ANW18 v Minister For Home Affairs and Anor (No.2)
[2020] FCCA 2638
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANW18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2020] FCCA 2638 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – whether there was fraud on the applicant by his migration agent – not satisfied the written claims put forward by the migration agent are fraudulent - whether the Secretary failed to provide material which was relevant to the Authority’s review – satisfied the material could not have made a difference to the Authority’s outcome – application dismissed. |
| Legislation: Migration Act 1958 (Cth) s.473CB(1)(c) |
| Cases cited: Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 CQR17 v Minister for Immigration (2019) 269 FCR 367, [2019] FCAFC 61 |
| Applicant: | ANW18 |
| FirstRespondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 52 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 3 May 2019, 24 October 2019, 26 August 2020, 9 September 2020 & 11 September 2020 |
| Date of Last Submission: | 11 September 2020 |
| Delivered at: | Darwin |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the 1st Respondent: | Mr N. Wood |
| Solicitors for the 1st Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s cost in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 52 of 2018
| ANW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
(As Corrected)
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 23 November 2017 to affirm a decision of the delegate made on 4 May 2017.
The applicant is a citizen of Iran. He left Iran in approximately 2012 and arrived in Australia, it would appear, in early 2013. His protection claims were, in summary, first, that he had been involved in opposition politics in Iran in 2009, particularly the Green Movement. Second, he was opposed to undertaking any military service in Iran and that would expose him to persecution. He also claimed that he had been involved in an unorthodox religious or spiritual movement called Halgheh Erfan and began to learn about Christianity. He said that he subsequently converted to Christianity in Australia.
The applicant also said that he had been involved in a business deal that went wrong with a Mr X, who was associated with a security policeman called Mr Y. He said that he was threatened that if he did not drop his money claim against Mr X he would be charged with blasphemy or apostasy in Iran, arising from his involvement with Halgheh Erfan.
The Authority largely disbelieved the applicant’s claims although it considered some aspects of his claim of being involved in the Green Movement a least plausible but it concluded that the extent of his claimed involvement was exaggerated or untrue. His application was refused.
The applicant has sought review of that decision in this court. There are two grounds of review. The first ground, numbered 1(a), reads as follows:
The decision of the Immigration Assessment Authority was vitiated by fraud such that the jurisdiction of the Authority to review the delegate's decision was constructively unexercised.
The particulars were:
The application prepared by the applicant's migration agent contained fraudulent information as set out in the affidavit of the applicant, affirmed 14 March 2019 and filed in these proceedings and the affidavit of the applicant affirmed 21 June 2019, and filed in these proceedings.
The references to the affidavits are references to affidavits of the applicant that were filed on 15 March 2019 and 24 June 2019. The affidavit filed on 15 March 2019 refers to two statements set out at paragraphs 25 and 26 that were said to have been falsely made on behalf of the applicant. I will read the three relevant paragraphs:
[24] The statements include information which is not true.
[25] This includes the information about my connection to Halgheh Erfan. While I did attend one meeting, I had no ongoing connection with it. This was not the main reason I fled Iran.
[26] It is also not true that anyone threatened to kidnap my son.
The affidavit filed on 24 June 2019 does not outline, in express terms, a claim that fraudulent claims were made on behalf of the applicant by the migration agent. However, at paragraph 16 there is a reference in the following terms, after referring to the migration agent, Mr Raygan:
He told me that the statement was about my case, and that he had made a case for Christianity for me. He told me not to worry, and that I would be accepted by the department. He did not read the electronic forms or my statement of claims to me.
And at paragraph 17:
Raygan told me to go and get baptised. I had been going to the Jehovah's Witness church for around three years, but he said this was not good, and that I should find a church to get baptised at instead.
I asked the applicant whether I should understand that as constituting a claim that the claims of Christianity or of conversion to Christianity made on his behalf should be understood as fraudulent or false. He said that those claims were not fraudulent.
