AUN15 v Minister for Immigration and Anor (No.2)
[2017] FCCA 1443
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUN15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1443 |
| Catchwords: MIGRATION – Judicial review – International Treaties Obligation Assessment process – whether failure to identify material facts – whether bias – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5, Sch.1, s.3(db) Migration Act 1958 (Cth), ss.48B, 474, 476 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 M Groves, “The Duty to Inquire in Tribunal Proceedings” (2011) 33 Sydney Law Review 177 |
| Applicant: | AUN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INTERNATIONAL TREATIES OBLIGATION ASSESSMENT |
| File Number: | PEG 149 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 May 2017 |
| Date of Last Submission: | 18 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr RJS French |
| Solicitors for the First Respondent: | Australian Government Solicitor |
For the Second Respondent: | No appearance |
ORDERS
That the interim injunction issued on 21 April 2017, and continued in force until further order of the Court, be discharged.
That otherwise the applicant’s applications for interlocutory and final relief be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 149 of 2017
| AUN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INTERNATIONAL TREATIES OBLIGATION ASSESSMENT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) of an International Treaties Obligations Assessment (“ITOA”) made by an officer of the Department of Immigration and Border Protection (“Assessor” and “Department” respectively) on 24 February 2017. The ITOA is annexure PJC-6 to the affidavit of Peter John Corbould lodged 21 April 2017 (“Corbould Affidavit”).
The Assessor found that Australia does not have non-refoulement obligations to the applicant under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“Torture Convention”) or the International Covenant on Civil and Political Rights 1966 and its Second Optional Protocol (“ICCPR”).
On 4 April 2017 the applicant applied for an urgent injunction to restrain the Minister from removing the applicant from the Commonwealth of Australia until the Judicial Review Application had been determined by the Court, in circumstances where it appeared that the applicant was to be removed from the Commonwealth of Australia the following day.
On 21 April 2017 the Court issued an interim injunction restraining the Minister, amongst others, from removing the applicant from the Commonwealth of Australia until further order of the Court, and did so on the basis that the substantive application together with the interlocutory application was listed for hearing on 18 May 2017, with the Court indicating that it would deliver judgment within a matter of weeks of the final hearing.
Factual and procedural background
The factual and procedural background in this matter is as follows:
a)the applicant is a citizen of Kenya;
b)the applicant was granted a student visa (“First Student Visa”) on 30 January 2009, and arrived in Australia on 7 February 2009;
c)the First Student Visa ceased on 23 February 2010, and on the same day the applicant was granted a second student visa (“Second Student Visa”);
d)the applicant applied for a further stay student visa on 1 June 2011 (“Further Student Visa Application”);
e)on 22 August 2011 the Second Student Visa ceased;
f)on 23 November 2011 a delegate of the first respondent, the Minister of Immigration and Border Protection (“Minister”) refused the Further Student Visa Application (‘Further Student Visa Refusal”);
g)the Further Student Visa Refusal was affirmed by the Migration Review Tribunal on 13 February 2014;
h)on 5 March 2014 the applicant lodged a protection visa application (“Protection Visa Application”);
i)a delegate of the Minister’s refused the Protection Visa Application on 1 December 2014 (“Delegate’s Protection Visa Refusal Decision”);
j)on 22 December 2014 the applicant was “re-notified” of the Delegate’s Protection Visa Refusal Decision;
k)on 22 April 2015 the Refugee Review Tribunal (“RRT”) determined that it did not have jurisdiction to review the Delegate’s Protection Visa Refusal Decision because the applicant was out of time (“RRT Decision”);
l)the applicant applied to this Court for judicial review of the RRT Decision, but his application was dismissed by this Court on 4 December 2015: AUN15 v Minister for Immigration & Anor [2015] FCCA 3376 (“AUN15-2015”);
m)on 12 January 2016 the Department made a request for Ministerial intervention pursuant to s.48B of the Migration Act 1958 (Cth) (“Migration Act”), and on 9 February 2016 the Minister declined to intervene;
n)on 15 September 2016 the High Court dealt with an application by the applicant for an order for Constitutional writs and related relief, including writs of certiorari to quash the Minister’s decision to decline to consider exercising his power under s.48B of the Migration Act in respect of the Delegate’s Decision, a writ of prohibition preventing the Minister from taking any further steps in relation to the s.48B decision, and a writ of mandamus requiring the Minister to determine the s.48B matter based on observations and recommendations of this Court in ANU15-2015, and to allow the applicant to re-apply for the Protection Visa. An application for an enlargement of time was refused by the High Court and the application was dismissed: AUN15 v Minister for Immigration & Border Protection (unreported, High Court of Australia, Matter No P29 of 2016, Gordon J, 15 September 2016) (“AUN-High Court”); and
o)the ITOA commenced on 31 January 2017 and was finalised on 24 February 2017. The ITOA concluded that Australia’s non-refoulement obligations were not engaged in the applicant’s case.
