ATK17 v Minister for Immigration

[2020] FCCA 544

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 544

Catchwords:
MIGRATION – Protection – temporary protection visa – refusal – review of Immigration Assessment Authority (“IAA”) decision – whether exceptional circumstances existed justifying the consideration by IAA of new information – whether s.473DD(b)(ii) referred to matters which the IAA was obliged to take into account when considering whether exceptional circumstances existed.

Legislation:

Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111
CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203
Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38

Applicant: ATK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 522 of 2017

Judgment of: Judge Cameron

Hearing date: 4 March 2020

Date of Last Submission: 4 March 2020

Delivered at: Sydney

Delivered on: 13 March 2020

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 522 of 2017

ATK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Iraq who arrived by boat at Christmas Island on 18 October 2012.  On 15 January 2016 he lodged an application for a Temporary Protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iraq because he was a member of the a tribe considered to be traitors (“Tribe X”) and because he had worked at a coalition air base (“Air Base”).  On 6 December 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter to the second respondent (“IAA”) for review.  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 

Definitions

1. Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

2. The applicant is a fast track applicant.

3. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.

Fast Track Process and Procedures

1. Part 7AA of the Act sets out the IAA fast track process and procedures.

2. Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:

   473CB  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; …

3. Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:

   473BB      Definitions

   In this Part

   …

   new information has the meaning given by subsection 473DC(1).

   …

   473DB       Immigration Assessment Authority to review decisions on the papers

   (1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)     without accepting or requesting new information; and

   (b)     without interviewing the referred applicant.

   …

   473DC      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.

   …

   473DD     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.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-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; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

BACKGROUND FACTS

Protection visa claims

1. The facts alleged in support of the applicant’s claim for a protection visa were relevantly summarised by the IAA in its decision record as follows:

   a)the applicant is a Shia Muslim who was born in Iraq but grew up in Kuwait where his family remained until 1985.  Afterwards his family moved to a village in Iraq adjacent to the Air Base;

   b)between 1986 and 1991 the applicant was in the Iraqi army, although he never entered combat and deserted upon the Iraqi invasion of Kuwait.  He later returned to the army for one year.  Between 2008 and 2009 he worked at a petrol station inside the Air Base.  He and his family moved to nearby town a in 2009 to allow his children to go to high school and he worked in construction until 2012;

   c)the applicant claimed that two members of a militia group had harassed and threatened him, asserting he was a spy and traitor because he had worked at the Air Base.  In 2012, after being told by the men that they could no longer tolerate him and that “his time was over”, he left Iraq;

   d)the applicant additionally claimed that these men called him a “descendant of traitors” and other Iraqis also thought him a traitor because he was a member of Tribe X which had which had supported the British Empire in the 1920 Iraqi revolt against British occupation.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

Information before the IAA

1. On 4 January 2017 the applicant’s representative provided the IAA with a submission addressing the delegate’s findings and additional documents including a 2009 article from a US army website in relation to Tribe X, an undated letter and the applicant’s certificate of training for a vendor training workshop dated 30 September 2009. The IAA was not satisfied that these documents could not have been provided prior to the delegate’s decision nor was it satisfied that there were exceptional circumstances under s.473DD of the Act to justify consideration of these documents.

Findings and reasoning

1. The IAA accepted that between 2009 and 2012 the applicant had been verbally harassed, called a “spy”, “traitor”, and “descendant of traitors” by two men.  However, it was not satisfied that the applicant had been targeted or threatened by a militia group or that the men harassing him were representatives of a militia group.  The IAA thought it implausible that if militia thought the applicant a spy they would spend three years verbally harassing him before threatening to kill him, especially since he had stopped the behaviour complained of.  The applicant only gave vague and unconvincing evidence regarding the militia group of which these men were said to have been members and there was also no evidence of particular opinions or characteristics being attributed to members of Tribe X.

2. Apart from the harassment by the two men which has been referred to, the IAA did not accept that the applicant faced discrimination for being a member Tribe X or for having worked at the Air Base.  The applicant’s children had not been subject to discrimination for being members of Tribe X because, the applicant told the delegate, they had not worked at the Air Base.  The IAA noted that there was no evidence to support the applicant’s assertion that “since I have arrived in Australia I have heard that a number of people from my tribe have been killed”.

3. Although the IAA found that the militia had not targeted the applicant, country information from 2012 suggested that civilians and their families faced a risk of being targeted for imputed political opinions by non-state actors where they had previously worked for or had been associated with the former coalition government, NGOs or international companies.  However, newer information before the IAA suggested that this risk had decreased in government controlled areas, including the applicant’s home area, and that Department of Foreign Affairs and Trade (“DFAT”) classified this risk as moderate.  Having regard to his specific circumstances the IAA found that there would be “not more than a remote chance” that the applicant would face harm because:

   a)he had only worked at the Air Base for one to two years;

   b)he had not been targeted by any armed groups in the three years following his employment there; and

   c)it had been eight years since his employment at the Air Base and so he had less affiliation with his previous employers;

4. The IAA noted that the submissions prepared by the applicant’s representative concerning whether the applicant was employed after relocating to the town in 2009 was inconsistent with the applicant’s evidence on the subject but preferred the applicant’s evidence that he had worked as a casual labourer in a construction company and would continue to do so if he returned to Iraq.  The IAA concluded that the reason the applicant left employment at the Air Base and relocated in 2009 was to support his children’s education rather than to modify his behaviour out of fear of persecution arising out of his work for a foreign company.

