AIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 151
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIS17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 151 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority’s findings were open to it – whether the Immigration Assessment Authority was required to notify the applicant of certain information the subject of a certificate under s.473GB of the Migration Act 1958 (Cth) - no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB,473DC, 473DD, 473GB, 474, 476 Migration Regulations 1994 (Cth), reg.2.01. Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A. Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34 CED16 v Minister for Immigration and Border Protection [2018] FCA 1451 |
| Applicant: | AIS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SSYG 250 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 21 March 2019, 29 January 2020 |
| Date of Last Submission: | 29 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Jonathan Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 250 of 2017
| AIS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 25 November 2016 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 26 September 2016 refusing the applicant a Temporary Protection (subclass 785) visa (“Protection Visa”).
The applicant is a citizen of Iraq and of Shia faith and Arab ethnicity, who fears harm from Shia militia groups in Iraq.
Background
The applicant arrived in Australia on 18 October 2012 as an irregular maritime arrival.
On 20 May 2015, the applicant was invited to apply for a Protection Visa.
On 13 July 2015, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).
On 26 September 2016, the Delegate refused the applicant’s application for a Protection Visa.
On 4 October 2016, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.
On 29 November 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.
On 25 January 2017, the applicant filed an application in this Court seeking an extension of time to seek judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a 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.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“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;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“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.
(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.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“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.”
The applicant’s claims and the Authority’s reasons are accurately summarised in the written submissions of counsel for the first respondent as follows:
“The applicant’s claims
7. The applicant claimed that, in February 2009, he commenced working as a cleaning contractor for another contractor who was working for the American forces in Nasiriya. He would do cleaning or building jobs outside the American base.
8. The applicant and other people were threatened on a bus on the way to the air base by the Asa’ib Ahl al-Haq (AAH) or the Mahdi Army. He claimed that the militia could not shoot him and the others because the base was under US Army control. On 1 September 2009, he received a letter addressed to him from the AAH threatening to kill him on account of his work with the American forces (AAH Letter).
9. He moved his family to northern Iraq where he lived and worked as a labourer between 13 September 2009 and 20 September 2012 in the Kurdish Autonomous Region (KAR). He left the KAR because the Kurdish authorities started to harass him and others (as an Arab Iraqi) and asked him to leave the area.
10. He returned to his home village for one week before travelling to Australia. He claimed that his neighbours had been questioned as to his whereabouts by the AAH. He also claimed that his wife has been subject to interrogation and harassment by the mayor of the village who was a member of the AAH and a very influential person; he claimed that the mayor continues to harass his wife.
11. The applicant’s submission to the IAA, among other things, included: (a) a link to an article on the website of a Lebanese news channel; (b) excerpted text from a UK Home Office Report published in August 2016. In respect of the article, the applicant claimed that it showed the AAH logo and that this logo was the same as the watermark in the AAH Letter (the Delegate had declined to give any weight to the letter on the basis that it was a copy and a search of country information had failed to show any evidence that the AAH used the logo).
The IAA’s reasons
12. The Tribunal’s reasons are set out at [3]-[61] of the Decision with the issue of new information being dealt with at [3]-[14].
13. To the extent that that applicant’s submission to the IAA contained legal argument addressing the Delegate's Decision, the IAA did not consider it to be new information and had regard to it. In respect of the article showing the AAH logo, although the logo corresponded with the watermark in the AAH Letter, the IAA noted that the website in question was in Arabic and that no translation of the content into English had been provided. It was not satisfied that there were exceptional circumstances to justify the consideration of the information (at [8] of the Decision).
14. In relation to the August 2016 UK home office report referred to by the applicant's representative, which was released about 6 weeks prior to the Delegate's decision, the IAA compared the excerpted content with the April 2015 version of the same report relied on by the Delegate. Having compared the information, the IAA found that the information had limited relevance to the assessment of the chance that the applicant would be harmed if he returned to Iraq. The IAA noted that there was a range of information before the Delegate on the activities of the Shia militia. In light of this, the IAA was not satisfied that there were exceptional circumstances to justify the consideration of the information (at [9]-[13] of the Decision).
