AID18 v Minister for Immigration and Anor

[2020] FCCA 759

FEDERAL CIRCUIT COURT OF AUSTRALIA

AID18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 759

Catchwords:
MIGRATION – Judicial review - application for protection visa - Immigration Assessment Authority – whether exercise of discretion not to reveal information subject to s 473GB certificate legally unreasonable – the exercise of discretion did not result in “practical injustice” and was not legally unreasonable – application dismissed

Legislation:

Migration Act 1958 (Cth), ss. 473DA, 473GB.

Federal Circuit Court Rules 2001 (Cth) sch 3 pt 1 div 1 item 3.

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225.

Applicant: AID18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 40 of 2018

Judgment of: Judge Young

Hearing dates:

21 January 2019, 1 March 2019, 26

November 2019 & 13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Darwin

Delivered on: 2 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the Respondents: Mr Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. Unless the parties make a submission to the contrary within 14 days a costs order in the sum of $7,206 will be made against the applicant in accordance with Schedule 1, Part 3, Division 1, Item 3 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 40 of 2018

AID18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 12 January 2018 affirming a decision of the Minister's delegate made on 31 March 2017 refusing the applicant a protection visa.

2. The applicant’s single ground of review is as follows:

   The second respondent committed jurisdictional error by unreasonably deciding not to disclose the material that was subject to the certificate issued under s. 473GB.

3. The applicant did not provide written particulars of the material referred to in the ground but the material had been adequately identified in the course of proceedings. The material is described below.

Background

1. The applicant made a variety of claims in his protection visa application which can be summarised as follows.  He said he was born in Bahar, Khanaghain, Iraq and was a stateless person of Faili Kurdish ethnicity.  He said his family had been expelled from Iraq to Iran when he was four or five years old and his family had been issued with cards evidencing their refugee status by the Iranian authorities. 

2. He said that in 2011 he was posting business pamphlets and spray-painting the name and phone number of a car wash where he worked on walls around Kermanshah, Iran.  He said that people had written slogans against the Iranian leader, Ayatollah Khamenei, on the walls on which he was pasting commercial posters. 

3. He said he was arrested by police officers who believed he had been painting anti-regime slogans on the walls.  He said he was assaulted by the police.  He said that he had in fact written an anti-regime slogan or slogans some days before.  He said that when the police learnt that he was an Iraqi refugee he was detained for 26 days and during that time was tortured and beaten.  He said that he appeared before a Revolutionary Court but was released on bail.  He said that, according to legal advice he received, he could expect a minimum sentence of 10 years imprisonment so he decided to flee Iran. 

4. He said that after his departure his wife was questioned about his whereabouts.  He said he cannot return to Iran because he is not Iranian and he has no one in Iraq.  He said he does not know if he is Iranian or Iraqi but knows he is Kurdish and is opposed to both regimes.  He said he had been targeted as a political dissident. If he returns to Iran he fears harm because of his imputed political opinion. He fears he will be arrested and imprisoned for years. 

5. At his protection visa interview the applicant revealed or claimed that he had been granted Iranian citizenship and identity documents in 2010/2011.  He said that his father had obtained citizenship through paternal descent some years before that.  The applicant said he did not disclose that previously because he has a political profile in Iran and did not want the Iranian authorities to find out anything about him or that he was in Australia. He said he was concerned the Australian authorities would inform the Iranian authorities about him. 

6. He said that he had not performed military service in Iran and was therefore not entitled to an Iranian passport.  He said he left Iran on a false passport.  He said he fears lengthy imprisonment on return to Iran because of his political profile and because he left Iran on a false passport.

7. The Authority had serious concerns about the applicant's credibility.  The Authority noted that from the time of the applicant's arrival in Australia until his protection visa interview he had maintained he was stateless.  His Iranian citizenship was not revealed until his protection visa interview in about 2016.  

8. The applicant claimed to have been born in a place called "Bahar" in Iraq.  The Authority noted that there is also a city of that name in Iran and that the applicant's Iranian issued birth certificate (presumably referring to a translation) gave his place of birth as "Bahar" without including a district, province or country.  The "issuing authority" on the document was described as the "Office of Registration of Civil Status of Bahar".  The Authority did not accept that an Iranian official document would list an Iraqi authority as the “issuing authority”, refer to registration in Iraq or list an Iraqi city as the place of birth without qualification. 

9. Based on that information and other information provided by another person, the applicant’s alleged brother, the Authority concluded the applicant was born in Bahar in Iran.  It found that he obtained his Iranian citizen citizenship by birth and not in 2010/2011 as he claimed.

10. According to the Authority, the applicant also submitted with his refugee application a document described as "residential permit for foreign nationals" (presumably in translation and purporting to be an official Iranian document).  This document contained his details and gave Iraq as his country of citizenship.  The document indicated that it was issued on 21 June 2011.  The Authority said that, given the applicant's claim that he was an Iranian citizen, it did not accept that the document was genuine.

