BBS16 v Minister for Immigration & Anor
[2017] FCCA 4
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBS16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 4 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority (IAA) decision – refusal of a protection visa – applicant claiming a fear of harm in Iran because of his religion and ethnicity – IAA excluding from consideration a claim of political activity – whether the IAA misapplied the real chance test or acted upon an invalid Ministerial certificate considered – certificate was invalidly issued – legal consequences considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 65, 348, 349, 357A, 359A, 414, 415, 422B, 424A, 424AA, 438, 4763BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473FA, 473FB, 473FC, 473GA, 473GB, 473GC, 473GD, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 Minister for Immigration v Singh [2016] FCAFC 183 MZAFZ v Minister for Immigration [2016] FCA 1081 SZTFI v Minister for Immigration (2015) 231 FCR 222 |
| Applicant: | BBS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1139 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 11 April 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine the referred review before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1139 of 2016
| BBS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks protection because of a fear of harm in Iran as a Sabean Mandean from Ahwaz in Iran. The Minister’s delegate (delegate) refused a protection visa on the basis that the applicant was not active in his religion. In consequence of that refusal, the application was referred to the Immigration Assessment Authority (IAA) which affirmed the delegate’s decision on 11 April 2016. The applicant now seeks judicial review of that decision.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran. He arrived in Australia by boat on 17 October 2012 and was interviewed upon arrival[1]. He applied for a protection visa on 13 August 2015[2]. He claimed to fear persecution in Iran on the basis that he is a member of the Sabean Mandean community and because he is an Arab[3]. On 17 February 2016, the delegate refused the application[4].
[1] Court Book (CB) 237 - 251
[2] CB 7
[3] CB 37 – 39
[4] CB 95 - 120
The applicant’s case was referred to the IAA and material was provided to the IAA. Amongst the material provided to the IAA was a certificate purportedly made pursuant to s.473GB(5) of the Migration Act 1958 (Cth) (Migration Act)[5]. The applicant’s representative provided submissions and evidence to the IAA[6]. On 11 April 2016, the IAA affirmed the delegate’s decision[7].
[5] CB 125
[6] CB 310 – 361
[7] The decision record is at CB 365 – 379
The IAA’s reasons
The IAA accepted that the applicant was of the Sabean Mandean faith[8]. The IAA accepted that Sabean Mandeans “face harassment by authorities” which is “intensifying”[9]. It accepted that Sabean Mandeans face discriminatory treatment and that the acts of discrimination are not trivial[10]. The IAA was not satisfied, however, that the discrimination would involve serious harm[11].
[8] at [24]
[9] [27]
[10] [28]
[11] [30]
The IAA also accepted that the applicant will be associated with the Arab community by Iranian authorities and society at large[12]. It accepted that there is a “high level of societal discrimination against Arabs” and that the applicant would face this discrimination[13]. The IAA found that the risk of violence would “increase dramatically” for Arabs who attempt to publically assert cultural or political rights[14].
[12] [31]
[13] [32], [34]
[14] [32]
The IAA said, however, that it was “not satisfied” that the applicant would become politically active on return to Iran because “he does not practise his religion often”[15]. It found that the “high level” of discrimination that he would face did not amount to serious harm[16].
[15] [36]
[16] [36]
The IAA accepted at [24][17] that the applicant belonged to the Sabean Mandean faith but that he “does not practise regularly.” It made the same point at [29][18] and found that, having practised and participated in religious activity in Iran when he chose to do so, the applicant would not be prevented from practising and participating in a similar manner in the future.
[17] CB 371
[18] CB 373
At [30][19] the IAA was not satisfied that “the acts of discrimination” amounted to serious harm “in his particular circumstances”. It observed also at [30][20] that the applicant had “demonstrated the capacity to subsist and earn a livelihood in the past”, that there was “no evidence … to indicate that he [could not] continue to be self-employed or work in the private sector in the future”, and that there was no country information “to indicate that the discrimination or harassment extend[ed] to any harm causing physical mistreatment”.
