Ayt18 v Minister for Immigration
[2020] FCCA 2646
•23 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYT18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2646 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – where first applicant and family were Irregular Maritime Arrivals – where the first applicant claimed to be Syrian and a member of the Syrian Social Nationalist Party – where members of the SSNP were imputed to support the Syrian regime – where the applicant’s extended family were said to be high profile members of the SSNP – where applicant conceded his initial claim to Syrian citizenship to be false – where credibility not accepted – whether claims to risk of harm by reason of escalated instability in northern Lebanon country considered separately from claim to political profile – whether failure to consider clearly articulated claim – whether failure to get new information – applications dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Federal Circuit Court Rules 2001(Cth), r.44.12 Migration Act 1958 (Cth), s.65 |
| Cases cited: AON15 v Minister for Immigration and Border Protection(2019) 269 FCR 184 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 265 CLR 217 Texts: Hathaway and Foster, The Law of Refugee Status, 2nd Ed (2014) |
| First Applicant: | AYT18 |
| Second Applicant: | AYU18 |
| Third Applicant: | AYV18 |
| Fourth Applicant: | AYW18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 524 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 15 September 2020 |
| Date of Last Submission: | 15 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr. A. White |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms. N. Campbell |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 18 August 2020 be dismissed.
The first applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 524 of 2018
| AYT18 |
First Applicant
| AYU18 |
Second Applicant
| AYV18 |
Third Applicant
| AYW18 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 18 August 2020, the applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 January 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant them Safe Haven Enterprise visas (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that the Authority did not fail to consider a clearly articulated claim by which he contended he was at risk of harm on account of the increasing volatility and instability in the north of Lebanon. I further conclude that the Authority did not act in a manner that was legally unreasonable in failing to consider whether to seek further information from him.
Background
The applicant, aged 40 years, first came to Australia on 12 February 2013 in the company of his wife and eldest child who are the second and third applicants, doing so without visas. The fourth applicant, who is the youngest child of the family, was born in Australia. The first to third applicants came to Australia as Irregular Maritime Arrivals via Christmas Island. Each applicant is a Lebanese citizen.
On 5 December 2016, the first applicant[1] applied for a Safe Haven Enterprise visa (SHEV), which application was made on his own behalf and on behalf of his family members. He was the only person to advance claims that he was a refugee by reason that he held a well-founded fear of harm or was otherwise entitled to complementary protection.
[1] Hereafter, the ‘applicant’.
The applicant’s claims included to having a fear of harm on return to Lebanon on the basis of an actual and imputed political opinion arising from his family’s association with the Syrian Social Nationalist Party (SSNP) in Lebanon. It was claimed that his family was well known to have members of high importance within the SSNP and that one of his uncles had been killed in 1982 because of this political affiliation. These claims were adhered to by the applicant at his original entry interview on 25 February 2013 and again at an identity interview conducted on 22 October 2013. In particular, the applicant had maintained that he was a Syrian citizen until challenged as to his identity.
As relevant to this application, the applicant further claimed a fear of harm by reason of the increasing instability and violence in north Lebanon. In a statutory declaration made on 22 November 2016, attached to his visa application, the applicant set out the matters upon which he sought protection as he was “terrified to return to my home country of Lebanon” on the ground of his membership of the SSNP and, because he was a member of the AYT family, who were “well known to have members of high importance within the SSNP (whereas the vast majority of residents in Deddah hate the SSNP).”
Thematically, the applicant’s declaration described the world wide reach of the SSNP and the particular danger that he said he faced. He claimed that other members of his family had relocated out of Lebanon to avoid danger. His claims included that he was suspected to be an intelligence officer and informer to the Syrian regime, and for this reason, he would be attacked in the street and that his house had been shot at “about 20 times” and that his bakery businesses had also been threatened. As relevant to Ground 1, his declaration at [14] described the applicant’s view of the instability and volatility of Lebanon.
On 17 May 2017, the applicant attended an interview with a delegate of the Minister. By his record of interview, the applicant claimed to be a Syrian citizen and to have been born in Damascus but most recently, from March 2012, to have lived in Al Zaheria, Tripoli, Lebanon.
On 8 June 2017, the applicant’s lawyer provided a copy of the applicant’s national identity documentation, doing so in response to a request which had been made by the delegate during the interview, together with a post-interview submission which is addressed below.
Delegate’s decision
On 28 July 2017, the delegate made a decision to refuse to grant the visa. The delegate’s decisional record identified:
a)the applicant’s original claims, including so far as is material to the present application that: (i) he was terrified of returning to Lebanon because he was a member of the SSNP; (ii) he was a member of the AYT family from Deddeh who were well-known to have members of high importance in the SSNP; (iii) his profile and that of his family was such that he would be shot at in the street if recognised; and (iv) the situation in north Lebanon was more volatile than in other parts of Lebanon;
b)the applicant’s further claims, as made at interview, including that: (i) he had lived all his life in Tripoli, Lebanon; (ii) upon his arrival in Australia he had told the authorities he was Syrian, doing so as he had been advised he would not be returned to Lebanon if he made that statement; (iii) he would be killed if he returned to Lebanon; (iv) his house had been targeted because he was a spy. Extensive other claims were made.
The delegate raised a number of concerns with the applicant and his migration agent before “having a natural justice break”, including that: (a) his actual identity had only been disclosed after an identity check had been conducted; (b) he had not disclosed that he had made other Australian visa applications; (c) his membership in the SSNP was uncertain, but even if true, may not have warranted his departure from Lebanon where it was difficult to find information: (i) stating that SSNP members were targeted in Lebanon; (ii) confirming that the AYT family were well-known members of SSNP; and, (d) relocation appeared to be available. The delegate recorded that the applicant’s agent stated she would submit a response to the credibility concerns that were raised.
The delegate found that the applicant had chosen to manufacture a claim based upon Syrian citizenship and found it extremely difficult to accept that he was a credible witness and that the applicant was now seeking to utilise a new set of claims. The delegate proceeded to assess the claim for risk of harm based upon imputed political opinion by reason of the applicant’s support of the SSNP and set out the research which had been conducted respecting the establishment, in 1932, of SSNP and its activities as advocates for the creation of a Syrian pan-Arab nation. The delegate also noted that she had been unable to locate any reports confirming that the AYT family were well-known supporters of the SSNP in Lebanon and observed that the available country information suggested the SSNP had the capacity to provide protection, including by the use of military force when needed. It was also noted that the SSNP had aligned politically with Hezbollah which had a vast military capacity and presence in parts of Lebanon and that it played a significant role in providing domestic security, including in southern Lebanon and some areas of southern Beirut and parts of the northern Bekaa Governorate.