11. There was also information before the Authority covered by a certificate issued under section 473GB of the Migration Act 1958 suggesting that this information and the information given by the applicant about his family was false.  The applicant claimed to have only three siblings. He said he had two sisters who lived in Iran and one deceased sister.  He said he had no relatives in Australia. 

12. There was information in the hands of the Department that the applicant had a brother and cousins living in Australia and that a person who arrived in Australia in 2010 had provided family details and details of a brother which matched the applicant.  The same father, mother and two sisters were identified in each case.  The applicant denied he had a brother in Australia or anywhere else. 

13. The Minister's delegate had also put to the applicant that he had a brother who was born in Iran and that this was inconsistent with the applicant's claim to having been born in Iraq.

14. This appears to have been the limit of the information disclosed to the applicant by the delegate at the protection visa interview or by the Authority.  However, it was revealed after an application for disclosure by the applicant that the information held by the Department was considerably more detailed.  

15. After a hearing before me, where I found that some of the information held by the Department was subject to public interest immunity, much more detailed information was disclosed: 

    a)The name of the applicant's alleged brother in Australia and his arrival details in 2010;  

    b)Information showing that the alleged brother had given the same names as the applicant for his father, mother, and two (living) sisters (with some slight spelling variations which may reflect transcription into Latin script from Farsi script); 

    c)Details of financial transactions including a remittance of money to the applicant from his alleged brother while the applicant was in Bogor, Indonesia shortly before his arrival in Australia.  Remittances of money were sent by both the applicant and the alleged brother to the same person in Iran and from the applicant and his alleged brother to the applicant's spouse; 

    d)A text message to the applicant from his alleged brother wishing him success while the applicant was in Indonesia and that the alleged brother's name and contact telephone number were in the possession of the applicant when he arrived in Australia; and  

    e)The alleged brother regularly "liked" posts made by the applicant on his Facebook page and the applicant and his alleged brother shared other Facebook contacts.

16. The applicant said that the failure to disclose this additional information to him or, more precisely, the failure to exercise a discretion to disclose this additional information under s 473GB(3) was legally unreasonable: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196, [10]. The applicant asserted that the case was one where "procedural unfairness overlaps with legal unreasonableness": BVD17 at paragraph [34].

17. The applicant submitted that the decision was “lacking ‘an evident and intelligible justification’”: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [44] referring to the formulation of the plurality in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225.

18. He submitted that:

    The ‘intelligible justification’ must lie within the reasons the decision-maker gave for the exercise of the power”: Minister for Immigration and Border Protection v Singh at [45] – [47].

19. The Authority set out the reasons for the exercise of the discretion in the way it did in paragraph 3 of its reasons.  The Authority said:

    Some of this information has been broadly disclosed to the applicant at the protection visa interview on 15 December 2016 and in the delegate’s decision and other parts are confirmed by information the applicant provided to the delegate at the interview. The applicant was alerted to the existence of confidential material in both the protection visa interview and in the delegate’s decision. He provided no further response in relation to the information following the protection visa interview and has made no request that it be disclosed. I have determined not to make any further disclosure.

20. The Authority described what was disclosed by the delegate at paragraph 15 of its reasons:

    The applicant claims that his only siblings are two sisters in Iran and one deceased sister, and that he has no relatives in Australia. As put to him by the delegate, the Department has information that the applicant has a brother and cousins living in Australia, and that a person who arrived in Australia in 2010 provided family details which included a brother with details matching those of the applicant, and the same father, mother and two sisters that the applicant claims to have.  In response to this information, the applicant maintained he does not have a brother, whether in Australia or anywhere else and has no other relatives in Australia.

21. In addition to this information the delegate also put to the applicant that his alleged brother was born in Hamedan Province, Iran.

22. The applicant put part of the delegate’s interview with the applicant into evidence (the Minister had taken steps to obtain a transcript but it was not available at the time of hearing).  In that interview the delegate put to the applicant that he had said he had no family in Australia.  The applicant agreed. 

23. The delegate put to the applicant that he had information that in fact the applicant had a brother in Australia and that raised concerns because the applicant had not disclosed the existence of his brother, had not disclosed contact with his brother and that his brother was an Iranian citizen.  The delegate said that hiding the information would affect the applicant’s credibility.  The applicant was asked whether he wished to make any further comment.  He said he did not. 

24. It was also put to the applicant that there was significant and credible information that he had cousins in Australia.  The applicant denied that and said he had only friends.  The delegate said that information would also affect the assessment of the applicant’s credibility.  

25. I did not note, in the portion of the interview played to me, that the applicant was told by the delegate in the protection visa interview that the person arrived in Australia in 2010 although that information was included in the delegate’s reasons.

