BCH17 v Minister for Home Affairs
[2019] FCCA 3188
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCH17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3188 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether IAA denied applicant procedural fairness – whether the IAA’s decision was illogical or unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pts.5, 7, 7AA, ss.5H, 46A, 424A, 425, 473CA, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476 Migration Regulations 1994 (Cth), reg.4.41 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 NBKT v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 419 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 |
| Applicant: | BCH17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 445 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 445 of 2018
| BCH17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 23 July 2018. The IAA’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise Visa (the “visa”).
The IAA had previously made a decision on 30 January 2017 to affirm the decision of a Ministerial delegate not to grant the applicant the visa. That decision was the subject of a previous judicial review application to this Court. The applicant appealed the decision of this Court to the Federal Court. On 15 March 2018, Justice Rangiah remitted the matter to the IAA for reconsideration. His Honour determined that the IAA’s decision dated 30 January 2017 was impugned with jurisdictional error.
Following the applicant’s case being remitted to the IAA, the IAA reconsidered the application and again determined that it would affirm the decision of the Ministerial delegate not to grant the applicant the visa.
On 24 August 2018, the applicant filed the present application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
Before the Court is the application for judicial review, a 274 page Court Book (which the Court has marked as Exhibit 1) and a written outline of submissions from the Minister dated 1 October 2019.
Background
The Court has read and reviewed the Court Book (“CB”) in preparing these reasons. The Minister’s submissions at [3]-[9] accurately summarise the background to this matter. The Court adopts that background. With minor additions it provides as follows.
The applicant is a citizen of Iraq who entered Australia at Christmas Island on 7 July 2013 (CB 3). The applicant is an unauthorised maritime arrival as that term is defined in the Act.
On 29 July 2016 the then Department of Immigration and Border Protection (the “Department”) sent a letter to the applicant advising that the Minister had lifted the bar under s.46A of the Act. The applicant was invited to apply for the visa (CB 29-30).
The applicant lodged an application for the visa on 8 September 2016 (CB 48-117). The applicant’s claims were expressed in a document titled “Submissions” that was provided with his visa application. His claims were detailed in Part 2 and Part 5 of the Submission. The IAA accurately summarised the claims at [8] of its decision as follows:
He fears that he will be killed by his former employer, Mr S, or by a Shia militia like the Mahdi Army acting on Mr S’s behalf because he (the applicant) continued in a relationship with Mr S’s daughter after Mr S refused the applicant permission to marry Mr S’s daughter and after Mr S told the applicant to stay away from his (Mr S’s) daughter.
It has been submitted that the applicant’s history with Mr S’s daughter means that he would face a real chance of harm because of his membership of a particular social group. The applicant’s then representative has described the particular social group, variously, as: persons who “have transgressed cultural, social or religious norms”; persons who “bring shame” (“persons who have brought upon the family of the woman”); persons who “are in relationships with females outside of marriage situations in Iraq who are victims of honour killing”; and persons “that have ignored repressive social norms and thus who face a high risk of honour killing”; and “men who fear honour killings”.
It has been submitted that beyond this there is a real risk the applicant will be arbitrarily deprived of his life due to either the activities of militias like the Mahdi Army or the currently prevailing high levels of violence throughout the country.
The applicant attended an interview to discuss his protection claims with an officer of the Department on 24 November 2016 (CB 139). The applicant provided a number of documents to the delegate at the interview. Most of these pertained to the applicant’s identity. One document was a news article titled “In Iraq, Honor Crimes Spread to Cities” (CB 158-169).
Following the hearing, the applicant’s representative provided further supporting documentation and a written submission. That submission particularly addressed the applicant’s claim he was a member of a particular social group.
A delegate of the Minister refused to grant the applicant the visa on 15 December 2016 (CB 187-201).
The matter was then referred to the IAA. On 9 January 2017, the applicant’s representative forwarded further submissions to the IAA (CB 217-221). The IAA affirmed the decision of the delegate on 30 January 2017 (CB 228-239).