As noted, the applicant's migration agent was a Mr Raygan. He was subsequently de-registered by the Office of the Migration Agents Registration Authority (“OMARA”) but not in relation to his conduct in this matter. As I understand it, the reason for de-registration, which is set out in an affidavit of Ms Rutherford that was filed on behalf of the applicant was that Mr Raygan used various ‘template’ claims on behalf of clients. It found that he had made claims on behalf of clients that were, effectively, false.
The relevant task for the applicant in relation to ground 1 is to establish as follows:
(1)That there was a fraud on the applicant by his migration agent.
(2) That that fraud stultified the relevant decision-making process.
(3)The applicant was not complicit in the fraud.
The intentional element of complicity in fraud involves at least an indifference or wilful blindness to the truth or otherwise of the claims being put forward by the migration agent. Helplessnes, naivety, ignorance, dependence or reliance on the migration agent are not sufficient: Katragadda v Minister for Immigration [2020] FCAFC 143.
Counsel for the Minister said in relation to those elements in ground 1 that there is no evidence of fraud and, at most, there is some evidence of exaggeration of actual claims made by the applicant. Secondly, there being no fraud, there is no stultification of the statutory decision-making process. And, thirdly, in relation to the need for the applicant to demonstrate that he was not complicit in any fraud, counsel said that there was, in fact, no evidence of fraud.
Counsel said that if the claims advanced by the migration agent in relation to Halgheh Erfan and the kidnap of the applicant's son, which is referred to in paragraph 6 of the affidavit of 15 March 2019, are fraudulent then the applicant himself is complicit. It was said that it is clear from the material that the applicant raised those claims himself in his oral interview with the Minister's delegate. In relation to Halgheh Erfan, the applicant participated in an interview with the delegate, the protection visa interview, and he discussed his involvement with Halgheh Erfan.
At court book page 123, at the top of the page, the delegate’s reasons say:
The applicant stated during his Protection visa interview that his participation with Halgheh Erfan was being held against him by his former business partner, [Mr X], and used by the Security Police Chief Mr Y to threaten him (with apostasy/blasphemy against the regime) into dropping the case regarding the return of his investment monies.
The applicant was cross-examined about the protection visa interview. His evidence, to my mind, was far from satisfactory. Initially, he said in cross-examination that he had told the truth in the protection visa interview but, when reminded of the passage that I just read, he said that, in fact, the migration agent had kicked him under the table and pointed at either the applicant's finger ring or the migration agent's finger ring, it was unclear to me from the evidence, as a means of reminding him to speak about Halgheh Erfan because, the applicant said, “Halgheh” in Persian means ring.
The applicant's evidence, as I say, was far from satisfactory. It was unclear to me whether the applicant himself was saying that he was forced into making statements that were untrue or whether the role of Halgheh Erfan had been exaggerated in the claims put forward on his behalf. He said during his evidence that the migration agent made Halgheh Erfan into a “bigger thing” than it was.
It is difficult to credit that explanation because the applicant's involvement in Halgheh Erfan was a central element of the reason for the threats the applicant says had been made against him by Mr X and Mr Y. His interest in, or involvement with, Halgheh Erfan was what they held against him, as he said in the protection visa interview. It is difficult to see how the applicant's role in Halgheh Erfan could be exaggerated. It was not so much the role or whether there were multiple visits to Halgheh Erfan meetings, or only one as the applicant said at one point. That does not matter. The significance of his involvement with Halgheh Erfan was that it was an unorthodox religious or spiritual organisation which, according to the applicant, had permitted Mr X and Mr Y to blackmail him or attempt to blackmail him. I do not accept the applicant's evidence in relation to this issue is credible.
A similar point may be made about the claim made on behalf of the applicant that there was a threat to kidnap his son. The threat was related to this very issue, that is, a business deal gone wrong, and the threats made by Mr X and Mr Y against the applicant, or allegedly made against the applicant.