15. The IAA noted that it had obtained new information regarding individuals in Iraq who had or have a perceived association with US forces. That information was not specifically about the applicant but about classes of persons of which the applicant is a member. In light of the limited information before the Delegate regarding these classes of persons, the IAA was satisfied that there were exceptional circumstances to justify the consideration of that new information (at [14] of the Decision).
16. The IAA accepted that the applicant worked as a cleaner and labourer subcontracted to an Iraqi contractor to US forces at a base in Nasiriya from about February 2009 to 1 September 2009. If further found that:
a. in light of inconsistencies in the applicant's evidence regarding the number and nature of incidents, did not accept that he was threatened by Shia militia or any other group or person while in the bus on his way to work;
b. accepted that it is possible that variations or errors in the use of the AAH logo could occur within a large militia organisation;
c. based on independent country information, did not accept that the applicant was perceived by the AAH, any other Shia militia group, armed Sunni groups or any other group or person to be a supporter of the US or an infidel as a result of the 7 month period of employment as a cleaner and labourer who worked outside the perimeter as a subcontractor to a man who was contracted to provide cleaning services to the US forces.
17. Having regard to the prevalence of document fraud in Iraq, did not accept that the applicant received a threatening letter from the AAH on 1 September 2009. It followed that the IAA did not accept that his family's move was motivated by the receipt of the threatening letter. Rather, it considered it highly probable that the applicant moved his family for economic reasons. It did not accept that the applicant's wife had been questioned or intimidated by the mayor in an attempt to locate the applicant on behalf of the AAH nor that the applicant's former neighbours have been questioned.
18. As a former member of the security forces of low rank who completed only a 3 year period of compulsory service about 18 years ago, the IAA did not accept that the applicant was of any interest to Sunni or Shia armed groups or any other group or person on the basis of his past military service. There was no evidence to suggest that the applicant would be of any future adverse interest to Sunni or Shia armed groups or any other group or person for those reasons.
19. The IAA referred to independent country information noting the profiles of individuals that may be targeted by armed Sunni groups. It found that the applicant did not hold any of those profiles and found that the applicant was not of any adverse interest to any group or person on the basis of his parting past military service.
20. The IAA noted that the applicant was from Muthanna in the south of Iraq but had lived in the north of Iraq for approximately 3 years prior to travelling to Australia. The IAA was satisfied that if he returned to Iraq he would return to live in Muthanna. The IAA was satisfied, based on independent country information, that the applicant would be able to return to Muthanna safely by flying to Basra International Airport and travelling by train from Basra to Samawa in Muthanna. The IAA noted that while it accepted that there are instances of violence in Muthanna, it found the chance that the applicant would be harmed to be remote and less than the real chance of persecution required to meet section 5J(1)(b).
21. The IAA found that there was no credible evidence to suggest that the applicant would be harmed by the Iraqi government or any other group if he returned to Iraq having unsuccessfully sought protection and lived in Australia for approximately 4 years.”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. The applicant required an extension of time to seek judicial review of the Authority’s decision pursuant to s.477 of the Act.
On 4 May 2017, the applicant attended a directions hearing before a registrar of this Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Authority hearing, as well as submissions in support. The matter was set down for a hearing of the applicant’s application for an extension of time to seek judicial review of the Authority’s decision pursuant to s.477 of the Act on 21 March 2019 at 10:15am, before me.
At the hearing on 21 March 2019, time was extended to the applicant to seek judicial review of the decision of the Authority. The matter was stood over pending relevant decisions of the High Court of Australia as to the characterisation of a certificate issued by a delegate of the first respondent pursuant to s.473GB of the Act.
On 29 October 2019, Orders were made in Chambers setting down the matter for hearing on 29 January 2020 at 10:15am, before me.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any Amended Application or submissions and that he has no further documents to present to the Court this morning in support of his application.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.
The applicant read an affidavit of his, sworn 13 June 2017, annexing various documents. The affidavit was objected to by the first respondent on the grounds of relevance and rejected by me on that basis as one of the documents post-dated the Authority’s decision and the other documents were copies of untranslated documents.
The applicant confirmed that he relied on the grounds contained in an Application, filed on 25 January 2019, as follows:
“1. Immigration Assessment Authority is not satisfied there are exceptional circumstances to justify the consideration of this information.