The applicant made an application for judicial review to this Court. That application was dismissed on 25 July 2017 (CB 240). However, an appeal to the Federal Court was allowed and the Federal Court quashed the IAA’s decision dated 30 January 2017 and remitted the matter to the IAA for reconsideration on 15 March 2018 (CB 241-242). The appeal was allowed on the basis that the IAA had not properly considered whether the applicant was a member of each of the particular social groups of which he claimed to be a member.
On 16 April 2018, the IAA advised the applicant that it would be reconsidering his application (CB 248-249). The applicant was not assisted by a migration agent or lawyer in relation to the reconsideration of his application. No further information was provided to the IAA.
The IAA again affirmed the delegate’s decision on 23 July 2018 (CB 252-268).
IAA Decision
The IAA’s decision is 17 pages long and spans 30 paragraphs. Four pages comprise of the relevant legislative provisions applicable to the visa the applicant seeks. The IAA summarises those provisions within its decision at [9]-[10] (in relation to the refugee criterion) and [27]-[28] (in relation to the complementary protection regime).
The IAA outlined the materials and information before it as follows:
a)the materials given by the Secretary pursuant to s.473CA of the Act (CB 253 at [2]) were considered;
b)the submission dated 9 January 2017 insofar as it engaged in argument with the delegate’s decision and the information before the delegate was considered (CB 253 at [3]);
c)“new information” in the form of an explanation as to why there were inconsistencies in the applicant’s evidence as to the identity of the men he claimed came looking for him in Iraq. This was found to satisfy the requirements of s.473DD and was considered (CB 253 at [4]);
d)two web links that the applicant provided in the 9 January 2017 submissions that were not before the delegate. These were found not to meet the requirements of s.473DD and were not considered (CB 253-254 at [5]);
e)insofar as the applicant claimed to fear harm from his father in law if he returned to Iraq, it was noted that the applicant had never claimed harm of this sort before and there was no explanation as to why this claim was not made previously or the reason for this reversal of his claim that he was never married (CB 254 at [6]). On that basis, the IAA determined that this information did not meet the requirements of s.473DD. The IAA did note that the use of “father-in-law” may well have been an erroneous turn of phrase for Mr S and the harm the applicant feared from Mr S was not a new claim or new information and was considered; and
f)new country information reports on the security situation for Shia Muslim Arabs in Iraq generally and areas specific to the applicant was found to satisfy the requirement of s.473DD and were considered (CB 254-255 at [7]).
At [11]-[15], the IAA extensively detailed the applicant’s evidence as provided in his entry interview, written claims and the interview before the delegate.
At [16], the IAA stated that the applicant’s assertion that his claims repeated those made at the entry interview was not correct. It was noted that the delegate put this to the applicant, and thereafter detailed the applicant’ responses to the delegate’s concerns. The IAA then considered the delegate’s concerns in light of the “new information” that had been provided to explain the inconsistencies. The IAA was not satisfied that the applicant’s explanation for any inconsistencies, or failure to mention the involvement of the Mehdi Army at the entry interview, was persuasive (at [17]).
The IAA raised further concerns with the applicant’s evidence at [18]. It noted that the applicant had given other inconsistent accounts in relation to his core claim and that such “substantive, and many, inconsistencies raise serious doubts about the credibility of the applicant’s claims”. The IAA then noted at [19] that some aspects of the claims were implausible, including the claim that the applicant would have remained employed at the hotel with Mr S’s daughter after having disclosed his interest in the daughter. The IAA explained that the country information indicated that Iraqi families which value honour will guard against any perception or rumour of sexual impropriety where female members of the family are concerned. Hence, it was implausible that the applicant would be allowed to remain working in proximity with Mr S’s daughter.