The delegate rejected a submission that the applicant would not be safe in any other part of Lebanon and recorded that he had not contended it would be unsafe for him to live in Beirut. She concluded that it was difficult to accept the applicant would be unable to relocate within Lebanon. In addressing a submission that it would be unreasonable to relocate on the basis that the applicant had lived in the one area since birth, the delegate was reluctant to accept that the applicant was in danger in his home area and found there was a distinct possibility that he could relocate. The delegate also found that the applicant had travelled to and from Beirut for the purposes of study and that he had relocated to other countries (Curacao and Dubai) on some five occasions. The delegate concluded that the applicant was not a refugee or entitled to complementary protection.
On 31 July 2017, the decision refusing the applicant’s visa application was referred to the Authority.
On 14 August 2017, the delegate also refused the application as made on behalf of the second to fourth applicants. On 6 December 2017, that decision was referred to the Authority.
Authority’s decision
On 29 January 2018, the Authority made a decision affirming the decisions to refuse the visa applications and provided a statement of reasons for doing so (Reasons).
The Authority identified the review material which had been supplied to it by the Secretary and noted that no further information had been obtained or received: [4].
The Authority identified the applicant’s claims including, relevantly, the claims based upon: his membership of the SSNP; his family’s high importance within that political organisation; the attacks upon him and his house and his bakeries; and, the instability and volatility in Lebanon.
The Authority structured its factual findings under two topics: identity: [7]; and, credibility: [8]-[13]. The Authority accepted that the applicants were citizens of Lebanon and Sunni Muslims: [7]. The Authority was not satisfied that the applicant was a credible witness. In reaching that conclusion, the Authority had regard to the post-hearing submissions that had been filed by his lawyer and observed that the applicant had maintained his claim to be a Syrian citizen until challenged during an identity interview. The applicant had also been shown records confirming earlier student visa applications, his lawyer submitting that the applicant had felt compelled to make a false claim: [8].
The Authority was satisfied that the majority of the applicant’s current claims had been fabricated: [9]. While accepting that the applicant’s certificate recorded that he had been born in Tripoli, the Authority found that the majority of his other identity documents stated that he had been born in Deddeh, Al Koura. The Authority was concerned by a particular identity document (an individual register) applied for on 22 May 2017, (being after the date of the applicant’s protection visa interview), and which stated he was born in Tripoli. The Authority found that the 2017 version of this register was identical in all respects to a 1997 version of another individual register, save that in the original, his place of birth had been recorded as Deddeh. On the whole of the material before it on review, the Authority found that it was not satisfied that the applicant “was born in Tripoli and I am satisfied, on the evidence before me, that he was born in Deddeh, Al Koura”: [9]. In this context, the Authority referred to other documents which indicated that the applicant and his parents resided and were registered in Deddeh and that the individual register document for both the applicant’s wife and eldest son (that was applied for in 2008), were also registered in Deddeh. Likewise, the applicant’s 2003 driver’s license showed that he resided in Deddeh: [10]. These matters are relevant to Ground 2.
The Authority rejected the applicant’s claims for fear of harm due to his being a member of the SSNP and found his evidence on this topic to be vague and unconvincing and observed that, despite being legally represented before the delegate, little corroborative evidence had been provided. So far as country information was concerned, it observed that the delegate had found no support that the AYT family[2] were well-known supporters or members of the SSNP and that he had provided no country information to support his claims. The Authority rejected the claims that the applicant or his father had been targeted, including by reason of being SSNP members or supporters: [12]-[13].
[2] The description AYT family is adopted by reason of the requirements of s 91X(2) of the Act, but is intended to be a reference to the applicant’s extended family – i.e. his relatives.
The Authority correctly identified the criteria by reference to which it was to be determined whether a person was a refugee and addressed the questions whether the applicant had a well-founded fear of persecution or was entitled to complementary protection: [15]-[24].
In addressing these questions, the Authority reiterated the applicant’s claims that Lebanon continued to be one of the most unstable and volatile countries in the world and that the sectarian and political divide were increasing. It referred to recent country information as supplied in the post-interview submission by the applicant’s lawyer together with other sources before the delegate which acknowledged the unpredictable situation in Lebanon as a result of the conflict in Syria and of ongoing political and sectarian tensions: [17]. Having referred to that country information, the Authority was not satisfied on the evidence that the applicant had been harmed as a result of ongoing political or sectarian tensions in Lebanon or the Syrian war. It observed there was no country information to indicate that Deddeh had been negatively impacted by those factors such that the applicant would face a real chance of harm in his home town: [18]. It did not address relocation.
The Authority was also not satisfied that the applicant had a profile such that he would be targeted by any person or group for any reason or that he faced a real chance of harm from any group or person as a result of the political and sectarian tensions in Lebanon on the war in Syria in the reasonably foreseeable future: [18].
Upon this reasoning the Authority found that the applicant did not meet the criteria in the definition of “refugee” supplied by s 5H or for the purposes of s 36(1)(a) of the Act and for that reason concluded that he was not entitled to protection or complementary protection: [19]-[24]. Upon this reasoning, the claims of the family members were also rejected and the delegate’s decisions were affirmed: [25]-[26].
Procedural history
On 28 February 2018, the applicant filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
On 23 January 2019, an order was made appointing the first applicant as litigation guardian of his sons. An order was also made, by consent, that the matter be listed for a show cause hearing pursuant to r. 44.12 of the Federal Circuit Court Rules 2001(Cth).
On 17 August 2020, the applicant filed an amended application to which he exhibited a further copy of the Reasons.
On 18 August 2020, the applicant’s legal representative filed an affidavit annexing a transcript of an audio recording of the applicant’s protection visa interview with the delegate conducted 17 May 2017, and maps of different districts of Lebanon.
On 21 August 2020, an order was made by consent that, instead of a show cause hearing, the matter proceed to a final hearing.
Consideration
By the amended application, the applicants abandoned their original three grounds of review and substituted two grounds of review, the first of which is more conveniently addressed in two parts.
Ground 1a) – a clearly articulated claim: increasing risk in Nth Lebanon
Ground 1a) of the amended application contends that the Authority failed to consider a clearly articulated claim in a way that affected the exercise of its jurisdiction, in that it:
a)failed to properly appreciate and consider the increasing nature of the risk to the First Applicant in the north of Lebanon;
Particulars
A. The First Applicant claimed to fear harm arising out of conflict in the north of Lebanon: CB180 at [14]; CB263-264 at [19]-[23].
B. Conflict in the north of Lebanon was expressed to be “increasing”: CB180 at [14]; see also CB263 at [19]; CB264 at [23].
C. The Authority recorded the claim but did not otherwise engage with it: CB399 at [17].
D. In the premises the Authority failed to properly appreciate and consider the increasing nature of the risk to the Applicant in the north of Lebanon.