2. The court stated “I do not accept that he applicant was threated by Shia militia or any other group or person while in the bus on his way to work near the Imam Ali base as claimed.
3. I have provided the court with a letter with the AAH logo which they don’t believe.
4. Complementary protection conclusion. “there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a risk that the applicant will suffer significant harm. the applicant does not meet s.36(2)(aa).”
(Errors in original)
Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.
Ground 1
The applicant confirmed that Ground 1 is a complaint about the Authority’s finding that it was not satisfied that there were exceptional circumstances to justify considering new information.
The Authority referred to its Practice Direction for Applicants, Representatives and Authorised Recipients which seeks an explanation on behalf of the applicant as to why the new information could not have been given to the Department before the decision was made, or the information is credible personal information not previously known and may have affected consideration of the applicant’s claims had it been known. That is a correct summary by the Authority of the relevant statutory regime in relation to new information. The Authority noted that the applicant’s submission did not include any such explanation. As to why the new information could not have been given to the Department before the Delegate’s decision was made.
The Authority noted that the applicant’s representative provided new information, being an article on the website of a Lebanese TV station showing a logo for AAH, being the same as the logo used as a watermark in the threatening letter the applicant claimed to have received from the AAH. However, the Authority noted that the website was in Arabic and no translation into English was provided. Accordingly, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information.
That finding was open to the Authority on the evidence and material before it and for the reasons it gave. The Authority considered the probative value of the article in the context of no further explanation being provided and there being no translation of the information. The information was not expressed by the applicant to constitute personal information.
The Authority considered the probative significance of further new information, being extracts from a UK Home Office report in circumstances where one extract was the same as material already before the Authority and the other related to country information. The Authority identified with particularity the country information to which it had regard. The Authority also had regard to its finding that the applicant would return to his home province of Muthanna in the south of Iraq. The Authority therefore concluded that there were not exceptional circumstances to justify considering that new information.
A fair reading of the Authority’s decision record makes clear that the Authority considered in detail whether exceptional circumstances existed to justify considering new information provided by the applicant. The Authority accurately summarised the requirements of s.473DD of the Act, as follows:
“6. Section 437DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant's claims.”
In the circumstances, it was open to the Authority to find that it was not satisfied that there were exceptional circumstances to justify the consideration of the applicant’s new information.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 referred to the following finding made by the Authority with which the applicant confirmed that he disagrees:
“I do not accept that the applicant was threatened by Shia militia or any other group or person while in the bus on his way to work near the Imam Ali base as claimed.”
That finding followed detailed consideration by the Authority of the applicant’s claims. The Authority detailed its particular concerns. The Authority found inconsistences in the applicant’s evidence regarding the number and nature of the incidents and the applicant’s failure to mention those claims in his Protection Visa application caused the Authority to doubt the veracity of the applicant’s claims, including any threat to the applicant while in a bus on his way to work. The Authority found the applicant’s account of these threats to be confusing and his evidence to be inconsistent.
In the circumstances, it was open to the Authority not to accept that the applicant was threatened on a bus as claimed based on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at based on those factors that were logically probative of the issue of credibility (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).
Accordingly, Ground 2 is not made out.
Ground 3
The Applicant confirmed that Ground 3 cavils with the Authority’s finding that the applicant received a letter, dated 1 September 2009, from the AAH. The Authority had regard to the applicant’s representative’s submissions that the logo on the threat letter was not the AAH’s official logo but was one of a number of logos used by the AAH. The Authority noted the Delegate’s concerns about the logo on the letter but accepted that it was possible that variations or errors in the use of the logo could occur within a large militia organisation such as AAH.
Ultimately, the Authority rejected that the applicant was perceived by the AAH or any other militia group, armed Sunny groups, or any other group or person, to be a supporter of the US or an infidel as a result of his employment as a former cleaner and labourer working outside the Imam Ali airbase as a subcontractor. The Authority did not accept that the applicant was or is of any adverse interest to any person or group on that basis.
The Authority then found in view of that finding and having regard to the prevalence of fraudulent documents in Iraq, that the applicant did not receive a threatening letter from AAH on 1 September 2009.