[19] CB 373
[20] CB 373
At [32][21], the IAA referred to a report published by the Department of Foreign Affairs and Trade (DFAT) on 29 November 2013 which stated that “there is a high level of societal discrimination against Arabs [which can] lead to unfair day-to-day treatment”. However, the IAA also observed that the same report “assessed that Arab Iranians do not come to the attention of the authorities” and “are subject to only low levels of adverse attention by the state”. The IAA observed that such attention “increases dramatically for Arabs who attempt to publically [sic] assert cultural or political rights”—a category into which the applicant did not fall.
[21] CB 374
The IAA went on at [34][22] to observe that the discrimination described in the DFAT report “focused on unfair day-to-day treatment and limitations on access [to] employment, housing and services”, whereas the applicant “continue[d] to have access to housing as his immediate and extended family continue[d] to reside in Ahwaz” and “demonstrated his ability to obtain employment both in Iran and Australia”. It was in that context that the IAA was “not satisfied the discriminatory treatment the applicant may face on return amounts to serious harm”.
[22] CB 374
In a report published by the Home Office of the United Kingdom (UK Home Office) on 16 January 2013, it was said that “Arabs face discrimination and harassment from the authorities”, but that all such instances “involved Arabs being harmed as a result of their participation in various political protests”[23]. The applicant, however, did not claim that he “participated in any political protests in the past”. There being no evidence to suggest otherwise, the IAA found that the applicant “d[id] not have a profile which would be of interest to the Iranian authorities and attract their adverse attention which would lead to a real chance of him facing serious harm on account of him being, or perceived as being, an Arab”[24].
[23] CB 374 [35]
[24] CB 374-375 [35]
Having found that the applicant did not have such a profile by reason of his association with the Arab community, the IAA was not satisfied that the applicant “will become politically active on return to Iran” or that the discriminatory treatment that he may face by reason of such association constitutes serious harm[25].
[25] CB 375 [36]
The IAA concluded at [37][26] that it was not satisfied that the applicant “will face a real chance of serious harm on return to Iran as a Sabean Mandean and/or Arab.”
[26] at CB 375
The present proceedings
These proceedings began with a judicial review application filed on 9 May 2016. The applicant now relies upon an amended application presented in court by leave on 14 November 2016[27]. There are two grounds in that application:
[27] subject to being filed electronically
1. The Immigration Assessment Authority (‘IAA’) made an error of law in that it misapplied the real chance test in s.5(j)(1)(b) of the Migration Act 1958 (Act) and failed to properly reach the requisite level of “satisfaction” required by s.36 of the Act.
Particulars
a. The applicant claimed to fear persecution in Iran because he was a Mandean Arab from Ahwazi.
b. The IAA accepted that the applicant was Mandean and would be associated with the Arab community: [24]-[31].
c. The IAA found that, as a result, the applicant would face a high level of societal discrimination in Iran: [28]-[34].
d. The IAA found that Ahwazi Arabs who had participated in demonstrations over Ahwazi minority grievances had been killed by Iranian authorities: [33].
e. The IAA was ‘not satisfied’ that the applicant would become politically active on return to Iran: [26].
f. The real chance test obliged the IAA to consider the possibility that it was wrongly unsatisfied that the applicant would not become politically active in the future. In particular, the real chance test required the IAA to consider the likelihood that the applicant would in the future protest against the discrimination that the IAA found he would actually face and the possibility that the applicant would not protest out of fear of the violence that would result.
g. Further, the IAA failed to consider the forward-looking nature of the real chance test, in that it did not consider the consequences of its finding at [27] that discrimination against Sabean Mandeans was intensifying.
h. Further, the IAA failed to form the requisite satisfaction under s.36 because it could not rationally rely upon the applicant’s religious observance to conclude that he would not in future protests against ethnic discrimination.
2. The IAA acted upon a certificate invalidly issued under s.473GB of the Act, or alternatively denied the applicant procedural fairness.
Particulars
Certificate dated 18 February 2016 at Court Book page 125.