26. At the time of  the hearing before the Authority the applicant had been informed of the following matters:

    a)The Department had information in its possession that the applicant had a brother in Australia.

    b)That the brother arrived in Australia in 2010 and had given details that identified the applicant as his brother and identified the same father, mother and sisters.

    c)That the brother was born in Hamedan Province, Iran.  This implied that the applicant was also born in Iran, not Iraq as he claimed.

    d)That the applicant had cousins in Australia.

    e)That, in view of the applicant’s denials and inconsistent claims, this information may be the basis for an adverse credibility assessment.

27. The only response of the applicant to these matters was bald denial.

28. The applicant was not informed of the alleged brother’s name, the evidence of linked financial transactions and communications between them and the other evidence that they were known to each other as described in paragraph [18] above.

Consideration

1. The applicant framed his argument in a way which acknowledged the observation of the plurality in BVD17 at paragraph [34]:

   “… except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of review under Part 7AA is to be determined.”

2. The argument was developed consistently with the observations of Edelman J in BVD17:

   [61]  In other words, even if any implication of procedural fairness were excluded by s 473DA(1), an implication with almost precisely the same content could be implied as a requirement of legal reasonableness.

   …

   [66]      For an exercise of power to be procedurally unfair there must be sufficient “practical injustice” in the departure from the procedure impliedly required by the statute. For an exercise of power to be legally unreasonable it must be unreasonable to the degree required by the statutory implication.

3. As noted above, the applicant’s submission is that the evident and intelligible justification for the exercise of the discretion by the Authority must lie within the reasons it gave for the exercise of the power.  In my view, this must be qualified by the statement of the plurality in BVD17 at paragraph [38]:

   To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles.  One is that such a statement of reasons must be read fairly and not in an unduly critical manner.  The other is that it must be read in the light of the content of the statutory obligation pursuant to which it was prepared.

4. Having regard to this, the evident and intelligible justification for the exercise of the discretion in the way it was exercised must lie within the reasons given by the Authority, read fairly and not in an unduly critical manner, and, further, in the light of the relevant statutory obligation. 

5. The obligation of the Authority in exercising its discretion is prescribed by s 473GB(3):

   If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

   (a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of the referred applicant, have regard to any matter contained in the document, or to the information; and

   (b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

6. The Authority was permitted to have regard, not only to the certificate, but to the information covered by the certificate.  Apart from the information that was later found to be subject to public interest immunity, the remaining information was either given by the applicant’s alleged brother to the Department, presumably in the expectation of confidentiality, or information gathered covertly or by surveillance of the applicant.  Having regard to the nature of this information and its statutory obligation, the Authority might reasonably, in my view, exercise its discretion to disclose this information to the applicant with a degree of consideration and caution. Also to be taken into account is that a substantial part of the information, although not all of it, was found in these proceedings to be subject to public interest immunity because it revealed investigatory methods or the identity of confidential informers.

7. Another factor which the Authority was entitled to have regard to was that the significant information, if true, was entirely within the knowledge of the applicant.  In addition the information would have appeared to the Authority to be independent and compelling. 

8. The factors affecting the exercise of the discretion were complex and included not only the factors expressly identified by the Authority: the information given by the alleged brother in 2010 identifying the applicant as his brother and the applicant’s failure to request further information, but also included the nature of the information itself which was partly confidential, given by the alleged brother, and partly the result covert surveillance. Another part was later found to be subject to public interest immunity.

9. There is an additional factor to be considered in assessing whether the exercise of the discretion was legally unreasonable: whether “practical injustice” flowed from the exercise of the discretion. It is possible to imagine circumstances where the name of the alleged brother or the nature of the transactions between him and the applicant might, in the interests of practical justice, need to be disclosed. An example might be where the applicant had said he had two brothers or admitted having a brother but claimed he did not know his whereabouts. However, in circumstances where the applicant categorically denied that he had a brother, in Australia or anywhere else, it is difficult to see how the Authority's decision not to reveal further detail, including the brother's name and evidence of financial and social connections, deprived the applicant of the opportunity to seek to have the Authority consider new information or to make a relevant submission. In that case, the exercise of the discretion did not produce practical unfairness.

1. In my view there was an evident and intelligible justification for the exercise of the Authority’s discretion discernible from the reasons given by the Authority and in light of the content of the statutory obligation pursuant to which they were prepared. The exercise of the discretion was not legally unreasonable.

2. The application will be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Judge Young

Associate: 

Date: 2 April 2020

CORRECTIONS

1. Cover sheet and Orders, Page 1 – “Hearing date: 13 March 2020” amended to “Hearing Dates: 21 January 2019, 1 March 2019, 26 November 2019 & 13 March 2019”

2. Cover sheet and Orders, Page 2 – Counsel for the Respondents “Mr McLiver” amended to “Mr Macliver”