At [20], the IAA found as follows:
I consider that the credibly of the applicant’s claims in these regards are seriously undermined by both their implausible manner in which the applicant claims to have been allowed to remain in employment at the hotel, and the applicant’s inconsistent evidence about how these matters unfolded. I accept that the applicant worked as a maintenance man at a Karbala hotel but I am not persuaded, and I do not accept, that he was ever involved in a relationship with the hotel owner’s daughter, or that the applicant ever asked the hotel owner for permission to marry his daughter, or that the applicant ever continued a relationship with such or woman or that he was ever threatened by his former employer, the hotel owner, or groups of individuals who the applicant suspected of belonging to the Mahdi Army, or that the hotel owner had any associations with the Mahdi Army or any other Shia militia or political party. I am therefore not satisfied that the applicant would face a real chance of harm of any kind on the basis of any such matters
Having rejected the claim that the applicant was ever in a relationship with Mr S’s daughter, the IAA noted that the basis on which the applicant submitted he was a member of the particular social groups was not established (CB 260 at [21]). The IAA made brief mention of the applicant’s circumstances in Australia, but noted that the applicant had not raised any claim to fear harm on the basis of activities/incidents that occurred in Australia and that these were not relevant to the assessment. In the event they were relevant, they in no way contributed to the applicant facing a real chance of harm on the basis of being identified as a member of a particular social group or for any other reason (CB 261 at [21]).
It was noted that the applicant did not claim to have any specified future interest in transgressing or ignoring cultural, social or religious norms in Iraq and the possibility that upon return to Iraq he might somehow do so, or that he might actually find himself in a future relationship with a woman in Iraq whose family does not approve of their relationship, was too speculative. The IAA was not satisfied that the applicant would ever face a real chance of harm of any kind by way of Iraq’s social norms being “repressive” or for reason of his being, or of his being perceived to be, a member of a particular social group (CB 261 at [21]).
The IAA also considered a claim made by the applicant’s representative that there was a real risk the applicant would be arbitrarily deprived of his life due to activities of the militia like the Mahdi Army or the high level of violence throughout the country. The IAA acknowledged the applicant was a Shia Muslim Arab from an area where the majority of persons were Shia Muslim Arabs (CB 261 at [22]). This claim was considered notwithstanding that the applicant had indicated that there was no basis for him to be claiming to fear harm in Iraq other than because of his relationship with Mr S’s daughter.
After considering the relevant country information (at CB 261-262 at [23]-[24]), the IAA was not satisfied that the applicant would face a real chance of harm of any kind from the activities of the militia like the Mahdi Army or from Sunni insurgent groups or criminals, or from any other actor for any reason, or because of the broader security situation including generalised violence. The IAA noted that the applicant could return to Iraq and arrive at Basra where he could travel through Shia dominated areas of southern Iraq where the security situation is favourable to return to his home area. The IAA concluded that it was not satisfied that the applicant would face a real chance of suffering harm of any kind if he were to return to Iraq (CB 263 at [25]).
The IAA was not satisfied the applicant met the definition of a “refugee” under s.5H of the Act. Hence, the applicant did not satisfy s.36(2)(a) of the Act.
In considering the complementary protection criterion, the IAA relied upon its findings in relation to the claims under the refugee assessment to conclude that it was not satisfied that the applicant would face a real risk of significant harm on return to Iraq. The applicant did not, therefore, meet s.36(2)(aa) of the Act (CB 264 at [29]).
The IAA, accordingly, affirmed the decision of the delegate and refused the applicant the visa.
Proceeding in this Court
It should be recorded that on 9 October 2019 the applicant emailed Chambers requesting an adjournment of the hearing scheduled for 22 October 2019. The applicant stated that he had had a barrister “lined up” but, after receiving the Minister’s submissions, he realised this barrister had not made any submissions. He further advised that, on 1 October 2019, the barrister notified him that he could not take his matter and he had been attempting to retain a barrister since that time, but to no avail. The applicant asked for additional time to find a barrister and provide written submissions.