The Minister sought costs thrown away by reason of the permitted amendments but I declined to make an interlocutory costs order, principally on the basis that no grounds were abandoned and, while the Minister might hypothetically be put to additional expense in dealing with the amended application, that could be addressed at the end of the proceedings.
I have before me as evidence the court book filed on 29 June 2016.
Both the applicant and the Minister prepared helpful pre-hearing submissions and made extensive oral submissions at the trial of the matter on 14 November 2016.
Consideration
Judicial review of IAA decisions
I accept the Minister’s submissions concerning the Court’s jurisdiction and the statutory framework within which the IAA operates.
Jurisdiction
As with decisions of the Administrative Appeals Tribunal (Tribunal) made pursuant to ss.349(2) and 415(2) of the Migration Act, this Court has jurisdiction under s.476 to entertain reviews of decisions of the IAA made pursuant to s.473CC(2), being migration decisions as defined in s.5(1).
Statutory framework
Before considering the applicant’s two grounds of review, it is convenient to set out some of the key features of the statutory framework.
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[28]. It is not in dispute that the applicant was a fast track review applicant.
[28] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA (ss.473JA-473JF) establishes the IAA, the body conducting reviews of fast track reviewable decisions.
Division 2 of Part 7AA (ss.473CA-473CC) sets out the procedure for referring reviewable decisions to the IAA.
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s.473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
Once the Minister has referred a fast track reviewable decision to the IAA, s.473CB requires the Secretary of the Department (Secretary) to give to the IAA certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the IAA to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the IAA may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth) (Regulations).
Division 3 of Part 7AA (ss.473DA-473DF) deals with the manner in which reviews are to be conducted by the IAA.
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and apparently operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA[29].
[29] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron
Subsection 473DA(2) provides that, “[t]o avoid doubt, nothing in … Part [7AA] requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
While it is clear that the IAA is obliged, by s.473CC, to “review” the delegate’s decision under s.65, the powers conferred on the IAA to conduct this review are more limited than those powers conferred on the AAT by ss.348 and 414. Subsection 473DB(1) compels the IAA, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
However, s.473DC(1) permits the IAA, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the [IAA] considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing that the IAA “does not have a duty to get, request or accept any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
However, new information can only be considered by the IAA if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:
a)the IAA is satisfied that there are exceptional circumstances to justify considering that information; and
b)the referred applicant satisfies the IAA that, in relation to any new information given, or proposed to be given, to the IAA by him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Subsection 473DE(1) imposes certain disclosure obligations on the IAA with respect to this new information.
Division 5 of Part 7AA (ss.473FA-473FC) contains provisions relating to the exercise of powers and functions by, relevantly, the IAA. It suffices only to note s.473FA(1), which provides that the IAA, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces Parliament’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the IAA is not bound by technicalities, legal forms or rules of evidence.
Division 6 of Part 7AA (ss.473GA-473GD) deals with the disclosure of certain information. Section 473GB, which pertains to Ground 2 and is in similar terms to s.438, relevantly provides:
Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed …
…
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so …, disclose any matter contained in the document, or the information, to the referred applicant.
…
(5) The Minister may issue a written certificate for the purposes of subsection (1).
Grounds of review
Ground 1 – did the IAA misapply the “real chance test” and fail to properly reach the requisite level of satisfaction required?
Applicant’s contentions
The IAA was obliged to consider whether there was a “real chance” that the applicant would be persecuted if returned to Iran[30].
[30] Section 5J(1)(b)
The “real chance” test is not as onerous as the balance of probabilities. What is required is a reasonable chance, as distinct from a remote chance[31]. A 10 per cent chance is a real risk[32].
[31] Chan v Minister for Immigration (1989) 169 CLR 379 at 389, 408
[32] at 429 per McHugh J
Further, where a decision-maker is not satisfied of a factual matter, the decision-maker may be required to consider the risk of persecution on the possibility that its finding was wrong. In Minister for Immigration v Rajalingam[33] (Rajalingam) Sackville J said at 240 [62], (North J agreeing):
[I]t is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.
[33] (1999) 93 FCR 220
If, however, the decision-maker is in no real doubt about the factual question, then it does not have to consider the possibility that it is wrong[34].
