BBR18 v Minister for Home Affairs

[2018] FCCA 1934

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBR18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1934

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to comply with Ministerial Direction Number 56 – whether the Authority failed to constructively exercise its obligation to review the applicant’s claims – whether the Authority misapplied s 473DD of the Act – whether the Authority failed to consider whether the applicant feared harm as a failed asylum seeker – whether the Authority considered an invalid non-disclosure certificate – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DD, 473GB, 476, 477, 499.

Cases cited:
BBS16 v Ministerfor Immigration and Border Protection [2017] FCAFC 176.
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.

Applicant: BBR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 587 of 2018

Judgment of: Judge Street

Hearing date: 16 July 2018

Date of Last Submission: 16 July 2018

Delivered at: Sydney

Delivered on: 16 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr L Jacob
Sydney Immigration Law

Counsel for the Respondents: Mr T Liu

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Time is extended under s.477 of the Migration Act 1958 (Cth) up to and including 6 March 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 587 of 2018

BBR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 25 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant claimed to fear harm by reason of having engaged in homosexual acts in Iraq and by reason of his conversion to Christianity and by reason of being a failed asylum seeker who had sought asylum in a Western country. The delegate made adverse credibility findings in relation to the applicant’s claims. On 15 December 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 20 December 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant provided submissions received by the Authority on 17 January 2018, which the Authority took into account insofar as they engaged with the delegate’s decision. The Authority identified that there is new information that had been provided comprising a “Declaration of Disowning and Disassociation” dated 18 June 2012. The Authority found there were not exceptional circumstances to justify consideration of the new information.

3. The Authority identified the applicant’s claims and that he is of Arab ethnicity and was raised as a Muslim of Shia faith and identified his family background and education, as well as his work history and the applicant’s claims to the effect that he left Iraq because of his homosexuality. The Authority noted that the applicant stated he has a very different life now and does not consider himself homosexual. The Authority rejected the applicant’s evidence in relation to an alleged phone call from the elder of his tribe. The Authority did accept that while in his teens the applicant had engaged in sexual relations with other boys and accepted that his actions were discovered at some point and became known to his family and that due to this the applicant left his family home in March 2013. The Tribunal found the applicant now identifies as a heterosexual and since arriving in Australia has not engaged in relations with men.

4. The Authority found the applicant’s claim of conversion to Christianity to be unconvincing and did not accept the applicant had converted to Christianity. The Authority was not satisfied that even if the applicant had been baptised as claimed that the conversion is genuine. The Authority was not satisfied the applicant would identify as Christian or practice as a Christian on return to Iraq. The Authority found there is no credible evidence to indicate the applicant would be perceived to be homosexual or effeminate on return to Iraq by members of the community or militia groups.

5. The Authority accepted that there was some breakdown in the family relationship in 2013, but found the applicant was already in contact with various family members since that time and provides some financial support to his son, who lives with his family. The Authority did not accept that if the applicant were to return to his home region any member of his family would cause him harm on the basis of cleansing the family honour. The Authority also considered it remote that any member of his family would make his past homosexual/adulterous activities more widely known. The Authority concluded that the applicant does not face a real chance of harm from his family, from members of the community or from militia groups due to his activities while in his teens.

6. The Authority did not accept the applicant’s claim of conversion to Christianity or that he would return with a Christian wife. The Authority was not satisfied the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. The Authority referred to kidnappings, killings and crime but concluded that it would not give rise to a real chance the applicant would face harm should he return. The Authority was not satisfied the applicant faces a real chance of harm on the basis of the time he spent in Australia or that he unsuccessfully sought asylum in Australia.

7. The Authority found the applicant failed to meet the criteria in the definition of refugee in s 5H(1) of the Act and did not meet the criteria under s 36(2)(a) of the Act.

8. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq, there was a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 6 March 2018. The Court made an order extending time under s 477 of the Act in relation to the bringing of these proceedings.

The grounds

1. The grounds in the amended application are as follows:

   Ground 1

   Jurisdictional Error - The Immigration Assessment Authority's decision ("IAA") dated 25 January 2018 ("IAA Decision") is affected by jurisdictional error in that the IAA failed to comply with Ministerial Direction Number 56 ("Direction 56") of 21 June 2013 under s 499 of the Migration Act 1958 Cth ("The Act"), considering irrelevant material.

   Particulars:

   1.1 Direction 56 states where the Department of Foreign Affairs and Trade ("DFAT") has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

   1.2 Annexed and marked "A" to the Affidavit of Leonard Jacob sworn on 22 May 2018 is a true copy of the "DFAT Country Information Report IRAQ" with publication date stated as "updated 26 June 2017" ("2017 Report").