On 10 October 2019, Chambers responded to the applicant and advised him that he was required to seek consent from the Minister and, if consent was not provided, he was required to make a formal application with supporting affidavit.
No formal application for an adjournment was made.
Shortly prior to the hearing scheduled for 22 October 2019, the Court was advised that an interpreter was unavailable to appear in person. While an interpreter was available by phone, the Court determined that, in circumstances where the Court would need to refer to the Court Book and have complex matters translated to the applicant, the Court required an interpreter in person. The matter was, accordingly, adjourned to 5 November 2019.
Despite now having more time to retain Counsel, the applicant did not do so. No legal representation was obtained and no formal request was made for an adjournment when the matter came on for hearing on 5 November 2019.
At the commencement of the hearing, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s outline of submissions. The applicant was assisted by an interpreter in the Arabic language.
The application for judicial review contains two grounds as follows:
1. That the second respondent failed to afford the applicant procedural fairness in that it diverged from a finding of the first respondent’s delegate dated 15 December 2016 that there was a real chance the applicant may come to the adverse attention of his former fiancée’s father should he return to Kabala in Iraq, without giving the applicant the opportunity to comment further.
2. That the decision of the second respondent was illogical, irrational and unreasonable, in that the second respondent concluded that Iraqis who had returned to Southern Iraq, having failed to received asylum in Australia, did not experience significant problems solely on the basis of a report from the Department of Foreign Affairs and Trade dated 13 February 2015, CISEC 96CF1160.
On 10 October 2018, a Registrar of this Court made orders allowing the applicant to file any amended application, affidavit evidence and an outline of submissions. No materials were filed by the applicant.
Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for a party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that it can only look at whether the IAA fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa the applicant now seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
At hearing, the applicant was invited to explain what he thought the IAA did wrong. The applicant simply indicated that he relied on the grounds in the application and that he had nothing further to add. After hearing from the Minister, the applicant made further submissions to the Court. Those submissions were directed to the merits of the IAA’s decision. The applicant explained his claims to the Court and outlined why he disagreed with the IAA’s decision. He outlined what he says is the current situation in Iraq and said that media reports support what he is saying. Regrettably, these submissions did not address the issue of jurisdictional error. Rather, they sought impermissible merits review.
Consideration
Ground 1
1. That the second respondent failed to afford the applicant procedural fairness in that it diverged from a finding of the first respondent’s delegate dated 15 December 2016 that there was a real chance the applicant may come to the adverse attention of his former fiancée’s father should he return to Kabala in Iraq, without giving the applicant the opportunity to comment further.
The applicant here alleges that he was denied procedural fairness.
In this context, it is helpful to provide a brief overview of the rather limited procedural fairness obligations relevant to the IAA when it conducts reviews under pt.7AA of the Act.
Importantly, the procedural fairness obligations that would be afforded under pt.5 or pt.7 of the Act do not necessarily arise in the context of a review under pt.7AA.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, 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.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made. There is no obligation on the IAA to obtain new information or seek new information: the Act, s.473DB.
The IAA does, however, have a discretion to obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s.473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are found in s.473DD of the Act. If both pre-conditions are not satisfied, the IAA cannot have regard to the “new information”.
Here, the applicant may be suggesting that the IAA has breached s.473DE which is in the following terms:
Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Here, there is no dispute that the basis of the delegate’s decision to refuse the visa differed from the IAA’s decision. The delegate impliedly accepted that the applicant had been in a relationship as the delegate accepted that there would be a real chance that the applicant would come to the adverse attention of Mr S if he returned to his home area. The delegate concluded that it would be reasonable for the applicant to relocate to avoid the chance of coming to the adverse attention of Mr S (CB 196). The basis of the delegate’s refusal was thus that the applicant could safely relocate. It is noted, however, that the delegate did not actually address whether the chance of coming to the adverse attention of Mr S amounted to or would result in significant harm.
