ATA18 v Minister for Home Affairs

[2018] FCCA 1851

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1851

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa subclass XE 790 – whether there were any new issues before the Authority that it was obliged to raise with the applicant – whether the Authority was bound to alert the applicant to a matter on which it proposed to depart from the delegate’s reasoning, where that departure accepted a claim made by the applicant – whether the Authority failed to consider exercising its discretion to get new information from the applicant – whether the Authority erred in relation to s.473GB notifications.

Legislation:
Migration Act 1958, s.473GB

Cases cited:
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; (2016) 155 ALD 98; [2016] FCA 1081

Applicant: ATA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 426 of 2018

Judgment of: Judge Riley

Hearing date: 25 May 2018

Date of last submission: 25 May 2018

Delivered at: Melbourne

Delivered on: 10 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Christopher Tran

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 19 February 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 426 of 2018

ATA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority.  In that decision, the Authority affirmed a decision of a delegate of the Minister for Home Affairs not to grant the applicant a Safe Haven Enterprise subclass XE 790 visa.

2. The Authority’s reasons for decision indicate that the applicant arrived in Australia in November 2010.  He was refused immigration clearance and has been in detention since then. 

3. The applicant filed a protection visa application on 19 May 2011.  That application was refused. The applicant then sought review unsuccessfully by this court.  He then appealed unsuccessfully to the Federal Court and unsuccessfully sought special leave to appeal to the High Court.   

4. The applicant lodged a further protection visa application on 6 December 2012, which was deemed invalid.  This court dismissed an application for judicial review of that decision. 

5. An International Treaties Obligations Assessment in relation to the applicant was undertaken on 24 June 2014 following the release of personal information about the applicant in what is colloquially known as the data breach.  The applicant received a negative assessment.  The applicant sought judicial review of that assessment.  On 3 February 2017, the Minister withdrew from the proceedings.  The applicant was then given permission to lodge an application for a Safe Haven Enterprise visa, subclass XE 790, which he did on 12 September 2017. 

6. A delegate of the Minister refused that application.  The Authority affirmed that refusal.  It is that decision by the Authority that is the subject of the present application to this court.

The applicant’s claims

1. The applicant is a man in his early fifties who claims to be a citizen of Nigeria and South Africa.

2. The Authority summarised the applicant’s claims, without challenge, as follows:

   15.    …

   ·He was born in Imo State, Nigeria. He married in 1990 and has three children. The relationship ended in 2003 and his wife took the children to live with her mother in Imo State.

   ·In the application form he initially stated that his two sons and a daughter, as well as a brother, reside in Imo State, Nigeria. He subsequently provided further information that his sister and father are deceased and his mother lives in Nigeria.

   ·He stated that he acquired South African citizenship in July 2008 through an agent. He stated that he is not sure if it is “authentic”.

   ·In the application form he stated that the only language he speaks is Igbo. In the 2012 letter to the Minister he stated that he also speaks “pigeon” English and Yeroba.

   ·He is a Christian.

   ·He completed his school education and a diploma in electrical engineering in Imo State, Nigeria. However, he provided only one previous address in Nigeria, in Ayakoromo, Delta State, where he worked as a Xerox technician.

   ·He left Nigeria on 1 December 2005, fleeing persecution, and travelled to RSA.

   ·He spent some time in a refugee camp in Johannesburg, and then lived for four years in a private residence. Prior to leaving RSA he spent one month staying with friends because of safety concerns.

   ·He faces harm in both Nigeria and RSA from the Asari Group which has made several attempts on his life. This group is now linked to Boko Haram, and has a presence in both Nigeria and the RSA.

   ·While he was working at Xerox one of his friends was beaten and his legs were broken in an attack by the “Asare group”, an indigenous group living in Delta State. They believe the government denies them the benefits of oil revenues and they resent the presence of people who are not from Delta State. The applicant worked at Xerox with people who were members of this group, one of whom was responsible for the attack on his friend. The applicant gave this information to the police who told the Asare group. They vowed to kill the applicant and went to his home armed with guns and knives. He was able to escape to Lagos and then to RSA.

   ·Five years later, in 2010, when he was living in RSA, the applicant saw the man who had attacked his friend in the market place. The man and his friend grabbed the applicant and told him they would kill him. He lost his phone and later started receiving strange phone calls that made him fear for his life until he left the country. (He explained at the SHEV interview that he bought a new phone which had the same number.)

   ·Since the attacks, in which he was hit on the head, he has been confused and anxious and has trouble remembering things. His mental health has deteriorated in immigration detention. He stated that psychological assessments dated 16 November 2011 and 26 July 2012 were attached to the 2012 letter to the Minister; the reports were not re-submitted with the SHEV application but are included in the review material.