   1.3 The Delegates Refusal Decision dated 15 December 2017 ("Delegates Decision") (CB 152) references and relies upon the authority of the 2017 Report under the heading "Previous homosexual acts and perception of being a homosexual” (CB 159), and also again under Part 6 of the Delegates decision (CB 160, CB 162, CB 163).

   1.4 The Delegate's Decision also references and relies upon "DFAT Country Report Iraq 13 February 2015" ("2015 Report") within Part 6 (CB 160, CB 161).

   1.5 The IAA Decision affirming the Delegate's Decision (CB 205) references and relies upon the authority of the 2017 Report (CB 210 at [19], CB 211 at [22] and CB 212 at [23]).

   1.6 The IAA Decision also references and relies upon the authority of the 2015 Report (CB 209 at [15]).

   1.7 Within the 2017 Report, under the heading "Purpose and Scope", Ministerial Direction 56 is specified (page 3 at [1.3], also that "This updated Country Information Report replaces the previous DFAT Country Information Report on Iraq published on 13 February 2015" (page 3 at [1.5]).

   1.8 Direction 56 does not preclude a decision maker from considering other relevant information about a Country.

   1.9 It is therefore respectfully submitted that the reference to, reliance upon and or use of the outdated 2015 Report caused a Jurisdictional error as no direction or discretion exists to do so. Furthermore, or in the alternative, Jurisdictional error was caused when both the 2015 Report and the 2017 Report were referenced and relied upon simultaneously and interchangeably when no such discretion or authority permits for, which causes a breach of S 473EA of The Act since no reason and no explanation is provided as to why both reports are utilised. In such a case, it is submitted the one would expect the IAA's reasons to disclose the evaluation process it underwent when considering both the 2015 Report and the 2017 Report simultaneously and interchangeably in circumstances where the 2017 Report is said to have replaced the 2015 Report.

   Ground 2

   Jurisdictional Error - Failure to consider claim; The IAA failed to have regard to information and evidence that was before the IAA in breach of s473DB of the Act. Consequently, the IAA failed to exercise its jurisdiction and thereby fell into Jurisdictional error. In addition, or in the alternative, the IAA failed to discharge its obligation that requires "A body such as the IAA, which is conducting an inquisitorial review process in which here is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which his nevertheless raised clearly or squarely on the material before that review body (Minister for Immigration and Border Protection v BB16 [2017] FCAFC 176 at [79]). Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error. In the alternative, to conclude that the applicant does not meet the requirements of the definition of refugee in s 5H(1) of did not meet the requirements in s36(2)(a) “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee” was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

   Particulars

   2.1 On 18 October 2017, the applicants representative provides a submission ("RACS submission") to the delegate containing information in support of the applicants claims for protection (CB 126).

   2.2 Within the RACS submission, "The Applicant as a returned failed asylum seeker from a Western Country" issue is raised (CB 136). The applicants representative submits that the "fact that the Applicant will be a failed asylum seeker from a western country, also heightens the perception that he [the applicant] is a western sympathiser and apostate of Islam" (CB 138).

   2.3 The delegate's decision addressed this issue "Harm due to being a failed asylum seeker and returnee from a Western Country" (CB 162), however errs and falls into jurisdictional error by not considering in full the applicants actual claims of being "a western sympathiser and apostate of Islam". That is, the delegate makes a finding that the applicant does not face a real chance of persecution for being a failed asylum seeker from a western country whilst not considering to address the applicant's "squarely" raised claims that the perception of being a "western sympathiser and apostate of Islam" increases should he be returned to Iraq as a failed asylum seeker from a western country (CB 138).

   2.4 The IAA falls into jurisdictional error as the IAA erroneously states that "Although not raised by the applicant, the delegate considered whether he [the applicant] would be harmed, should he return should he return to Iraq, on they basis that he sought asylum in a western Country (CB 212). However, the applicant did raise such a claim (CB 136)

   2.5 The IAA errs by not considering the applicants claims in full. That is the IAA does not consider or address the applicant's "squarely" raised claims that the perception of being a "western sympathiser and apostate of Islam” increases should he be returned to Iraq as a failed asylum seeker from a western country (CB 138). It is therefore submitted that in respect to the Complementary Protection Assessment (CB 212 at [24]), the jurisdictional error committed by the IAA (ie not considering the applicants claims) causes the IAA to fall into directional error again when concluding that the applicant does not face a real chance of harm, and supporting this conclusion without considering the applicants claims that being a failed asylum seeker actually heightens the perception that the Applicant is a Western Sympathiser and Apostate of Islam.

   Ground 3

   Jurisdictional Error: The IAA erred and fell into jurisdictional error when determining that exceptional circumstances (for the purposes of s 473DD of the Act) did not exist that would justify considering the new information that was proffered to IAA (CB 206 at [4]) being a "Declaration of Disowning and Disassociation" dated 18 June 2012.