The IAA, however, rejected any argument that there was any relationship between the applicant and Mr S’s daughter. Having done so, the IAA “diverged” from the delegate’s finding that the applicant faced a real chance of coming to the attention of Mr S on return.
In circumstances where the applicant has not particularised this ground, the Court interprets the allegation in three ways:
a)the IAA erred in not asking the applicant to comment pursuant to s.473DE (the “first argument”);
b)the IAA erred in not putting to the applicant its concerns and views that it may not accept there was a relationship (a finding that differed from the delegate and was determinative) for comment (the “second argument”); and/or
c)the IAA ought to have invited the applicant to comment pursuant to s.473DC and it was unreasonable not to have done so (the “third argument”).
The First Argument
Section 473DE of the Act is extracted in full above. It is in similar form to s.424A of the Act. It has consistently been stated that s.424A of the Act does not require that the decision-maker put to the applicant for comment subjective appraisals, thought processes or determinations, nor the “prospective reasoning processes” of the decision-maker: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ; SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 at [18].
The IAA was not required to “put” its preliminary views to the applicant under s.473DE as this was not “information”. Further s.473DE is directed to “new information”. Hence, the IAA was not required to put to the applicant under s.473DE matters which it had concerns about (i.e., the applicant’s evidence) where they arose from the materials that were before the delegate.
The Court does acknowledge that when coming to a different finding from that of the delegate, the IAA considered the “new information” in the form of the explanation for the inconsistencies in the applicant’s evidence he had previously given. The IAA used this information in that it did not accept the information and proceeded to make adverse credibility findings.
The IAA was not, however, required to put this information, or its rejection of the information, to the applicant for comment as the “new information” fell into the exception of s.473DE(3)(c). Regulation 4.41 of the Migration Regulations 1994 (Cth) reads:
For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority's review of a fast track reviewable decision in relation to the referred applicant is prescribed.
The “new information” was given to the IAA for the purpose of the IAA’s review, it was, therefore, exempt from the requirements of s.473DE of the Act.
The first argument fails.
The Second Argument
The differing procedural fairness obligations between the Administrative Appeals Tribunal and the IAA under pts.7 and 7AA of the Act are relevant in the context of this argument.
The second argument appears to be based on the principles of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”). In SZBEL, the High Court found that where the Tribunal purports to make a finding on a matter that differs to the delegate, and that finding is dispositive to the matter, the Tribunal is obliged to put the applicant on notice of that issue and invite comment.
In SZBEL, the delegate refused the visa because it was determined the nature and extent of the applicant’s religious practices did not arise to the requisite level of harm. The Tribunal refused the visa because the plausibility of some of the events claimed to have occurred was questionable. The Tribunal never raised any issue with the applicant about the plausibility of his claims.
The circumstances here are not dissimilar. The delegate accepted that the applicant was in a relationship, but rejected the visa on the basis the applicant could relocate. The IAA, like the Tribunal in SZBEL, did not accept the applicant’s claim and rejected it as the basis of any harm. The IAA did not advise the applicant of the issue.
On its face, the IAA appears to have fallen into the same error as SZBEL. However, the basis on which the High Court found the applicant had been denied procedural fairness in SZBEL was that the Tribunal had failed to comply with s.425 of the Act. Section 425 of the Act requires the Tribunal to invite an applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. There is no equivalent section in pt.7AA of the Act, and there is nothing else in the scheme of pt.7AA to suggest that the IAA is required to invite an applicant to comment before it can make a finding that differs from the delegate.
The Minister referred the Court to DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 which echoes the observations the Court has just made. In DBE16 at [61] and [63], Barker J stated:
The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.
…
Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview.
In BJB16 v Minister for Immigration & Border Protection (2018) 260 FCR 116 at [54], the Full Court of the Federal Court described the statutory role of the IAA as follows:
The function of the Authority was to evaluate for itself the “review material” and any “new information” and then to either affirm the delegate’s decision or to remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by reg 4.43 of the Migration Regulations 1994 (Cth).