ITOA
In the ITOA the Assessor:
a)considered whether the applicant’s claims engaged Australia’s non-refoulement obligations with respect to:
i)article 33(1) of the Refugees Convention;
ii)the Torture Convention; and
iii)the ICCPR: ITOA at [3],
and in so doing utilised relevant provisions contained in the Migration Act even though the ITOA was not an assessment of a protection visa application: ITOA at [2];
b)set out the material considered, which included all information provided by or on behalf of the applicant, the Departmental file relating to the applicant, relevant case law and country information and Departmental procedures advice manual provisions with respect to refugee law and complementary protection guidelines: ITOA at [6];
c)had regard to the claims made by the applicant in his Protection Visa application and a submission in relation to Ministerial intervention, as well as the contents of an interview conducted with the applicant via video-link on 6 February 2017 to discuss matters relevant to the ITOA: ITOA at [7]-[9] and [13];
d)summarised the applicant’s Protection Visa claims as follows:
… the client claimed to have left Kenya because he is homosexual. He sought a Student visa to come to Australia because he was afraid of his relatives, neighbours and clan members because some knew he was gay. One of his cousins threatened to lynch him. There are anti-gay vigilantes who attack those suspected of being gay. Religious leaders in Kenya encourage people to kill gays. The Kenyan government imprisons gays. Community leaders encourage people to be vigilant for gays and flush them out of the community. The police are corrupt and have brought trumped up charges against gays and sometimes raped them. The client fears returning to Kenya for these reasons.
ITOA at [7]; and
e)in making claims about sexual orientation the Assessor was cognisant of the difficulties of substantiation by an applicant and evaluation by a decision-maker of any claims raised: ITOA at [14].
In the ITOA the Assessor set out the detail of various matters discussed between the Assessor and the applicant, and the Assessor’s findings in relation thereto, including the following:
a)the circumstances which led the applicant to make the Protection Visa application in 2014, which related, according to the applicant, to an attack upon him in a regional town in Kenya in 2008, the attack having been perpetrated by people from his village who were accusing him of being gay, following which the applicant says he fled to Nairobi, which was about three hours’ drive from the town: ITOA at [15];
b)the applicant said that many members of his own family were angry with him and would not have contact with him and blamed him for his father’s recent death of “a broken heart”: ITOA at [15];
c)the life of a gay person in Kenya, and the relationships that the applicant said he had had in Kenya: ITOA at [16];
d)the lack of significant detail in the applicant’s claims, albeit there was some corroboration of aspects of his claims from the letters of support provided to the applicant and in country information relating to Kenya: ITOA at [17];
e)threatening emails allegedly sent to the applicant by either a person in Kenya or the Perth Kenyan community, in relation to which the Assessor considered that the inconsistencies in the account of how the emails were sent to the applicant led the Assessor to not be satisfied that the emails were genuine threatening emails, but found that they were fabrications intended to enhance the client’s claim for protection, and therefore significantly undermined the credibility of the applicant’s claims: ITOA at [18];
f)details of a medical report from a nursing home in Nairobi said to relate to the injuries suffered as a result of the attack upon the applicant in 2008, which medical report was dated 16 April 2014, and in relation to which copies of clinical notes from 2008 were not provided, and in relation to which the Assessor was not satisfied either as to the account of the treatment given in Nairobi by the applicant, and why he was treated in Nairobi which was three hours away from where the attack occurred, or that the medical report genuinely reflected the applicant’s circumstances, and found that those matters again undermined the applicant’s credibility claims: ITOA at [19];
g)dealt with letters of support provided to the applicant from his uncle, his brother and the Police Chief in his community, which the Assessor found to be inconsistent with the applicant’s claims of “community animus for homosexuals”: ITOA at [20]; and further noted that most of the letters were not specific about the applicant’s claims to be gay: ITOA at [21];
h)what it was like to be a gay man in Australia, but ultimately gave the evidence little weight as to its supporting the applicant’s claim to be gay, because there was an inconsistency between the applicant’s account of his lifestyle in Perth and the freedom that he felt in Australia with the assertion that he was not able to be part of the gay community in Perth because it was taboo for an African man, whilst still indicating that everyone in the Kenyan community in Perth knew that he was gay: ITOA at [22]; and