At court book page 176, the Authority referred to the applicant's protection visa interview (at paragraph 29). The applicant said during that interview that he had this information from his wife, that his wife was being harassed by someone - "they". Clearly, it was in the context of the business deal. According to the applicant she said that:
Sometimes they came and pressed the buzzer and when they came out nobody was there and his son was threatened at school.
When the applicant was cross-examined in relation to that he denied that he had ever said that his son was threatened at school. He said that the information was from his wife but his understanding was that the child was threatened on the way home from school in the company of his mother. He said also that his son had been “chased”.
The only significance of these matters is in relation to the claim that I have mentioned, that is, a claim that because the business deal with Mr X that had gone wrong, the applicant himself was threatened initially and then, after his departure to Australia, his family were threatened. In circumstances where the applicant himself had said that his son, as he said in cross-examination, had been threatened and chased on the way home from school that appears to me to be tantamount to an allegation that the purpose of the chasing was, potentially at least, an attempt to kidnap the son.
I am not satisfied that any of the written claims put forward by the migration agent are fraudulent. At most, if they do not precisely record what the applicant now says is the case, that would constitute exaggeration or, perhaps, misunderstanding of instructions. It falls well short of fraud. In relation to that ground, I am not satisfied that there has been a fraud committed on the applicant. I am not satisfied that there has been any stultification of the relevant statutory decision-making process.
As I am satisfied there is no fraud, it is not necessary for the applicant to demonstrate that he was not complicit. However, if the claims made in relation to Halgheh Erfan and the integrally related claim of threats following the business deal that is said to have gone wrong are false the applicant has been complicit in making the claims in the way that I have described, that is, by raising them and elaborating on them in an interview before the delegate. I am not satisfied that any of the necessary elements are made out and the ground must fail.
In relation to the other ground, it is a lengthy and I do not propose to read it all, but I will read part:
The decision was affected by jurisdictional error by reason of the failure of the Secretary to provide to the Immigration Assessment Authority material in the Secretary's possession or control which was relevant to the review.
The particulars go on to refer to the fact that there were complaints to OMARA in relation to Mr Raygan, the applicant's agent, that the applicant's statutory declaration, dated 6 April 2016, contained some passages which were similarly or identically worded to other documents prepared for other applicants or other clients by Mr Raygan. The delegate had raised concerns about inconsistency between the 6 April 2016 declaration and the claims raised by the applicant in his protection visa interview on 29 March 2017.
Those concerns were a part of the reason for refusing the applicant's application. There was material, it is alleged, in the possession or control of the Secretary that was relevant to these concerns and the OMARA complaints. The material was said to be relevant because it explained why there may have been inconsistencies in the applicant's various claims, that is, inconsistencies between the 6 April 2016 declaration and other claims. It is alleged that, despite these inconsistencies in the relevant material, the Secretary failed to consider providing that material to the Authority.
It is also said that the use of identical wording or duplication in some materials between the applicant's documents and others may have affected the assessment of credibility and that, in failing to put forward that material to the Authority, the Secretary failed to comply with section 473CB(1)(c) of the Act which requires the Secretary to give to the Authority:
...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.
Counsel for the Minister emphasised two matters in relation to that ground. First, from a factual point of view, he submitted that based on the affidavit of Ms Rutherford, who was the previous solicitor for the applicant, it was apparent that the only complaint made to OMARA before the reference to the Authority by the Secretary pursuant to section 473CB(1)(c) on 5 May 2017, was a complaint made to OMARA on 13 March 2017. A second complaint was made on 6 July 2017, that is, after the referral by the Secretary pursuant to section 473CB(1)(c) to the Authority.