   ·Attached to the 2012 letter was a media report about Dokubo Asari, the leader of the Asare Group8, which describes him as a “former Niger Delta militant turned millionaire government apologist”, and states that Asari had written to the Nigerian president denying that he was linked with Boko Haram, despite having met its deceased leader. There was also a document which purports to be a newspaper report of the incident in which the applicant was attacked by the Asari group in 2005, with the headline “Nine year after; family still in search of missing member”.

   ·He can’t obtain state protection because often the police are corrupt, or from the same group as the criminals.

   ·He tried everything to avoid harm by relocating both within Nigeria and outside it in RSA, but the Asari Group can locate him anywhere.

   16.In a letter dated 9 October 2017 to the Minister, the applicant stated that it is well known that foreigners in RSA experience xenophobic violence. Even though the applicant is a citizen of the RSA he does not look or speak like indigenous South Africans. There are numerous reports of Nigerians being killed or violently maltreated in RSA. He stated that he had been beaten, threatened and was the victim of an attempted kidnapping in the RSA.

   17.In an interview with the delegate on 10 November 2017 about his protection claims (SHEV interview) the applicant reiterated earlier claims that as a result of the data breach, “all eyes” were on his movements and this had increased his fear.

   8     Sahara Reporters, 23 August 2012

The Authority’s reasons

1. The Authority noted that the applicant had provided substantially different details of his claims in the various applications he had made for protection.  The applicant claimed that the differences were the result of mental health issues.  The Authority accepted that the applicant had been diagnosed with post-traumatic stress disorder, anxiety and depression and that his mental health conditions could affect his ability to provide consistent details of traumatic events. 

2. However, the Authority noted that the applicant gave conflicting accounts of who he was married to, where, and whether certain named children were his children or other relatives.  In view of those conflicts in his accounts, the Authority considered that the applicant had been at times deliberately evasive or untruthful. The Authority noted various other inconsistencies in the applicant’s account. 

3. The Authority accepted that the applicant had been the victim of a violent assault. However, based on various inconsistencies in the applicant’s accounts over the years, the Authority declined to give the applicant the benefit of the doubt about his core claims.

4. Due to inconsistencies in the applicant’s accounts, the Tribunal did not accept as credible the applicant’s claims to fear harm from the Asari Group or the Niger Delta People’s Volunteer Force (“NDPVF”).  The Authority was not satisfied that the applicant left Nigeria for the reasons he claimed.  The Authority was not satisfied that the applicant was assaulted or threatened by the Asari Group in South Africa.  The Authority did not accept that the Asari Group is affiliated with Boko Haram.  The Authority was not satisfied that the applicant was at risk of harm in Nigeria or South Africa from the Asari Group or the NDPVF.

5. The Authority did not accept that the applicant was at real risk of xenophobic attacks in South Africa, or at real risk of harm because of the data breach.  The Authority, for essentially the reasons that it gave in relation to the refugee claims, did not accept that the applicant was owed complementary protection.

Ground 1

1. The first ground of review in the application filed on 19 February 2018 is:

   The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in in [sic] a practical injustice to the Applicant.

2. The applicant did not provide any written submissions and did not elaborate on this ground during the hearing before this court.  There were, in fact, no new issues before the Authority.  The Authority covered the same ground as the delegate, in substantially the same way.  Therefore, it cannot be said that there was a denial of procedural fairness by the Authority failing to alert the applicant to new issues.

3. The only material respect in which the Authority’s reasoning departed from the delegate’s was that the Authority accepted the applicant’s claim that he was born in Nigeria, while the delegate considered that the applicant was born in South Africa. In this regard, the Authority said:

   25.The applicant has been assessed as holding nationality of both Nigeria and the RSA. While the delegate concluded that the applicant had South African citizenship because he was born there, I am not satisfied that this is the case. The applicant has consistently claimed that he was born in Nigeria and says that he acquired South African citizenship by naturalisation. Although he has provided vastly inconsistent accounts of some aspects of his life, the applicant has been consistent as to his places of birth and residence, his education and employment, and the identities and whereabouts of his parents and his first wife and their children – all of which are consistent with his having been born in Nigeria. If he had been born in RSA there is nothing in the material before me to explain how he acquired Nigerian citizenship, or came to live there for many years as I accept he did. Information that was initially provided by the South African authorities, and which was accepted by various decision makers who have considered the issue, indicates that the applicant was naturalised as a citizen of the RSA in 2006, and I am satisfied that this is the case. As I am satisfied that the applicant is a national of Nigeria and the RSA, I am satisfied that they are the receiving countries for the purposes of the Act.