The substantive complaint raised by ground 1a) was that the Authority merely recorded, but failed to engage with and consider his claim to an fear harm on the basis of an increasing risk of harm in north Lebanon.
Applicable principles – failure to consider claim
Jurisdictional error may be established upon the failure of an administrative-decision-maker to consider or properly deal with a clearly articulated claim or argument. A failure of this kind is regarded as a constructive failure by the decision-maker to have exercised its jurisdiction, relevantly, under s 473CC of the Act to review the fast track reviewable decision that is referred to it.[3] These principles apply to the conduct of a fast track review undertaken by the Authority.[4]
[3] Cf NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, [58]-[61] (Black CJ, French and Selway JJ); Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26, at [22]-[24], [27] (Gummow and Callinan JJ), [88]-[89] (Kirby J), [95] (Hayne J)); Htun v Minister for Immigration (2001) 194 ALR 244; [2001] FCA 1802, at [42] (Allsop J, with whom Spender and Merkel JJ agreed).
[4] Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, [79] (Kenny, Tracey and Griffiths JJ); AYY v Minister for Immigration and Border Protection(2018) 261 FCR 503, [18] (Collier, McKerracher and Banks-Smith JJ).
It may be inferred that an Authority had not considered a claim, properly or at all, by reference to the treatment given by it to the claim as reflected in its statement of reasons of the submissions of fact and law that were made by the review applicant. It was submitted that the failure to mention an argument or claim in the decision-maker’s reasons may be treated as evidence of a failure to consider that claim or argument. For these submissions, reliance was placed upon the seminal decision of Minister for Immigration and Border Protection v MZYTS[5] and the more recent decision in Singh v Minister for Home Affairs.[6]
[5] (2013) 230 FCR 431, [49] (Kenny, Griffiths and Mortimer JJ) (MZYTS).
[6] [2019] FCAFC 3, [36] (Reeves, O’Callaghan and Thawley JJ) (Singh).
MZYTS involved an appeal arising in relation to a review conducted under Pt 7 of the Act. As the applicant correctly submitted, the Full Court held that the Court was entitled to take the Tribunal’s reasons as setting out the findings of fact which the Tribunal itself considered to be material to its decision “and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf.”[7]
[7] (2013) 230 FCR 431, [49].
Central to the reasoning in MZYTS was that it applied Yusuf in which the High Court held that s 430 of the Act imposed a requirement to prepare a written statement that set out the findings which a Tribunal had made on any material questions of fact (as distinct from a duty or implied obligation to provide reasons in relation to all findings of fact).[8] The result in MZYTS may be explained by the conclusion that, in contrast with the present case, no reference at all could be found in the Tribunal’s reasons to the country information that had been supplied and which was critical to a finding of the nature of the risk now likely to be faced by the respondent if he was to return to Zimbabwe.[9]
[8] (2001) 206 CLR 323, [10] (Gleeson CJ), [34] (Gaudron J), [63]-[68] (McHugh, Gummow and Hayne JJ). The Court accepted that there may be cases in which it was proper to conclude that not all findings had been set out, an issue which Gleeson CJ considered not necessary to decide.
[9] (2013) 230 FCR 431, [42].
MZYTS and Yusuf were decided under Pt 7 of the Act, not Pt 7AA. Of immediate relevance to the present application is that within both Pt 5 and Pt 7 of the Act, the Administrative Appeals Tribunal is obliged to provide a written statement that sets out: (a) the decision; (b) the reasons for the decision; (c) the findings on any material questions of fact; (d) the evidence or other material on which the findings of fact were based; (e) the record of the day and time the statement is made; (f) certain other matters which are not presently material: Act, ss 368(1), 430(1).
In Singh, a Full Court recognised that a Tribunal, which had addressed, more thoroughly in its reasons the claims as articulated and expressed than those which were of lesser prominence, had engaged actively with the material that was before it.[10] The appeal concerned the adequacy of reasoning in relation to the merits review under Pt 5 of the Act of a decision refusing a Partner visa. In reasoning which is instructive for present purposes, the Full Court stated that “the degree of consideration which was necessary” for the proper exercise of jurisdiction and whether it had been exercised in a manner which was authorised “is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.” Further, the Full Court reiterated that: (i) a decision-maker’s reasons were not to be scrutinised minutely, finely or with an eye keenly attuned to error; (ii) the failure to address a particular matter should be analysed by reference to the whole of the material before the decision-maker “and its prominence assessed by reference to all of the issues and the way in which the matter was conducted”; (iii) a conclusion that the decision-maker had not engaged in an active intellectual process “will not be lightly made and must be supported by clear evidence, bearing in mind that the judicial review applicant’s carry the onus of proof.”[11]
[10] (2013) 230 FCR 454.
[11] (2013) 230 FCR 454, [37]; see also [45]-[46].
The scope of the Authority’s obligation respecting its decisions governed by Div 4 of Pt 7AA which comprises ss 473EA-473EC. Sub-section 473EA(1) obliges the Authority to make a written statement that:
(a) sets out the decision of the forehead the on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the decision is made.
Unlike ss 368(1), 430(1) of the Act, s 473EA(1) does not expressly oblige the Authority to provide by its decision, a statement of either the findings which it made on any material questions of fact or the evidence or other material on which those findings of fact were based. However, s 25D of the Acts Interpretation Act 1901 (Cth) requires that:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
In CHF16 v Minister for Immigration and Border Protection,[12] the Full Court found it unnecessary to decide “whether or not there was an obligation on the Authority, arising from either or both s 473EA of the Migration Act and s 25D of the Acts Interpretation Act, to give reasons for its conclusion as to ‘exceptional circumstances’”. That reasoning was referrable to the discretionary power conferred by s 473DD and in deciding whether exceptional circumstances were shown as to permit the consideration of new information.
[12] [2017] FCAFC 192, [49]
Later cases establish that s 473EA(1) does not require a statement of decision for procedural decisions taken in the course of review under Pt 7AA.[13] CHF16 does not address the interaction of s 473EA(1) of the Act and s 25D of the Acts Interpretation Act in relation to the scope of the Authority’s obligation to give reasons for the decision which, at first sight, imposes a different obligation than that imposed upon decision-makers by ss 368 and 430 of the Act.
[13] BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, [50] (Thawley J); CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, [27]-[29] (Bromwich J).
It appears to be accepted that the obligation to give reasons imposed by s 473EA(1), when read with s 25D of the Acts Interpretation Act applies to the ultimate decision made on the conduct of a fast track review.[14] It is settled that the absence of reasoning in relation to a Pt 7AA fast track review may support an inference that the Authority had failed to engage in an active intellectual way with the matters raised.[15]
[14] CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, [28(1)].
[15] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, [39].
