Ais20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1026
•14 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AIS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1026
File number(s): CAG 6 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 14 May 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Class XE)(Subclass 790) or SHEV visa – whether the Immigration Assessment Authority (IAA) fell into jurisdictional error by failing to perform its statutory task – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) Div 3 of Pt 7AA, s 36, 65, 473 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Number of paragraphs: 44 Date of last submission/s: 10 May 2021 Date of hearing: 10 May 2021 Place: Canberra Solicitor for the Applicant: Mr Kikkert Solicitor for the Respondents: Ms Durham ORDERS
CAG 6 of 2020 BETWEEN: AIS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondents costs, fixed in the amount of $7,000.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Afghanistan. The applicant arrived in Australia on 24 December 2012 as an unauthorised maritime arrival. On 8 July 2016 the applicant applied for a Safe Haven Enterprise (Class XE)(Subclass 790) or SHEV visa.
On 29 June 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his SHEV Visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review.
On 27 January 2018, the Authority affirmed the delegate’s decision to refuse the applicant a SHEV visa. On 29 October 2019, this Court set aside the decision of the Authority and remitted the matter back to the Authority for further consideration.
In a decision dated 19 December 2019, the Authority (differently constituted) again affirmed the delegate’s decision not to grant the applicant’s SHEV visa.
The applicant now seeks judicial review of the second Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Given the applicant’s grounds of judicial review, it is not necessary to summarise in full the Authority’s decision.
The applicant’s claims can be summarised as follow:
ŸIn 2011, the started working as a private driver. The applicant transported passengers between Anguri district, Ghanzi Province and Kabul. While working, the applicant met a man who offered him a significant amount of money to transport alcohol from Kabul and deliver it to him. The applicant knew it was risky but he needed the money.
ŸAt the end of 2011, the applicant started transporting alcohol two or three times per month. The applicant would hide the alcohol in the boot of his car while transporting passengers..
ŸIn July 2012, when the applicant was in Kabul, he received a phone call from his wife who warned him not to return to Jaghori because a mullah had reported them him the Taliban and they were threatening to kill him. The applicant remained in Kabul, sold his car and started planning to depart Afghanistan.
ŸAfter the applicant fled Afghanistan, his wife and son moved to Kabul as they feared harm.
ŸThe applicant fears returning to Afghanistan as he would be killed by the Taleban. Transporting alcohol is considered a crime against Islam. The applicant also fears harm on the basis that he is a Shia Hazara and has been living in Australia since 2012. The Taliban and would consider him to be tarnished by Western country.
At paragraphs 2-8 of its decision, the Authority considered the information it had before it, in addition to that provided by the Secretary pursuant to s 473CB of the Act. At paragraph 3 of its decision, the Authority notes that the delegate’s decision was made on 29 June 2017 and more up-to-date country information is available. The Authority was satisfied that there were exceptional circumstances to justify considering this new information.
At paragraph 4 of its decision, the Authority notes that a number of submissions have been made to the Authority. The submissions contain arguments in favour of the applicant’s case with reference to the information which was before the delegate. The Authority had regard to these arguments.
At paragraph 5 of its decision, the Authority noted that the submissions had also sought to provide new information to the Authority. Some of this information presented in the manner of personal information. Some of this new personal information takes the form of documentary evidence. This evidence was submitted as being corroborative of other aspects of the applicant’s new personal information. The Authority was satisfied that there were exceptional circumstances to justify all of the new personal information provided being considered.
At paragraph 6 of its decision, the Authority notes that the applicant had also provided new country information sources. Much of this information was published after the date of the delegate’s decision and could not have been provided to the delegate before the date of the delegate’s decision. The Authority was satisfied that there were exceptional circumstances to justify considering this new information.
At paragraph 7 of its decision, the Authority considered new information provided to it in the form of country information which was published well before the date of the delegate’s decision. The Authority noted that it was not apparent from submissions (or otherwise) why this country information could not have been provided to the delegate before the date of the delegate’s decision. Further, this country information was not personal information. It was argued that this information should be considered because the delegate cited country information selectively from 2014, 2015 and 2016.
