BBX18 v Minister for Home Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BBX18 v Minister for Home Affairs [2023] FedCFamC2G 495

File number: MLG 557 of 2018
Judgment of: JUDGE RILEY
Date of judgment: 15 June 2023
Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in considering that there were exceptional circumstances justifying the consideration of new material – whether the Authority’s decision was affected by a reasonable apprehension of bias -  whether the Authority failed to consider an integer of the applicant’s claim that emerged from the Authority’s own findings.
Legislation: Migration Act 1958 ss.473DB, 473DC, 473DD
Cases cited:

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152

Minister for Immigration and Border Protection v AMA16 (2017) FCR 534; [2017] FCAFC 136

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16

Webb & Hay v The Queen (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) ALJR 582; (1994) 73 A Crim R 258; [1994] HCA 30

Division: Division 2 General Federal Law
Number of paragraphs: 80
Date of hearing: 29 March 2023 
Place: Melbourne
Counsel for the Applicant: Andrew White
Solicitor for the Applicant: George Liberogiannis & Associates
Counsel for the First Respondent: Andrew Yuile
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: No appearance
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

MLG 557 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BBX18
Applicant
AND:

MINISTER FOR HOME AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

order made by:

judge riley

DATE OF ORDER:

15 June 2023

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application filed on 6 March 2018 and amended on 16 March 2023 be dismissed.

3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.

Note:   The form of the order is subject to the entry in the court’s records.

Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

  1. This is an application for review of a decision made by the…

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Details
Case
[2023] FedCFamC2G 495
Decision Date

CaseChat Overview and Summary

The matter before the Federal Court was an application for review of a decision by the Immigration Assessment Authority, which affirmed a decision of a delegate of the Minister for Home Affairs not to grant the applicant, a citizen of Iran, a Safe Haven Enterprise Visa (SHEV). The applicant, who had arrived in Australia by boat in 2012, had applied for the SHEV in 2016, citing fears of harm from Iranian authorities over intellectual property and conversion to Christianity. After a series of interviews and submissions, the delegate refused the application, a decision affirmed by the Authority. The applicant's subsequent application for judicial review was dismissed.

The central legal issue for the court was whether the Immigration Assessment Authority had correctly exercised its discretion in affirming the delegate’s decision, considering the statutory constraints under which the Authority operated. Specifically, the court examined whether the Authority properly adhered to the provisions of the Migration Act 1958, particularly sections 473DB, 473DC, and 473DD, which outline the Authority’s powers to review decisions and consider new information. The applicant argued that the Authority had erred in its assessment of the applicant's claims regarding intellectual property and religious persecution.

The Federal Court held that the Authority had correctly applied the statutory framework in making its decision. The court found that the Authority did not err in law by considering new information obtained from a Department of Foreign Affairs and Trade report, as the circumstances justified such consideration under section 473DD of the Migration Act. The court further determined that the Authority’s assessment of the applicant’s claims was reasonable and supported by the evidence presented. Consequently, the application for judicial review was dismissed with costs.

No further orders were made by the court beyond the dismissal of the application with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa.BACKGROUND In his written submissions filed on 16 March 2023, the applicant provided the following background to this matter:3The Applicant is a citizen of Iran. He arrived in Australia by boat on 24 November 2012.4The Applicant met and formed a relationship with an Australian woman in March 2014.5On 23 February 2016, the Applicant applied for the SHEV. In summary, the Applicant claimed to fear harm from Iranian authorities in the form of violent extortion concerning valuable intellectual property the Applicant owned in respect of an invention.6On 27 September 2016, the Applicant attended a protection interview before a delegate of the Minister. At the protection interview, the Applicant also explained that he had converted to Christianity and feared that he would be harmed for his religious beliefs if returned to Iran.7On 10 October 2016, the Applicant’s representative provided a short email submission attaching support letters from members of the community addressed to the Applicant’s conversion to Christianity.8On 11 January 2017, the delegate wrote to the Applicant seeking the Applicant’s response to the assertion that the Applicant’s relationship with an Australian woman while still married to his Iranian wife was in “direct contradiction to the teachings of the church”.9The Applicant responded to the delegate’s letter by statutory declaration dated 7 March 2017.10On 5 April 2017, an Australian solicitor wrote to the delegate on behalf of an anonymous third party attaching copies of ‘submissions’ that had been made to the Department of Immigration and Border Protection, Centrelink, the Foreign Investment Review Board and the Australian Tax Office. The submissions concerned the Applicant’s financial position and property holdings which were alleged to contravene Australian laws, and also contained broader allegations that the Applicant had engaged in deceptive and fraudulent behaviour to obtain property from his Australian partner. 11 On 6 April 2017, the delegate wrote to the Applicant seeking his response to a summary of the adverse information received from the anonymous third party.12 On 12 April 2017, the Australian solicitor wrote to the delegate again making further allegations that the Applicant had contravened Australian law, including by failing to dispose of land in accordance with an order of the Assistant Commissioner of Taxation.13 On 20 April 2017, the Applicant’s representative responded to the delegate’s letter. That response included a letter from the Applicant’s partner’s solicitor who confirmed his instructions to make a gift of property to the Applicant “because he took good care of her” and a letter from the Applicant’s partner’s GP dated 6 April 2017.14 On 26 April 2017, the delegate refused to grant the Applicant the SHEV. In broad summary, the delegate accepted that the Applicant had had a disagreement with Iranian authorities over his invention but did not accept that the Applicant would be at risk of persecution over the invention. The delegate also did not accept that the Applicant had genuinely converted and found that he would not practice Christianity if returned to Iran.15 On 1 May 2017, the Applicant’s application was referred to the Authority for review.16 On 22 May 2017, the Applicant provided a further written submission to the Authority.17 On 1 February 2018, the Authority affirmed the delegate’s decision to not grant the SHEV. In broad summary, the Authority was not satisfied that the Applicant’s dealings with the Iranian authorities led to them having any adverse interest in him. The Authority accepted that the Applicant’s engagement with Christian communities in Australia was for a genuine purpose, but did not find the Applicant’s evidence to be indicative of a genuine belief in or commitment to the practice of Christianity and did not accept that the Applicant would identify as a Christian or practice Christianity if returned to Iran.(footnotes omitted)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground is not made out.CONCLUSION As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Section 473DB of the MigrationAct1958 (“the Act”) provided as follows:473DB Immigration Assessment Authority to review decisions on the papers(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:(a) without accepting or requesting new information; and (b) without interviewing the referred applicant.(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)). Section 473DC of the Act provided as follows:473DC Getting new information (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:(a)were not before the Minister when the Minister made the decision under section 65; and (b)the Authority considers may be relevant.(2)The Immigration Assessment Authority 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.(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:(a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. Section 473DD of the Act provided as follows: 473DD Considering new information in exceptional circumstancesFor the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. The Authority said at paragraph 4 of its reasons for decision that: I have obtained new information from a report of the Department of Foreign Affairs and Trade (DFAT).1 The information is about classes of persons of which the applicant is a member (asylum seekers returning to Iran and Muslims who have left Islam) and is relevant to determining claims which arise on the material before me but were not considered by the delegate. I am satisfied there are exceptional circumstances to justify considering the information.FN 1:Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report Iran", 21 April 2016, CIS38A8012677.