Counsel for the applicant also relied upon Minister for Home Affairs v Omar,[16] which considered the scope of the Minister’s obligation to consider representations, when dealing with significant and clearly expressed relevant representations made under s 501CA made in support of a revocation request respecting a decision given under s 501(3A) to cancel the visa of a person who was serving a term of imprisonment for an offence which constituted a ‘substantial criminal record’. Sections 501 and 501CA are provisions located in Pt 9 of the Act.
[16] [2019] FCAFC 188, [3(e)], [4].
In Omar, a five-member Full Court held it to be implicit in the statutory regime governing the cancellation of a visa under Pt 9 of the Act that the Minister must consider representations made against such cancellation, and must do so in the sense that, where a substantial or significant and clearly articulated claim had been raised, the Minister was obliged to engage in an active intellectual process in the evaluation of those representations. In contending that a failure to consider matters raised by the respondent against revocation had entailed jurisdictional error, contextually, no less than three detailed submissions, together with extensive supporting material had been supplied by the respondent’s lawyers.[17] In particular, the current DFAT information advised that the Somalian government had announced in 2015 that refugees in need of psychological and mental health cannot be returned to Somalia. The applicant was a person affected by extensive mental health issues.
[17] (2019) 272 FCR 589, [15].
By paras 501G(1)(c)-(e) of the Act, where a decision is made not to revoke the decision to cancel a visa, the Minister is obliged to provide a written statement that sets out the decision, specifies the provision under which the decision was made together with the effect of the provision and “set out the reasons (other than non-disclosable information) for the decision”. Although s 501CA(4) confers power on the Minister to revoke a cancellation decision, a decision not to exercise that power is not reviewable under Pt 5 or Pt 7 of the Act. The Full Court considered that the absence of a right of review intensified the obligation to set out reasons for the decision.[18] Equally, it accepted that the reasons were not to be read “with an eye keenly attuned to error” and that the obligation to set out the reasons imported an obligation “also to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”. The Full Court also considered that s 25D of the Acts Interpretation Act served to enhance the accountability of statutory decision-making when providing reasons. [19]
[18] [2019] FCAFC 188, [34(a)].
[19] [2019] FCAFC 188, [34(b)-(c)] citing Acts Interpretation Act 1901 (Cth), s 25D.
The Full Court accepted that if an administrative decision-maker’s statement of reasons contained no reference to a particular matter which had been clearly raised, an inference might be drawn that the matter had not been considered to be material.[20] The Full Court held that the Minister was obliged to consider significant and clearly articulated claims but acknowledged that to frame the obligation as one of giving “proper, genuine and realistic consideration” carried the danger, if taken out of context, of encouraging merits review which, as it accepted, was impermissible. Instead, the decision-maker was required[21] to “have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them in the arguments or opinions put forward and to appreciate who is making them” and then to “sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say: Tickner v Chapman.”[22]
[20] [2019] FCAFC 188, [36(d)] citing Yusuf. While Omar contains no consideration of MZYTS, the authority given for the principle stated above was Yusuf.
[21] [2019] FCAFC 188, [34(i)]-[36].
[22] [2019] FCAFC 188, [34(c)]; Tickner v Chapman [1995] FCA 1726; 57 FCR 451, 495 (Tickner).
Omar confirms that the requirement to give meaningful consideration to a clearly articulated and substantial or significant claim requires more than simply acknowledging or noting that it has been made.[23] However, the Full Court also recognised that the requirement to make specific findings of fact within the relevant statutory framework may depend upon the nature and content of the particular claim.[24] The court accepted that a finding of failure to engage in a meaningful or active intellectual process was not to be lightly made and that, on review, a court was not entitled to intervene merely because it disagreed with the ultimate assessment; the “limits of judicial review must be constantly observed.”[25]
[23] See also BHL19 v Minister for Home Affairs [2020] FCAFC 94, [169].
[24] [2019] FCAFC 188, [37]-[38].
[25] [2019] FCAFC 188, [32(g)-(h)].
More recently, in BPL20 v Minister for Home Affairs,[26] Moshinksy J recognised the qualified nature of the obligation to make findings of fact as stated by the Full Court in Omar. In terms adapted to the context of s 473EA(1)(b) of the Act, the requirement to make findings will depend, in part, upon the nature and content of the claim being made. Those observations are reinforced by the statements in Singh above that the degree of consideration which may be necessary to be given to a claim “is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.”
[26] [2020] FCA 1207, [46], [83]; see also DQM18 v Minister for Home Affairs [2020] FCAFC 110, [155] (Bromberg, Mortimer and Snaden JJ).
While s 473EA(1) of the Act does not expressly oblige the Authority, when providing its decision, to include a statement of either the findings which it made on any material questions of fact or the evidence or other material on which those findings of fact were based, conformably with the reasoning in Omar, I consider that an obligation to provide such findings and to identify the evidence on which it was based is supplied by s 25D of the Acts Interpretation Act in relation to the reasons given by the Authority for its ultimate decision. Depending upon the nature and content of the particular claim and its centrality to the issues in the application and having regard to the prominence the matter assumed in the conduct of the matter, the absence of findings may support an inference that the matter had not been considered to be material.
Finally, in evaluating whether jurisdictional error is established by reason of a failure to consider a clearly articulated claim, I acknowledge the need for particular caution as emphasised in EGH19 v Minister for Home Affairs, so as to: (1) maintain the distinction between review of the legality and merits review;[27] (2) carefully consider the individual facts and circumstances of a particular case when determining whether a decision-maker has engaged in an active intellectual process and meaningfully considered a claim;[28] (3) a finding that a decision-maker has not engaged in any meaningful or active intellectual process will not be likely made. Each case will turn on its own facts and circumstances.[29]
[27] [2020] FCA 692, [51(d)], (Griffiths J).
[28] [2020] FCA 692, [51(e)].
[29] [2020] FCA 692, [51(j)].
Resolution
Counsel for the applicant correctly submitted that in order to establish both Ground 1a) and Ground 1b), it was necessary to demonstrate that the claims alleged had been made or arose clearly upon the materials and that they had not been adequately addressed by the Authority.
I accept that the applicant had squarely raised a claim, an integer of which included that the asserted risk arising from volatility and instability in North Lebanon was likely to increase into the future. The claim to a well-founded fear of harm grounded upon an increase in the level of volatility and instability in the north of Lebanon risk was clearly articulated but I do not accept that it was articulated or submitted to arise from a generalised risk of harm. Rather, I consider that it had been inextricably tied to the applicant’s anterior claims built upon his suggested profile and that of his family. The court is entitled to insist upon review that the decision must be considered in light of the basis on which it was advanced before the Tribunal, not a basis conceived of by the applicant or their advisor after the event.[30] Insofar as the applicant submitted that it was a free-standing claim I do not accept that was so. But it is clear that the Authority was aware of the claim: Reasons, [6]. The question posed in the present case is whether that claim was considered in the requisite sense; that is, whether the Authority engaged in an active intellectual process with that claim in accordance with the principles examined above in MZYTS, Singh, Omar and Tickner.