[34] Dhiman v Minister for Immigration [2000] FCA 221 at [12]
In the present case, the applicant submits that the IAA ought to have considered the possibility that it was wrongly unsatisfied that the applicant would not become politically active upon his return. It was not enough to reason from the absence of evidence of political activity in the past. The IAA’s reasons do not suggest that it considered the matter beyond doubt – rather, its non-satisfaction flowed from an absence of evidence and from the applicant’s level of religious observance at [36].
The IAA needed to consider whether there was a risk that a young man who (as the IAA found) would be subject to intensifying official harassment and a high level of societal discrimination might become politically active in the future, and what were the consequences should that happen.
Secondly, in considering the future risk to the applicant, the IAA appears to have given no consideration to the consequences of the “intensifying” harassment, and whether there was a real chance that this harassment might become “serious harm” at some point in the future. That is a further misapplication of the real chance test, which is a forward-looking test.
Thirdly, the IAA’s reason for its non-satisfaction that the applicant would not be “politically active on return was based on the fact that the applicant “does not practise his religion often”[35]. This reason has no bearing whether the applicant might become politically active in response to ethnicity-based discrimination, as distinct from religion. To the extent that the IAA relied upon the regularity of the applicant’s religious practice to find that he would not fight discrimination on ethnic grounds, the IAA relied upon an irrelevant or irrational consideration. That would be a jurisdictional error because the IAA would not have reasonably formed the requisite “satisfaction” required by s.36 of the Migration Act[36].
[35] [36]
[36] Wei v Minister for Immigration [2015] HCA 51 at [33]
Finally, the IAA did not consider why the applicant might not become politically active. If a person faces a “high level” of discrimination from officials and wider society by reason of their ethnicity and religion, then they might ordinarily be expected to assert political rights to address that discrimination, or to consider doing so. In Iran, however, as the IAA found, any Arab who asserted rights in this manner would face a “dramatically increased” risk of violence. An issue squarely arises whether the reason that the applicant would not become politically active is as a result of fear of such violence. To consider the real chance test properly, the IAA was obliged to consider whether the applicant would not be politically active because he feared the harm that would follow[37].
Minister’s contentions
[37] See S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [43]; SZTFI v Minister for Immigration (2015) 231 FCR 222 at [67]–[78], [81]–[82]
The Minister submits that the IAA correctly stated[38], understood and applied the real chance test to the applicant’s circumstances. The IAA found at [35][39] that the applicant was not a person who had “a profile which would be of interest to the Iranian authorities and attract their adverse attention which would lead to a real chance of him facing serious harm on account of him being, or perceived as being, an Arab” based on a combination of:
a)its assessment, at [32]-[35][40], of the DFAT and UK Home Office reports;
b)its findings at [34][41] as to the applicant’s ability to obtain employment in Iran and Australia and the fact that the discriminatory treatment to which he may be subjected in Iran does not amount to serious harm; and
c)the absence of any evidence to suggest that the applicant has participated in political protests in the past. It made similar findings at [51][42]. This was not a case to which the so-called “what if I am wrong” principle applied, contrary to [11]-[13] of the applicant’s submissions. There was no lingering doubt as to whether the applicant had participated in political protests[43]; the IAA simply had no evidence before it in which the applicant claimed to have engaged in such activities. On the basis of its findings and observations at [32]-[35][44], the IAA stated that it was not satisfied that the applicant would face a “real chance of serious harm on return to Iran as a[n] … Arab”[45].