   Particulars

   3.1 The IAA's determination "I am not satisfied that exceptional circumstances justify its consideration" (CB 206 at [4]) is based upon the IAA's finding that the applicant had not provided any explanation to the IAA as to how the applicant obtained the declaration, or the circumstances in which the applicant received it, or who he received it form, or how he was now able to receive it despite the family 's adverse sentient towards him (CB 206 at [4]).

   3.2 It is submitted that the IAA erred by not addressing matters that were relevant to the issue of "exceptional circumstances" and by simply reasoning that because no explanation was provided by applicant as to why this new information could not have been provided earlier, or the manner in which it was obtained, based on this, the IAA conclusion is a misconstruction and misapplication of s473DD.

   Ground 4

   Jurisdictional Error - The IAA decision is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicant does not face a real chance of significant harm or discrimination from the family or community for the purpose of s36(2)(aa) of the Act. Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error. In the alternative, to conclude that the applicant does not face a real chance of serious harm or discrimination from the family and the applicant does not face a real risk of significant harm or discrimination from the community, in all the circumstances, is otherwise unreasonable (Minster for Immigration and Citizenship v Li (2013) 249 CLR 332).

   Particulars

   4.1 The IAA "accepted that the applicant's homosexual activities prior to his departure from Iraq were known to his family (CB 211 at (21]).

   4.2 The IAA accepts that the applicant was married in 2009 and that his son was born on 5 January 2010, and that the applicant divorced in 2012, and that due to the applicant's homosexual activities being discovered by his family, this was the reason why the applicant left the family home in Karbala in March 2013 (CB 209 at (12]).

   4.3 However, the IAA does not consider the "Declaration of Disowning and Disassociation" dated 18 June 2012 (CB 206 at [4]) (The Declaration") stating that the applicant has not previously mentioned that he had been formally disowned from his tribe/clan.

   4.4 The IAA states a further concern about the Declaration is due to its date being 18 June 2012, citing in support that "The applicant has consistently claimed that he remained in the family home until March 2013, which would not equate to total disowning and dissociation by his father and clan as claimed nine months prior to this. I am not satisfied that this document is genuine" (CB 206 at [4]).

   4.5 However, the Applicant's states that during his marriage (2009 - 2012) since he continued to participate in homosexual activities, and that his wife heard about these activities, when confronted, they separated where the moves to Al Basrah shortly after leaving with an uncle who was much more sympathetic towards him (CB 73 at (16]).

   4.6 The IAA does not provide any reasons on why it doesn't not accept that the applicant's homosexual activities have ant any point become more widely known (CB 211 at (21].

   4.7 In these circumstances, the IAA erred by not turning their mind and hence failed to apply the requisite test by not asking itself the question "what if l am wrong", as required to do so.

   Ground 5

   It is submitted that the s473GB certificate (CB 146) is invalid because protecting an internal working document form disclosure is not a proper basis for such a certificate. Furthermore it is submitted that by acting upon an invalid certificate, the IAA constructively failed to carry out a review as required by s473DB of the Act.

Ground 1

1. In relation to ground 1, Mr Jacob, the solicitor for the applicant, took the Court to the Authority’s references in its reasons to the most recent DFAT country information report of 2017 and also to an earlier reference to the 2015 report. Mr Jacob drew attention to the content of the 2017 report identifying that there was updated country information replacing the previous report. It was on that basis that Mr Jacob submitted that the Authority had engaged in a jurisdictional error by taking into account the 2015 report that had been replaced by the 2017 report. Whilst Mr Jacob’s ground also referred to s 499 of the Act, Mr Jacob did not contest the proposition that that provision had no application to Part 7AA of the Act.

2. It is a matter for the Authority as to what country information it refers to. The fact that the Authority referred to the 2015 report rather than the updated 2017 report in the context of its reasons does not give rise to any jurisdictional error by the Authority nor is the reference to the 2015 country information irrational, unreasonable or otherwise capable of being said to give rise to any jurisdictional error. Mr Jacob submitted that the material in the 2015 report was irrelevant. The 2015 report was referred to in the context of the Authority referring to the applicant’s claimed conversion to Christianity and referring to review material which notes the reconsecration of an Assyrian catholic church in Baghdad that had been destroyed in 2010 which was attended by a number of leaders. There is nothing illogical, unreasonable or irrelevant in the Authority taking into account that country information in the context of the findings made the Authority. The adverse findings by the Authority in relation to the applicant’s claims in that regard cannot be said to be unreasonable and were derived from the material before the Authority for the reasons given by the Authority. No jurisdictional error alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Jacob submitted that the Authority had failed to take into account the whole of the applicant’s claim. The Authority referred to the submissions in respect of the applicant’s claimed fear of being a failed asylum seeker returning from a Western country to the heightened perception that the applicant is a Western sympathiser and apostate of Islam. The reference to the applicant being a Western sympathiser and apostate of Islam was by reference to the claim that the applicant was a failed asylum seeker from a Western country. The Authority clearly considered that claim and on a fair reading the Authority’s reasons reflect taking into account the submissions advanced before the delegate. There was no failure by the Authority to consider the whole of the applicant’s claim. The reference to the applicant being a Western sympathiser and apostate of Islam was not an independent and separate claim that required any express finding by the Authority.