[30] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [1], [14] (Gleeson CJ); Singh v Minister for Home Affairs [2019] FCAFC 3, [38] (Reeves, O’Callaghan and Thawley JJ).
The applicant submitted that the claim was inherently forward-looking, pointing to a trend of increased risk in the future, and was not answerable solely by reference to past conditions as a predictor of future conditions. The submission was framed in the predictive terms explained in MZYTS,[31] which involves the decision-maker making “an assessment and determination of what might happen to a visa applicant if she or he were returned to her or his country of nationality at the point in time the review decision is made, and what might happen in the near future thereafter”: GLD18 v Minister for Home Affairs.[32]
[31] (2013) 230 FCR 431, [32]-[38].
[32] [2020] FCAFC 2, [77] (Allsop CJ, Mortimer J, Snaden J agreeing, [94]).
In addressing that submission, and having regard to the onus of proof which the applicant assumed on review, in my opinion there was a relative paucity of evidence in support of the subject claim.
Further, it must be recognised that the Authority expressly recognised and made an assessment of the following claim which it set out at [6]:
Lebanon continues to be one of the most unstable and volatile countries in the world and the sectarian and political divide are increasing. There is much uncertainty and bloodshed everywhere. The SSNP has again been under severe attack. The situation in north Lebanon is far more volatile. Despite being a Muslim Sunni he considers himself part of the minority due to his imputed political opinion as a SSNP member. If he returns to Lebanon he fears facing immeasurable harm and potentially even death for himself and his wife and children.
The circumstance that the claim was set out in those terms puts it beyond argument that the Authority was conscious of the claim being made. Contextually, it was the last of the several claims described above.
Consideration of the manner in which the Authority considered the applicant’s claims also requires recognition that the applicant accepted no challenge was being made to the adverse credibility findings which involved rejection of his claims: to be a member or supporter of the SSNP; that his family were well-known supporters or members of the SSNP; that the applicant or his father had been targeted, including by reason of being SSNP members or supporters.
When it came to a consideration of the subject claim, the Authority found the applicant had provided no further country information to support it and the Reasons indicate that it understood the delegate had found he could relocate within other parts of Lebanon: [1]-[2], [12].
From those findings the Authority reasoned that as it had rejected the credibility of the applicant’s claims based on SSNP membership or support and thus, an associated profile, it did not accept that he had a well-founded fear of persecution for those reasons: [16]. This finding assumes particular significance in the consideration of Ground 1a). I consider that to be so because it provided the primary integer for the claim to fear harm in the north of Lebanon. While the applicant sought to present the claim as being clearly articulated and free-standing from the applicant’s claims to be a member of the SSNP and to the profile which he – and his family had – in that organisation, I do not accept that the claim was advanced in the way. In particular, I am not prepared to accept that any clearly articulated claim or one emerging sufficiently from the materials arose so as to suggest a well-grounded fear of harm on the basis of a generalised fear of harm. The fear to harm as a result of increasing volatility and instability in north Lebanon was being pressed in the context of and allied to the primary claims to fear harm, including because of the applicant’s profile and that of his family.
The learned authors, Hathaway and Foster, The Law of Refugee Status[33] explain that there is no legal basis for a ‘particularised evidence rule’ whereby it is said that a claimant must be able to show that he or she has been singled out for persecution of a kind that differs from those suffering widespread turmoil. Hathaway and Foster demonstrate the need to assess whether the applicant’s particular circumstances support the conclusion of a well-founded fear of persecution within the context of generalised risk. Two categories are identified by the learned authors as falling within such a supposed rule. First, Hathaway and Foster explain that while refugee law was concerned only with protection from persecution tied to one or more of the Convention grounds, it remains necessary to examine the circumstances of the individual claimant and not to allow this requirement to be confused by “some erroneous notion that refugee status must be based on a completely personalized set of facts.”[34] Secondly, Hathaway and Foster considered an alternative basis on which this rule might be invoked as upon a mistaken extrapolation of a principle that persons at risk of generalised, indiscriminate forms of harm are not refugees.[35] As to this second category, the learned authors opine that while the victims of wide-spread disaster do not ordinarily qualify for refugee status, it was not because of the widespread nature of the impact of such events; rather, it was because of the non-discriminatory nature of the exposure to harm:
Because refugee law is concerned only with protection tied to a claimant’s race, religion, nationality, membership of a particular social group, or political opinion, those impacted by calamities, weak economies, civil unrest, and even generalised failure to adhere to basic standards of human rights are not by that fact alone entitled to refugee status.
That having been said, refugee law does extend protection even in those situations where there is some element of risk based on one of the five enumerated forms of civil or political status. If the harm is both sufficiently serious and impacts persons by reason of their civil or political status, then a claim to Convention refugee status is made out, however many people are similarly affected.[36]
(Emphasis added)
[33] Hathaway and Foster, The Law of Refugee Status, 2nd Ed (2014), [2.9] at pp.175-176.
[34] Ibid, [2.9] at pp.175.
[35] Ibid, [2.9] at pp.175.
[36] Ibid, [2.9] at pp.175.
The application of those principles were considered in AON15 v Minister for Immigration and Border Protection.[37] While the Full Court accepted the need to consider whether generalised violence meant that a claimant faced a real chance of harm,[38] and that reasoning which failed to recognise the need to assess his or her particular circumstances in the context of a generalised risk would be erroneous, it held that the challenge failed to pay sufficient attention to the entirety of the decision-maker’s reasoning. Middleton and Mortimer JJ discerned no error in the Tribunal’s analysis in making factual findings on the material before it about the nature of the risk faced by the appellant; finding that the level of risk if returned to the region in question – albeit the same as others – was at a remote level. Their Honours held that this entailed no misunderstanding of the concept of well-founded fear. Besanko J agreed.
[37] [2019] FCAFC 48.
[38] [2019] FCAFC 48, [6] (Besanko J), [74]-[75] (Middleton and Mortimer JJ).
Contrastingly, on the facts of the present case the Authority reasoned that the applicant did not have a profile that made him a specific target for harm and, by implication, that he did not have a well-founded fear of harm above others in Lebanon. This finding was open on the evidence. The Authority also evaluated such country information as was submitted to it before concluding that the applicant was not a refugee.
The Authority addressed the applicant’s claim grounded upon the suggested increasing instability and volatility of Lebanon set out in the Reasons at [6] (final bullet point), and as stated at [17]:
In his statement of claims [AYT18] claimed that Lebanon continues to be one of the most unstable and volatile countries in the world and the sectarian and political divide are increasing. Recent country information sources referred to in the post-interview written submission, and other sources that were before the delegate, refer to the unpredictable security situation in Lebanon as a result of the conflict in Syria and ongoing political and sectarian tensions.
