BEL19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 602
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 602
| File number: | ADG 102 of 2019 |
| Judgment of: | JUDGE YOUNG |
| Date of judgment: | 10 July 2023 |
| Catchwords: | MIGRATION LAW – application for review of a decision of the IAA to affirm a decision of the Minister’s delegate to refuse each of the Applicants a SHEV – where the applicants are citizens of Iran - where the applicants are a husband and wife and their son – where a separate application was made by their daughter – where their daughter was granted a SHEV –– where the applicant claims that certain documents considered by the Minister’s delegate in the daughter’s case were not provided to the Authority in accordance with s 473CB – where the court is satisfied there was jurisdictional error – the decision is quashed. |
| Legislation: | Migration Act 1958 (Cth) s 473 |
| Cases cited: | CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 DUZ17 v Minister for Home Affairs [2019] FCA 1593 |
| Division: | Division 2 General Federal Law |
| Number of paragraphs: | 27 |
| Date of hearing: | 8 June 2023 |
| Place: | Darwin |
| Counsel for the Applicants: | Mr Kenneally |
| Solicitor for the Applicants: | Clothier Anderson & Associates |
| Counsel for the Respondents: | Mr Chan |
| Solicitor for the Respondents: | Sparke Helmore |
| Table of Corrections | |
| 11 July 2023 | An order has been added at Order 1 correcting the name of the First Respondent. |
ORDERS
| ADG 102 of 2019 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | BEL19 First Applicant BEN19 Second Applicant BEO19 Third Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
order made by: | JUDGE YOUNG |
DATE OF ORDER: | 10 July 2023 |
THE COURT ORDERS THAT:
The First Respondent’s name be amended to the Minister for Immigration, Citizenship & Multicultural Affairs.
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 5 March 2019.
A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 14 December 2018.
The First Respondent is to pay the costs of the Applicant fixed in the sum of $7,853.
THE COURT NOTES:
A.These orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 Young:
This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 5 March 2019 to affirm a decision of the Minister's delegate made on 14 December 2018 to refuse each of the applicants a Safe Haven Enterprise Visa (SHEV).
The applicants are a husband, wife and their son, a child. A separate application was made by a daughter, LY, who is an adult. The Minister’s delegate granted her application for a SHEV on 22 June 2018.
BACKGROUND
The applicants are citizens of Iran.
The refugee claims of the applicants and LY stem from the same factual claims. It was said that LY as a 17 year old entered into an arranged marriage with R. It was claimed that R mistreated LY and she resumed a relationship with her former boyfriend, while still married to R. It was claimed that R was suspicious of LY and her former boyfriend and reported them to police. The police are said to have raided the boyfriend's home and found LY in compromising circumstances. It was claimed that she was charged with adultery, convicted and threatened with the death penalty. It was claimed that R’s father, who was said to be a high-ranking figure in the Revolutionary Guard or Sepah, agreed with LY's family that she would be released from prison if she returned to live, temporarily, with R. It was claimed that she would be killed by R’s family. It was claimed that LY was released from jail but fled to Australia with her father, mother and brother.
A delegate of the Minister, who considered LY’s separate claims, accepted her claims and she was granted a SHEV. The Minister's delegate (it is unclear whether it was the same delegate) considered the claims of the applicants, that is LY's father, mother and brother, and while accepting the claims accepted in the case of LY, was not satisfied that LY's family were themselves at any risk of harm should they return to Iran.
On review to the Authority the Authority did not accept as truthful the claims of the applicants, that is, that LY was married to R, that she was charged and convicted of adultery, that she was released from prison on an understanding that she would return to R’s family and possibly be murdered. The Authority concluded, based on the failure to make those claims by the applicants in their entry interviews, that the claims were elaborated and false.
GROUNDS OF REVIEW
The applicants’ amended grounds of review are as follows:
The IAA’s decision is affected by jurisdictional error due to the failure of the Secretary to comply with s 473CB(1)(c) of the Act.
(a)It was a statutory pre-condition to the lawful exercise of the IAA’s powers under review under ss 473CC and s 473DB(1) of the Act that the review material it was required to consider complied with s 473CB of the Act.
(b)The Secretary was required pursuant to s 473CB(1)(c) to provide the IAA any documents in their possession and control that the Secretary considered relevant.
(c)The applicants claimed to fear serious or significant harm for reason of the first applicant’s daughter LY’s marriage to RS (sic – this person is referred to as R in the Authority’s reasons, so hereafter “R”), arrest for committing adultery, and departure from Iran without her husband’s permission.
