reviewer acknowledged that the ‘delegate’s decision did not explicitly consider this issue’ and that the reviewer was ‘satisfied it [wa]s a relevant part of the applicant’s claims for protection.’
c)The reviewer was ‘satisfied that there are exceptional circumstances to justify considering new information of this kind’ pursuant to section 473DD of the Migration Act 1958 (Cth).
d)Under section 473DE of the Migration Act 1958 (Cth) new information must be given to the referred applicant.
e)However, the reviewer failed to provide the applicant with the new information, explain why the new information is relevant to the review and invite the applicant to give comments on the new information, pursuant to section 473DE of the Migration Act 1958 (Cth) and therefore breached the natural justice hearing rule under section 473DA of the Migration Act 1958 (Cth).
f)The new information was “specifically about the referred application” and therefore section 473DE(3)(a) of the Migration Act 1958 (Cth) does not have application.
Ground 1
The first ground of the further amended application alleged that the IAA failed to conduct a proper review because the Department failed to supply it with all the material in the Department’s possession. Section 473CB of the Act has already been referred to in these reasons.
The applicant did not prove that anything which had been, at all times relevant to the IAA’s review, in the Secretary’s possession was not provided to the IAA. The implication of the applicant’s submission was that part of a sound recording of his irregular maritime arrival interview had not been supplied to the IAA but such evidence as is before the Court, which is to be found at pp.173, 340 and 341 of the Court Book, indicate that there never had been a successful recording of the first part of the interview. It was an essential preliminary evidentiary step, if the applicant wished to rely on the Secretary’s failure to provide material to the IAA, that he show that the material actually existed at a relevant time or that there were reasonable prospects of proving that it did. Because no evidence relevant to this question other than what appears in the Court Book has been adduced, there is no logical basis to conclude that the facts are other than as depicted by the Court Book. Any other view would be no more than speculation.
But in any event, authorities such as WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 413 and SZOIN v Minister for Immigration & Citizenship (2011) 191 FCR 123 indicate that the failure by the Secretary to discharge an obligation such as the one found in s.473CB does not, by that fact alone, infect a reviewing decision-maker’s review with jurisdictional error. Moreover, no submissions were made in the context of the application for an extension of time that the absence of a sound recording of the first part of the irregular maritime arrival entry interview from the material before the IAA unfairly prejudiced the applicant in the manner mentioned by the Full Court of the Federal Court in WAGP at 425 [65].
Ground 2
The second ground of the further amended application alleged that the IAA breached s.473DE of the Act. That provision has also been set out earlier in these reasons. Judging by paras.6, 18 and 23 of the IAA’s decision, the information in question was contained in four reports which are identified in footnotes to the IAA’s decision. It is apparent that the information in question was country information of a sort governed by s.473DE(3)(a). Authorities on cognate provisions of the Act such as s.424A(3)(a) show that such information does not have to be given to an applicant.
CONCLUSION
Although the applicant has provided a satisfactory explanation for his delay in commencing the proceedings, I am not persuaded that he has demonstrated that his substantive application for judicial review of the IAA’s decision would have reasonable prospects of success.
For this reason, I conclude that it is not in the interests of the administration of justice to extend the time to bring these proceedings and so the application to do so will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 20 July 2016
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