In seeking to establish Ground 1a), the applicant focused upon the Authority’s Reasons at [18] which read:
I am not satisfied on the evidence before me that the husband or the other referred applicants have been harmed as a result of the ongoing political and sectarian tensions in Lebanon and the war in Syria. There is also no country information before me to indicate that Deddeh in Koura has been negatively impacted by these factors such that the applicant would face a real chance of harm. I am also not satisfied the husband has a profile such that he would be targeted by any person or group for any reason or that the applicant’s face a real chance of harm from any group or person as a result of the political and sectarian tensions in Lebanon the war in Syria in the reasonably foreseeable future. (Emphasis added)
I accept that the reasoning in the Reasons at [18] is limited. To accept as much should not involve an unstated assumption that the reasoning is necessarily tainted because of its brevity. Instead, it draws attention to the question why the decision-maker adopted that method of her or his consideration of the claim and what were the circumstances in which it was adopted. In the present case, to adapt the reasoning of Allsop CJ and Mortimer J in GLD18,[39] once the Authority had found that there was no country information of the kind described above, this provided part of the framework within which it could consider “what might happen in the near future thereafter” if the applicant was to return to Lebanon. While the Authority was obliged to examine the most recent country information, it did examine that which had been provided. This was a proportionate response to the material before it and the manner in which the applicant had conducted the matter before the Authority.
[39] [2020] FCAFC 2, [77].
I do not accept that the Authority failed to properly appreciate and consider the increasing nature of the risk to the applicant in the north of Lebanon. Reading the Reasons as a whole and with an eye that is not keenly attuned to error, I am satisfied the Authority well understood the claim that the volatility and instability of the situation in North Lebanon was said to be increasing and that the risk to the applicant was such as to support a conclusion he had a well-founded fear of harm. In my view, the Reasons demonstrate the Authority accepted that consideration of the situation involving questions of volatility and instability was required.
The Authority acknowledged the recent country information supplied with a post-hearing submission, which identified the levels of instability. As noted, on 8 June 2017, the applicant’s lawyer made a post-interview submission. This submission referred expressly to DFAT country information issued on 14 December 2016 which strongly advised travellers not to travel to Tripoli and northern Lebanon due to ongoing clashes between Lebanese security forces and militants in the region, as well as the constantly shifting political landscape resulting from the Syrian war and ongoing security tensions. Inherent in the reference to the post-hearing submission and its reference in the Reasons at [17] to the DFAT country information “and other sources that was before the delegate”, was the Authority’s express acknowledgement that the situation in Tripoli and north Lebanon was volatile and unstable. As Hathaway and Foster recognise, refugee law is concerned only with protection that is tied to a convention ground (race, religion, nationality, membership of a particular social group, or political opinion). The impact arising from calamities, including “civil unrest, and even generalised failure to adhere to basic standards of human rights are not by that fact alone entitled to refugee status.” The Authority was not satisfied that the applicant had established he was a refugee.
A series of maps indicating the geographical proximity of Deddeh to Tripoli were exhibited and which indicated that they are located in the north of Lebanon and that it is an eleven minute drive from one such location to the other. Having identified a series of primary documents that supported the conclusion the applicant lived in Deddeh, the Authority found that there was no country information before it to indicate that Deddeh had been negatively impacted by the sectarian tension in Lebanon such that the applicant would face a real chance of harm: [9], [18]. This reasoning accepted the premise that there was an increased level of volatility and instability in North Lebanon.
While the applicant’s post-hearing submission did not reiterate his claims, it set out the applicable principles in quite extensive detail. That it did so is to be understood in the context that his lawyer had quite properly recognised the immediate need to address principles respecting credibility issues. The post-hearing submission was otherwise, for the most part, focussed on the question of relocation. It concluded at [83]: “the Applicant claims to fear harm from the terrorist cells wherever he should live in Lebanon”. Again, this may be understood as indicating that the applicant’s lawyer well-understood the need to address this question in some detail, particularly having regard to the issues being raised in the course of the applicant’s interview with the delegate.
While the Authority had been provided with a copy of the materials before the delegate and the delegate’s decision, the Reasons do not address the issue of relocation. This approach was taken in the context that the Authority concluded the applicant was not a refugee as that term is defined. Upon that conclusion being reached, the Authority, in contrast with the delegate, did not address the issue of relocation and felt no need to do so in light of the conclusion the applicant did not meet the definition of refugee without needing to factor into that question an evaluation whether relocation was a reason he may not be a refugee.
In summary, the finding that there was “also no country information before me to indicate that Deddeh in Koura has been negatively impacted by these factors” was made in relation to the applicant’s claim to fear harm by reason of an increased level of instability and volatility in the north of Lebanon. By this stage all other claims had been rejected. The finding demonstrates that the Authority had engaged in an active intellectual way with the available country information and this claim in a manner that reflected how the application had been conducted.
In my view, the Authority both understood that the claim was being made and properly dealt with it. Applying the principles, stated in Tickner, I consider that the Authority both recognised that it was required to know what had been said in the post-hearing submission and otherwise to appreciate the content of the claim respecting the instability and volatility of the situation in north Lebanon. I conclude that it had regard to each of those matters, including what was said about them and that they had been put forward on the applicant’s behalf by his lawyers. From that point, it was for the Authority to sift through them and attribute whatever weight or persuasive quality was considered to be appropriate. I also consider that the reasoning undertaken by the Authority in relation to this issue was proportionate to the content of the post-hearing submission and the claim that was made and its location beneath claims: to be a member or supporter of the SSNP; to have family members who were well-known members of the SSNP; to be an intelligence officer and Syrian spy; to have been attacked in the street because of his profile; and, to have suffered multiple shootings upon his home and threats against his businesses. None of those claims had been found to be credible. Notwithstanding that the primary claims had been rejected, the Authority examined the other claims being made and in my view gave meaningful consideration to those claims including whether the applicant had a well-founded fear of harm by reason of the volatility and instability in north Lebanon which the applicant had claimed was increasing in intensity.
Ground 1 a) is rejected.
Ground 1b) – assessment of risk in Nth Lebanon (Deddeh)
Ground 1b) of the amended application contends that the Authority failed to consider a clearly articulated claim in a way that affected the exercise of its jurisdiction, in that it:
b)failed to properly consider the risk of harm to the First Applicant throughout the north of Lebanon.
Particulars
A. The First Applicant claimed to fear harm arising out of conflict throughout the north of Lebanon: CB180 at [14]; CB263-264 at [19]-[23].