(d)LY made a protection visa application and:
(i)provided a statutory declaration dated 23 January 2017;
(ii)attended a SHEV interview that was recorded by the Department;
(iii)provided a marriage certificate between her and RS.
(iv)The material at particular (d) was:
(v)in the Secretary’s control or possession;
(vi)relevant to the applicants’ claims; and
(vii)not provided to the IAA by the Secretary.
(e)The IAA either failed to comply with s 473CB(1)(c) by:
(i)failing to conduct reasonable searches to identify relevant material on LY’s file; or
(ii)failing to forward the material to the IAA, or unreasonably forming the view that the material was not relevant.
(f)The error denied the applicants a realistic possibility of a successful outcome on review.
The IAA unreasonably failed to exercise s 473DC to get new information from the Department.
(a)The delegate in refusing the first and third applicant’s protection claims accepted based on the Department granting LY’s protection visa that:
(i)LY was married to R;
(ii)LY was found engaging in adultery;
(iii)LY was arrested and detained by police for adultery; and
(iv)LY was released after R withdrew the charges based on an agreement between R’ father and LY’s father that LY return to R with the expectation that R would kill her to restore the family’s honour.
(b)The delegate told the first and third applicant at the SHEV interview that the facts of LY’s case had been accepted.
(c)The IAA did not accept any of the matters at particular (a).
(d)There was no material relating to LY’s protection visa application or supporting evidence in the review material before the IAA.
(e)The IAA considered exercising and decided not to exercise its power under s 473DC to get new information regarding LY’s protection visa application and decision.
(f)The IAA’s failure to exercise s 473DC to get new information in the form of LY’s protection visa application and supporting evidence from the Department pursuant to s 473DC was legally unreasonable as:
(i)the material before the IAA indicated LY’s file contained material that should have been provided to the IAA pursuant to s 473CB(1)(c); and/or
(ii)the material before the IAA indicated LY’s file contained relevant and potentially probative information that was not before the IAA and could be obtained by an obvious and easy inquiry.
(g)Alternatively to particular (f) the IAA’s reasons for not exercising s 473DC to get new information from the Department were unreasonable and/or irrational as the IAA had no regard to the fact that:
(i)the delegate had assured the applicants’ that LY’s claims would be accepted and told the first and third applicants not to provide evidence regarding LY’s claims that it accepted in particular (a);
(ii)the material provided to the applicants’ suggested the IAA had LY’s protection visa application and evidence before it; and/or
(iii)the material suggested the IAA likely had to consider LY’s protection visa
(iv)application and relevant evidence as it should have been provided pursuant to s 473CB(1)(c)
The IAA legally unreasonably failed to exercise s 473DC to get new information from the first and third applicants
(a)The delegate in refusing the first and third applicant’s protection claims accepted based on the Department granting LY’s protection visa that:
(i)LY was married to R;
(ii)LY was found engaging in adultery;
(iii)LY was arrested and detained by police for adultery; and
(iv)LY was released after R withdrew the charges based on an agreement between R’ father and LY’s father that LY return to R with the expectation that RS would kill her to restore the family’s honour.
(b)The applicants repeats and relies on particulars (b) to (e) in ground 2.
(c)The IAA’s failure to exercise s 473DC was legally unreasonable as the IAA did not have evidence from the applicants as to the matters in particular (a) because the applicants had been reassured such evidence did not need to be provided.
(d)Alternatively, to particular (c) the IAA’s reasons for not exercising the discretion under s 473DC to not get new information being that the applicants had had an opportunity to present their case were irrational or illogical as:
(i)the delegate said in the SHEV interview that LY’s claims had been accepted and told the first and third applicants not to provide further information as to the matters in particular (a); and
(ii)the delegate accepted LY’s claims on the basis the Department had accepted them in the decision.
CONSIDERATION
Ground one alleges that in performing the Secretary’s function under s. 473CB of the Migration Act (the Act) the Secretary acted unreasonably by failing to include in the materials given to the Authority in respect of the applicants’ cases certain documents considered by the Minister's delegate in LY's case: (1) LY’s statement of claims, (2) the recording of her SHEV interview and (3) her certificate of marriage to R (collectively, the materials). It was submitted they were relevant documents in the consideration of the applicants’ claims and the Secretary's failure to include them was legally unreasonable and in consequence the applicants were deprived of the possibility of a successful outcome to their applications.