i)the applicant’s delay of five years following his arrival in Australia, and almost three years after his Second Student Visa had ceased, before he lodged the Protection Visa application claiming that he feared harm in Kenya, and found that the explanation given which related to his sister’s refusal to assist him with his studies when she became aware of his situation, and the subsequent Further Student Visa Refusal, said to be because he presented a fraudulent bank statement, not to be convincing in light of the extent of his claimed fear of harm in Kenya: ITOA at [23].
The Assessor noted that a delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant’s fear is not well-founded, and cited relevant Federal Court authority in that regard: ITOA at [24].
The Assessor found that there was “not enough consistent and credible evidence in this matter regarding the applicant’s sexual orientation to persuade me that his claims to be homosexual are credible”: ITOA at [25], and based on the evidence did not accept that the applicant was homosexual, feared harm in Kenya because of his sexual orientation, had been attacked and threatened in Kenya because he was perceived to be a homosexual, or was of adverse interest to Kenyan authorities: ITOA at [25]-[26].
The Assessor went on to find that Australia did not have non-refoulement obligations with respect to the applicant under the Refugees Convention, the Torture Convention or the ICCPR: ITOA at [29]-[42].
Grounds of Judicial Review Application
There are three grounds of review in the Judicial Review Application as follows:
1. Improper exercise of power in failing to take into account relevant consideration or taking into account irrelevant considerations: (ss 5(1)(e)
2. The decision involved an error of law: (ss5(1)(f)
3. The decision was otherwise to law. An exercise of discretionary power in bad faith, an application of a rule or policy without regard to merits (ss 5(1)(j)
(Copied from the Judicial Review Application without amendment).
The applicant did not specify the legislation from which the cited sections originated but it is plain enough that they are references to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) which sets out the available grounds of review for an application for judicial review under the ADJR Act. The ITOA is a purported privative clause decision for the purposes of ss.474 and 476 of the Migration Act and therefore, pursuant to s.3(db) of Sch.1 to the ADJR Act, the ADJR Act does not apply to the applicant’s case. The Court will, however, consider the grounds as they appear without the references to the ADJR Act.
Submissions
Applicant’s submissions
The applicant relevantly submitted that:
a)the ITOA was affected by jurisdictional error because the Assessor failed to identify and determine material facts by investigating and considering the evidence that:
i)he is a homosexual;
ii)he was assaulted in Kenya for being a homosexual;
iii)that the incident was before the Magistrates Court in the Laikipia District in Kenya (“Laikipia Magistrates Court”);
iv)covered by local media and a radio station called “Citizen Radio; and
v)there was no evidence that he was not homosexual nor that the assault in Kenya because of his homosexuality did not happen;
b)the Assessor failed to investigate or inquire into his claims. The Assessor should have contacted the Kenyan authorities, the Australian High Commission in Nairobi, the Laikipia Magistrates Court in Kenya or Kenyan government officials who were aware of the incident. The applicant had provided relevant contact details. The Assessor should have also accessed the applicant’s records for evidence, such as Facebook and his personal email. Further, the Department and the Assessor have wide ranging powers and it would not be hard for them to investigate his claims. The applicant submitted he did not understand how the claims were not investigated;
c)he had been denied procedural fairness. The Assessor was biased or there was a reasonable apprehension of bias. The Assessor was biased because:
i)of the use of credibility findings rather than evidence; and
ii)the ITOA was based on opinion rather than facts; and
d)with respect to bias that in:
i)Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145 (“Asif”) the Full Court of the Federal Court of Australia found jurisdictional error caused by bias in a Migration Review Tribunal decision because the Tribunal had found that applicant’s marriage was not genuine despite contrary documentary evidence; and
ii)Galea v Galea (1990) 19 NSWLR 263 at 278 per Kirby ACJ that the test for the appearance of bias is applied not simply at the outset of the proceedings, but throughout its duration, and there is a miscarriage if there is impartiality at any point.