As with Ground 2, that finding was open to the Authority on the evidence and material before it and for the reasons it gave. It was logically probative of the issues before the Authority.
Accordingly, Ground 3 is not made out.
Ground 4
The applicant confirmed that Ground 4 is a disagreement with the Authority’s finding that the applicant did not meet the complementary criterion in s.36(2)(aa) of the Act that Australia has protection obligations because there are substantial grounds that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk of significant harm.
However, the Authority accurately identified the complementary protection criteria and referred to the definition of “significant harm” in s.36(2A) of the Act. The Authority referred to its findings that the applicant did not face a real chance of serious harm as a Shia, a former cleaner and labourer, an unsuccessful asylum seeker or any combination of those factors.
The Authority concluded that the applicant was not at a real risk of significant harm. That conclusion was based on the findings of fact made by the Authority in considering whether the applicant met the refugee criteria in s.36(2)(a) of the Act. It is well established that the Authority is entitled to rely on its findings that there was no real chance of the relevant harm alleged for Convention reasons in assessing whether there was a real chance of significant harm for complementary protection when the same essential claims and facts are relied upon (see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J).
In the circumstances, the Authority’s conclusion that the applicant did not meet the complementary protection criteria was open to it on the evidence and material before it and for the reasons it gave.
Again, that conclusion was based on findings made by the Authority that were relevantly probative of the issue of complementary protection.
Accordingly, Ground 4 is not made out.
Section 473GB Certificate
The first respondent informed the Court that a certificate had been issued purportedly pursuant to s.473GB of the Act, the existence of which was not brought to the attention of the applicant. The first respondent conceded that the purported certificate was invalid (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081). The purported certificate referred to the identity of the applicant. The identity of the applicant was not an issue that was before the Authority and was the subject of a finding by the Delegate.
There was no obligation on the Authority to disclose the fact of notification to the applicant (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34).
In CED16 v Minister for Immigration and Border Protection [2018] FCA 1451 (“CED16”), Derrington J found that a certificate issued under s.473GB of the Act about an identity assessment form was new information and was required to be dealt with under Division 3 Subdivision C of Part 7AA of the Act.
Counsel for the first respondent provided helpful submissions in relation to CED16, which I refer to as follows:
“CED16
42. In CED16 Derrington J considered facts similar to the present case: at issue was a s.473GB certificate about an identity assessment form. The Minister accepted, as he does in the present case, that the s.473GB certificate was invalid (at [14]). Derrington J found that the invalid certificate was considered relevant and relied on by the IAA. His Honour further found that it was “new information” for the purposes of Subdivision C of the Part 7AA and the IAA in that case was required to deal with the invalid certificate in accordance with that Subdivision, including s.473DE (at [57]). Consequently, his Honour was satisfied that the IAA had fallen into jurisdictional error (at [58]).
43. Presently at issue is whether CED16 is applicable in the present case. The first respondent’s position is as follows:
a. it formally submits that the decision in CED16 is wrongly decided;
b. notwithstanding (a) above, and subject to the matters outlined in further detail below, this Court is bound by the decision in CED16. That is the position that has been adopted in the two decisions of this Court that have considered the application of CED16: AKQ16 v Minister for Immigration and Border Protection [2019] FCCA 90 (AKQ16) at [36]-[37]; CYE17 v Minister for Immigration and Border Protection [2019] FCCA 102 (CYE17) at [44].
44. It was ultimately apparently accepted by his Honour (and was the agreed position between the parties to the appeal) that in the case before him the information which was the subject of the certificate – being, the identity assessment form – was before the delegate (at [7] and [39]. Derrington J then made a finding that what was not before the delegate in that case was the invalid certificate itself: his Honour stated that “it is not in doubt that the s.473 Certificate was not before the delegate” (at [39]).
45. His Honour (at [40]) then observed that “the information in the 473GB certificate would, prima facie, fall within the definition of ‘new information’ in s.473DC(1)” (emphasis added). Given the terms of [39] of the judgment, the reference to “information” in the certificate appears to contradict the position accepted by his Honour at [7] and [39] that the identity assessment form (being the information the subject of the certificate) was before the delegate. Acceptance of that fact had the corollary that the identity assessment from was not new information given the terms of s.473DC(1).