Section 473CB relevantly provides:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(e)a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(f)material provided by the referred applicant to the person making the decision before the decision was made;
(g)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 Authority) to be relevant to the review;
The applicants submitted that it was common ground that the materials were relevant to the consideration of the applicant's claims and were not provided by the Secretary to the Authority. That was not challenged by the Minister. The Authority expressly recorded that it was not provided with the marriage certificate of LY which was among the documents considered by the delegate in LY's case.
The applicant referred to the reasons of Derrington J in the Full Court decision of CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 as authority for the proposition that documents are relevant if they are probative of an issue:
105 As the obligation of the IAA is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant. Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the IAA is obliged to reach its own conclusions on each matter. Indeed, the relevant material before the IAA may include information which was not considered by the delegate but which is in possession of the Secretary at the time of the referral.
106 The appellant submitted that, at the time of determining whether material is relevant to the review, the Secretary does not know how the IAA would go about its task of finding facts. He submitted that the word “relevant” refers to “material that could affect the IAA’s assessment of a claim, or the probability of claimed event having occurred, or the time when that event occurred”. Based on that formulation, all material which may have any impact on an assessment of the applicant’s claim would be relevant. To the extent that formulation is not inconsistent with the above discussion, so much may be accepted as accurate. However, the requirement is of what the Secretary considers will be relevant to the review and does not require any degree of prescience. The Secretary is not required to guess at what additional issues the applicant might seek to raise by way of new information or new claims. The consideration is based on the circumstances as they exist as at the date the decision is referred to the IAA.
It follows that, for the purposes of s 473CB(1)(c), the relevant material is that which is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of referral. At the least, any material which tends to prove or disprove any of the issues would be relevant.
The Minister submitted that it was not enough that it be possible to identify a chain of reasoning that might make the material relevant but in an attack on the reasonableness of the failure to refer material to the Authority it was necessary to show that there was no evident and intelligible basis for the failure to refer the materials, referring to CQR17 at [39] to [40] (Jagot J):
[39] … The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review. It is not difficult to propose a chain of reasoning by which the document could be relevant. At the time the decision had to be referred to the IAA by the Minister under s 473CA of the Act, the Minister’s delegate had rejected the appellant’s claims (made in his visa application in 2016) to have been beaten whilst being detained. Even a bare approval for torture and trauma counselling from 2013 might have formed a relevant link in a chain of reasoning supportive of the appellant’s claims to have been beaten which, in turn, might have been used in a chain of reasoning to support his claims (as they existed at that time) to have worked in an LTTE owned jewellery store and to be linked to the LTTE through his brother-in-law. In this regard, it is worth emphasising that the test for reasonableness is to be applied at the time the decision was referred to the IAA because this is the time the Secretary had to discharge the function imposed by s 473CB(1)(c). At that time the “new information”, concerning the appellant being an LTTE member operating in a special intelligence unit, did not exist. Nor can it be inferred that this new information, which was sent directly to the IAA, was in the Secretary’s possession or control when the decision was made.
[40] It is also not impossible to identify another chain of reasoning by which the document might be considered irrelevant. It is a bare approval from 2013. Torture and trauma counselling presumably applies to either torture counselling or trauma counselling. It would not be unreasonable to so understand the approval despite the use of the conjunction “and” in the description. There is no evidence of the eligibility criteria for such an approval. Hence, contrary to the appellant’s submissions, it cannot be said that at least one person within the Department must have accepted that the appellant had in fact been tortured. There is no evidence of the appellant having made a claim in 2013 to having been beaten or otherwise tortured. He had claimed to have been detained and the delegate had accepted he had been detained, albeit in a different location from that claimed. The fact of detention, which the delegate had accepted, may have been sufficient to make the appellant eligible for torture and/or trauma counselling. Thus, the approval did not advance the appellant’s claims one way or another. In my view, this kind of reasoning would have been legally reasonable. As a result, it cannot be concluded that the Secretary contravened s 473CB(1)(c) by not having given the documents in question to the IAA on the ground that it was legally unreasonable not to do so.
The Minister agreed that, in retrospect, the materials might be seen as relevant to the applicants’ claims, and even corroborative of them, but the proper test is whether at the time of the Secretary’s referral of materials to the Authority there was “… evident and intelligible justification for the conclusion that the document was not relevant to the review”.
It is in the nature of these applications that there was no direct evidence of the Secretary’s consideration of what material to give to the Authority or what might be relevant or indeed of what material was in the possession or control of the Secretary: as to these matters see Jagot J’s comments in CQR17 at [7] to [24]. However, the Minister accepted that the materials were in the possession or control of the Secretary.