The applicant also complains that he has been unable to present his case to the “Tribunal”, which can now be taken as a reference to the Administrative Appeals Tribunal (“AAT”), however, he had appeared before the Assessor and tried to provide as much evidence as possible. Otherwise, the applicant’s submissions set out matters going to the Court’s jurisdiction, which is not in dispute: see [17] below, and repeated the facts of his claim for protection.
Minister’s submissions
In opposition to the Judicial Review Application, the Minister submitted that:
a)neither the applicant’s affidavit sworn 15 March 2017 nor the submissions served on the Minister on 10 May 2017 which were handed up in Court particularised the Judicial Review Application;
b)the Judicial Review Application should therefore be dismissed for failing to particularise the grounds of review: WZAVW v Minister for Immigration & Border Protection [2016] FCA 76 at [35] per Gilmour J (and cases there cited);
c)in any event, the ITOA does not disclose error because:
i)the Assessor considered all the applicant’s claims and evidence, and did not fail to take into account a relevant consideration, or take into account a irrelevant consideration;
ii)the Assessor did not have to uncritically accept the applicant’s claims: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR (“Guo”) at 596 per Kirby J and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 (“Randhawa”) at 451 per Beaumont J. It was open to the Assessor, for the reasons given, to make an adverse credibility finding. To the extent that the applicant disagrees with those credibility findings he is inviting the Court to engage in impermissible merits review;
iii)the applicant submits (at [17] of his submissions) that the Assessor failed to “identify and determine material facts” related to an alleged assault in 2008 in Kenya. The Assessor considered claims related to that alleged assault and the evidence proffered by the applicant. The Assessor noted that, amongst other things, the medical report from Spa Nursing Home in Nairobi of his treatment was dated 16 April 2014 and was not accompanied by any clinical notes from 2008 and that, along with other matters, undermined the applicant’s credibility: ITOA at [19];
iv)the applicant’s allegation that the Assessor was biased or prejudiced citing ITOA at [25] and [26], does not support a finding of bias or prejudice, as those paragraphs simply set out findings in relation to the applicant’s claims; and
v)the Assessor found that there was not enough consistent and credible evidence of the applicant’s homosexuality to persuade the Assessor that the claim was credible: ITOA at [25]; and
d)the applicant has not argued that his claims were not assessed on the basis that might be true in the sense used in Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220; (1999) 56 ALD 43 (“Rajalingham”) at 239-241 per Sackville J. But even if he had, such argument would fail. The principle would only apply if the Assessor had been unsure if the events underpinning the applicant’s claims occurred or not, and in that circumstance it may be necessary for the Assessor to consider the possibility of the events occurring as part of their consideration of the ultimate question: Rajalingham at 240 per Sackville J. Nothing in the ITOA suggests the Assessor had any uncertainty with respect to the findings in the ITOA at [25]. A fair reading of the ITOA suggests the Assessor had “no real doubt” in his finding that the applicant was not homosexual, and therefore, was not required to consider the possibility of that claim being true: Rajalingham at 241 per Sackville J.
Applicant’s submissions in reply
In reply to the Minister’s submissions set out at [15] above, the applicant submitted that:
a)he had provided evidence in support of his claim, and could not understand how the Assessor found it was not credible;
b)if the Assessor “was not required to consider the possibility of his claim to [be] homosexual was true” then how could they make the decision without considering the evidence; and
c)if he had known he needed to provide detailed accounts of the hospital visit in Kenya in 2008 he would have asked two people in Perth to give evidence,
and otherwise made submissions with respect to the merits of the claim before the AAT.