[38] at CB 369-370 [14]-[15]
[39] CB 374-375
[40] CB 374
[41] CB 374
[42] CB 378
[43] Contrast Minister for Immigration v Rajalingam (1999) 93 FCR 220
[44] CB 374-375
[45] CB 375 [37]
Contrary to the applicant’s submissions, the IAA’s non-satisfaction that the applicant had a profile sufficient to attract the adverse attention of the Iranian authorities[46] did not flow from the applicant’s level of religious observance. The IAA’s reasons at [36][47] comprise a separate and independent basis for its ultimate conclusion at [37][48]. The IAA opened [36] by stating:
I have also taken into consideration whether the applicant’s treatment on return will be greater considering both his religion and association to the Arab community, or will amount to serious harm when considered cumulatively. [emphasis added]
[46] recorded at CB 374-375 [35]
[47] CB 375
[48] CB 375
Its findings, also at [36], that the applicant “does not have a profile which would attract the adverse attention of the authorities” and that he will not become “politically active on return to Iran” had already been made at [35][49]. The IAA considered the applicant’s claims cumulatively at [36][50] for the applicant’s benefit, yet found that he still could not meet the threshold in s.5J of the Migration Act.
[49] CB 374-375
[50] CB 375
The applicant’s description of the IAA’s assessment of the DFAT and UK Home Office reports is not accurate. The IAA did not find that the applicant would be subjected to “intensifying official harassment”[51], “a high level of societal discrimination”[52] or a “dramatically increased risk of violence”[53] by reason of his association with the Iranian Arab community. Only those who “attempt to publically [sic] assert cultural or political rights”, “participat[e] in various political protests” or participate in “demonstrations over the Ahwazi minority’s grievances” were said, in the two reports referred to above, to be at risk of harassment or violence. Further, only those who could not access employment, housing and services were said, in these reports, to face a high level of societal discrimination. The applicant, however, was found not to be such a person. Once that is accepted, the substance of the applicant’s submissions on this issue falls away.
[51] CB 372 [27]
[52] CB 374 [32], [34]
[53] CB 374 [32]
Ground 2 - what is the legal consequence of the IAA acting upon an invalid certificate?
In this ground, the applicant contends that the IAA made a jurisdictional error by “act[ing] upon a certificate invalidly issued under s 473GB” or “den[ying] [him] procedural fairness”.
It is not in contest that the certificate is invalid. What is in contest is the legal consequences of that invalidity.
Applicant’s contentions
The applicant makes three points by reference to the judgment of Beach J in MZAFZ v Minister for Immigration[54]:
a)the certificate at CB 125 “was invalidly issued”;
b)the Court “can infer that the IAA acted on the certificate and so was led into jurisdictional error”.
[54] [2016] FCA 1081
The Court “can infer that the existence of the certificate was not drawn to the applicant’s attention but the IAA did have regard to the material the subject of the certificate as it stated it did at [5]. The IAA therefore denied the applicant procedural fairness”.
The issue of the certificate at CB 125 is justified on the basis that it “is an internal working document of the department”. That is presumably the basis upon which the “public interest” required by s.473GB(1)(a) was asserted. As MZAFZ makes clear at [37], the certificate was invalidly issued. The Court can infer that the IAA acted on the certificate and so was led into jurisdictional error[55].
[55] MZAZF at [40] – [44]
Alternatively, the Court can infer that the existence of the certificate was not drawn to the applicant’s attention but the IAA did have regard to the material the subject of the certificate as it stated it did at [5]. The IAA therefore denied the applicant procedural fairness[56].
Minister’s contentions
[56] MZAZF at [50]
At the outset, the Minister’s submissions noted that the correctness of MZAFZ was to be considered by a Full Court of the Federal Court (Kenny, Perram and Mortimer JJ) in Minister for Immigration v Singh (Singh)[57]. The Minister’s appeal in that case was heard on 17 November 2016. Judgment was delivered on 19 December 2016[58]. The Minister formally submits in the present case that MZAFZ was wrongly decided. That submission can now be put to one side, given the express approval of Beach J’s reasoning in MZAFZ in Singh at [39] and [40].
[57] An appeal from Singh v Minister for Immigration [2016] FCCA 2464
[58] Minister for Immigration v Singh [2016] FCAFC 183
The Minister submits that, in any event, the applicant’s submissions should be rejected for the following reasons.
First, MZAFZ has no application to reviews conducted by the IAA under Part 7AA of the Migration Act. The applicant’s submissions do not engage with the provisions contained in Part 7AA; they merely assert that the principles articulated in MZAFZ apply by analogy to reviews conducted by the IAA. The difficulty with that approach is that the provisions in Part 7AA are not analogous to those in Part 7.