2. Mr Jacob also submitted in relation to ground 2 that the reference by the Authority to the proposition that the applicant had not raised a claim to fear harm as an asylum seeker from a Western country was wrong. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons in that regard, on a fair reading, reflect the Authority referring to what was raised by the applicant rather than by the applicant’s migration representative in the submissions being advanced. I do not accept that there is any error in the Authority’s reasons in paragraph 23 in that regard. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Jacob submitted that the Authority had failed to properly apply s 473DD of the Act in considering the new information. Mr Jacob in that regard contended that the Authority had made a material factual error in the context of referring to the applicant having consistently claimed that he remained in the family home until March 2013. Mr Jacob referred to a statutory declaration and the breakup of the applicant with his wife and that he moved to Al-Basrah shortly after to live with an uncle. The statement referred to by Mr Jacob does not establish any error by the Tribunal in that regard. The applicant in his entry interview identified an address in which he stayed until April 2013, which was clearly not an Al-Basrah address and is consistent with the family home address given by the applicant in his protection visa application which he said he resided from in February 1993 until March 2013.

2. There was no factual error in the context of the Authority’s deliberations under s 473DD of the Act nor, in any event, could the alleged error in the present case be said to be material so as to give rise to a jurisdictional error in relation to the deliberation under s 473DD of the Act. The Authority’s reasons under s 473DD of the Act reflect a consideration of both limbs of s 473DD of the Act and the Authority expressly taking into account whether the new information comprises credible personal information, which was not previously known and may affect the consideration of the applicant’s claims.

3. The Authority’s reasons do refer to it not being satisfied the document is genuine, however I accept the first respondent’s submission that on a fair reading of the Authority’s reasons in paragraph 4 this reflects the preliminary assessment required under s 473DD of the Act. In that regard, whether a document appears genuine is clearly a relevant consideration for the assessment under s 473DD of the Act. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Jacob submitted that the new information gave rise to circumstances in which the Authority had failed to consider the applicant’s claims and that it was erroneous for the Authority to conclude that the applicant had not been formally disowned by his tribal clan. The applicant had not previously mentioned that he had been formally disowned by his tribal clan. In that regard, Mr Jacob referred to the substance of the new information. The new information is not material that could give rise a jurisdictional error in circumstances where the Authority found that there were not exceptional circumstances to justify considering the same. Mr Jacob properly acknowledged that his ground 4 was dependant on the “Declaration of Disowning and Disassociation” not being new information. The Authority was entitled to find this was new information that did not meet the requirement of exceptional circumstances.

2. Mr Jacob also submitted that the findings of the Authority in relation to the applicant’s activities not being more widely known was unreasonable. The Authority made findings rejecting the applicant’s claim in relation to the alleged telephone call and it was open in those circumstances where the Authority had made findings referable to the applicant’s past acts in Iraq and not now identifying as homosexual to make findings in relation to whether his past activity would be more widely known.

3. The adverse finding in that regard cannot be said to be irrational, illogical or unreasonable. Accordingly, it was open to the Authority to conclude that the applicant does not face a real chance of harm from his family, from members of the community or from militia groups due to his activities whilst in his teens. Nor were the Authority’s findings ones expressed by reference to doubt so as to require the application of a “what if I am wrong” test. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Jacob took the Court to the certificate at page 146 of the Court Books issued under s 473GB(5) of the Act and submitted that the certificate should be found to be invalid. No attempt was made to prove that the document the subject of the certificate was not properly the subject of certification identified under s 473GB of the Act. I am not satisfied that the certificate is invalid. Further, I accept the first respondent’s submission that the provisions of Part 7AA of the Act, and in particular s 473GB of the Act, are distinguishable from the analysis in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 or for reasons given in BBS16 v Ministerfor Immigration and Border Protection [2017] FCAFC 176 at [85]-[100].

2. There is no identified unfairness in the circumstances of the present case by reason of the existence of the certificate under s 473GB of the Act, nor any failure, on the face of the material before the Court, to conduct the review required under Part 7AA of the Act by reason of the existence of a certificate in the present case. No practical injustice has been established in relation to the applicant by reason of the existence of the certificate. Accordingly, no jurisdictional error as alleged in ground 5 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018