Consideration
Jurisdiction
This Court has jurisdiction to hear and determine the applicant’s claim for declaratory and injunctive relief in relation to the ITOA process: Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901; (2016) 334 ALR 653 (“SZSSJ”) at [58]-[73] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
Ground 1
Ground 1 alleges that the Assessor failed to take into account relevant considerations and took into account irrelevant considerations.
Failure to identify material facts
The applicant contends the Assessor failed to identify material facts with respect to the ITOA.
The Assessor was not required to accept the applicant’s claims wholesale and uncritically: Guo at 596 per Kirby J and Randhawa at 451 per Beaumont J. The Assessor had cogent reasons for not believing the applicant’s claims that he was homosexual or had been assaulted because of his homosexuality: ITOA at [26], notably that:
a)the applicant’s claims lacked significant detail: ITOA at [17];
b)the Assessor was not satisfied that critical emails were genuine, finding they were fabricated, seriously undermining the applicant’s credibility: ITOA at [18];
c)the medical report provided as evidence in support of the alleged assault was unconvincing, further undermining the applicant’s credibility: ITOA at [19];
d)the applicant’s testimony regarding the letter of support from his uncle and the Chief of Police were also unconvincing, again, further undermining his credibility: ITOA at [20];
e)most of the letters of support were not specific with respect to the applicant’s claims and did not advance his claim: ITOA at [21];
f)the applicant’s account of his life as a gay man in Australia was inconsistent and was given little weight: ITOA at [22]; and
g)that the lengthy delay between arriving in Australia, obtaining a student visa and applying for protection supported any adverse credibility findings: ITOA at [23] and [24].
In the Court’s view, the Assessor did identify the material facts, and dealt with those material facts insofar as it was necessary bearing in mind the credibility findings that the Assessor made. The Assessor was not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ.
Bias
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Assessor requires evidence of a state of mind such that the Assessor is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ. (“Ex parte H”).
The applicant argued that the Assessor was biased because he had based his decision on the applicant’s credibility. This allegation is entirely misconceived. Credibility findings whether adverse or favourable are a necessary and inherent part of the Assessor’s role in deciding whether the Australia has non-refoulement obligations to the applicant: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67]-[68] per McHugh J. This does not mean credibility findings are not susceptible to judicial review: an adverse credibility finding must be reasonably open to the Assessor: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; see CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ. As set out at [20] above the Assessor’s credibility findings were reasonable open to him, and they do not support any allegation that the Assessor was biased, and nor could it be reasonably apprehended that he was biased.
The applicant relied on Asif in support of his claim. Asif is distinguishable from the applicant’s case. In Asif the then Migration Review Tribunal was held to be biased. This was because it had essentially ignored evidence after forming the view that the applicant lacked credibility and had consistently lied. In the present case the Assessor took into account and considered the applicant’s own evidence, and evidence from different sources, including emails and letters from other people, such as his friends and the local Chief of Police. The Assessor did not ignore any material, but rather considered and rejected evidence as he was entitled to do. Further, as discussed at [38]-[47] below, the applicant’s contention that the Assessor ought to have investigated his claims is misconceived. There is nothing in the ITOA that suggests that the Assessor was biased, and none of the applicant’s submissions advanced this ground. In the circumstances there is no evidence that:
a)the Assessor had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, property informed as to the nature of the proceedings, the matters in issue and the conduct of the Assessor, might reasonable apprehend that the Assessor member may not have brought an impartial mind to the assessment of the applicant’s credibility: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Court also observes that the very careful and detailed manner in which the Assessor has properly dealt with the applicant’s claims weighs significantly against any suggestion of bias in the ITOA Decision.
The ITOA is not affected by error because of bias or a reasonable apprehension of bias.