Most importantly, s.473DA(1) provides that Division 3 of Part 7AA and ss.473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. Section 473DA is expressed in wider terms than s.422B(2), which, at least on Beach J’s reasoning, does not “cover off or exclude” the procedural fairness obligations listed at [50] and [60] of his judgment. While the Minister could not at the time of the trial of this matter concede that this aspect of Beach J’s reasoning about s.422B(2) is correct, the Minister also submits that this reasoning is untenable in the context of s.473DA.
Further, Part 7AA contains no provision analogous to s.424A. Section 473DE(1) only compels the IAA to “give to the referred applicant particulars of any new information”, if that information “has been, or is to be, considered by the [IAA] under section 473DD” and “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”. The information covered by the certificate issued under s.473GB(1), however, is not “new information” as defined in s.473DC(1).
Nor is there any provision in Part 7AA analogous to s.424AA. By force of ss.473DA(1) and 473DB(1), the IAA is required to conduct reviews of fast track reviewable decisions on the papers without conducting an interview.
Secondly, unlike MZAFZ, there is no basis for the Court drawing an inference, even from [5][59], that the IAA acted upon the certificate or the information covered by it.
[59] CB 366
Thirdly, even if the IAA did act upon the certificate or the document covered by it, and even if the certificate were invalid, the IAA neither followed a procedure contrary to law nor denied the applicant procedural fairness. That is so not only for the reasons given at [62]-[65] above, but also because, by reason of s.473DA(2), nothing in Part 7AA “requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65”, the document covered by the certificate comprising a part of such material. In the face of ss.473DA(1), (2), 473DB(1), 473DC(1)(a) and 473DE(1)(a), it cannot be said that, by acting upon an invalid certificate, the IAA made a decision “outside the limits of the functions and powers conferred on [it]” or did something “which [it] lack[ed] power to do” (that is, fall into jurisdictional error)[60].
[60] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J
If, despite these submissions, and despite the applicant’s failure to explain how MZAFZ applies to reviews conducted by the IAA, the Court were minded to hold that the IAA followed a procedure contrary to law and/or denied the applicant procedural fairness, the Minister requested that he be given sufficient notice in order that he may have the opportunity to make an application claiming public interest immunity over the document the subject of the certificate and/or submit that the information covered by the certificate is “non-disclosable information” (as defined in s.5(1)) for the purposes of s.473DE(3)(b). In that way, the Minister would seek to refute any suggestion that the IAA failed to comply with a duty under s.473DE(1) and/or failed unreasonably to exercise a discretion under s.473GB(3)(b), thereby falling into jurisdictional error. In view of my findings below, that was unnecessary.
Resolution
Ground 1
In its decision the IAA noted that the applicant had submitted “new information” concerning his political activities. The IAA refused to consider that new information. The applicant does not challenge that decision. In the circumstances, in my opinion, it would be an error to expect the IAA to “look over its shoulder” at the possible implications of the excluded information. It was made plain by the IAA that the main risk to the applicant would come from his becoming politically active. The IAA excluded from consideration new information that the applicant had been politically active. In assessing this ground care must be taken to distinguish between the information that the IAA had to consider and the information that was excluded from consideration. This situation is neither easy nor desirable. The excluded information, if accepted and believed, may well have changed the outcome for the applicant. Further, if the excluded information had been accepted and considered, this ground would not have arisen.