The applicants’ claims arose from the same factual claims made by LY. They were not identical to her claims but were dependent on her claims being accepted.
The Minister submitted that the evident and intelligible justification for the Secretary’s conclusion, it may be inferred, was that the applicants’ applications were made separately, and deliberately so, to LY’s application. It was said that the applicants and LY were represented by the same lawyer or lawyers. Separate written submissions were made on behalf of the applicants and LY. At no time did the applicants seek to have their application considered at the same time or on the same evidence as LY’s application. These matters were not challenged.
The Minister submitted that the Secretary’s view, it might be inferred, was to be understood in the context of the delegate’s decision that, while LY’s claims were accepted, the issue concerning the applicants was whether LY’s “purported in-laws” wanted to harm the applicants. The delegate had concluded they did not. It was submitted that in this context it was not unreasonable of the Secretary to conclude that the materials, which detailed LY’s claims rather than threats to the applicants, were not relevant to that issue.
I do not accept this submission. The review by the Authority was de novo, considering the application afresh. The Authority, as demonstrated in this case, was not constrained by the findings or conclusions of the delegate and was not required, unless it relied on new information, to seek comment from the applicants if the Authority proposed to depart from the findings made by the delegate. In these circumstances there was no justification for the Secretary to conclude that LY’s claims, and the evidence in support of them, accepted by the delegate: LY’s marriage to R, conviction for adultery, detention and threat of death, and which were the foundation of the applicants’ claims, were not relevant to their claims.
Of course, the relevance of the materials is easy to see in retrospect and I accept the submission of the Minister that the matter is not to be judged in retrospect but at the time of the Secretary’s consideration. Nevertheless, by way of illustration, given that the hearing was de novo, it is, in my view, impossible to accept that LY’s marriage certificate, for example, ought not to have been seen as relevant to the review. As the Authority’s reasons show (at [29]), the failure to provide evidence of the marriage: the marriage certificate, was a key factor in the Authority not accepting any of the central allegations of the applicants. I am also unable to accept that the Secretary could reasonably reach the conclusion that the other documents included in the materials were not relevant.
Grounds two and three may be considered together. They allege that it was legally unreasonable of the Authority to fail to exercise its discretion under s. 473DC to get new information, in the case of ground one, from the Department and, in the case of ground two, from the applicants. The “new information” was said to be LY’s protection visa application and supporting evidence.
Section 473BB defines “new information” to have the meaning given by subsection 473DC(1) which provides:
Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(i)were not before the Minister when the Minister made the decision under section 65; and
(ii)the Authority considers may be relevant.
It is unclear whether LY’s claim and evidence in support were before the delegate when the decision was made in this case. The delegate’s reference to LY’s claims and her protection visa interview suggest some familiarity with her claims and the evidence in support of them. The delegate, for example, accepted that the father’s written claims and protection visa interview “corroborate the case presented by [LY]”. It seems, in context, that the delegate meant that LY’s case corroborated the father’s case. This may suggest that the materials were, in fact, before the delegate when the decision was made under s. 65.
I am not satisfied that LY’s claims, and the evidence in support of them, was new information that was not before the delegate and, in that case, no question arises about the Authority’s failure to exercise a discretion to get such information.
Further, the applicants submitted that at the time of their submissions to the Authority they did not know that the information about LY’s claims and the evidence in support was not before the Authority. They say, in submissions, that for this reason the applicants’ representative referred to LY’s application but did not provide it and related information to the Authority. Regardless of the reason, the applicants concede that they did not ask that the Authority exercise a discretion under s. 473 DC(1) to get new information, being LY’s claim and evidence in support, although they asked the Authority to exercise its discretion in relation to other information. There was thus nothing to “trigger” the Authority’s exercise of its discretion: DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [51] (Beach J).
For these reasons I am not satisfied that grounds two and three establish jurisdictional error.
I have found there was an error as alleged in ground one. Although the Authority referred to a variety of strong reasons for rejecting the applicants’ claims as untruthful, I am satisfied that the Secretary’s failure to include, at least, the marriage certificate in the material referred to the Authority was a key factor in the Authority’s conclusion that it was not satisfied that LY married R and this is likely to have had a “cascade” effect on the Authority’s other findings. I am satisfied that the applicants were deprived of the chance of a successful outcome in consequence. The error was material.
There will be an order quashing the decision and an order that the Minister pay the applicants’ costs in the sum of $7,853, according to item 3, Part 2, Schedule 2 of the Rules.
| I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. |
Associate:
Dated: 10 July 2023
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