Procedural fairness
Having regard to what is set out at [6]-[7] above, and on a reading of the ITOA, there is nothing to suggest that the Assessor held any information that was credible, relevant and significant to the ITOA decision-making process that it did not disclose to the applicant and give him the opportunity to address: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; CLR at 587 per Mason J and 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 at [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; Snedden v Minister for Justice & Anor [2014] FCAFC 156; (2014) 230 FCR 82; (2014) 315 ALR 352; (2014) 145 ALD 273 at [175] per Middleton and Wigney JJ.
There is nothing in the circumstances of this case which suggests that the applicant’s claim of a failure to afford him procedural fairness in the ITOA process is made out, and to the extent that there is an allegation of a denial of procedural fairness it must fail.
Ground 1 – conclusion
Having regard to the matters set out above in relation to ground 1, the Court is of the view that ground 1 is not made out, and does not establish any error by the Assessor in the ITOA or the ITOA process.
Ground 2
Ground 2 alleges the ITOA involved an error of law.
The applicant contends that he has never had the chance to appear before the “Tribunal” (which must now be taken to refer to the AAT) and present his case. In this regard the applicant relies on comments made by this Court in AUN15-2015 at [23] and [24] per Judge Cameron as follows:
23. Because the Tribunal did not err, the application must be dismissed. However, it is a matter of concern that the Department kept writing to the applicant at an address which was not the address identified in his protection visa application form. Its inefficiency in that regard also meant that the applicant did not have an opportunity to attend the interview with the delegate and so he was denied the opportunity to provide to the delegate such information as he might have wanted to give her. That seems to me to be a very unfair situation. It is not suggested that the applicant was advised by an email notification that he was invited to attend for an interview with the delegate.
24. In the circumstances, it would seem only fair for the Minister to allow the applicant to make a second protection visa application.
As indicated above at [4(m)] there was then a request for ministerial intervention to allow the applicant to make a second protection visa application subsequent to AUN15-2015. The Minister declined to exercise his power, and the applicant could not make a second protection visa application.
In AUN15-2015, notwithstanding the comments set above, the Court ultimately found that the applicant had not applied to the RRT within time, and therefore, the RRT’s decision that it lacked jurisdiction was correct. The applicant, regardless of the circumstances, has no present entitlement to appear before the AAT or to make a second protection visa application. Further, the Minister’s refusal to exercise his power under s.48B of the Migration Act cannot be disturbed irrespective of this Court’s, or any other person’s, view as to its correctness. Section 48B of the Migration Act is a non-compellable personal power: the Minister is not obliged to make the decision, and this Court cannot quash that decision by issuing a writ of certiorari, nor compel the Minister to decide again by issuing a writ of mandamus, and, no question of procedural fairness arises: SZSSJ at [51] and [53] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The applicant was, or ought to have been, aware of this by reason of the High Court’s judgment in AUN15-High Court at pages 7-8 (there citing SZSSJ at [53]-[55] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) and 10-13 per Gordon J.
The applicant’s ongoing reference to the comments in AUN15-2015, and that he has not appeared before the “Tribunal” do not therefore assist his present application. More generally, there can be no error in the ITOA because the applicant has not appeared before the “Tribunal” as the ITOA process is not dependent upon such appearance. It follows that ground 2 is not made out and does not establish error by the Assessor in the ITOA or the ITOA process.
Ground 3
Ground 3 alleges the ITOA was “otherwise to law”, an exercise of discretionary power in bad faith, and that the Assessor merely applied policy without considering the merits of the applicant’s claim.
This ground has no prospects of success. There is no policy identified, nor is there any evidence of bad faith or improper purpose in the ITOA. As with an allegation of bias an allegation of bad faith by a decision maker must be clearly particularised: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [42]-[45] per Tamberlin, Mansfield and Jacobson JJ. The applicant has not done this, and there is no evidence at all to suggest the Assessor reached his decision in bad faith.
Ground 3 is not made out and does not establish any error in the ITOA.
Failure to investigate
The applicant’s submissions raise a further matter. The applicant asserts that the Assessor ought to have investigated, or made further inquiries into, his claim. This has been considered as an allegation that the Assessor had a duty to inquire with respect to the ITOA.