Hence, albeit limited, the IAA is required to conduct a “de-novo review” on the papers to determine whether the criteria for the grant of the visa are met: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481. The statutory scheme contemplates that the IAA will evaluate the material considered by the delegate for itself and form its own views on those materials.
Here, the IAA clearly did that in taking into account all of the material before the delegate and the “new information” to come to its own factual findings and conclusions as to whether the criteria for the grant of the visa were met.
This Court is bound by the remarks of DBE16 and DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12. There is nothing in the fast track statutory regime of pt.7AA that requires the IAA to notify an applicant that it is considering taking a different view to the delegate, and one that is adverse to the applicant.
Were this matter before the Administrative Appeals Tribunal the Court may have found otherwise; however, in the context of pt.7AA of the Act, there was no obligation on the IAA give the applicant an opportunity to “comment further”.
The second argument fails.
The Third Argument
The third argument arises from the observation of the Full Federal Court in Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 (“CRY16”) concerning s.473DC(3). Section 473DC(3) provides:
(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.
It is accepted that the powers and discretions in pt.7AA, in particular s.473DC(3), must be exercised reasonably. Here, the Court has construed a third argument to be that the IAA unreasonable failed to consider exercising, or exercising, the power under s.473DC to invite the applicant to provide further information on his claimed fear of harm from Mr S and the Mahdi Army.
In CRY16, the Full Court held that it was unreasonable for the IAA not to exercise the discretion under s.473DC(3) of the Act in circumstances where the IAA decided the review on the basis of relocation, a matter that the applicant was not on notice the IAA would be considering and which was ultimately dispositive. The Court held that the IAA erred as the IAA there knew that it did not have, but the visa applicant was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The IAA did not have that information because the question of relocation was not explored or the subject of findings by the delegate.
The circumstances of CRY16 are different to those seen in this case. Here, the basis on which the IAA refused the visa was not because of the absence of information on the particular issue it found dispositive. Rather, it was because of the changing nature of the information and claims that the applicant had provided.
Unlike in CRY16, it is not the case here that the IAA did not have the information on the point it considered dispositive and could have easily ascertained information on the critical issue. Rather, the information provided was the catalyst of the dispositive issue (being the applicant’s credibility) and it was simply not sufficient to satisfy the IAA. The IAA did not consider any new issues that the applicant was not aware of and for which the IAA would require further evidentiary material. It was not for the IAA to seek to obtain further information from the applicant to enable him to remedy any inconsistencies and doubts.
The Court does note, however, that the delegate did raise some issues with inconsistencies in the applicant’s claims and in his evidence. The representative made submissions on certain inconsistencies in the applicant’s evidence and account of events. The IAA considered those submissions and was not satisfied they explained the inconsistencies or alleviated the credibility concerns.
In these circumstances, where the applicant has, in effect, commented and provided information on the matters that he is now suggesting should have been put to him, it cannot be seen as unreasonable to not have exercised the discretion under s.473DC to invite the applicant to comment.
Argument 3, accordingly, fails.
Ground 2
2. That the decision of the second respondent was illogical, irrational and unreasonable, in that the second respondent concluded that Iraqis who had returned to Southern Iraq, having failed to received asylum in Australia, did not experience significant problems solely on the basis of a report from the Department of Foreign Affairs and Trade dated 13 February 2015, CISEC 96CF1160.
Before considering this ground substantively, it should be noted that the applicant did not actually raise a claim to fear harm on the basis of being a failed asylum seeker who would return to Southern Iraq (at [22]). The applicant denounced any such claim in the interview with the delegate. The IAA nonetheless considered it.