B. The Authority found the First Applicant’s home region to be Deddeh, Al Koura: CB397 at [9]-[10].
C. The Authority observed that no country information was before it to indicate that Deddeh had been affected by violence: CB399 at [18].
D. The Authority did not otherwise address the First Applicant’s claim to fear harm arising out of conflict throughout the north of Lebanon
E. The First Applicant’s claim described in particular A was not resolved by the Authority in circumstances where:
i.Deddeh, Al Koura is less than 10km from central Tripoli, and;
ii.country information was before the Authority to indicate that northern Lebanon, including Tripoli, had been affected by violence.
F. In the premises, the Authority failed to properly consider and resolve the First Applicant’s claim
In substance, Ground 1b) was framed in terms suggesting a need to examine the risk of harm to the applicant throughout the whole of the north of Lebanon.
Resolution
Subject to the observations at [53] above, I accept that the applicant’s claim to fear harm as a resident of north Lebanon was based on increasing sectarian tensions and the geographic proximity of hostilities related to the Syrian civil war. I have concluded that the Authority understood that this was part of the claim as made, including by the post-hearing submissions and that it also understood that those submissions provided reference to the DFAT travel advisory warnings.
Fairly read, the reasons accepted the increasing nature of that volatility and instability in north Lebanon. However, the applicant bore the onus of proof and the limited country information before the Authority did not ascend to the level of demonstrating a generalised risk of harm to persons in north Lebanon. While a generalised risk of harm, if established and accepted, may ground a well-founded fear of harm or qualify as significant harm within the meaning of the Act, the limited evidence before the Authority did not do so.
In my opinion, the Authority did actively engage with this claim and in doing so was entitled to conclude that the evidence, such as it was, did not support a conclusion that the applicant had a well-founded fear of harm based upon the suggested increased level of volatility or instability throughout the whole of the north of Lebanon. While the applicant’s submissions were framed in terms which criticised the Authority’s reasoning for a lack of forward looking evaluation of the risk of harm, there was no evidence suggesting that the applicant would be, in effect, residing throughout north Lebanon as a whole. The contention that the entirety of north Lebanon was in a volatile and unstable state was not located as the central foundation of the applicant’s claim and did not assume the prominence which the applicant now wishes to contend. The way in which the ground was framed paid insufficient attention to the limits on the need to conduct a predictive assessment at the time of the decision and what might happen in the near future thereafter.
The suggested failure to address the level of volatility and instability in north Lebanon falls for consideration on judicial review “by reference to the whole of the material before the decision-maker”. The claim must be also “assessed by reference to all of the issues and the way in which the matter was conducted” and as detailed above, the applicant advanced his claims to a well-founded fear of harm with a central focus upon a litany of other matters – his membership and support of the SSNP, the prominence of his family as SSNP members, his role as an intelligence officer, the attacks and threats and risks of attack made upon him by reason of his profile and upon his home and bakeries – all of which were rejected and which rejections were not challenged but accepted.
I do not regard the Authority’s reasoning as supporting a conclusion that it failed to engage in an active intellectual way with this claim, particularly having regard to the prominence which it had in the conduct of the application. The applicant has not discharged the onus of proving that the Authority failed to address this issue in the manner required. Such information as was placed before it was considered.
Ground 1b) is rejected.
Ground 2 – failure to get new information (legal unreasonableness)
Ground 2 of the amended reads:
Further and in the alternative to ground 1(b) above he Authority unreasonably failed to consider exercising its power and/or unreasonably failed to get new information under s 473DC of the Migration Act 1958 (Cth) (Act).
Particulars
A.The First Applicant claimed to have resided in Tripoli in the north of Lebanon: CB91.
B.The First Applicant provided identity documents with his protection visa application indicating that he was born and resided in Deddeh, Al Koura: CB183; CB185; CB189; CB191.
C.The delegate of the Minister made no finding in relation to the First Applicant’s home region and did not at interview put to the First Applicant any concern in relation to the First Applicant’s home region being Tripoli.
D.The Authority found:
(i)the First Applicant fabricated a claim to have resided in Tripoli to strengthen his claim for protection: CB397 at [9];
(ii)the First Applicant’s home region to be Deddeh, Al Koura: CB397 at [9]-[10].
E.The Authority did not accept the First Applicant’s claim to fear harm in the north of Lebanon on the basis of its findings described in particular at paragraph 92 above.
F.The Authority did not invite the Applicant to explain the apparent inconsistency between the claim in particular (a) and the identity documents described in particular at paragraph 90 above.
G.In the premises, the Authority’s failure to exercise its power under
s 473DC was legally unreasonable.H.Further or alternatively, there is no evidence that the Authority considered exercising its power under s 473DC of the Act to get new information from the Applicant relating to the apparent inconsistency.
I.It is to be inferred from particulars F and H that the Authority did not consider exercising its power under s 473DC.
J.In the premises, the Authority’s failure to consider exercising its power under s 473DC was legally unreasonable.
In substance, the applicant contends that the Authority’s conduct of the review was tainted by legal unreasonableness in failing to consider to exercise its power to obtain new information. The factual basis for the complaint was the finding that the applicant’s home area was Deddeh, this being contrary to his claim that his home area was Tripoli: [9]-[10]. Contextually, it will be recalled that on review, the applicant exhibited a series of maps showing that Deddeh and Tripoli were an 11 minute drive from one another. To say as much is not to suggest that the instability and volatility of proximate regions may be quite different. But the country information did not appear to explore that question.
The applicant submitted that his place of birth or home region in Lebanon had not been in issue before the delegate and complained that the Authority had relied upon apparent inconsistencies in his identity documents to find that he had been born in Deddeh, and not Tripoli.
The applicant complained that he had not been invited to explain the apparent inconsistencies in his identity documents or the consequence, if any, of a finding that he had been born in Deddeh and not Tripoli. Thus, it was submitted that in circumstances where the issue of the applicant’s place of birth was not explored by the delegate, it was unreasonable for the Authority to not at least consider exercising its power to get new information comprising of the Applicant’s explanation for any perceived inconsistency.
Counsel for the Minister submitted that this was not a case where the Authority had relied on a new issue which was previously unknown to the applicant or which had not been considered by the delegate, but rather, that the Authority had simply come to a different conclusion on the same issues as were considered by the delegate, and based on the same information as was before the delegate. It was said that the Authority was entitled to come to a different conclusion to the delegate on the basis of the evidence before it and was not obliged to seek new information from the first applicant before doing so.
Resolution
I accept it may be legally unreasonable to make findings adverse to a visa applicant without inviting, or considering whether to invite, a visa applicant to provide further information on a particular matter.[40] Whether that may be so will depend upon the precise circumstances of the case and the statutory framework in which it arose.