The Authority did not find this to be persuasive. The Authority found that the delegate considered a broad survey of credible sources and, in fact, drew on many of the same sources which the applicant has himself sought to rely upon. The Authority was not satisfied that this new information would add appreciably to the pool of country information that was now before it. In the circumstances, the Authority was not satisfied that s 473DD(a) of the Migration Act 1958 (Cth) (“the Act”) was met, and rejected the information.
At paragraph 8 of its decision, the Authority noted:
The applicant has requested the opportunity to respond to any information that may impact on the review of this matter adversely. I consider that the applicant has already had a reasonable and fair opportunity to put his case. I have therefore not exercised my discretion to get further information from him in this regard.
After an extensive consideration of the applicant’s claims, the Authority concluded that the applicant did not meet the requirements for refugee protection under s 36(2)(a) or complimentary protection under s 36(2)(aa) of the Act and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW.
The grounds of judicial review are set out in an Initiating Application filed with the Court on 23 January 2020. They are as follows;
Ground One
The Immigration Assessment Authority (IAA) fell into jurisdictional error by failing to perform its statutory task.
Particulars
a. The task of a review is to form the requisite state of satisfaction.
b. To sufficiently undertake the statutory task of review, all relevant information must be considered.
c. The IAA's decision record indicates that the applicant requested the opportunity to respond to any information that may impact on the review of this matter adversely (please see para [8]); however this request was refused.
d. By failing to provide the applicant with the opportunity to respond to any information that may impact on the review of this matter adversely, particularly after the applicant made this request, the IAA failed to take into account information that would have been relevant in making this decision. By failing to take into account this information, the IAA failed to undertake its statutory task of review or reach the requisite state of satisfaction.
Ground Two
The IAA fell into jurisdictional error by failing to provide the Applicant with procedural fairness.
Particulars
a. The IAA's decision record indicates that the applicant requested the opportunity to respond to any information that may impact on the review of this matter adversely (please see para [8]).
b. The IAA then noted ". . . I consider that the applicant has already had areasonable and a fair opportunity to put his case. I have therefore not exercised my discretion to get further information from him in this regard.." (please see para [8]).
c. By not providing the Applicant with the opportunity to respond to any information that may impact on the review adversely, as he had specifically requested the opportunity to do so, resulted in the IAA denying the Applicant procedural fairness.
Ground Three
The IAA fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
a. Based on my instructions, I have reason to believe that the IAA's decision was legally unreasonable. However I will need to review transcripts and recordings to address this issue. As such, it is anticipated that the Applicant will amend this ground and provide further particulars once I have had the opportunity to review this material.
Not pressed.
THE APPLICANT’S SUBMISSIONS
The legal representative for the applicant submitted that in relation to ground one, the applicant had requested the opportunity to respond to any information that might impact on the review of the matter adversely. It was submitted that the circumstances in the current matter were comparable to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”). That case concerned a failure to consider the most recent country information and a claim about the increased risk of persecution if the applicant was returned to Zimbabwe, constituted a failure to form the “state of satisfaction” required, to reach a decision pursuant to s 36(2)(a) of the Act. The Full Court stated that the statutory “task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he returned there”. At [46] the Court explained that this resulted in an error that was “fundamentally, a failure to form a state of satisfaction (one-way or the other) required for the purposes of the review”.
In this matter, like MZYTS the applicant wished the Authority to consider this information to “consolidate his claim and contradict information raised”. This included information which might have contradicted claims that:
•That the applicant was not reported to the Taliban by a Jaghori mullah for transporting alcohol;
•That the applicant was not transporting alcohol;
•That his wife and child did not became persons of adverse interest to a Jaghori mullah or to other Sangi Shanda villagers and were not harassed and forced to leave their village);
•That the applicant did not have any fears as a consequence of the publication of his participation in two Enlightenment Movement activities in Australia;
•That the applicant’s wife would not have withheld information from him about receiving threats if she actually had been receiving such threats;
•That the applicant's wife and family did not received threatening telephone calls as a consequence of his association with the Enlightenment Movement and the publication of his involvement in the news and online;
•That the applicant was not “an entirely credible source of evidence. . .”;
•That the applicant’s brother-in-law had not been killed by the Taliban and that the applicant had not participated in "ongoing demonstrations against the Taliban over recent years”.