The Assessor has no general duty to inquire into the applicant’s claim. Ultimately, it was the applicant’s responsibility to present and make out his case: Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [283] per McKerracher J. In Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [24] per French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ, it was confirmed that there is a very limited basis upon which a failure to inquire could constitute a breach of procedural fairness at common law. The cases in which a court will find a duty to inquire has arisen are extremely limited, rare and exceptional: Minister for Immigration & Citizenship v Le [2007] FCA 318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112 at [60] per Kenny J.
The High Court in SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ stated that for a court to find jurisdictional error because of a failure to make an inquiry the applicant needed to establish that:
a)the inquiry was obvious; and
b)concerned a critical fact:
i)the existence of which was easily ascertainable; and
ii)which could supply a sufficient link to the outcome to constitute a failure to review.
There can be no question that the alleged assault was a critical fact, and any evidence in support of that alleged assault might have affected the outcome of the ITOA if it indicated that the assault was because the applicant was homosexual. The questions in this case then are whether:
a)any suggested inquiry was obvious; and
b)the existence of any particular alleged fact was easily ascertained.
The applicant submits that both the Department and Minister have “far reaching powers” and there was no difficulty in them inquiring, and that he requested them do so. He also submitted that they should have searched his Facebook and email accounts for evidence. Both of these submissions do not assist the applicant as the obviousness of any inquiry. Asking the Assessor to make an inquiry does not mean he has to make that inquiry: SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113; (2009) 112 ALD 501 at [49] per Logan J. As is plain from the authorities above, regardless of any power the Department has (noting the applicant does not specify the nature or source of these powers) to make inquiries they are not obliged to. The applicant’s suggestion that those alleged powers should have been exercised to search his Facebook and email do not explain why he could not have supplied any relevant information from those sources himself, bearing in mind he had already supplied some emails. This is significant because where an applicant can easily obtain and supply information, the decision-maker has no duty to inquire as to that information: SZOER v Minister for Immigration & Citizenship [2010] FCA 110 (“SZOER”) at [42] per Cowdroy J, see also M Groves, “The Duty to Inquire in Tribunal Proceedings” (2011) 33 Sydney Law Review 177 at 201.
The same applies with respect to any inquiry with the Laikipia Magistrates Court. The applicant’s own evidence is that he, through his uncle, got the local Chief of Police to provide a letter with regards to the assault on advice from the Laikipia Magistrates Court. The letter is annexure PJC-4 to the Corbould Affidavit. As with his emails, the applicant had already made his own inquiry, and, in this case, the Assessor has no duty to perfect the applicant’s incomplete or inadequate inquires.
The applicant referred to the Australian High Commission (“the High Commission”) in Nairobi. There is, however, no evidence or submissions as what the High Commission could have done, or why it was an obvious line of inquiry for the Assessor to contact them. It is also not obvious what power the Assessor could cause to be exercised to make an official of the High Commission to go into the Kenyan countryside and commence making inquiries of a Kenyan court. Further, it is not obvious what, if any, power there might be invested in a Kenyan court to disclose records or information upon inquiry by a High Commission official. Finally, any such inquiries would risk identifying the applicant, and thereby place the applicant at potential risk.
The applicant also referred to local radio and media coverage of the alleged assault. There is no evidence or submission as to why the applicant could not have produced that evidence himself, or caused others to obtain it for him so that he could produce it.
The Assessor did not have a duty to inquire into the applicant claims, and therefore, no error in the ITOA is established by the Assessor not necessarily making any inquiry.
Merits
The Court notes that some of the applicant’s submissions go to the factual merits of his claims. It is the Assessor’s role to make factual findings as to whether the applicant is owed non-refoulement obligations. This Court has no jurisdiction to re-determine the factual merits of the applicant’s claims. The Court’s role is to determine whether the Assessor has complied with the law in reaching his conclusion as to whether the applicant is owed non-refoulement obligations: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusions and orders
The Judicial Review Application has not established error in the ITOA. The Judicial Review Application must therefore be dismissed, and there will be an order accordingly. It follows that the Interlocutory Application must also be dismissed, and there will be an order accordingly. Because the Interlocutory Application is to be dismissed, the interim injunction issued on 21 April 2017, and continued in force until further order of the Court, will be discharged, and there will also be an order to that effect.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 June 2017
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