The IAA dealt with the country information at [32]-[34] of its decision[61]:
DFAT has reported that Iranian Arabs live predominantly in the southern provinces of Khuzestan, Bushehr and Hormozgan and account for approximately half a million people. Treatment of Arabs by the state is usually consistent with that of other ethnic minorities but can be unpredictable.[62] DFAT further reports that there is a high level of societal discrimination against Arabs. This can lead to unfair day-to-day treatment, such as in employment and access to housing and services. DFAT considers that such discrimination is usually a result of patronage, nepotism and favouritism, reflecting social attitudes rather than official or state directed policies. Such discrimination against Arabs is rarely coupled with community-level violence. In the same report, DFAT assessed that Arab Iranians do not come to the attention of the authorities or are subject to only low levels of adverse attention by the state. This risk increases dramatically for Arabs who attempt to publically assert cultural or political rights.[63]
The UK Home Office reports that Ahwazi Arabs are marginalized and subject to discrimination in access to education, employment, adequate housing and political participation.[64] The same report outlined a number of unrests in Khuzestan leading to the death of many Arabs, as well detailing a number of executions of Arabs. Ahwazi Arabs have also been killed by security forces during demonstrations over the Ahwazi minority’s grievances over state discrimination and denial of economic and cultural rights.[65]
I note DFAT reports a high level of societal discrimination, however this country information country information describes the discrimination as being focused on unfair day-to-day treatment and limitations on access employment, housing and services. The applicant continues to have access to housing as his immediate and extended family continue to reside in Ahwaz. The applicant has also demonstrated his ability to obtain employment both in Iran and Australia and there is not a real chance that he will be denied gaining employment in the private sector and/or being self-employed as he has done so in the past. I am not satisfied the discriminatory treatment the applicant may face on return amounts to serious harm.
(errors in original; emphasis added)
[61] CB 374
[62] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report: Iran’, 29 November 2013, CIS26780 3.9
[63] Ibid. 3.11
[64] United Kingdom (UK) Home Office, "Iran January 2013", 16 January 2013, 3863 20.28
[65] Ibid. 20.29-20.31
The IAA reached the following conclusions in relation to the applicant’s claim at [35]-[37] of its reasons[66]:
I note that the country information indicates that Arabs face discrimination and harassment from the authorities, however of all the examples provided in the UK Home Office report, they all involved Arabs being harmed as a result of their participation in various political protests. I note the applicant raised a claim in his submission to the IAA to state that he has participated in political activities in Iran and Australia, however for the reasons provided earlier, I have not taken this claim into consideration. On the evidence which I have taken into consideration, the applicant has not otherwise claimed that he has participated in any political protests in the past and I find the applicant does not have a profile which would be of interest to the Iranian authorities and attract their adverse attention which would lead to a real chance of him facing serious harm on account of him being, or perceived as being, an Arab.
I have also taken into consideration whether the applicant’s treatment on return will be greater considering both his religion and association to the Arab community, or will amount to serious harm when considered cumulatively. The country information does not indicate Sabeans from Ahwaz who are associated with the Arab community face a level of discrimination or harm beyond that faced by Sabeans generally. The applicant does not have a profile which would attract the adverse attention of the authorities, apart from his illegal departure from Iran, which is considered below. I am not satisfied the applicant will become politically active on return to Iran and based on his own evidence, he does not practise his religion often, even in Australia where he has the liberty to do so. I am not satisfied that the harm which I have found the applicant will face on account of his religion and association with the Arab community amounts to serious harm, either alone or cumulatively.
Having regard to the country information and the applicant’s circumstances, I am not satisfied he will face a real chance of serious harm on return to Iran as a Sabean Mandean and/or Arab.
[66] CB 374-375
The IAA dealt with the applicant’s claim in respect of the complementary protection criterion at [51] of its reasons[67]:
I have found that the applicant will face harassment and discriminatory treatment upon return to Iran on account of belonging to the Sabean Mandaean faith and as being associated with the Arab community. For the following reasons, I find this treatment does not amount to significant harm. Country information indicates that those from a religious or ethnic minority group are subject to discrimination in access to education, employment, adequate housing, political participation and cultural rights.[68] In addition, the applicant being Sabean has limitations in respect to his religious freedom and I have noted one source of country information which indicates he will have limited access medical services. I find access to school education does not impact the applicant as he is already past the age of attending school, but he will be denied access to higher education if sought to access this. I also note the applicant will be limited in his employment opportunities and I have accepted his business has been robbed in the past. I find he will have access to employment in the private sector or be self employed, but that he will be denied access to government jobs. There is limited information available in respect to the limitations placed on Sabeans accessing medical treatment, however given that the information refers to limitations rather than denial of treatment, I find that he will not be denied access to all medical services. The applicant will also have housing upon returning to his hometown of Ahwaz as his family continue to live there. I note the applicant has raised a claim to the IAA that he has participated in political activities in Iran and Australia, however for the reasons outlined above, I have not considered this. On the evidence before me, I find the applicant is not a member of any political party and only practises his religion rarely. I am not satisfied the applicant will increase his religious activity or raise his political profile in the reasonably foreseeable future. In taking into consideration the treatment the applicant will face, I find the country information before me does not indicate he will be arbitrarily deprived of his life or have the death penalty carried out on him. There is also no evidence that he will be subject to torture. I accept that the applicant will face a disadvantage and potentially humiliation as a result of this treatment. However, in taking into consideration these acts and omissions both individually and in their totality, in the applicant’s particular circumstances I am not satisfied it rises to the level that meets the relevant threshold for cruel and inhuman treatment or punishment or degrading treatment or punishment as defined in ss.36(2A)(d)-(e) and 5(1) of the Act.