[40] Counsel for the applicant cited Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82] (Robertson, Murphy and Kerr JJ); Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [80]-[81] (Robertson, Murphy and Kerr JJ); DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [95] (Griffiths, Mortimer and Steward JJ); FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29, [59] (Bromberg, Davies and O’Bryan JJ).
Ground 2 arises for consideration within the statutory framework provided by Pt 7AA of the Act which provides a limited form of review for certain protection visa decisions. The conduct of a fast track review is governed by Div 3 of Pt 7AA which is taken to be an exhaustive statement of the natural justice hearing rules in relation to the matters that it deals with.[41] Subject to Pt 7AA, a fast track review must be conducted on the papers[42] and by s 473DB(2), the Authority may make a decision at any time after the fast track decision has been referred to it.
[41] Act, s 473DA(1).
[42] Act, s 473DB(1).
The primary obligation of the Authority is to undertake the review of a fast track reviewable decision by considering the review material given under s 473CB and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”. This primary requirement is qualified by the exceptions for which ss 473DC, 473DD and 473DE provide but it needs to be recognised that the general position is for the Authority to provide upon the review material and without new information and that to proceed otherwise, as by interviewing the review applicant, requires that exceptional circumstances be shown and that the preconditions to the Authority’s power to do so have been satisfied.
Section 473DC confers power on the Authority to get new information that was not before the original decision-maker and which the Authority considers may be relevant. Section 473DD prohibits the Authority from getting any new information unless satisfied exceptional circumstances justify its consideration and that it has been satisfied of the other requirements which also restrict the reception of new information: Act, pars 473DD(b)(i) or (ii). Section 473DE requires the Authority to provide certain new information to an applicant for comment.
While the power to get new information is conferred in terms which provide that the Authority “does not have does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”, s 473DC is conditioned by a requirement that the power which it confers will be exercised reasonably.[43] In Plaintiff M174/2016 v Minister for Immigration and Border Protection,[44] the plurality identified how the Authority may err by its non-exercise of the power granted under s 473DC:
. . ., jurisdictional error would potentially lie either in non- compliance on the part of the Authority with the duty imposed by s 473DE(1) (in a case where the relevant information was not before the Minister or delegate at the time of making the decision under review and is therefore capable of being new information) or, in the absence of good reason for not doing so, in an unreasonable failure to exercise the power conferred by s 473DC(3) (in a case where the relevant information was before the Minister or delegate at the time of making the decision under review and is therefore incapable of being new information).
[43] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 265 CLR 217, [21] (Gageler, Keane and Nettle JJ), [78], [86] (Gordon J), [97], [100] (Edelman J); Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, [82] (Robertson, Murphy and Kerr JJ).
[44] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 265 CLR 217, [71] (Gageler, Keane and Nettle JJ).
The applicant submitted that, having come to a view that the applicant’s identity documents were apparently inconsistent with his claim to be from Tripoli, a reasonable decision-maker would have appreciated that he may have some explanation for the apparent inconsistency which he did not and could not have been expected to provide to the delegate. In support of that submission, reliance was placed on DFW16 v Minister for Immigration and Border Protection,[45] in which Barker J decided that it had been unreasonable for the Authority to not consider inviting the visa applicant to explain perceived inconsistencies between information provided in the visa application and an earlier visa application in circumstances where the delegate had made no reference to those inconsistencies. In DFW16, the court concluded that the inconsistencies between the claims as made in an earlier invalid protection visa application and those contained in a later SHEV application in relation to them were plainly significant.[46] His Honour found that there was nothing obvious so as to signal to the applicant that the inconsistencies in his two applications may be subjects upon which he might make submissions or seek to provide new information. Barker J considered the case not to be materially distinguishable from Minister for Immigration and Border Protection v CRY16.[47]
[45] [2018] FCA 746, [61]-[64].
[46] [2018] FCA 746, [26].
[47] [2018] FCA 746, [64].
I do not accept that the suggested failure to consider getting information from the applicant was legally unreasonable. The ground of review was based upon the assumption that the Authority had come to the view that identity documents were apparently inconsistent with his claim to be from Tripoli. The suggested inconsistency is not immediately apparent. In any event, the applicant’s birthplace and where he had lived were integers of the claim to have a well-founded fear of harm in the north of Lebanon; an area in which he had claimed there was an increased level of volatility and instability. Each of Deddeh and Tripoli are situate in northern Lebanon. The consequences of a failure to consider exercising the power to allow the applicant an opportunity to give evidence or make submissions as to the supposed inconsistency are not obvious.
The case is not one in which the Authority had decided the review on a basis that was substantively different to that which formed the basis for the delegate’s decision. The case is distinguishable from CRY16 in that sense in that the Authority had decided the review on the basis that the applicant could relocate. Indeed the present case is near the reverse of CRY16 inasmuch as the delegate here decided the applicant could relocate whereas the Authority decided the applicant did not have a well-founded fear of harm. In further contrast with CRY16,[48] an evident and intelligible justification for any failure to exercise the power to get new information from the applicant was that the decision made as to the applicant’s place of birth and habitual residence – Deddeh – was founded on documents that the applicant himself had provided.
[48] (2017) 253 FCR 475, [82].
All of the primary documents which the Authority had examined were supplied by the applicant who had done so as a sequel to the identity interview at which the applicant had at first maintained but then accepted he was not a Syrian citizen. Responding to the identity interview, the applicant had provided a raft of identity documents. The manner in which the Authority had examined them was detailed in its Reasons at [9]. In contrast with the issue presented in CRY16, the Authority was not obliged to give the applicant notice that it was inclined not to accept certain parts of his narrative.[49] In those circumstances, I consider that a decision not to seek further information from the applicant in relation to his birthplace or residence was entirely within the bounds of the Authority’s decisional freedom.
[49] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 569, [72] (Reeves J); BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938, [29] (Snaden J)
If contrary to my view that the failure to consider getting further information from the applicant in relation to his birthplace entailed error, I would not have been satisfied that it was jurisdictional in nature. Erroneous fact finding is not of itself jurisdictional error and although it was not suggested the Authority’s finding was erroneous, it was for the applicant to demonstrate that, within the legislative framework within which the Authority was obliged to conduct the fast track review, any error in failing to consider obtaining new information from him entailed a jurisdictional error where, in general, it was obliged not to do so.
Further, an error is only material to a decision “if compliance could realistically have resulted in a different decision”.[50] Even if the Authority had invited the applicant to provide new information with respect to his birth place or usual residence, I accept the Minister’s submission that this could not realistically have resulted in a different decision. The Authority’s view as to the applicant’s home area was not the determinative issue in its decision. The applicant bore the burden of proof on this issue and, whether he had been born in Deddeh, or in Tripoli (some 11 minutes’ drive away), I am not persuaded that, realistically, this could have resulted in a different decision.
[50] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1.
Ground 2 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 23 September 2020
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