In relation to ground two, it is asserted that the Authority fell into jurisdictional error by failing to provide the applicant with procedural fairness. The legal representative for the applicant conceded that there is some overlap between the first and second grounds.
The applicant requested an opportunity to respond to any information that may impact on the review of the matter adversely. The Authority declined to do so. It was submitted that, by not providing the applicant with an opportunity to respond to any information that might adversely impact on the review, the applicant was denied procedural fairness.
The legal representative for the applicant relied on a number of cases, including, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [33] (“WZARH”) to highlight that the scope of procedural fairness will depend on the circumstances of the case and, that the concern of the law is to avoid practical injustice: (see; Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at [37]).
The legal representative for the applicant stated that the Authority made a number of adverse credibility findings. It was submitted that although the Authority is not obligated to hold a hearing, it is essential for a review body to be able to obtain a personal impression of the applicant. It was submitted that in WZARH at [64] Keifel, Bell and Keane JJ noted that “the benefit to a decision-maker of seeing a witness advance his or her case, should not be exaggerated, but… It cannot be dismissed as illusory”. It was submitted that in circumstances where the Tribunal made a number of adverse credit findings, the Authority should have at least allowed the applicant the opportunity to comment in regards to these adverse findings, even if it did not allow the applicant at the hearing. It was submitted that this amounted to a failure to provide the applicant with procedural fairness, or in the alternative, it failed to perform its statutory task, amounting to jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent, submitted that ground one and two are premised on the same complaint: that the Authority failed to invite the applicant to respond to certain information which it considered to be adverse to him. Ground one alleges that the Authority failed to form the requisite state of satisfaction under s 65 of the Act. Ground two alleges that the applicant was denied procedural fairness.
Both grounds misconceive the statutory scheme established by Part 7AA of the Act which provides a mechanism for a limited review of fast track reviewable decisions. Division 3 of Part 7AA, together with s 473GA and s 473GB of the Act, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
The Authority is required to conduct a review of the delegate’s decision on the papers, without interviewing the referred applicant: (see s 473DC(2) of the Act). It does not have a duty to get, request or accept any new information: (see s 473DC(2) of the Act) even if the applicant expressly requests that it do so.
In this case, the Authority considered whether to exercise its discretion in s 473DC of the Act to get further information from the applicant, but decided not to in the circumstances where it considered that the applicant had had a reasonable and fair opportunity to make out his case. The Authority provided reasons which are a logical basis, for its decision.
This is not a case where the Authority considered a new issue that the applicant had not previously had an opportunity to comment on: (see; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210). Although the delegate considered that the applicant could relocate to Kabul from Mazar-e-Sharif, the applicant was clearly on notice from the previous Authority decision that an issue on the review was whether he could return to his home area of Jaghori, and, on remittal, provided the Authority with significant country information, relating to the security situation in Afghanistan as a whole.
This is not a case where the delegate’s credibility findings were based on the applicant’s demeanour at the interview, such that the Authority was disadvantaged in comparison:
(see; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34).The adverse findings identified by the applicant at paragraphs 8 and 17 of his submissions, arose from the review material provided by the Secretary to the Authority, new information provided by the applicant and new country information obtained by the Authority.
That information was not required to be put to the applicant for comment as:
a. The obligation in s 473DE to invite the applicant to comment on information that would be the reason or part of the reason for affirming the decision under review relates only to new information. The material referred to the IAA by the Secretary was not new information;
b. The new information provided by the applicant was “new information that is prescribed by regulation for the purposes of” s 473DE(3)(c) such that it was exempt from the disclosure requirement in s 473DE(1); and,
c. The country information obtained by the IAA was “not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member” and therefore fell within the exception in s 473DE(3)(a).
In reviewing the decision, the Authority stands in the shoes of the original decision maker, in this case the first respondent’s delegate. The delegate is bound by s 65 of the Act, as it applies to a protection visa. To grant the visa, the delegate must be satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine the person as a refugee. Rather, it is a decision that the first respondent is not satisfied that the person has a genuine fear found upon a risk of persecution. This is the “decision” for which the provision is made, by the Act.