46. It is apparent that his Honour was aware of the fact that s.473DC(1), and by extension the matters in s.473DD and s.473DE, was only engaged in respect of information that was not before the delegate. The terms of paragraph [56] of the judgment make this clear: his Honour reasoned that s.473GB was inconsistent with the requirements relating to “new information” and, further, that where a certificate issued under s.473GB was invalid then there was no reason why the provisions of Division 6 (comprising) s.473GA to s.473GD) would have any relevance; in that context, his Honour noted that “if information passed on to the IAA by the Secretary other than pursuant to a valid s.473GB Certificate was not before the Minister when the decision was made, it must be treated as ‘new information’ and the IAA is required to consider it…” (emphasis added).
47. The analysis his Honour undertook at [38] has a number of difficulties, some of which were identified by his Honour Judge Smith in AKQ16 at [28]-[31]. Those difficulties are not easily reconciled but - when considering [40] of the judgment in CED16 - they are explicable by reference to the idea that what was being considered was only the certificate and not the information to which the certificate related (in CED16, the identity assessment form). Judge Smith reached a similar conclusion: AKQ16 at [31].
48. Consistently with [39] and [56]-[57] of his Honour’s judgment in CED16, his Honour’s analysis cannot be read as applying both to the certificate and the information to which the certificate relates. Such a reading would be contrary to the facts of CED16, and the textual indicators that clearly suggest that his Honour was concerned with considering the proposition that the certificate itself was “new information” rather than the information to which the certificate related. That being so, the proper reading of his Honour’s observation at [40] (“information in the 473GB Certificate”) and in [56] is that it refers to the certificate itself and, arguably, the language in the certificate (in other words, the statements made in the certificate and the description of the information that is subject to the certificate).
49. It follows that CED16 is, at most, authority for the proposition that an invalid certificate issued pursuant to s.473GB may be considered to be “new information” for the purposes of s.473DC and s.473DD. This is the position taken by his Honour Judge Smith in AKQ16 (at [31]-[42]) and in CYE17 (at [42]-[48]).
50. That leaves for consideration the question of the 473GB certificate itself. In that regard, it is necessary to consider, as Derrington J did in CED16, the decision of the Full Court of the Federal Court, comprising their Honours Kenny, Tracey and Griffiths JJ, in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16). Pertinently, this Court is bound by BBS16. In BBS16, the Full Court considered a materially similar situation to that presented in CED16: namely, an identity assessment form which was the subject of an invalid certificate pursuant to s.473GB (at [87]). The Minister conceded in that case that the certificate was invalid and the case was expressly argued on that basis. The Full Court considered whether the reasoning of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 applied to certificates under Division 6 of Part 7AA and found as follows:
a. it expressly rejected the suggestion that 473GB certificates should be considered by reference to the concept of “new information” under Part 7AA (at [90]);
b. the terms of s.473DB strongly suggest that a s.473GB certificate (and related information) is not “new information” for the purposes of Division 3 of Part 7AA (at [92]);
c. the words in s.473DA referring to “together with ss.473GA and 473GB” indicate that “new information” does not apply to those sections. Division 6 deals with a different concept, namely disclosure of information (at [93]);
51. The Full Court clearly concluded that a certificate issued under s.473GB was not properly classified as “new information” bearing in mind the scheme of Part 7AA and the terms of Division 3 and Division 6. Derrington J did consider BBS16 (at [41]-[54]). His Honour’s initial consideration appears to have focused on whether, in circumstances where the certificate is invalid, the IAA was required to deal with the underlying information as “review material” pursuant to s.473DB. However, his Honour went on to analyse the treatment of certificates generally in BBS16 as explicable by reference to the fact that the reasoning apparently applied to a valid certificate but not to an invalid certificate (at [51]-[52]). That conclusion is at odds with the fact that BBS16 was a case involving an invalid certificate. Derrington J noted that this was “incongruous” (at [52]) but did not seek to explain in any detail the nature of the incongruity.
52. Judge Smith concluded that, on this issue at least, the decisions were inconsistent (CYE17 at [43]). In that regard, it should be noted that the position in BBS16 was followed by two differently constituted Full Courts in BVD17 and AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 (AYF16).