The applicant appears to take issue with [25] of the IAA’s decision, which reads:
25. In February 2015 DFAT assessed that southern Iraq (including the provinces of Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi Qar, Muthanna and Najaf) had remained significantly more secure than central Iraq in recent years. DFAT noted that generalised violence occurred in southern Iraq, but at a significantly lower level than in Baghdad. Beyond such relative observations DFAT assessed that in absolute terms Shias in Shia-dominated provinces of southern Iraq face a low risk of generalised violence. A credible international organisation was aware of over 100 Iraqis who had returned to southern Iraq having failed to receive asylum in Australia. That organisation was not aware of any of those returnees facing significant problems. Given that the security situation has only continued to improve since this time, and markedly so, given that the applicant is himself a Shia Muslim Arab who is not associated with any of Iraq’s competing political movements, or their associated clerics and militias, and given that he could return to Iraq via the international airport in Basra, in southern Iraq, and then travel through Shia Muslim Arab dominated areas of southern Iraq, where the security situation is favourable, in order to reach Karbala, and given the favourable security situation for Shia Muslim Arabs in Karbala itself, and more broadly for Iraqis who have returned to southern Iraq after having sought asylum in Australia, I am not satisfied that the applicant would face a real chance of harm of any kind from either the activities of militias like the Mahdi Army or from Sunni insurgent groups or criminals, or from any other actor for any reason, including his being a Shia Muslim Arab who has returned to Iraq after having lived and sought asylum in Australia (where he failed to obtain asylum) or because of the broader security situation including generalised violence. I am therefore not satisfied that the applicant would face a real chance of suffering harm of any kind if he were to return to Iraq. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Iraq.
The only footnoted source in this paragraph is the Department of Foreign Affairs and Trade (DFAT) Country Report: Iraq dated 13 February 2015. However, this paragraph needs to be read in the context of the IAA’s decision as a whole and, in particular, the IAA’s assessment of the security situation in the applicant’s home area.
That assessment commences at [22] of the IAA’s decision. The sources footnoted in the discussion of country information concerning the security situation in Iraq were numerous and was not limited to the DFAT Country Report. The sources included the UK Home Office, United Nations High Commissioner for Refugees, United Nations Assistance Mission for Iraq, UN Office of the High Commissioner for Human Rights and independent source articles.
When one considers [25] in context it is apparent that the IAA did not solely rely on the DFAT Report to make its findings. The IAA refers back to the “favourable security situation” in the applicant’s home area and more broadly in Iraq. This was a finding based on country information that included the DFAT Report and other sources. It cannot be said that the IAA relied “solely” on the DFAT Report.
As for the applicant’s argument that it was illogical and unreasonable to rely on the DFAT Report, the DFAT Report is, in effect, information gathered for the purpose of providing an overview of the situation in a particular country. The information in the Country Information Report was relevant to what the IAA was assessing and there was a logical and probative basis upon which the IAA could rely on the report to inform its findings.
Further, the delegate referred to the DFAT Report to make a similar conclusion to that reached by the IAA on the same issue (i.e., the general security situation in Iraq) (CB 194-195). If the applicant was of the view that it was illogical, unreasonable or irrational (or that it was incorrect information) and the IAA should not base its findings on what was contained in the DFAT Report, he should have put that argument to the IAA. He did not. When considered in this light, ground 2 is simply the applicant arguing or disagreeing with the IAA’s decision and the way in which it arrived at its factual findings. It seeks impermissible merits review.
Finally, as the Minister submits, it is well established that it is a matter for the IAA as part of its fact finding function to assess the evidence before it, including country information, and decide what weight to give to the evidence: NBKT v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 419. There was nothing to suggest that the information was incorrect or unreliable, such that it was illogical or unreasonable to rely upon the DFAT Report.
Ground 2, accordingly, fails.
Conclusion
The grounds articulated in the applicant’s judicial review application do not identify any jurisdictional error by the IAA. The Court has otherwise assessed the IAA’s decision and cannot identify any jurisdictional error more broadly.
The application must be dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 November 2019
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