The applicant’s reliance on MZYTS is misplaced. In that case, the Full Court found that by failing to consider the latest country information available to it, the Tribunal failed to form the state of satisfaction required for the purposes of the review. That is the context in which the applicant’s submissions ought to be seen. This case is readily distinguishable in circumstances where the Authority obtained updated country information. The applicant’s argument appears to be that the Authority failed to consider the potential evidence that would have been given, had it invited the applicant to a hearing under s 473DC(3) of the Act, and that in circumstances where he says that evidence would have “consolidated his claim and contradicted information raised”. MZYTS does not stand for the proposition that this is required.
This was a matter for the applicant to provide his evidence and arguments in sufficient detail to enable the Authority to establish the relevant facts. Ultimately, the Authority could not be satisfied that the applicant would face a real chance of serious harm or real risk of significant harm should he be returned to Afghanistan. It was submitted that the applicant’s complaint in this regard is no more than the expression of disagreement and dissatisfaction with the Authority’s decision and a veiled attempt to engage the Court in merits review.
CONSIDERATION
The procedure for the conduct of review, such as the present matter, is that the Secretary of the Department is required to provide the Authority with review material that consists of the information and findings made by the delegate and material relevant to the making of that decision: (see; s 473CB of the Act).
Fast track review carried out by the Authority are the subject of considerable limits on the material that may be considered and the manner in which the review is carried out.
Section 473DA of the Act, states that Part 7AA reviews carried out under the procedures outlined in Division 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.The Authority is then directed to carry out its review based upon the material provided by the Secretary [s 473DB(1) of the Act], without accepting or requesting new information
[s 473DB(1)(a) of the Act,] and without interviewing the referred applicant
[s 473DB(1)(b) of the Act,]. The Authority may get new information that it considers may be relevant, but 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 in any other circumstances
[s 473DC(2) of the Act,]. Provision exists under s 473DC(2) and (3) of the Act, for the Authority to invite a person to give new information orally or in writing.Certain new information must be given to an applicant for comment under s 473DE(1) of the Act, however, there is no requirement to do so if the new information is not specifically about the referred applicant and is just about a class of persons to which the referred applicant is a member: s 473DE(2) of the Act.
In ground one, the applicant complains that he was not provided with an opportunity to be interviewed by the Authority or respond to information that may have impacted on the review adversely.
The applicant relies upon MZYTS. That case concerned a failure by the Authority to consider the most recent country information in circumstances where it was said the political situation had changed in the applicant’s home country such that the applicant was at greater risk. That is not the situation in this matter.
In this matter the Authority obtained and considered the most up to date country information, including material provided by the applicant. The information was not ‘new material’ that required the applicant to be given the opportunity to comment. Rather, it was material that was exempt from the requirement to allow the applicant to comment under s 473DE(3) of the Act.
The Court is of the view that the decision by the Authority in this case, not to allow the applicant an opportunity to comment on any material that might be adverse to him does not fall within the jurisdictional error outlined in MZYTS. Further, having considered the request by the applicant and rejecting it, the Authority was acting within the legitimate decisional freedom granted to it under s 473DC of the Act, particularly noting that it was under no duty to do so under s 473DC(2) of the Act, together with the exhortation under s 473DB(1) of the Act, to conduct the review without accepting new information or interviewing the applicant. Ground one has no merit.
As conceded by the legal representative for the applicant ground two overlaps with ground one. The Court is not satisfied that, given the specific constraints placed on the Authority in regards to new information, that not allowing the applicant the opportunity to comment was a breach of procedural fairness. The Authority quite properly considered a range of new information that was provided to it, including up to date country information and submissions that contained new personal information as set out in paragraphs 4 to 7 of the decision record. The applicant was clearly on notice as to the issues in the matter from both the delegate’s decision and the previous Authority decision. As a result, the applicant provided a range of material for the Authority to consider.
In the circumstances of this case the Court is not satisfied that the applicant was denied any procedural fairness obligation. Ground two similarly has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 14 May 2021
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