53. In light of the foregoing, the first respondent submits that the proper reading of CED16 is as follows:
a. the ratio of the decision is that the s.473GB certificate itself is “new information”: AKQ16 at [42];
b. the decision is inconsistent with, and cannot be reconciled to, the decisions of the Full Court of the Federal Court in BBS16, BVD17 and AYF16.
54. The decision has no bearing on, and does not determine any issue in respect of, the question of whether the underlying information (to which a certificate relates) is “new information”. That question will be determined principally by the terms of s.473DC(1): namely, whether the material was before the delegate and whether it is relevant.
CED16 does not apply
55. The basis on which his Honour Judge Smith distinguished CED16 in AKQ16 and CYE17 clearly applies in the present case. His Honour noted in AKQ16 that even if it were to be accepted that the 473GB Certificate was prima facie “new information”, the second component of “new information” is whether the information is “relevant” in the sense of having a “bearing on the decision to be made on the review” (at [42]). His Honour concluded that based on the circumstances in that case it could be said that the certificate (and the linguistic information in the certificate) could not rationally affect the decision on review. A similar conclusion applies here. The 473GB Certificate contains only a reference to documents and the expression of an opinion that the information should not be disclosed. The IAA stated that it had regard to the material referred to it by the Secretary under s.473CB of the Act (at [3] of the Decision). It may be inferred in these circumstances that the IAA had regard to the certificate but did not consider it to be relevant.
56. That conclusion is fortified by the recent observation (albeit in the context of s.438 and Part 7 of the Act) of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA). The plurality (Bell, Gageler and Keane JJ) noted that a notification under s.438 is not itself information (at [28]). That underscores the fact that the certificate itself could have no evidentiary significance in terms of the IAA’s review.
The error was not jurisdictional: materiality
57. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain), their Honours Kiefel CJ, Gageler and Keane JJ noted that the concept of a jurisdictional error goes not only to the presence of an error but to the gravity of that error (at [25]). A statute is ordinarily to be interpreted as incorporating a threshold of material in the event of non-compliance (at [29]). While the statute may set a higher or lower threshold for such materiality, that threshold would not ordinarily be met in circumstances where failing to comply with the statutory condition “could have made no difference to the decision that was made in the circumstances in which the decision was made” (at [30]).
58. In SZMTA, the plurality (Bell, Gageler and Keane JJ) elaborated on the concept of materiality. Their Honours noted that a breach is material to a decision only if “compliance could realistically have resulted in a different decision” (at [45]). In that regard, materiality was an ordinary question of fact to be determined by inferences drawn from the evidence adduced on the application (at [46]). This would include what can be expected to occur in the course of “the regular administration of the Act” (at [47]).
59. The applicant bears the onus of proof in showing that any error is material: SZMTA at [46]. Notwithstanding that point, even if it were to be accepted that the IAA made an error in not treating the 473GB Certificate as “new information”, nothing material or significant flowed from that error. In order to assess the materiality of the error consideration would need to be given the ordinary administration of the Act. It may be accepted that if the IAA had determined that the 473GB Certificate were new information, the consequence would have been that it had to consider whether it was required to give that information to the applicant pursuant to s.473DE. The certificate itself could have no bearing on the applicant’s claims or the state of satisfaction that the IAA had to achieve: it stated merely that the AIF should not be disclosed. It would, necessarily, not form the reason, or part of the reason, for affirming the delegate’s decision: s.473DE(1)(a)(ii).
Is this Court bound to follow CED16?
60. Even if the Court were minded not to accept the matters outlined above then, respectfully, for the reasons that follow it is submitted that the Court would be in a position to decline to follow CED16.
61. It is respectfully submitted that the judgment of Derrington J in CED16 should not be read as suggesting that his Honour departed from a decision of the Full Court (comprising three judges) without any consideration of whether his Honour was bound by BBS16 and whether, if his Honour considered that BBS16 was not binding, why BBS16 was plainly wrong – something that, respectfully, his Honour would have been required to consider in order to depart from a decision of another Full Court. It follows that this Court should consider BBS16 to be binding and to treat CED16 (appearances to the contrary notwithstanding) as not departing from it.