[67] CB 377-378
[68] UK Home Office, "Iran January 2013", 16 January 2013, 3863 20.29
In essence, the IAA reasoned that the applicant did not face a real chance of serious harm or a real risk of significant harm on return to Iran by reason of his religion and ethnicity unless he publicly asserted cultural and political rights. The IAA declined to take into account new information that the applicant had done so in the past and reasoned that the applicant would not do so in the future.
I do not agree with the applicant’s submission that the IAA’s assessment of past asserted harm, and its speculation about the risk of future harm, imported an obligation to consider what the risk would be if the IAA was wrong on its finding concerning an absence of past political activity. As I have noted above, there is no obligation on the IAA to consider by this route new claims that it has lawfully excluded from consideration in accordance with the Migration Act. I cannot discern any expression of doubt by the IAA in its reasons that would trigger an obligation to consider what the position would be if it had been wrong.
Nevertheless, I accept that the IAA fell into error, in particular in considering the applicant’s claim to complementary protection. The IAA appeared to accept the country information from DFAT and the UK Home Office that Arabs were subject to significant harm if they asserted political, economic and cultural rights. The IAA’s finding that the applicant had not and would not publicly agitate in support of such rights was not a complete answer to the applicant’s claim to complementary protection. The IAA needed to consider whether the denial of such rights by the Iranian state involved a relevant breach of the International Covenant on Civil and Political Rights (ICCPR) such that the mere act of asserting those rights would expose a person to a real risk of significant harm. This, in my opinion, necessarily involved a dual consideration of, first, whether there was a relevant denial of rights under the ICCPR and, secondly, whether the applicant’s non exercise of those rights was a consequence of that denial, and because of the risk of harm resulting from an attempted exercise of them.
I find that the first ground has been established.
Ground 2
It is not strictly necessary to deal with the second ground, and I only deal with it for completeness, and in case I am wrong in relation to the first ground. As I have noted before, the Full Federal Court handed down its decision in Singh on 19 December 2016. The Full Federal Court found that the Tribunal in that case was obliged by s.359A of the Migration Act to disclose particulars of a certificate issued under s.375A of the Migration Act.
The Full Court noted at [53] that the requirements of procedural fairness vary with the circumstances. At [54] the Full Court stated that in some cases the circumstances might warrant non disclosure of the certificate, although the fact of the existence of the certificate might need to be disclosed.
In any event, the present case can be distinguished from MZAFZ and Singh on the basis of the significantly different statutory regime in which the IAA operates. In particular, I accept the Minister’s submission that the principle set out in MZAFZ is inapplicable in the context of s.473DA of the Migration Act and the much more limited obligation of disclosure under s.473DE(1).
I note that Judge Jarrett reached a similar view prior to the Full Court judgment in Singh in BVM16 v Minister for Immigration & Anor[69]. I note also that his Honour was the judge at first instance in Singh.
[69] [2016] FCCA 3183
I reject Ground 2.
Conclusion
The applicant has established that the decision of the IAA is affected by jurisdictional error. He should therefore receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 1 February 2017
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