4. It is not a denial of procedural fairness to accept a claim.  Moreover, the applicant’s place of birth made no material difference to the Authority’s decision.

5. This ground is not made out.

Ground 2

1. The second ground of review in the application filed on 19 February 2018 is:

   The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.

2. The Authority patently did consider exercising its discretion to get new information from the applicant.  The Authority said at paragraph 9 of its reasons for decision:

   The applicant requested that he be interviewed by the IAA on the basis that the delegate’s decision contained defects which could not be cured without an oral hearing. The IAA does not have a duty to get, accept or request new information, and is therefore not obliged to conduct interviews; indeed, the Act provides that new information can only be considered in exceptional circumstances. Having listened to the protection interview and having regard to all the material that was before the delegate and to the applicant’s particular circumstances, including mental health issues, that he is not formally unrepresented (although he had pro bono legal assistance in preparing his IAA submission), and has been in immigration detention since his arrival in Australia, I am nonetheless satisfied that the applicant has been given a proper opportunity to present his claims and respond to relevant issues. (footnote omitted)

3. That process of reasoning is not unreasonable in a legal sense.

4. As previously mentioned, there were no new issues that arose on the review by the Authority.  Consequently, ground 2 is not made out.

Ground 3

1. The third ground of review in the application filed on 19 February 2018 is:

   I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

2. This is not a legitimate ground of review.  Victoria Legal Aid did not advise the court that it was seized of this matter or seek an adjournment on the applicant’s behalf.

Section 473GB certificates

1. The Minister also drew to the court’s attention the fact that three notifications were given to the Authority under s.473GB of the Migration Act 1958 (“the Act”). The Minister asserted that the notifications were valid on their faces. The applicant did not cavil with that assertion. The notifications do appear on their faces to be valid. They all say that they relate to information that was given to the Department in confidence. That is a proper foundation for a notification pursuant to s.473GB(1)(b) of the Act.

2. The Full Court of the Federal Court held in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [99] to [100] that the reasoning in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; (2016) 155 ALD 98; [2016] FCA 1081 did not apply to reviews of decisions of the Authority. Paragraphs [99] to [100] of BBS16 are as follows:

   99.For these reasons, we consider that the first limb of Beach J’s analysis in MZAFZ has no application to a Pt 7AA review.

   100.For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.

3. As can be seen, the court in BBS16 left open the possibility of a challenge to a decision under s.473GB(3) of the Act if the notification was not valid, or if the Authority was biased. As mentioned above, there is no challenge to the validity of the notifications and none is apparent. Similarly, there was no allegation of bias in the present case, and no foundation for such an allegation is apparent.

4. Moreover, the Minister pointed out that it was apparent from the dates of the documents the subjects of the notifications that the documents were before the delegate.  The applicant asked to see those documents, and the Authority declined to provide them, for reasons which it gave in paragraph 10 of its reasons, which is as follows:

   The applicant also stated that as a matter of procedural fairness he needed a copy of all information before the IAA, including documents given by the Secretary under s.473CB of the Act, in order to properly respond to the delegate’s decision. However, the applicant’s submission, which was prepared with pro bono legal assistance, provides a well-argued response to the delegate’s findings and reasons. It is evident that he understood the delegate’s reasons for decision and the factual basis on which her findings were made, as he has responded to them in considerable detail, referring to previous applications and correspondence with the Department. The IAA is not obliged to give an applicant any material that was before the Minister’s delegate when the decision was made. Having regard to the applicant’s particular circumstances, including possible mental health issues, the fact that he has been in immigration detention since his arrival in Australia, and has had difficulty accessing full legal representation, I am satisfied that the applicant has been given a proper opportunity to present his claims and respond to relevant issues.

5. I accept that the documents the subject of the notifications were before the delegate, and the Authority’s reasoning in paragraph 10 of its reasons for decision included the documents covered by the s.473GB notifications. The Authority’s reasoning on that point seems to me to be reasonable in a legal sense. There is nothing to indicate that the notifications were invalid or that the Authority was biased. An applicant’s right to procedural fairness is circumscribed in proceedings before the Authority.

6. Consequently, I am not persuaded that there was any jurisdictional error in relation to the s.473GB notifications.

Conclusion

1. I have examined the Authority’s reasons for decision and decision making process. However, I have been unable to discern any jurisdictional error. As no jurisdictional error has been identified, the application will` be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  10 July 2018