62. In any event, if this Court considers that the two decisions are in conflict then, respectfully, this Court should follow BBS16 as a correct statement of the law. In that regard, there are three Full Court decisions of Federal Court (sitting as three judges) that are contrary to the ratio of CED16. In addition, the analysis of the term “information” is at odds with the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR) and SZMTA.
63. In Prentice v Fewin Pty Ltd, in the matter of Prentice [2017] FCA 490 (Fewin), Browmich J considered himself to be bound by a decision of the Full Court regarding the correct construction of the phrase “capacities in which the claimants claim” in the Bankruptcy Act 1966 (Cth). In reaching that conclusion, his Honour stated that there was no room to depart from the judgment of the Full Court then under consideration by reason of the judgment being per incuriam. Bromwich J followed the decision of the Full Court of the Federal Court in Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 (Algama). It follows that his Honour was applying the expression of principle set out in Algama.
64. Insofar as the reasons of Bromwich J in Fewin on this issue contemplate that it is not open to a court lower in the judicial hierarchy to avoid following a decision of a higher court on the basis that the higher court’s decision could be distinguished because of an absence of consideration of an issue or authority then, respectfully, his Honour’s conclusion is both correct and, in any event, binding. The use of the per incuriam rule in that way has been disapproved: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177; Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273 at [39].
65. However, that is not, respectfully, the end of the analysis. In Algama, which Bromwich J considered to be the apposite expression of principle, the Full Court applied the statement of the per incuriam rule set out in the decision of the United Kingdom Privy Council in Baker v The Queen [1975] AC 774 (Baker). In Baker, the Privy Council considered the question of how the courts of Jamaica were to deal with two decisions of the Privy Council that were in conflict. Lord Diplock noted that the per incuriam rule had an “obvious exception”: namely where two decisions of the Privy Council were in conflict and the later decision did not purport to overrule the earlier one then the Jamaican courts were permitted to choose which one they would follow and “in doing so they may act on their own opinion as to which is the more convincing” (at 788).
66. It follows that it is open to a lower court, when confronted with two conflicting decisions of equal status, to choose between them. It is submitted that this principle extends to a choice between conflicting decisions of a higher court (e.g. the High Court) and a lower court (e.g. the Federal Court). In appropriate cases, that would permit this Court to choose between conflicting decisions of the Federal Court or between two courts of co-ordinate jurisdiction. In respect of a higher court and lower court conflict, and for the avoidance of doubt, it is the first respondent’s position that where there are conflicting decisions of the High Court and the Federal Court, this Court should follow the High Court.
67. The Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 (SZGME) stated that it was the duty of a subordinate court to give effect to a more recent decision of the immediately higher court, notwithstanding that it may be in conflict with a still higher court (applying the observations of Lord Simon, in dissent, in Miliangos v George Frank (Textiles) Ltd (1976) AC 443 at 478). SZGME is distinguishable on the facts of that case: namely, that the decision in question mentioned the prior decision in its consideration and it was the subject of full consideration.
68. In the context of the present case, based on the above principles the issue to be addressed is whether SZBYR is in conflict with CED16. The first respondent submits that it is. Derrington J in CED16 treated the s.473GB certificate itself as information for the purposes of s.473DD. That is inconsistent with the treatment of the term “information” as discussed by SZBYR; the High Court found that it did not extend to matters beyond evidentiary material or documentation and the 473GB Certificate does so (being a notification about evidentiary material or documentation, not the material itself). That position is reinforced by the High Court’s observation in SZMTA that a certificate could not be information because it was not material of an evidentiary nature (at [28]). The word “information” is referable to the totality of the Act and must be taken to have the same meaning (although that presumption may be displaced). In that regard, it should be noted that the High Court in M174 stated the meaning of “information” (at [24]) and this meaning was taken from SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 259 (SZEEU). SZEEU was considered by the High Court in SZBYR.”
I accept those submissions as accurate and have regard to them in concluding that no jurisdictional error arises in the case by reason of the issuing of a purported certificate under s.473GB of the Act.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority also considered whether exceptional circumstances existed in relation to new information provided to it by the applicant. The Authority identified independent country information to which it had regard.
The Authority made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 29 January 2020
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