5. The applicant claimed he would face discrimination for being part of Tribe X because people “look[ed] down on him”.  Apart from the verbal harassment from the two men, the applicant provided no specific instances of discrimination nor did country information suggest that members of Tribe X were singled out because of their race, ethnicity or imputed political opinion.  The IAA was not satisfied that the applicant would face a real chance of harm as a result of the alleged discrimination.

6. Although the IAA found that there was “more than a remote chance” that the two men who had harassed the applicant in the past would continue to harass and bully him, it said that mere threats did not equate to “serious harm” and did not think that there was any real chance that the men would act upon the threats and cause the applicant serious harm.

7. The IAA was not satisfied that the applicant would face harm if he returned to Iraq because he had unsuccessfully sought asylum in Australia because there was no evidence in a 2015 DFAT report, or information from an international organisation cited in that report, which suggested that persons who returned from the West faced serious problems.

8. While not a claim made by the applicant, the IAA considered whether he would face a real chance of harm as a Shia Muslim.  The IAA concluded that he would not.  Country information suggested that the southern provinces had lower levels of violence and although there had been some attacks by Sunni armed groups the applicant lived in a “Shia dominated” region of Iraq which faced a “low risk of generalised violence”.

9. Based on those findings, the IAA was also not satisfied that the applicant would face a real risk of significant harm because of his previous employment at the Air Base, his membership of Tribe X, the harassment from the two men or his pursuit of asylum abroad, or because he was a Shia Muslim.

PROCEEDINGS IN THIS COURT

1. In his further amended application the applicant alleged:

   The IAA has committed a jurisdictional error in its assessment of the existence of "exceptional circumstances" by failing to ascertain the extent to which the two limbs of s473DD(b) had been satisfied with respect to an undated letter of Winst0on [sic] Thibodeaux of the company KBR and a certificate of attendance in the applicant's name for a vending training workshop dated 30 September 2009, given that the IAA only had regard to the first limb of s 473DD(b) at paragraph [6] of the decision.

2. Paragraph 5 of the IAA’s reasons for decision recorded the submissions made by the applicant’s representatives.  Paragraph 6 of the IAA’s reasons for decision stated:

   In addition to the submission [the applicant] has attached three documents.  An IPBD document dated 15 June 2008 has already been provided to the delegate and is not new information.  There is also an undated letter from a Winston Thibodeaux of the company KBR and a certificate of attendance in the applicant’s name for a vendor training workshop dated 30 September 2009.  I am not satisfied that these documents could not have been provided before the delegate made the decision.  I am also not satisfied that there are exceptional reasons to justify consideration of this new information.

3. The cumulative effect of those documents was to confirm that the applicant had worked at the Air Base when he said he had.

4. The applicant observed that the IAA’s consideration of s.473DD(b) may inform its decision regarding whether exceptional circumstances under s.473DD(a) existed such that it was justified in having regard to new information. He went on to submit that in this case, when considering whether exceptional circumstances existed, the IAA should have but failed to consider whether the new information furnished with the submissions was:

   … credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. (s.473DD(b)(ii))

1. The implication of that submission was that the two sub-paragraphs of s.473DD(b) contained mandatory considerations to which the IAA had to have regard when reaching its decision on the existence of exceptional circumstances. However, that is not necessarily correct:

   … It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31].  As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.  (AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 at [14])

2. Each case must be approached individually according to its own facts:

   Necessarily, a consideration of whether there are exceptional circumstances may, in a particular case, require the Authority to examine facts relevant to the matter to be considered in sub-paragraph (b) of s 473DD:  CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26].  There is no requirement that they be considered in all cases.  (CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91])

3. The applicant has not identified, by reference to the particular facts and circumstances of this case, why the law required the IAA to have regard to matters referred to in s.473DD(b)(ii) when deciding whether the s.473DD(a) test had been satisfied. The fact that regard could have been had to them is not sufficient. Critically, for reasons which follow shortly, those matters would have added nothing to the IAA’s consideration.

   
   

   I am therefore not persuaded that the circumstances of this matter did require the IAA to have regard to the issues referred to in s.473DD(b)(ii) when deciding whether exceptional circumstances existed.

4. But it is difficult, in any event, to conclude that the IAA did overlook the content of s.473DD(b)(ii) when considering whether s.473DD(a) was satisfied, given that it had summarised the whole of the section only two paragraphs earlier in its reasons. It is more reasonable to conclude that s.473DD(b)(ii) was not cited in this context because it was not relevant to the IAA’s consideration of s.473DD(a). That is because the information contained in the documents referred in para.6 of the IAA’s reasons only served to support a conclusion which the IAA reached without relying on those documents, namely that the applicant had worked at the Air Base as he claimed.

5. Finally:

   … Even if some error was shown to have existed in the Authority’s alleged conclusion that the [information] was “new information” in respect of which there were no “exceptional circumstances”, any such error would not be material because there was no possibility of a different result were the error not to have been made:  Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45]. (CAQ17 v Minister at 128)

6. That was the case here.  As already noted, the information in question was only corroborative of a conclusion that the IAA otherwise reached on the applicant’s work history.  Even if the error for which the applicant contended occurred, it did not affect the result of the IAA process and so the error contended for did not affect the IAA’s exercise of its jurisdiction.

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 13 March 2020

CORRECTIONS

1. The word “s.476DD” in Catchwords has been changed to “s.473DD”.

2. The word “s.476DD” in paras.27, 28 and 30 has been changed to “s.473DD”.

3. The word “s.473BB” in para.30 has been changed to “s.473DD”.