Further, the decision to de-register the migration agent, Mr Raygan, was made after an investigation on 11 May 2018. Counsel for the Minister relied on two cases: CQR17 v Minister for Immigration (2019) 269 FCR 367 and AUF18 v Minister for Immigration (2019) 376 ALR 93, for the proposition, in relation to the first case, that the Secretary is only required to give material that he or she considers relevant at the time the decision is referred to the Authority which, as I have mentioned, was on 5 May 2017. Therefore, the only relevant complaint would have been the one made on 13 March 2017.
Secondly, relying on AUF18, it was submitted that the requirement for referral of information that is relevant to a review does not imply an objective knowledge of all the material that may be held by the department, that is, it is subjective. It may, in an appropriate case, require reasonable inquiry or search by the Secretary but it is not a requirement that is absolute.
The material that was included in the 13 March 2017 complaint related to two applicants, as I say, not including this applicant, and involving duplication of claims and materials. In other words, it appears that the protection claims were taken from a template, or were simply cut and pasted from other documents, and to that extent the documents were false or the claims were false. In her affidavit Ms Rutherford refers to the passages in the applicant’s statement of claims which appear to be similar to passages from the complaint made in the case of CMP-29881, which is referred to in paragraph 114 of the OMARA decision in relation to Mr Raygan and which, as I say, is attached to an affidavit of Ms Rutherford filed on 15 March 2019. That complaint refers, essentially, to duplication or use of a template which meant that claims were being made on behalf of applicants that were not true or not true of that particular applicant.
Looking at the statement of claims made on behalf of the applicant by his migration agent, the passages that Ms Rutherford has identified in annexure EGR2 as appearing either in identical or sometimes similar terms in other claims, and particularly the claims considered by OMARA, are these:
I came from Iran to Australia by boat via Indonesia and reached Australia on the December 2012 to save my own and family’s life. The main reason of my flee (sic) from Iran to Australia, goes back to when I became a part of Halgheh Erfan…
It can be seen that this passage, while evidently using cut and paste, is apparently true of the applicant. There is no contest, as I understand it, that he left Iran in late 2012 and arrived in Australia either in late 2012 or, perhaps, 2013 when his entry interview was held. I do not know the exact date of arrival. It seems to me that the difference is insignificant, if there is any. It goes on:
… as I realised that what I have been following is extracted from the Christian faith I became interested to learn about the Christian faith through an underground Churches with the help…
There follows a reference to a particular individual..
At question 93 in the statement of claims (at p 57 of Ms Rutherford’s affidavit) there is the following statement which was said to be a duplication of a statement made elsewhere:
No matter where I would go, Iranian government forces … could locate me and harm me. Iranian government forces could locate and harm me when they wanted.
Bearing in mind that the applicant had made claims to fear harm from Sepah, it is not clear to me that there is any great significance in what has been allegedly duplicated.
Similarly, another passage:
In Iran, all the laws are based on Islamic rules and against non-Muslims. Those exiting from Islam, like me, would be considered as infidel and subject to capital punishment. Therefore, Iranian government authorities would have no reason to be lenient to … rather would punish us hard to threaten others.
Bearing in mind that the applicant told me that his conversion to Christianity in Australia was not a fraudulent matter, it is difficult to see how there is any significance in the passage that I have just read, or how it would have any bearing on the Authority's deliberations or consideration of the applicant's claims. In relation to ground 2, it appears to me that there was nothing before the Secretary at the time the matter was referred on 5 May 2017 to indicate that Mr Raygan was conducting himself fraudulently or improperly in relation to the applicant.
In any event, I am not satisfied that that material is other than innocuous and of minimal significance. I am not satisfied that it was likely to have made any difference to the deliberations of the Authority. Indeed, I am satisfied that as the material essentially reflects the claims made by the applicant that he says are true and that, had that material been known to the Authority, it could not have made any difference to the outcome. In other words, I am satisfied that even if that material had been put before the Authority it could not have made a difference to the outcome.
Ground 2 fails and the application is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 18 September 2020
CORRECTIONS
The judgment has been amended to comply with section 91X of the Migration Act 1958.
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